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34–777 PDF 2007

REAUTHORIZATION OF THE FEDERAL

RAIL SAFETY PROGRAM

(110–5)

HEARINGS

BEFORE THE

SUBCOMMITTEE ON

RAILROADS, PIPELINES, AND HAZARDOUS 

MATERIALS 

OF THE

COMMITTEE ON 

TRANSPORTATION AND 

INFRASTRUCTURE 

HOUSE OF REPRESENTATIVES

ONE HUNDRED TENTH CONGRESS

FIRST SESSION

JANUARY 30 AND 31, 2007

Printed for the use of the 

Committee on Transportation and Infrastructure

(

COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE 

JAMES L. OBERSTAR, Minnesota, Chairman 

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 

ELLEN O. TAUSCHER, California 

LEONARD L. BOSWELL, Iowa 

TIM HOLDEN, Pennsylvania 

BRIAN BAIRD, Washington 

RICK LARSEN, Washington 

MICHAEL E. CAPUANO, Massachusetts 

JULIA CARSON, Indiana 

TIMOTHY H. BISHOP, New York 

MICHAEL H. MICHAUD, Maine 

BRIAN HIGGINS, New York 

RUSS CARNAHAN, Missouri 

JOHN T. SALAZAR, Colorado 

GRACE F. NAPOLITANO, California 

DANIEL LIPINSKI, Illinois 

DORIS O. MATSUI, California 

NICK LAMPSON, Texas 

ZACHARY T. SPACE, Ohio 

MAZIE K. HIRONO, Hawaii 

BRUCE L. BRALEY, Iowa 

JASON ALTMIRE, Pennsylvania 

TIMOTHY J. WALZ, Minnesota 

HEATH SHULER, North Carolina 

MICHAEL A. ACURI, New York 

HARRY E. MITCHELL, Arizona 

CHRISTOPHER P. CARNEY, Pennsylvania 

JOHN J. HALL, New York 

STEVE KAGEN, Wisconsin 

STEVE COHEN, Tennessee 

JERRY MCNERNEY, California 

JOHN L. MICA, Florida 

DON YOUNG, Alaska 

THOMAS E. PETRI, Wisconsin 

HOWARD COBLE, North Carolina 

JOHN J. DUNCAN, JR., Tennessee 

WAYNE T. GILCHREST, Maryland 

VERNON J. EHLERS, Michigan 

STEVEN C. LATOURETTE, Ohio 

RICHARD H. BAKER, Louisiana 

FRANK A. LOBIONDO, New Jersey 

JERRY MORAN, Kansas 

GARY G. MILLER, California 

ROBIN HAYES, North Carolina 

HENRY E. BROWN, JR., South Carolina 

TIMOTHY V. JOHNSON, Illinois 

TODD RUSSELL PLATTS, Pennsylvania 

SAM GRAVES, Missouri 

BILL SHUSTER, Pennsylvania 

JOHN BOOZMAN, Arkansas 

SHELLEY MOORE CAPITO, West Virginia 

JIM GERLACH, Pennsylvania 

MARIO DIAZ-BALART, Florida 

CHARLES W. DENT, Pennsylvania 

TED POE, Texas 

DAVID G. REICHERT, Washington 

CONNIE MACK, Florida 

JOHN R. ‘RANDY’ KUHL, JR., New York 

LYNN A WESTMORELAND, Georgia 

CHARLES W. BOUSTANY, JR., Louisiana 

JEAN SCHMIDT, Ohio 

CANDICE S. MILLER, Michigan 

THELMA D. DRAKE, Virginia 

MARY FALLIN, Oklahoma 

VERN BUCHANAN, Florida 

(II)

SUBCOMMITTEE ON RAILROADS, PIPELINES, AND HAZARDOUS 

MATERIALS 

CORRINE BROWN, Florida Chairwoman 

JERROLD NADLER, New York 

LEONARD L. BOSWELL, Iowa 

JULIA CARSON, Indiana 

GRACE F. NAPOLITANO, California 

NICK LAMPSON, Texas 

ZACHARY T. SPACE, Ohio 

BRUCE L. BRALEY, Iowa 

TIMOTHY J. WALZ, Minnesota 

NICK J. RAHALL II, West Virginia 

PETER A. DEFAZIO, Oregon 

JERRY F. COSTELLO, Illinois 

EDDIE BERNICE JOHNSON, Texas 

ELIJAH E. CUMMINGS, Maryland 

MICHAEL H. MICHAUD, Maine 

DANIEL LIPINSKI, Illinois 

JAMES L. OBERSTAR, Minnesota 

(ex officio) 

BILL SHUSTER, Pennylvania 

THOMAS E. PETRI, Wisconsin 

WAYNE T. GILCHREST, Maryland 

STEVEN C. LATOURETTE, Ohio 

JERRY MORAN, Kansas 

GARY G. MILLER, California 

HENRY E. BROWN, JR., South Carolina 

TIMOTHY V. JOHNSON, Illinois 

TODD RUSSELL PLATTS, Pennsylvania 

SAM GRAVES, Missouri 

JIM GERLACH, Pennsylvania 

MARIO DIAZ-BALART, Florida 

LYNN A. WESTMORELND, Georgia 

JOHN L. MICA, Florida 

(ex officio) 

(III)

(V)

CONTENTS 

Proceedings of:

January 30, 2007 .................................................................................................. 1

January 31, 2007 .................................................................................................. 152

JANUARY 30, 2007

Summary of Subject Matter .................................................................................... 41

TESTIMONY 

Page 

Boardman, Hon. Joseph H., Administrator, Federal Railroad Administration .. 9

Gonzalez, Hon. Charles A., a Representative in Congress from Texas ............... 6

Scovel, Hon. Calvin L., III, Inspector General, U.S. Department of Transportation ..................................................................................................................... 9

Siggerud, Katherine, Director of Physical Infrastructure Issues, U.S. Government Accountability Office .................................................................................. 9

Sumwalt, Hon. Robert L., III, Vice Chairman, National Transportation Safety 

Board, accompanied by Bob Chipkevich, Director, Office of Railroad, Pipelines and Hazardous Materials Investigations, National Transportation 

Safety Board ......................................................................................................... 9

PREPARED STATEMENTS SUBMITTED BY MEMBERS OF CONGRESS 

Brown, Hon. Corrine, of Florida ............................................................................. 65

Costello, Hon. Jerry F., of Illinois .......................................................................... 71

Cummings, Hon. Elijah E., of Maryland ............................................................... 73

Gonzalez, Hon. Charles A., of Texas ...................................................................... 78

Mica, Hon. John L., of Florida ................................................................................ 85

Oberstar, Hon. James L., of Minnesota ................................................................. 90

Walz, Hon. Tim, of Minnesota ................................................................................ 146

PREPARED STATEMENTS SUBMITTED BY WITNESSES 

Boardman, Hon. Joseph H ...................................................................................... 49

Scovel, Hon. Calvin L., III ...................................................................................... 94

Siggerud, Katherine ................................................................................................ 119

Sumwalt, Hon. Robert L., III .................................................................................. 141

SUBMISSIONS FOR THE RECORD 

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

Response to a question from Rep. Shuster ........................................................ 21

Response to a question from Rep. Braley ........................................................... 25

Response to a question from Rep. Napolitano ................................................... 32

Scovel, Hon. Calvin L., III, Inspector General, U.S. Department of Transportation, responses to questions from Rep. Brown ............................................... 111

Siggerud, Katherine, Director of Physical Infrastructure Issues, U.S. Government Accountability Office, responses to questions from Rep. Brown ............ 136

ADDITION TO THE RECORD 

Larson, Steve, Executive Director, California Public Utilities Commission. 

statement .............................................................................................................. 147

Page

VI

JANUARY 31, 2007

TESTIMONY 

Page 

Hamberger, Edward R., President and Chief Executive Officer, Association 

of American Railroads ......................................................................................... 158

Pomeroy, Hon. Earl, a Representative in Congress from North Dakota, accompanied by Jeannette Klier ................................................................................... 152

Rodzwicz, Edward W., President, Teamsters Rail Conference ............................ 158

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

Association ............................................................................................................ 158

Van Dyck, Sharon L., American Association for Justice ...................................... 158

Wytkind, Edward, President, Transportation Trades Department, AFL-CIO ... 158

PREPARED STATEMENTS SUBMITTED BY MEMBERS OF CONGRESS 

Brown, Hon. Corrine, of Florida ............................................................................. 194

Costello, Hon. Jerry F., of Illinois .......................................................................... 199

PREPARED STATEMENTS SUBMITTED BY WITNESSES 

Hamberger, Edward R. ........................................................................................... 200

Rodzwicz, Edward W. .............................................................................................. 233

Timmons, Richard F ................................................................................................ 246

Van Dyck, Sharon L ................................................................................................ 253

Wytkind, Edward ..................................................................................................... 258

SUBMISSIONS FOR THE RECORD 

Hamberger, Edward R., President and Chief Executive Officer, Association 

of American Railroads:

Response to a question from Rep. Brown ........................................................... 221

Response to a question from Rep. Napolitano ................................................... 225

Response to questions from Rep. Walz ............................................................... 230

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

Association, responses to questions from Rep. Brown ...................................... 249

ADDITION TO THE RECORD 

Institute of Makers of Explosives, Cynthia Hilton, Executive Vice President, 

letter, February 15, 2007 ..................................................................................... 266

(1)

REAUTHORIZATION OF THE FEDERAL RAIL 

SAFETY PROGRAM 

Tuesday, January 30, 2007, 

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

RAILROADS, PIPELINES AND HAZARDOUS MATERIALS, 

WASHINGTON, D.C. 

The subcommittee met, pursuant to call, at 2:00 p.m., in Room 

2167, Rayburn House Office Building, the Honorable Corrine 

Brown [Chairwoman of the subcommittee] presiding. 

Ms. BROWN. Good afternoon. The Subcommittee on Railroads, 

Pipelines and Hazardous Materials will come to order. And thank 

you. 

[Applause.] 

Ms. BROWN. Before I begin, I want to introduce my school board 

member from Orlando, Cat Gordon. Cat, would you just stand up? 

I know this is unusual. 

[Applause.] 

Ms. BROWN. And I have school board members from Jacksonville, 

Florida. Would you all stand up? 

[Applause.] 

Ms. BROWN. So at any rate, they’re watching me. 

[Laughter.] 

Ms. BROWN. The Subcommittee is meeting today to hear testimony on reauthorization of the Federal Rail Safety Program. Since 

this is our first meeting of the 110th Congress, I believe this is a 

good opportunity to outline the near-term agenda of the Subcommittee, and our efforts to address many of the transportation 

challenges facing this Country. 

First, let me say how pleased I am to serve as the Chairwoman 

of the Subcommittee on Railroads, Pipelines and Hazardous Materials. I have loved the railroads since I was a child watching the 

Silver Meter pass by my house every day. And I often tease members, pass through my house, we were just that close to it. I am 

also pleased to have the opportunity to work with my Republican 

colleague, Congressman Bill Shuster of Pennsylvania. And you can 

rest assured that the Transportation Committee is one committee 

in this House and this Subcommittee that will be run very bipartisan. We will work together for the good of the people of this 

Country. Thank you for being the Subcommittee Ranking Member. 

The Subcommittee will have an active agenda in the coming 

weeks and months, starting with the reauthorization of the Rail 

Safety program. I have scheduled these two days of hearings to 

give members adequate time to examine the state of rail safety in 

2

the U.S. Additionally, hearings are scheduled for February, including a February 13th hearing on fatigue in the rail industry. It is 

my hope that we can build upon the past bipartisan efforts of the 

Subcommittee and move a rail safety bill through the Committee 

to the floor of the House before the Memorial Day district period. 

Congress last passed legislation to reauthorize the Federal Railroad Administration in 1994. That reauthorization expired in 1998. 

Since that time, the railroad industry has changed dramatically. 

Economic growth and the increase in international trade have led 

to record traffic levels. At the same time, Amtrak and commuter 

railroads, which often operate on freight rail lines, are moving 

more passengers, which means that the system is a lot of pressure 

on our rail system. This has a significant impact on workers and 

public safety. 

According to the FRA, train accidents have increased by 33 percent since 1994. Fatalities and injuries have also increased from 12 

fatalities and 262 injuries in 1994 to 33 fatalities and 734 injuries 

in 2005. It hit an all time high at 1,884 in 2002, due to a train accident in North Dakota. On the other hand, grade crossing accidents 

and relative fatalities and injuries have decreased. 

Of course, when looking at those numbers, we also have to consider the increase in train traffic from 650 million train miles in 

1994 to 790 million train miles in 2005. So we have to look at accident rates. According to the FRA, the train accident rates have increased since 1994, while the grade crossing incident rates have decreased and leveled off since 2002. Forty percent of all train accidents are the result of human factors. Thirty percent are the results of defective tracks. 

I am interested in hearing what the FRA is doing to reduce accidents and what Congress should do to improve the Federal Rail 

Safety program. 

Before I yield to Mr. Shuster for his statement, I want to mention that we have a few members returning to the Subcommittee, 

and a fair number of new members joining us this year. I am looking forward to getting to know each of my colleagues, learning 

about their needs and working together to address their many concerns. 

Mr. Shuster? 

Mr. SHUSTER. Thank you, Madam Chairwoman. First of all, I 

want to congratulate you on your chairmanship. It is going to be 

a pleasure working with you. You and I have worked in the past 

on the T&I Committee. I know you work hard at it, and I certainly 

am looking forward to working with you in a bipartisan way on the 

Subcommittee of Railroads, Hazardous Materials and Pipelines. 

My last Congress, I served on the Economic Development, Public 

Buildings and Emergency Management Subcommittee. I think Ms. 

Norton can attest to the fact that we worked very bipartisanly on 

that subcommittee and as I said, I look forward to continuing that 

work here. As you mentioned, this Committee and all the subcommittees have been able to do that over the history of this Committee. 

I would also like to welcome our new members that are new to 

the Committee. That’s Mr. Gilchrest from Maryland, Mr. Johnson 

of Illinois, Mr. Gerlach from Pennsylvania, and Mr. Diaz-Balart 

3

from Florida, as well as all of our new Democratic members. I look 

forward to working with each and every one of them. 

Today’s hearing is on the reauthorization of the Federal Rail 

Safety program. This subject is both timely and of great personal 

interest. Our Nation’s economy depends on the efficient freight 

transportation system. This is especially true in my home State of 

Pennsylvania, where many industries rely on the freight rail industry. The safe movement of passengers is also a major concern. In 

Pennsylvania, the Keystone Corridor from Harrisburg to Philadelphia was recently upgraded to a high speed rail of 110 miles per 

hour, and we hopefully will see more of those types of projects in 

the near future. And so far today, it has been a great success with 

increased passengers riding that train. 

America already has one of the safest rail systems in the world, 

and according to the latest statistics, last year was one of the best 

on record. I think it is important that when we look at the raw 

numbers, we look at those rates. I think it is clearly, when you look 

at the rates, the increased traffic, increased freight, that this has 

been an extremely safe year. I don’t know that the numbers for 

2006 are out yet, but it appears it is going to be the same as 2050 

or even better. We have to make sure that we keep it that way. 

I want to compliment the folks at the Federal Railroad Administration, the railroads, and in particular, the employees of the railroads. Because that is why we see these fantastic results, all of 

them working together to make sure that we have a safe rail system in this Country. We can’t rest, we can’t sit back on our laurels. 

We have to look forward to seeing and hearing how we can make 

our railroads even safer. 

I look forward to the testimony of our distinguished witnesses 

today. We all appreciate their expertise and their commitment to 

rail safety. Once again, congratulations, Chairwoman Brown. I am 

really looking forward to the coming weeks and months working 

with you. 

Ms. BROWN. Thank you. 

Ms. Napolitano, from California. 

Ms. NAPOLITANO. Thank you, Madam Chairwoman. I wanted to 

be one of the new old Subcommittee members, I have been wanting 

Transportation for many years. I thank you for the opportunity and 

look forward to working with you on all the issues. 

Madam Chairwoman, I ask to submit a statement of Mr. Steve 

Larson, the Executive Director of the California Public Utilities 

Commission, regarding the important role that States can play in 

protecting their citizens by ensuring safe rail operations. 

Ms. BROWN. Without objection, so ordered. 

Ms. NAPOLITANO. Thank you, Madam Chairwoman. 

My district is home to the Alameda Corridor East rail lines. 

Union Pacific and Burlington Northern both have great traffic that 

brings 40 to 50 percent of the Nation’s goods through my whole district. There is over 35 miles, just in one area alone. They of course 

distribute $314 billion in annual trade through those rail lines and 

impact 1.9 million residents in 30 cities. The fact that the last couple of years I have had five derailments, three within my area and 

two just outside my area, indicates to me that there were some 

issues, and I was very heavily involved with the railroad in making 

4

sure that does not happen again. Thank God, we have been accident free for a year and a half. 

The fact that we feel that FRA must implement stricter rail safety regulations by forcing more frequent track inspections and better maintenance, and utilizing new technology to inspect areas of 

track that are currently inaccessible. Also including the research 

and development to ensure that the joint bars are something that 

are taken care of, which is a great issue in my area. We can go 

to the moon, but we have not been able to find a way to inspect 

the joint bars. 

Increase the staffing and reduction in fatigue in hours of service. 

Conversations not only with the rail folks and some of the other 

labor groups indicate that there are loopholes. And we need to ensure the safety not only of our employees on the railroad, but also 

the people that drive through, if you will, where there are trains. 

We need to ensure slower and quieter traffic through urban areas. 

I have nothing but urban. We need to impose tighter standards for 

transporting hazardous materials to prevent unnecessary deaths. 

And we also must assist communities in being able to work out 

how do we improve grade crossing safety, if we are not going to do 

grade separations. 

And then of course, we want to ensure that States must be given 

power to assist in railroad safety. Many States offer additional inspectors and accident prevention training. Why are we not utilizing 

that to a greater degree? 

We look forward to having FRA work with States to improve 

safety on behalf of all of our communities. And of course, grade separations, ensuring that rail crossings, which are the leading cause 

of traffic delays and accidents, are operated, built to improve the 

ability for the cities to continue their business. There are 54 grade 

crossings along the Alameda Corridor East, in my area alone, 54. 

The Alameda Corridor East Construction Authority has 10, 8 working, 2 completed, 10 unfunded to do and the other 34 are nil. That 

means my transportation emergency vehicles are going to be at a 

standstill, because there is no way around it. And we need to ensure that while we are serving the rest of the Country, that my district is not impacted unnecessarily. 

We support whatever the Subcommittee chair is proposing, and 

look forward to working on this issue with all of us, both sides of 

the fence. Thank you, Madam Chair. 

Ms. BROWN. Thank you, and thank you for joining the Committee. 

I want to welcome Mr. Mica, the ranking Republican Member of 

the full Committee. I recognize him for any remarks he may care 

to make. 

Mr. MICA. Thank you so much, Ms. Brown, and congratulations 

on assuming the Chair of this very important Subcommittee of the 

Transportation and Infrastructure Committee. Ms. Brown and I 

were elected together some 14 years ago. We share a very common 

geographic area and a lot of people with the same concerns and 

needs. They all are very proud of you now in assuming this important responsibility. 

I am also pleased to have named Mr. Shuster, the ranking Republican member. I am very proud of him. He has chaired one of 

5

our other subcommittees. I will not be here to see it, but I know 

his picture will be up, actually we could take his dad’s down some 

day and put his up there. Don’t tell him I said that. 

He won’t until he reads the will. 

[Laughter.] 

Mr. MICA. But we know he will do a good job, and working together we can get a lot done. 

And also just a moment for the good of the order, I want to thank 

members on both sides of the aisle who are here, I see Mr. DeFazio 

over there, in learning that we are going to fully fund our TEA-LU 

obligations for highway. I thank everyone. Seventy-three members, 

the largest committee in Congress, signed a letter jointly, Republicans and Democrats. I learned that that has been announced. We 

need to keep it in there, though, as it goes over to see our friends 

on the other side of the aisle. 

But I do thank everyone for their cooperative effort and success 

so far. 

Again, I want to address just for a minute the subject of today’s 

hearing. This of course is the reauthorization of our Federal Rail 

Safety program. The Railroad Subcommittee conducted several 

safety oversight hearings during the past two Congresses. And 

each here, and we found that our Rail Safety program has made 

some significant progress. I think that the Chairwoman has shown 

some of the progress we have made. 

Now, there is always room for improvement. And as we move forward in reauthorization, I would like to set out a couple of principles that I think we should follow. First, as the famous President 

said, Ronald Reagan, if it ain’t broke, don’t fix it. We have to make 

certain that our current program, we build on its successes in safety and that we improve on that, our safety record over the coming 

years. If we propose to try, and I am not disposed to not trying 

something new, let’s make certain it is going to work and be effective. 

Any new program must be based on the latest science. The Federal Railroad Administration has done a great deal of safety research over the past few years, particularly on the important question of worker fatigue. This research could serve as the basis for 

replacement of our antiquated hours of service law, which dates 

back, believe it or not, to 1907, 100 years old. 

My second principle for rail safety reauthorization is the avoidance of unnecessary bureaucratic regulations, i.e., red tape. The 

Government is great at making people file more and more paperwork. But paperwork does not always enhance safety. What we 

truly need is a program to fund advanced safety technologies, such 

as the T18 track inspection car, developed by the FRA. We should 

also be encouraging the installation of state of the art positive train 

separation controls, which can eliminate the cause of a lot of our 

problems, human-caused collisions. 

In closing, I would like to note that one of the worst-run railroads, couldn’t do this, couldn’t get through a Rail Subcommittee 

hearing without saying something about Amtrak, one of the worstrun railroads in the Country is our own Amtrak. During our Committee oversight process in the last few years, we have found numerous safety, mismanagement and maintenance problems in AmVerDate 0ct 09 2002 15:17 Jul 24, 2007 Jkt 000000 PO 00000 Frm 00011 Fmt 6633 Sfmt 6633 P:\DOCS\34777.TXT HTRANS1 PsN: JASON
6

trak’s mechanical department and some of their other operations. 

Some of these issues have been addressed, but Amtrak, again, our 

Government-run passenger service, long distance service and high 

speed service, needs to do much more. 

I should note that my staff and I have spoken in the past to 

President Alexander Kummant and have been assured that Amtrak will address pending safety concerns, like even getting brakes 

that fit Acela. I call on the Federal Railroad Administration to take 

a closer look at Amtrak’s safety record to ensure that it has taken 

every possible corrective action. That is important, because it is not 

just freight, it is people that we move on Amtrak. 

So with those comments, thank you for hearing me out, and congratulations again. 

Ms. BROWN. Thank you, Mr. Mica, Ranking Member of the full 

Committee. I am looking forward, as always to working with you. 

And I want to be clear, Mr. Shuster, that you tell your daddy that 

I didn’t recommend taking his picture down. I want to be clear on 

that. 

[Laughter.] 

Ms. BROWN. I want to yield now to Mr. DeFazio from Oregon. 

Mr. DEFAZIO. Thank you, Madam Chair. Congratulations upon 

assuming the Chair and I have no opening remarks. I am looking 

forward to hearing from the witnesses. Thank you. 

Ms. BROWN. We have sufficient time to put any other remarks 

into the record. 

I would like to, it is my pleasure to welcome Congressman Gonzalez to the hearing this afternoon. The Congressman has spoken 

with me about a number of fatality accidents that occurred in his 

district, and I thought it would be helpful for him to share his concerns with the rest of the Subcommittee as we begin. So welcome. 

TESTIMONY OF THE HONORABLE CHARLIE A. GONZALEZ, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS 

Mr. GONZALEZ. Thank you very much, Madam Chairwoman 

Brown, and congratulations to you, and of course, to Ranking Member Shuster and members of the Committee, thank you for the opportunity of appearing before you. 

I have been in communication with members of this Committee 

for the past few years regarding situations in my district, which is 

half of San Antonio and the surrounding areas, of course. What 

would be my interest in rail safety? May 2004, a derailment near 

Brackenridge High School, 5,600 gallons of diesel fuel are spilled 

near the San Antonio River. Thank God, four tank cars carrying 

propane do not rupture. 

June 2004, Macdona, Texas, which is the southwest side of San 

Antonio. A 40-car derailment, toxic chlorine gas tank ruptures. The 

conductor and two residents die. Fifty people are hospitalized. 

September 2004, derailment near Brackenridge High School 

again. Luckily, no spills. 

November 2004, train collides into the Crystal Storage Company 

building. An accountant sitting at his desk is crushed to death. 

February 2005, in San Marcos, Texas, 40 miles north of my district, a seven-car derailment. Tank cars carrying hazardous mateVerDate 0ct 09 2002 15:17 Jul 24, 2007 Jkt 000000 PO 00000 Frm 00012 Fmt 6633 Sfmt 6633 P:\DOCS\34777.TXT HTRANS1 PsN: JASON
7

rials requiring the evacuation of 200 residents. Again, we are lucky 

that no cars ruptured. 

October 2006, in the heart of my district, down the street from 

where I live. Two homes, after a 17-car derailment, two homes are 

struck and one actually has to be demolished because it wasn’t up 

to code after that. 

What have I learned from those particular experiences? I believe 

that railroad companies pretty well police themselves. There is a 

lack of oversight by the Federal Railroad Administration and that 

the Federal Railroad Administration is not aggressive, it is not 

proactive and many times not engaged, which results in railroad 

companies not compelled to adopt policies or invest in technologies 

to improve rail safety. 

I also recognize the FRA has new personnel. It is under a different watch and I will defer to that. I am talking about some previous experiences with different personnel at the FRA. 

What were some of the problems or issues that were easily identified? FRA is ill-equipped to investigate accidents. The NTSB cannot take up the slack, and that was in conversations with the 

NTSB. They did not say that in so many words. But if you look at 

the number of personnel that they have to assist in the investigations of rail accidents, it is an easy conclusion to arrive at. 

Employee fatigue. Current regulations fail to address unwise or 

abusive practices. I think the Ranking Member has already made 

reference to that. It is, I guess, incomprehensible that we have not 

done anything earlier on this. 

A lack of utilization of positive train controls which override 

human error, which if in fact, a large percentage of the accidents 

are due to human error, fatigue and so on, then why aren’t we 

making that investment in that type of technology that will override that type of error? 

Proper car placement, tank cars being placed away from other 

cars that could result in puncturing the tank cars. And of course, 

the placement of cars based on weight and so on. 

Improved standardized derailment statistics. Definitions, reporting periods and so on. And easier access to that information by the 

general public. What am I referring to? I think you all are more 

knowledgeable about this than I am. But I was looking at statistics. And they said 2005, there were only 33 fatalities at all of 

these accidents throughout the United States. And that was incredible to me. I didn’t understand why the number could be so low, 

when I had heard that the fatalities numbered more in the 700 

range. 

That conductor that died in San Antonio, the two residents that 

died as a result of chlorine poisoning, the accountant that was 

crushed to death by that train, are not part of the 33 fatality statistic. And you say, how is that possible? Because the only ones 

that are counted, they have to be on the train as a passenger or 

as an employee and you have to die as a result of the accident 

itself. Now, if you are in a car, you are not one of those fatalities. 

If you are the resident inhaling the toxic fumes and you die, you 

are not counted. If you are the conductor or the engineer that 

jumps off the train after the accident and still dies in the gaseous 

cloud, you’re not counted as a fatality. 

8

Now, I know that we will have those statistics somewhere else. 

But let’s try to have some reason in arriving at what would be reasonable, comprehensive statistics and reporting. Improved safety 

and security of remote control operated trains continues to be a 

concern. I recognize that some of these issues have been addressed 

of late, but have gone too long ignored. This would be my only caution as we proceed, and I commend you that you are taking the interest early. 

FRA recommendations to railroad companies do not equate to actual regulations. Two, you may hear that last year, the Nation’s 

rail system was on pace to set an annual safety record. All I say 

to that is, as compared to what? We cannot have the attitude that 

it could be worse, because that is what I always encounter. Well, 

it was bad, but it is not as bad as it used to be, or it could be 

worse. I know that the public demands more, and I am hoping that 

this Congress will provide more. 

Again, thank you very much, and I will remain here if you have 

any questions. 

Ms. BROWN. Thank you, Mr. Gonzalez. I guess I just have one. 

As the Subcommittee plans for reauthorization of the Federal 

Rail Safety program, what areas are in need of revision or reform, 

if there were just one or two things that you think need to happen? 

Mr. GONZALEZ. There has to be a priority list, and I understand 

that, Madam Chair. But I always, in thinking through where is 

that information, it is so easily accessible, because all the investigations have been made and all the recommendations have been 

made. NTSB, just the safety recommendations that arose out of the 

accident in Macdona where we lost three individuals, address the 

issue of crew fatigue, including hours of service and scheduling 

issues that take into account crew limbo time, disrupted processes 

and unpredictability of the work schedules. 

Adopt positive train control systems, which we have touched on. 

Examine the impact resistance of steels used in pressure tank cars 

built before 1989 that are still in service. Develop tank car specific 

fracture strength standards, taking into account that these rail 

lines are not going to be relocated in all probability, and they still 

will be going through highly populated areas. The other is implement measures that would minimize forces should an accident 

occur, such as positioning the tank cars away from other cars that 

could actually cause a puncture, which are covered. And of course, 

providing escape breathing apparatus for personnel. 

I would also be looking at how the FRA is going to deal with 

what I refer to as the disciplinary action, or the corrective action, 

as opposed to the way that they have done it in the past, where 

they reach these agreements, but nothing ever really occurs. I do 

not think they are really followed, I do not think they are scrutinized, and I do not think that anything happens for failure to comply. 

So it is just a smorgasbord out there that this Committee needs 

to establish the priorities. 

Ms. BROWN. Thank you. 

Mr. Shuster, do you have any questions? 

Mr. SHUSTER. No, ma’am, no questions. Thank you. 

Mr. GONZALEZ. Thank you. 

9

Ms. BROWN. Ms. Napolitano? 

Ms. BROWN. Congressman, on the derailings in your district, 

were there any specific concerns with the life of the rail, or any of 

the performance of the joint bars, besides the fatigue? 

Mr. GONZALEZ. My understanding is that there was some allegation about the condition of the tracks, but I do not think that was 

found to be a valid concern. There were some considerations regarding the signals and such. That investigation of the Macdona 

incident is quite interesting, that is the findings of the National 

Transportation Safety Board. 

But no, I do not believe, and we have individuals from the Board 

here that could elaborate on that. I don’t believe the condition of 

the tracks or the equipment that was used was at fault. 

Ms. NAPOLITANO. Thank you, Madam Chair. 

Ms. BROWN. Thank you very much, Mr. Gonzalez, for coming. 

Mr. GONZALEZ. My pleasure. Thank you. 

Ms. BROWN. Would our second panel please come forward? 

We are pleased to have a distinguished panel of witnesses this 

afternoon. Before I introduce them, I will ask unanimous consent 

to allow 30 days for all members to revise and extend their remarks and to permit the submission of additional statements and 

materials by members and witnesses. 

Without objection, so ordered. 

I would like to welcome the Honorable Joseph Boardman, who is 

the Administrator of the Federal Railroad Administration. Welcome. 

We will have the Honorable Robert Sumwalt, who is Vice Chairman of the National Transportation Safety Board. He is accompanied by Bob Chipkevich, who is the Director of the Office of Railroad, Pipelines and Hazardous Materials Investigations at the 

NTSB. 

And we have the Honorable Calvin Scovel, who is the Inspector 

General of the U.S. Department of Transportation. 

Finally, we have Ms. Katherine Siggerud, who is the Director of 

Physical Infrastructure Issues for the U.S. Government Accountability Office. 

Let me remind the witnesses to limit their oral statements to five 

minutes. Your entire statement will appear in the record. We will 

also allow the entire panel to testify before questioning. 

Administrator, you may begin. 

TESTIMONY OF THE HONORABLE JOSEPH H. BOARDMAN, ADMINISTRATOR, FEDERAL RAILROAD ADMINISTRATION; THE 

HONORABLE ROBERT L. SUMWALT, III, VICE CHAIRMAN, NATIONAL TRANSPORTATION SAFETY BOARD, ACCOMPANIED 

BY BOB CHIPKEVICH, DIRECTOR, OFFICE OF RAILROAD, 

PIPELINES AND HAZARDOUS MATERIALS INVESTIGATIONS, 

NATIONAL TRANSPORTATION SAFETY BOARD; THE HONORABLE CALVIN L. SCOVEL, III, INSPECTOR GENERAL, U.S. DEPARTMENT OF TRANSPORTATION; KATHERINE SIGGERUD, 

DIRECTOR OF PHYSICAL INFRASTRUCTURE ISSUES, U.S. 

GOVERNMENT ACCOUNTABILITY OFFICE 

Mr. BOARDMAN. Madam Chairwoman, I also congratulate you. 

Being here the last year, and I think the most often witness, I 

10

know you were sitting on the other side, and congratulations. 

Thank you for having me here today. 

Ranking Member Shuster, I also appreciate being here with you 

today and all the members. 

And the full Committee Chair, Mr. Oberstar, thank you for being 

here. 

In your opening remarks, Madam Chairwoman, you talked about 

the fact that the reauthorization bill expired in 1998. We are allowed, as FRA, because of the Appropriations Act that we deal with 

each year, to have the legislative and legal authority to operate the 

safety program for the United States. DOT submitted proposals in 

1998 and 1999 and 2002 and in 2003 for a reauthorization of the 

bill, but none of those were accepted or adopted. No action occurred 

in the 108th or 109th Congress, except for S. 1402. The FRA has 

a proposal in clearance now, and we look forward to working with 

the Committee on the bill in the future. 

The leadership of this Department and this Agency has changed. 

The most recent change in leadership in the Department is a new 

Secretary, Mary Peters. Her interest and support in rail safety generally, and rail safety specifically, are very strong and I appreciate 

being here for her. The FRA is to rail, quite frankly, because of the 

railroad model, what the FHWA and what the FMCSA and the 

NHTSA operations combined are to roadways. In addition, private 

railroads handle their own tasks, tasks that in the highway model 

are done by the State DOTs for the highways, and by the FAA for 

aviation. Railroading is much older than that. 

In many of the safety areas themselves, tank cars as an example, 

the railroad industry has an important safety delegation that 

they’ve been handling for 40 years or more before the DOT had actually been in existence. And yet the most important part of what 

I want to talk about today are the FRA and its people. The people 

that do a job with excellence, with integrity, with teamwork and 

with partnerships, whether it’s with a State or the industry or 

among themselves and among these agencies. 

We are staffed at approximately 800, with 500 of them in the 

field, an inspection staff of approximately 400 in 8 regions who are 

experts in track, signal and train control, motive power and equipment, operating practices, and hazardous materials. We have 18 

full-time grade crossing specialists and supervisory and support 

staff. 

It is a small agency, but it demonstrates an ability to deliver, I 

think, big results. Especially with our State partners, there are another 160 inspectors out in the field as well. 

The FRA works every day to reduce both the frequency and severity of railroad accidents. And real progress, I can tell you, is 

being made in implementing our National Rail Safety Action Plan 

and our Grade Crossing Action Plan. Passenger safety rulemaking 

and other key initiatives are also making railroads safer today. 

In the National Rail Safety Action Plan, the strategy was to target the most frequent, high-risk causes, focus oversight and inspection better, and accelerate research to reduce risk. Our initiatives 

encompassed, and I will talk a little bit about that in my answers, 

I think, to reduce human factor accidents, improve track safety, imVerDate 0ct 09 2002 15:17 Jul 24, 2007 Jkt 000000 PO 00000 Frm 00016 Fmt 6633 Sfmt 6633 P:\DOCS\34777.TXT HTRANS1 PsN: JASON
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prove hazmat safety and preparedness, better focus our inspections 

and improve highway rail grade crossing safety. 

I appreciate the opportunity to speak today and I will answer 

your questions as you choose. 

Mr. SUMWALT. Good afternoon, Chairwoman Brown, Ranking 

Member Shuster and members of the Subcommittee. I am Robert 

Sumwalt, I am the Vice Chairman of the National Transportation 

Safety Board. With me today is Mr. Bob Chipkevich, Director of the 

NTSB’s Office of Railroad, Pipeline and Hazardous Materials Investigations. Thank you and your staff for focusing on the important issue of safety of our Nation’s railways. 

Let me begin by saying that railroad fatigue is an important 

issue at the Safety Board. Fatigue has been on our most wanted 

list since 1990, and as you know, fatigue is widespread in every 

mode of transportation, especially rail crashes. The Safety Board 

most recently addressed this issue in the collision of two freight 

trains at Macdona, Texas in 2004 where three people died from 

chlorine gas inhalation. The Safety Board determined that train 

crew fatigue was the probable cause of the accident. Contributing 

to their fatigue was the train crew members’ failure to obtain sufficient rest prior to reporting for duty because of their ineffective use 

of off-duty time and train crew member scheduling practices that 

inverted the crew member rest periods. The unpredictability of 

train crew member work schedules may have encouraged them to 

delay obtaining rest. 

The Safety Board also found that the minimum rest periods prescribed by Federal regulations do not take into account either the 

rotating work schedules or the accumulated hours spent working 

and in limbo time. As a result of this investigation, the Safety 

Board recommended that the FRA require railroads to use scientifically based principles when assigning work schedules to train crew 

members. 

The Board also recommended that the FRA establish requirements that limit train crew member limbo time. The FRA responded that it lacked the statutory authority to adopt the requirements contemplated by either of these recommendations. 

I would like to now briefly discuss transporting hazardous materials by rail. Following catastrophic railroad accidents in the 1970s, 

safety mandates, such as shelf couplers, head shields and thermal 

protections have improved the performance of tank cars during 

derailments. However, despite these improvements, recent accidents such as those in Macdona, Minot, North Dakota and 

Graniteville, South Carolina, have all raised new concerns about 

the safety of transporting hazardous materials in tank cars. 

The Minot accident resulted in the catastrophic failure of five 

tank cars. The nearly instantaneous release of almost 150,000 gallons of anhydrous ammonia created a toxic plume that affected 

nearly 12,000. The low fracture toughness of the steel used for the 

tank shell cars that catastrophically ruptured contributed to their 

complete fracture and separation. The Board issued four safety recommendations to FRA to improve tank car performance. 

In 2005, a train in Graniteville, South Carolina encountered an 

improperly aligned switch, resulting in a head-on collision with a 

parked train. A tank car filled with chlorine was punctured and a 

12

vapor cloud filled the area. Nine people died as a result of chlorine 

gas inhalation and approximately 5,400 residents were evacuated 

for days. The Board found that the steel in the tank shell of the 

punctured chlorine car in Graniteville had a fracture toughness 

that was significantly greater than the toughness of the ruptured 

cars in Minot. These improved steel qualities in the Graniteville accident did limit the size of the tank rupture, but it also demonstrated that even the strongest tank cars in service today can be 

punctured in accidents involving moderate train speeds. 

Therefore, we recommended that the FRA require operating 

measures, operating measures such as positioning tank cars toward 

the rear of trains and reducing speeds through populated areas to 

minimize impact forces from accidents, and to reduce the vulnerability of tank cars that are carrying gases that are poisonous by 

inhalation. However, we are disappointed in the FRA’s lack of enthusiasm to closely examine how operational measures can be used 

to reduce these risks. 

Finally, the need for positive train control systems has been on 

our most wanted list for 17 years. Our accident investigations have 

long identified human performance failures, and PTC provides 

needed safety redundancy to compensate for human error. Last 

year, several railroads announced that it is time for the industry 

to move forward on PTC. And on January 8th, the FRA announced 

its approval of a positive train control system for a major railroad, 

over 35 specific lines in 17 States. 

The Board is encouraged by these recent developments and we 

urge the industry to move aggressively to install these systems. 

Madam Chairman, this completes my statement and I look forward to your questions at the appropriate time. Thank you. 

Ms. BROWN. Thank you. Mr. Scovel? 

Mr. SCOVEL. Chairwoman Brown, Chairman Oberstar, Ranking 

Member Shuster and members of the Subcommittee, we appreciate 

the opportunity to testify today on the reauthorization of the Federal Railroad Safety Program. 

I wish to note that I am new to the position of Inspector General 

in the Department of Transportation. I have identified surface safety as a key area where the Office of Inspector General can make 

a significant contribution to the work of the Department and to the 

Congress’ oversight responsibilities. I am pleased that my first opportunity to testify before Congress may assist this Subcommittee 

in its important work in improving rail safety. 

As the FRA Administrator noted today, the rail industry’s safety 

record has improved, but significant train accidents continue to 

occur and the train accident rate has not shown sustained improvement in recent years. Although 2005 saw a downtick, the overall 

data for 1995 through 2005 show that train accidents increased by 

31 percent and the rate of train accidents per million train miles 

traveled grew by 11 percent. 

Today, I will focus on two issues that we see as key for reauthorization--(1) improving grade crossing safety and (2) better targeting 

of FRA’s oversight by identifying patterns of safety problems 

through data analysis. 

On average, one person dies and three people are injured in the 

United States every day in grade crossing collisions. This category 

13

ranks second highest on the list of causes of train accident fatalities, exceeded only by trespassers. Grade crossing collisions resulted in 42 percent of all train accident fatalities from 1995 

through 2005. 

The railroads and FRA, and in some cases states can do five 

things to further reduce collisions and fatalities. First, ensure compliance with reporting requirements. Our ongoing work continues 

to identify significant problems with the completeness of reporting 

by the railroads to both the National Response Center and FRA’s 

accident reporting system. For serious collisions, immediate notification to the National Response Center is required. 

We found, however, that between May 2003 and December 2004, 

21 percent of serious collisions were not reported. Further, timely 

and accurate reporting to FRA’s accident reporting system, where 

all grade crossing accidents are required to be reported, ensures 

that FRA and the states have information on which to identify dangerous crossings and emerging accident trends. Yet, we identified 

12 railroads between 1999 and 2004 that did not report 139 grade 

crossing collisions to FRA on time. Some were reported nearly 3 

years late. This is clearly an area where additional enforcement 

and civil penalties should be considered. 

Second, develop strategies to increase FRA’s involvement in 

grade crossing collision investigations. FRA does not have the resources to deploy inspectors to the site of every grade crossing collision. As a result, FRA relies heavily on reports submitted by the 

railroads themselves. We have recommended that FRA take additional steps to broaden its review of those reports, for example, by 

verifying information supplied by the railroads using information 

obtained from independent sources such as police reports. Although 

FRA has stepped up its efforts in the last 2 years, it investigated 

less than 1 percent of collisions which highlights the need for 

verification of railroad-supplied information. 

Third, work with states to establish laws to address sight obstructions. Our work identified 27 states that currently lack statelevel laws addressing sight distances at grade crossings where no 

active warning devices are present. FRA data show that sight obstructions, such as vegetation growth, may have contributed to 688 

collisions from 2001 to 2005. FRA should establish national standards in this area and promote state laws adopting them. 

Fourth, establish mandatory reporting requirements for FRA’s 

national grade crossing inventory system. In June 2004, we recommended that the Department improve the accuracy and completeness of FRA’s national grade crossing inventory, particularly 

the identification of all public grade crossings and the type of warning devices in place, in order to better monitor high-risk crossings 

and make improvements. An accurate inventory is also important 

because SAFETEA-LU funding is tied to the number of crossings. 

This will require joint action by the Federal Highway Administration and FRA. 

Fifth, require states with the most dangerous grade crossings to 

develop and an action plan. This past year, FRA worked with Louisiana on what appears to us to be a successful pilot project on a 

grade crossing safety action plan. FRA should aggressively expand 

this effort to other states. 

14

Now, let me turn to the second issue we see as key for reauthorization. FRA must aggressively implement its data-driven approach 

and trend identification. By using trend analysis to track predictive 

indicators and problem areas, FRA could identify potential safety 

′′hot spots.′′ Chairwoman Brown, I see that I am almost out of time. If I may 

ask for another minute, I think perhaps I can wrap up. 

Ms. BROWN. Without objection. 

Mr. SCOVEL. Thank you. 

For example, circumstances related to the January 2005 Norfolk 

Southern hazmat accident in Graniteville, South Carolina, both illustrate and underscore the value of trend analysis. Even though 

FRA began issuing safety advisories 5 days after this accident, this 

was a reactive measure. Had FRA used the data it already had--

that switch problems started trending up in 1997 and took a large 

jump in 2003--it could have addressed these problems at least 2 

years before the accident occurred. 

FRA has taken action on the recommendations contained in our 

previous reports. As the Administrator stated in his testimony, 

FRA recently launched its National Inspection Plan. This is a step 

in the right direction. It is too soon, however, to tell exactly how 

effective these measures will be in the long term. We plan to audit 

FRA’s progress as it continues to implement its National Inspection 

Plan. 

Chairwoman Brown, that concludes my statement. I would be 

pleased to answer any questions. 

Ms. BROWN. Thank you. 

Ms. Siggerud? 

Ms. SIGGERUD. Madam Chairwoman, Chairman Oberstar and 

Ranking Member Shuster and members of the Subcommittee, 

thank you for inviting me to participate in this hearing today to 

discuss FRA’s rail safety oversight activities. 

In recent years, a number of serious accidents raised concern 

about the level of safety in the railroad industry. In contrast to previous decades, during the past 10 years, we have not seen much 

progress on reducing the rate of train accidents. While we saw that 

FRA has recently undertaken or planned several actions that look 

promising, I would emphasize that it is important to make progress 

and soon on rail safety. 

My statement today is based on a report we issued last Friday 

that provides an overview of FRA’s safety program. Our report covered three topics. First, how FRA focuses its efforts on the highest 

priority risks and planning of safety oversight; second, how FRA 

identifies safety problems on railroad systems; and third, how FRA 

assesses the impact of its oversight efforts. With regard to focusing 

on the highest priority risks, FRA has undertaken or planned initiatives that are aimed at addressing the main causes of accidents. 

The agency’s overall strategy for targeting its oversight is the National Rail Safety Action Plan, issued in 2005. In our view, this 

plan includes elements of a reasonable framework for guiding the 

agency’s efforts. 

In 2005, 72 percent of our train accidents were attributable either to human factors or track defects. FRA has initiatives to address both these causes. These include new regulations on emVerDate 0ct 09 2002 15:17 Jul 24, 2007 Jkt 000000 PO 00000 Frm 00020 Fmt 6633 Sfmt 6633 P:\DOCS\34777.TXT HTRANS1 PsN: JASON
15

ployee errors, such as improperly positioned switches and the new 

fatigue model that can be used by railroads to improve train crew 

scheduling practices. For track, FRA is acquiring two additional 

track inspection vehicles that can precisely track and also has developed new regulations on inspecting continuous welded rail track. 

However, most of these initiatives have not yet been fully implemented and their impact on safety will probably not be apparent 

for a number of years. Furthermore, several of these key efforts depend on voluntary action by railroads. 

In addition, FRA has already initiated a new approach for planning inspections that uses trend analyses of accident inspection 

and other data in order to focus inspectors’ efforts on locations that 

are likely to have safety problems. This approach allows FRA to 

better target the greatest safety risks and to make more effective 

use of its inspectors. However, it is not clear yet whether the new 

approach will lead to prioritization of inspections across the Nation 

or yet to improve safety. 

Turning now to how FRA carries out its safety oversight, the 

agency identifies safety problems mainly through routine inspections that determine whether operating practices, track and equipment meet minimum safety standards. Because FRA is a small 

agency in relation to the railroad industry, FRA’s inspections can 

cover only about 0.2 percent of railroads operations each year. 

These inspections do identify violations and result in railroads paying fines and taking corrective actions. 

However, the inspections are not designed to determine how well 

railroads are managing the types of safety risks throughout their 

systems that can lead to accidents. Other organizations, such as 

the American Public Transportation Association, ##@@## and DOT 

and Transport Canada have implemented approaches to oversee 

the management of safety risks by U.S. commuter railroads, pipelines and Canadian railroads, respectively. Such risk management 

programs require the industry to improve system-wide safety by 

identifying and assessing safety risks and prioritizing them, so that 

their resources may be allocated to address the highest risks first. 

These oversight approaches complement, rather than replace, traditional compliance inspections, and therefore provide additional assurance of safety. 

With regard to how FRA assesses the impacts of its oversight efforts on safety, the agency uses a broad range of goals and measures. For example, it has recently developed new goals that target 

its inspections and enforcement efforts at reducing various types of 

accidents, and measures to track its progress. However, FRA lacks 

measures in the direct result of its inspection and enforcement program, such as to the extent to which they have resulted in correction of safety problems. 

Under FRA’s current focus enforcement policy developed in the 

mid-1990s, inspectors cite a small percentage of their identified defects, about 3 percent in 2005, as violations that they recommend 

for enforcement action, generally through civil penalties. This policy relies on cooperation with the railroads to achieve compliance 

and it is intended to focus FRA’s enforcement efforts on those instances of non-compliance that pose the greatest hazard. However, 

it is not clear whether the number of civil penalties issued or their 

16

amounts are having the desired effect on improving compliance. 

Because it has not evaluated its enforcement program, FRA is 

missing an important opportunity to obtain valuable information 

about its performance and any need for adjustment of the programs. 

In the report we issued last week, we recommended that FRA 

first develop and implement measures as a direct result of its inspection and enforcement programs and second, evaluate these programs. As part of our recommendation follow-up activity, we will 

work toward FRA’s adoption of these recommendations. 

Madam Chairwoman, that completes my statement. I am happy 

to answer any questions you may have. 

Ms. BROWN. Thank you. 

Now, it is my pleasure to introduce our distinguished full Chair, 

Mr. Oberstar. Let me just note that Mr. Oberstar started in this 

Committee, as a staffer, 44 years ago, and now he is going to have 

his picture up on the wall. 

[Laughter.] 

Ms. BROWN. Mr. Oberstar. And in your remarks, will you give us 

an update on the funding of TEA-LU? 

Mr. OBERSTAR. Thank you, Madam Chair. Congratulations on 

your first hearing. You have demonstrated your commitment to the 

rail issue over the several years that you have served on the Committee on Transportation and Infrastructure, and you served as the 

Ranking Member in the last two Congresses. I am very impressed 

with your work and commitment to the issues of rail and rail safety. I congratulate you on assuming the chairmanship. You have 

your work cut out for you, it is going to be a very busy session. 

And I want to welcome Ranking Member Shuster in this new capacity. He was chair of the Economic Development and Public 

Buildings Subcommittee in the past Congresses. I know that big 

rail yard in his district where we had a hearing early on in his 

service in Congress, he has a very deep personal and professional 

district interest in rail and rail management and rail safety issues. 

We are going to have a very busy session of Congress on rail 

issues and spend a good deal of time on the wide range of matters, 

including Amtrak, which will be a subject of this Committee’s affections in the coming session. 

I should also express my appreciation to Mr. LaTourette for his 

chairmanship. I did that this morning at the Coast Guard hearing, 

but thank you again for your leadership over the past several years 

on the Rail Subcommittee issues. 

I was very interested, I read through at length, Mr. Boardman, 

your list of initiatives that FRA has undertaken. I want to compliment you on the action taken. I must say that many of these 

have been a long time coming. Some were in the works, other initiatives have been on the shelf for quite some time. But you are 

certainly moving in the right direction. I want to, as I have done 

previously, emphasize the human factors in rail safety. Not just in 

rail safety, but in trucking, in aviation, in maritime, in inland waterway navigation systems, in everything in transportation. Airline 

pilots, flight attendants, air traffic controllers all are subject to the 

limitations of the human body, which has not evolved enormously 

over the last 50,000 years. We are still subject to the circadian 

17

rhythms to which our bodies respond. You cannot push the human 

body much beyond those limits for a very long period of time, or 

something fails. 

I remember myself as a college student working in the iron ore 

mines in Minnesota, in the midnight shift, the graveyard shift, we 

called it. I was stationed on what we called the rock dumps, where 

the trains were bringing gondolas of waste rock from the mines. I 

was at a switch where we had to direct the trains into one of three 

dumps. And at 2:00 or 3:00 in the morning, even as a 20 year old 

with a lot of energy, a lot of vigor, I finally resorted to marking 

down on sheets which dump I had which train on. 

And then I wasn’t sure. It just scared the liver out of me that 

I might send a train up and rear-end somebody and kill a person. 

I never did. Those periods, however, of switching trains were interrupted by the responsibility then to, in a rain storm, take a 90 

pound jack on your shoulder and go up to the end of the track and 

jack up a track that had slipped away and put rock under it to support it. That kept you awake for the next few hours. 

But what we have seen in failure after failure is, in all the modes 

of transportation, is the fatigue. Vince Lombardi said it very well: 

fatigue makes cowards of us all. He didn’t mean the cowards in 

failure to, the courage to stand up, makes us less able to assess, 

confront, anticipate, respond to, be nimble, be effective in that moment of crisis when it’s needed. That is a major responsibility of 

FRA, and of the NTSB. 

Mr. Sumwalt, in your testimony, which was well done and highlighted with very keen specifics, addressed that issue. And Mr. 

Chipkevich, over the years, you have been a great asset to this 

Committee in your work at the NTSB and we are grateful for your 

service, your professionalism. Mr. Scovel, I appreciated the opportunity to visit with you shortly after you assumed the position as 

IG. As a former Marine, you understand fatigue. You drove people 

to the point of breaking. 

[Laughter.] 

Mr. SCOVEL. I will claim the fifth on that one, sir. I am glad my 

former subordinates are not here today. 

Mr. OBERSTAR. But you also understand that the FRA has to 

take action on these initiatives that it has set forth and to conduct 

vigorously its responsibility of oversight of the industry. 

Mr. SCOVEL. Indeed it should, sir. We have identified a couple of 

areas in our testimony where we believe the Federal Railroad Administration can target its oversight better and increase its enforcement efforts. 

Mr. OBERSTAR. Ms. Siggerud, GAO has once again provided a 

great service to transportation in this excellent report on rail safety, much of which I have read. I still have about half of it to go 

through. But it is an excellent blueprint for action as we move forward on the reauthorization. I look forward to your continued participation and thank you for your testimony. 

Ms. SIGGERUD. Thank you. 

Mr. OBERSTAR. And you asked me, we did very well, I must say, 

colleagues, in the Appropriations Committee consideration of the 

continuing resolution. We have the $39 billion funding that equals 

the authorization level for highway and transit accounts in 

18

SAFETEA-LU, $35 billion in the highway account and $4.3 billion 

something in the transit account. So the solidarity of the members, 

Democrats and Republicans on this Committee, I think had its effect with the Appropriations Committee. Now when that bill comes 

to the House floor tomorrow, we all have to get up and vote for it. 

We asked them to fully fund, they have, and now we have to support it. 

Thank you. 

Ms. BROWN. Thank you for your leadership, Mr. Chairman. 

Mr. Shuster. 

Mr. SHUSTER. Thank you very much. 

Mr. Scovel, you said that at the centerpiece of rail safety is grade 

crossings. I wondered, it seems to me to be extremely difficult because of the people doing dumb things, trying to outrun trains, in 

some cases you may have the town that is responsible for some of 

the signage that doesn’t put signs back up and don’t participate. 

You laid out five points, I think it was five points, on what we 

need to do. You talk about other things that we can do today, because it is impossible to put a bridge over a tunnel under everywhere a railroad crossing is. It is just a fact of life. I know we have 

had education problems out there. So if I could get you to comment 

on what we can specifically do to improve and diminish fatalities 

and accidents at railroad crossings. 

Mr. SCOVEL. Yes, sir. If I may elaborate on the five points that 

I outlined in my oral statement, there are approximately 3,000 

grade crossing accidents a year, one fatality and three injuries 

every day. Those numbers are down since 1995, but they are up 

during recent years 2003 through 2005. 

With better enforcement of Federal reporting requirements, we 

believe that FRA will be able to better identify dangerous grade 

crossings and target its enforcement efforts, its remedial efforts, 

and use SAFETEA-LU funding to improve conditions on those. I 

think you are absolutely right, Mr. Shuster, when you say that 

there are certainly people who will do dumb things, to use your 

term. Knowing human nature, we cannot prevent that. 

However, there are far too many people who have been caught 

at grade crossings that haven’t been sufficiently marked or where 

vegetation has overgrown the roadway approach to the crossing. 

And because the sight distances have not been maintained, a train 

caught them unaware. And these are truly innocent people. 

So we have two broad categories. One, certainly people that we 

regret losing, but the second category, most certainly people who 

are truly innocent victims in their loss. 

Reporting requirements. There are two categories of reporting requirements. One concerns serious collisions and I mentioned those 

earlier. Those must be reported to the NRC within 2 hours. In November 2005, we reported that 21 percent of serious cases were not 

reported at all. It is disturbing to think that probably those serious 

cases were reported to railroad company authorities, to the operations center, to a dispatch center, to corporate headquarters, to a 

general counsel, to the company’s insurance company. Yet, the Federal agency responsible for determining whether a Federal investigation should be conducted after a grade crossing collision was 

not informed. And that is in one case out of five. 

19

Our recommendation in 2004 to the FRA, which they adopted 

and have shown good progress in meeting, is that they reconcile 

cases reported to the National Response Center with cases submitted monthly to their own database. And further that they assess 

and collect civil penalties for the railroads’ reporting failures. As I 

mentioned, they are making good progress on that. Our latest numbers through 2006 show that there have been only 12 serious cases 

that were not reported on time to the National Response Center. 

The second reporting requirement concerns all grade crossing collisions. Those must be reported within 30 days of the end of the 

month in which the accident occurred. This is important, not only 

to identify dangerous crossings, but also for state departments of 

transportation to determine how they should spend Federal money 

on grade crossing improvements. 

Our recommendation is that the Federal Railroad Administration 

conduct periodic reviews of records maintained by the railroads to 

ensure that grade crossing collisions are reported on time. By comparing railroad records with those in its own database, there may 

be some discrepancy that may serve as a basis for the assessment 

and collection of civil penalties on down the line. 

Sight obstructions is probably an area that we believe would 

yield immediate results. There are over 237,900 grade crossings, 

public and private, in this Country; 76,000 public grade crossings 

are not protected by automatic warnings devices. From 2001 

through 2005, 688 grade crossing collision reports of 15,406 were 

identified as involving some kind of sight obstruction. It might 

have been standing railroad equipment, it could have been vegetation overgrowth, what have you. 

Twenty-three States currently have laws governing sight distances at crossings, but 27 do not. I invite the Committee to look 

at my written statement, which was submitted for the record. Page 

7 contains a gripping photograph of a grade crossing in Illinois that 

illustrates the before and after results of proper maintenance of 

sight distance at a grade crossing. 

Mr. SHUSTER. I wondered if I could ask Mr. Sumwalt and Mr. 

Boardman, do we have any numbers on many different reasons, 

whether it is sight obstructions or whether technological, whether 

there needs to be technology there, or people doing dumb things, 

do we know what the percentage is of people trying to beat that 

train versus people that are crossing because they can’t see the 

train coming? Do we know what those percentages are? I think 

those are key numbers to be able to determine what we need to aggressively pursue. 

Mr. BOARDMAN. I think we know some of the numbers, Congressman. We have had since 2004 a grade crossing action plan that is 

getting results. When we look at, I just pulled statistics for 2001 

and 2005, just on grade crossings themselves, the fatalities in 2001 

were 421 and we are down to 357. I recognize that they go up and 

down a little bit. It is, I think particularly frustrating to the FRA 

and to the industry that we don’t seem to be able to push it lower. 

We have come down a long way since the 1970s and the 1980s. But 

we are getting down to a level now that it is much more difficult. 

The action plan looked at a lot of different kinds of things, including studying using video crossing cameras. One in Pittsford, 

20

New York on the CSX line itself, that we had a report in August 

of 2006 that was submitted on that and what we could do to improve and use that to cut down the number of crossing accidents. 

On the 15th of February, I will be up in New York finalizing a 

series of public workshops that we have had on private rail crossings to look at what we could do with about 94,000 private rail 

crossings that are not eligible for things like the Section 130 program to improve crossings. Because our true belief is, every single 

crossing, 250,000 plus or minus crossings, needs treatment of some 

sort. It could be four quadrant gates, or channelization. It could be 

just wider pavement or markings or crossbucks or whatever it is 

for that particular crossing based on the risk, to reduce the number 

of incidents, collisions and accidents. 

That is part of our partnership that was mentioned earlier with 

Louisiana. Texas is looking at that. We have a sealed corridor in 

North Carolina that we have particularly good experience with, 

and we are working with California now on that same kind of 

sealed corridor there as well. 

Mr. SHUSTER. But there is no data on the, what did you say, 450 

fatalities at grade crossings last year? Is that the right number? 

Mr. BOARDMAN. We can look at that specifically and get back to 

you with how we do break out what the reasons are. 

[The information received follows:]

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34777.009
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Mr. SHUSTER. It seems to me that if we don’t know why the majority of them are happening, we are never going to be able to come 

to a solution. Because again, and my guess is if we have trespassers, too, the trespassing and those combined, it is overwhelmingly the reason for fatalities. If we don’t find out the reason why 

it is happening, we are never going to solve it. Because you are 

never going to solve and stop people from going around a grade 

crossing, not paying attention. So those are things I think we have 

to determine. 

Mr. BOARDMAN. May I respond to that? 

Mr. SHUSTER. Sure. 

Mr. BOARDMAN. I think you are absolutely right. In fact, in 1997, 

the number of trespasser fatalities went above the grade crossing 

fatalities for the first time and it stayed there since that period of 

time. We are looking now and working with our partners and trying to find a way to profile those trespassers to find out the reason 

or the particular profile on the trespassers themselves, to look at 

reasons so that we can come up with solutions for reducing that 

number. Many of those are in the urbanized areas, and we do have 

some data, which we will be happy to share with you on what the 

other reasons are. But we have seen, and especially with these videos now that we have right in the trains, that for whatever reason, 

sometimes it is inattention, sometimes it is inattention because of 

alcohol use, sometimes it is thinking you are going to beat the 

train, that people actually go around our quadrant gates and others 

to beat the train. 

Mr. SHUSTER. My time has expired, and in my enthusiasm to ask 

my first question here, I wasn’t paying attention to the clock. I 

thank you. 

Ms. BROWN. Not a problem. Perhaps we will have a second 

round. 

I want to give Mr. Braley an opportunity to ask questions, and 

we will come back around. 

Mr. BRALEY. Thank you, Madam Chair, and thanks to the distinguished panel for taking the time to talk to us today about this important subject. Mr. Scovel, my father enlisted in the Marine Corps 

when he was 17, went ashore at Iwo Jima when he was 18. I think 

I have some sense of what your subordinates went through, since 

I was his subordinate growing up. 

One of the questions I want to ask you about has to deal with 

your comment about, with better enforcement of the reporting requirements, we can improve conditions at grade crossings. One of 

the things that was included in Mr. Boardman’s materials was a 

proposal to revise the schedule of civil penalties for safety violations. My concern goes to the level of penalty associated with reporting and compliance with the action plan. As an example, one 

of the things that I can tell you from my former life is, having a 

reporting requirement and an action plan requirement and having 

it in place is one thing. 

Getting compliance from the subjects who are being required to 

make reports is another. One of the things we know is the Joint 

Commission on Accreditation of Health Care Associations has a 

sentinel event reporting process for medical errors that occur at 

hospitals. Despite the fact that the Institutes of Medicine projected 

24

48,000 to 94,000 people die every year due to preventable medical 

errors, we know from their statistics that only 300 of those reports 

are filed on average every year. 

So my question for you is, what type of penalty is associated for 

non-compliance with the reporting requirement that we are talking 

about, and is that part of the revisions to the schedule of civil penalties that are being proposed? 

Mr. SCOVEL. I will defer to Mr. Boardman on some of the specifics to your question, sir. But if I may, it is my understanding 

that reporting of instances of failures to report may be subject to 

the assessment and collection of civil penalties. One of the things 

that we have worked with in the course of our studies has been the 

process by which FRA assesses its penalties, then aggregates them 

and then meets with each of the affected railroads to discuss settlement of those penalties. 

It is not clear to us, and frankly, we have not had an opportunity 

to delve in great detail into this area. It is not clear to us the extent to which any agreed settlement represents a complete aggregation of all assessed penalties on the table, or whether there is a 

penalty by penalty reduction or mitigation of the amount concerned. As I stated, we have not had a chance to examine that. 

We do know that FRA has recently reemphasized its civil penalty 

program, both with increased amounts and with increased attention to assessing and collecting a higher percentage in each category. By way of numbers, I can say settlement percentages after 

negotiations with the railroads have increased from 55 percent to 

64 percent between Fiscal Year 2002 through FY2006. 

We are cheered by that approach, most certainly. I would defer 

to Mr. Boardman for other specifics that may be more helpful to 

your question. 

Mr. BRALEY. Mr. Boardman, would you care to comment, please? 

Mr. BOARDMAN. Because of the type of information you need, I 

would like to be able to respond in writing to you on what we have 

done to reenergize that. 

Mr. BRALEY. Is that part of your written proposal dealing with 

revisions to the schedule of civil penalties, or is that related solely 

to safety violations? 

Mr. BOARDMAN. Do you mean in terms of the proposal that we 

are considering that is in clearance? 

Mr. BRALEY. Yes. 

Mr. BOARDMAN. We are looking at that particular area. I don’t 

have it and can’t talk about this minute what might be in there. 

Mr. BRALEY. Would it be possible to follow up and provide further information? 

Mr. BOARDMAN. Yes. 

[The information received follows:]

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34777.011
26

Mr. BRALEY. I would appreciate that. 

One of the other things that you mentioned was that the 2004 

grade crossing action plan was getting results, and I assume that 

it was impacting the number of fatalities and other injuries resulting from violations at grade crossings. Is there anything else that 

the Department is considering that would deal with new innovations in warning systems that are being used at grade crossings as 

part of this overall safety plan? 

Mr. BOARDMAN. Well, the agency has been involved with the intelligent transportation system technology folks all the way along 

and looking at how in the future the technology that is going to be 

actually placed in the automobile may provide additional mitigation of or warning, I should say, crossing the railroad. 

We are certainly looking at every technological improvement to 

do that, including using solar power to light some of the crossing 

signs we have used. One of the things that we have done in this 

process, I always murder the term, is better conspicuity of the 

trains themselves by placing tape that you can see on the train. I 

was surprised when I came here how many of these collisions occur 

by somebody driving into the side of a train, especially on a darker 

crossing. So yes, we are working on those. 

Mr. BRALEY. Thank you. 

Ms. BROWN. Mr. LaTourette. And let me just say that it was 

such a pleasure serving with you and working with you as your 

Ranking Member. I am so glad that you are on my Subcommittee. 

I am also looking forward to working with you. You exemplify what 

is important about working together in bipartisanship on this Committee. Thank you very much. 

Mr. LATOURETTE. I thank the Chairwoman very much. I want to 

join the mutual appreciation society, I was not here at the beginning of the hearing to congratulate you, but I certainly want to congratulate you on assuming the chairmanship of this Committee. I 

have enjoyed our relationship over the course of the last Congress. 

I felt that we were able to get a lot of things done and it was in 

large part because of you and your staff. So I congratulate you. 

I also want to congratulate my friend, Mr. Shuster, for being the 

lead Republican on the Committee. As you all know, I have been 

promoted to the Coast Guard Committee, of course. But I am looking forward to working with Mr. Shuster as well. 

Mr. Boardman, welcome to you. It is good to see you again. Let 

me just ask you, where are we with the whistle ban rule? 

[Laughter.] 

Mr. BOARDMAN. Thank you so much for that question. 

Mr. LATOURETTE. You are welcome. 

Mr. BOARDMAN. We have finalized. The final rule was in April 

of 2005. We had clarifying amendments for that that were completed in August of 2006. As of January 18th, we have 259 quiet 

zones, and we have approximately 40 communities that are now in 

the establishment process. 

We looked at the results actually for the train horn rule. We 

have had 66 accidents after the zones were established, 24 in 2005 

and another 42 in 2006, and 2 fatalities and 19 injuries among 

those accidents. And when we compare the data to the crossing 

27

data from 2000 to 2004, it doesn’t suggest that the quiet zones are 

having an adverse effect. 

Mr. LATOURETTE. Thank you very much for that update. 

Mr. Scovel, I want to talk about a couple of your recommendations. One is my view, and my view only, that if there is a requirement that people report accidents, they should report accidents. If 

they don’t report accidents, there should be a penalty. But putting 

that aside, I don’t want the record to have an implication, because 

you use the word railroad supplied information. Is there anything 

in your analysis or research that indicates that the information is 

being supplied by the railroads when they report is somehow bad 

information? 

Mr. SCOVEL. Thank you, and I would like to take this opportunity to clarify that. To my knowledge, our research has not indicated intentional false information supplied by the railroads. This 

responds as well to one of your questions, Mr. Shuster, specifically 

concerning causes. Because I think this addresses both of your concerns. 

In the reporting requirement to the FRA database for all grade 

crossing collisions, there is no requirement that the cause of a collision be identified in the report submitted to the FRA. So whether 

it was a trespasser, for instance, or an innocent motorist caught on 

the track by an approaching train, it is not always immediately apparent from the report submitted to the FRA. That may be included, but it is not required to be. And that was the basis for one 

of our recommendations as well, that FRA increase its involvement 

in the investigation of grade crossing collisions by screening not 

only the information contained in its own database, but also going 

back to the railroad’s own records, to see what those records may 

indicate, by reviewing data contained on the locomotive event recorder, if that is available. And also by checking with local or state 

law enforcement authorities, who may have had an opportunity to 

respond to the scene of an accident, and they may have been able 

to document the cause as well. 

I don’t mean to say that the railroads, at least according to our 

research, have intentionally mislead any Federal authority. Our 

concern is with the timeliness of that reporting and then FRA’s 

ability to follow up and conduct whatever investigation its admittedly limited resources may permit. 

Mr. LATOURETTE. And we are on the same page on that, and I 

think I said that. If there is a rule that the railroad should report 

something, they should report it. But I just wanted to be clear, it 

seems to me if they report a fatality at a grade crossing, there is 

an ability for the FRA to go get the police report from the town. 

And that brings me to, before I let Administrator Boardman hop 

in, that leads me to your observation that there was some, prior 

to the Graniteville crash, there was some information available 

dealing with switches. 

I guess my question is, what do you think the FRA could have 

done in that my understanding of Graniteville was that some people were in a hurry and left the yard and didn’t put the switch 

back. I don’t know what the FRA could do to, I assume people 

know that you are supposed to put the switch back. So I don’t 

know that any amount of education is going to solve that problem. 

28

So maybe you could clarify what you were talking about with the 

switch in Graniteville. 

Mr. SCOVEL. Sure. My understanding of the circumstances of 

that accident is that a train proceeded down the track, it was time 

for a rest period, using a switch, the personnel on that train put 

their train onto a siding but didn’t walk back to properly align the 

switch to the rear. A train with hazardous material aboard proceeded down the same track, and because of the improperly lined 

switch, collided with the train that was off on the siding. 

Mr. LATOURETTE. Right. 

Mr. SCOVEL. Our understanding is that FRA had been tracking 

switch errors for some years before the 2005 Graniteville accident. 

Our review of that data shows that from 1997 through 2005, the 

number and rate of accidents caused by switch errors steadily increased. There was a large jump in 2003. Had FRA’s safety office 

at the time been properly attuned to using predictive factors as the 

basis for alerts on safety issues, it might have been able, and again 

there is no guarantee, we certainly acknowledge that, but it might 

have been able to put the word out sooner about the dangers and 

the increased number of improperly lined switches. 

Mr. LATOURETTE. I get that, and I think maybe on this point we 

can disagree without being disagreeable. I think that most folks 

that work on the railroad know that you have to align the switch 

when another train is coming. 

Administrator Boardman, did you want to jump in on my other 

one and then I will be happy to be finished? 

Mr. BOARDMAN. Sure. A couple of things, just to clarify, and I 

think actually, Mr. Scovel did clarify. The reports that weren’t reported on the grade crossings really had to do with telephonically 

reporting them. There was a failure to telephonically report them, 

but they were actually reported in writing. So that was the disconnect there. Part of that may be because we broadened the requirements back in 2003, where it used to be you had to have five 

or more fatalities before you had to call in, and then that changed. 

So I think he has recognized that in the report. I just was clarifying that. 

In terms of the trend analysis, that is certainly something we 

would like to be able to do, to identify and predict these kinds of 

accidents beforehand, and we are addressing it in our human factors NPRM that was issued October 12th on the three cardinal operating practices. But when you really look at it, and I am just 

looking here at the improperly aligned switches, most of them occurred in yards. This was a mainline switch. There was this big increase from 2002 to 2003. But there was also a reduction again in 

2004, and still it was in these yards rather than on the main line. 

So we understand the concept, the idea. I think putting it in 

practice is somewhat difficult with the data that we had. 

Mr. LATOURETTE. Sure. I thank all the witnesses. I thank the 

Chairwoman. 

Ms. BROWN. Just for the benefit of the audience and the witnesses, and also the members, we are going to come back. We are 

going to have a second round. We are going to adjourn now until 

4:00 o’clock, so we can go and vote and come back. I haven’t had 

an opportunity to ask my questions. 

29

Thank you so much. We stand adjourned. 

[Recess.] 

Ms. BROWN. The Committee is officially back in order. 

Ms. Napolitano, you can have your five minutes of questioning. 

Ms. NAPOLITANO. Thank you, Madam Chairwoman. I would like 

to have permission to submit other questions, because I know I am 

not going to have enough time to proceed in all the lines of questioning that I would love to pursue. 

Ms. BROWN. Without objection. 

Ms. NAPOLITANO. Thank you, ma’am. 

To Mr. Sumwalt, you talk about railroad fatigue, the employee 

fatigue. My concern is also with the rail fatigue and the infrastructure fatigue. Identifying the areas how the railroad is addressing 

the life of a rail, because it does have a life, at least in the hearings 

that we have had in California over the derailments, I have been 

given several figures on the supposed life of a rail. My concern, especially in our area in California, is because of the proposed increase of the Alameda Corridor East traffic ten-fold or so in the 

next 15 years or so, that the increase in fatigue of the rail, the 

number of rail cars, the increase in the trains, they estimate one 

every ten minutes, one every six minutes, depending on who you 

talk to, is how do we identify that the railroads are upgrading the 

infrastructure to be able to safely handle the increase in the traffic, 

the increase in the load of the trains themselves, the amount of 

trains? And of course, that goes along with all the other questions 

about the rail crossings, about the insulated joint bars or the signalization, all of that. And how do we protect, how can we then 

look at that along with the employee fatigue? 

Mr. SUMWALT. It’s a great question, Congresswoman. Would you 

mind if I let Bob Chipkevich answer that question? 

Ms. NAPOLITANO. Not at all. 

Mr. SUMWALT. Thank you. 

Mr. CHIPKEVICH. As you noted, there are many factors that affect 

the life of a rail. The gross tonnage, the number of trains operating 

over the condition of the ties and ballast, the supporting structure, 

that all affect how the rail is going to wear. Certainly what is important is to have a very good inspection program that is very disciplined, and a testing program, so that you can find defects before 

they grow to a critical size and fail and get that defect out of that 

rail and out of that line before you have a train accident. 

So the key really is to have a good, solid inspection program, a 

good testing program, one that can identify defects before they get 

to a particular size that is critical. 

Ms. NAPOLITANO. After the several derailments in my area, as I 

have stated before, they have increased the testing, they have increased the inspection over the area, so we have not luckily had 

any other episodes. But who is in charge of the inspection and how 

often should it be done? I know you have specifics, and that should 

be a question that I don’t need answered now, but I certainly would 

like to have it in writing, for this Committee to be able to understand the other factors that could cause accidents, besides the employee fatigue that we are talking about. 

In my area, after 9/11, there was a golden handshake with many 

of the railroad employees, they did not pick up new employees as 

30

easily. And when we had the increase in the ACE corridor, the Alameda Corridor East, they were talking about unmanned cars. We 

had a runaway train, I don’t know if you remember or were aware 

of that one. It ended up in the Seals District. Thankfully nobody 

was killed. But it was not only an inconvenience, but it cost a lot 

of money, several million dollars worth of problems. 

And then of course there was talking about putting on unmanned 

cars, which I think is totally unacceptable. Because there is no determination of what they are going to encounter along the rail lines 

to be able to deal with and have an individual make a decision 

rather than somebody at a switch line somewhere trying to put 

those cars forth. 

You were talking about placing the hazardous material in the 

back and decreasing speed. We were informed by the rail folks that 

they end up putting speed as they go outside of the general area, 

coming out of the rail yards. They go through certain areas and of 

course, they do interfere with traffic, as I said, all the grade crossings we have. But they also have a habit of pulling on their switch, 

on their horn at all times, and that is of course not acceptable in 

urban areas, because there are people sleeping at 2:00, 3:00 in the 

morning. And that has been another area of concern with the local 

individual cities. 

With that said, like I said, I have a whole bunch of questions and 

I have to go to another committee, but how do we allow the States 

to be able to garner information from the cities or the police departments for information on accidents that are not reported otherwise? And how do we force the railroads to identify all accidents, 

not just those that qualify to be reported by them, given their criteria? That to me is something that we certainly want to assure the 

American public that we are looking at everything that affects 

them, not just what the railroad folks deem is acceptable as a reportable item. 

And I think my time has run out, Madam Chair, but I would certainly like to include several other questions in my committee reports, because I do have a lot of them, that deal with working with 

the States, working with the State public utilities. The statement 

that was submitted for the record from Steve Larson, the Executive 

Director, California PUC, it states that California needs and desires more direct accountability for railroad safety. I am sure you 

have copies of it, so that you can see his conclusions. Hopefully you 

will be able to address them to this Committee some time in the 

future. 

Thank you, Madam Chair. 

Ms. BROWN. Thank you. 

Mr. BOARDMAN. Madam Chairwoman, can I just respond to part 

of that, at least, if it’s all right with the Congresswoman? 

Ms. BROWN. Yes. 

Mr. BOARDMAN. In particular, because of the partnership that we 

had with the California Public Utilities Commission, after the Pico 

Rivera accident, and in particular, the team that got put together 

really included the Public Utilities Commission on that particular 

accident. And that was one of the joint bar accidents that you identified, Congresswoman. In fact, what happened, immediately afterwards, after we did the inspection, the Commission also joined us 

31

in our RSAC group, which is the Railroad Safety Advisory Committee, and was actively involved in the consensus to get to a final 

rule that really required on-foot inspections of these joint bars. The 

final rule was actually published just this last October. So we do 

have very effective and full cooperation with the Public Utilities 

Commission. 

We are looking not just at this level of on-foot inspection, we also 

demonstrated, back in 2005, and then enhanced photo imaging to 

detect the cracks on high rail vehicles with the railroads again, in 

2006, with GPS being added. Now we are enhancing it again to 

make it simpler, lighter, and less expensive in 2007. 

We are deploying, somebody said earlier, what we call the T18 

vehicle. We will actually have five track geometry vehicles that the 

FRA owns that will be out looking at 100,000 miles of track a year. 

And we are seeing from 2001 to 2006 a reduction both in the percentage of the number of accidents that occur because of track defects, and the actual numbers of them as well. 

So I just wanted to let you know that we are staying on top of 

it. Your California Public Utilities Commission is working with us 

on it, and we appreciate that. 

Ms. NAPOLITANO. Mr. Boardman, I was the one who called PUC 

and got them involved. 

Mr. BOARDMAN. Yes, ma’am. And we kept them involved. 

Ms. NAPOLITANO. Well, hopefully we will continue to, because 

they have better information than anybody else, so far as some of 

the rail accidents that happen in California. The research and development, I still have not gotten a report on the piece of joint bar 

that was sent for inspection to Washington from that accident. And 

there was supposed to be a follow-up as to the R&D that was going 

to be submitted to a university for research of how to address, how 

to identify it, how to see through the joint bar. Because apparently 

there is certain technology that is not totally able to see those hairline cracks inside the joint bar. 

Mr. BOARDMAN. Congresswoman and Madam Chairwoman, if it 

pleases you, I will have my staff contact you and make sure you 

have that information. 

Ms. NAPOLITANO. I would appreciate it, with a copy to the Chairwoman, because they were involved with us at that time. 

Mr. BOARDMAN. Yes, ma’am. 

Ms. NAPOLITANO. Thank you. 

[Information received follows:]

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Ms. BROWN. Thank you. 

And any questions that you have, just submit them for the record 

and we will follow up. 

Mr. Boardman, what is the FRA doing to prevent human factor 

accidents that are not related to fatigue? 

Mr. BOARDMAN. Human factor accidents, and I know that fatigue, we’re going to have a hearing on. So I do appreciate the fact 

that you identified that. We know at this point in time what the 

top causes of human factor accidents are. Some of them have been 

pointed out today and certainly, leaving the switch aligned incorrectly is one of the number one causes. Another one is leaving cars 

out to foul the main track. And the third one really is shoving a 

cut of cars into an area that doesn’t have enough space for those 

cars. 

And those really are the cardinal operating rules for each of the 

railroads in human factor accidents. On October 12th, we published 

a NPRM to make those rules become Federal rules. That is working itself forward. We would expect by the end of this year, late in 

the year, we will have a final rule on that. 

We also have kicked off and will have a ceremony, I think, next 

month at UP on the close call reporting system. And we have other 

railroads that are also interested in that. That is just an ability to 

look at and find something that should have been an accident that 

wasn’t an accident by having it reported by the employee and then 

protecting that information for the employee so we can find out 

what is happening. It has been very successful in the FAA. 

A third area that I think we have had good success with thus far, 

is working with BNSF out from Avard, Oklahoma to Oklahoma 

City, I think. I can’t remember right this minute. We have a 

switchpoint monitoring program on dark territory track, which is 

one of the areas that is of particular concern to us, and is part of 

one of the major accidents that we had in January of 2005. 

Ms. BROWN. I understand that the FRA is working on a project 

with Union Pacific and Dow Chemical to come up with the new 

tank car standards. Can you give us an update on that? 

Mr. BOARDMAN. Yes, ma’am. Since the Minot disaster back on 

January 18th, 2002, FRA has had a plan to look at and work on 

the steel that is in tank cars, and has accelerated, because of safety 

and the interest of the Congress, the kinds of research that it 

would take with the Volpe Center in Massachusetts to get not only 

an idea of what we need to do with the steel, but also to get a baseline for performance of the current fleet of TIH vehicles and the 

historical accident data this year. 

We expected that we would get all that data and then what we 

would do is begin to build a new rule. But we pushed that forward 

in cooperation with this memo of agreement that we announced 

just December 6th for a next generation tank car that is being 

worked on by Union Pacific, Dow Chemical and Union Tank Car 

as well. That case will be using the Transportation Technology 

Center to test the tank cars and verify the baseline work that 

Volpe is doing. 

Our expectation is that together with PHMSA, we have had a 

couple meetings with the industry, we are going to have a couple 

34

more, and we are going to be able to enhance the performance 

standards for these tank cars and get a rule out on that by 2008. 

Ms. BROWN. Thank you. 

Mr. Sumwalt, what can the FRA do right now to make transportation of hazardous materials safer? 

Mr. SUMWALT. Well, as the Administrator mentioned, there is 

great promise for the future. But as he mentioned, it will be at 

least 2008 before the rule is completed. Then it will take many, 

many years for the industry to equip all the tank cars with those 

newer cars. So the NTSB has recommended that in the interim, 

until these new tank cars can come in the fleet, there are operational measures that the industry could undertake. 

And we have suggested things such as looking at the tank car 

placement--by restricting tank car placement and by the way, we 

are only talking about gases, or carrying gases that are poisonous 

by inhalation. Not everything that goes into a tank car is necessarily catastrophic if the tank car breaks. We are talking about 

these cars that, if there is a rupture of the tank car, there is not 

much time for the people in that area to get out safely. 

So when we are talking about those types of gases, operational 

measures can give us immediate benefits. Again, tank car placement, we suggested, we recommend considering putting those tank 

cars toward the rear of the train. We have also recommended 

issues such as restricting the speeds of trains in populated areas. 

There are other operational measures that the FRA could look at. 

Ms. BROWN. Would voice or video recorders help you in railroad 

accident investigations? 

Mr. SUMWALT. Certainly, Madam Chairwoman, in aviation accident investigations, we have derived great benefit from voice recorders. We have recommended to the FRA--we issued a recommendation years ago on that topic--that we would like to see 

voice recorders in locomotive cabs. The FRA responded to us and 

based on their response, we have now classified that recommendation as closed, unacceptable response. As far as the video recorders, 

we have issued no recommendations concerning video recorders on 

trains. 

Ms. BROWN. Okay. Mr. Shuster. 

Mr. SHUSTER. Thank you. 

Ms. Siggerud, some have suggested that maybe the Federal Rail 

Administration needs to have additional resources and personnel to 

investigate and inspect railroad signals and crossings. Does the 

GAO believe that that is something the FRA needs, and do you 

have any scientific evidence to back it up, that it will make improvements in those areas, if they have more personnel? 

Ms. SIGGERUD. Mr. Shuster, we did not address that question directly in our recent work. But I would say, going forward, what we 

think, given the resources that the agency has and its limited ability to reach out and touch through inspection the many railroad operations that occur every year, we think the challenge going forward in this reauthorization is really trying to figure out how to 

help the FRA expand that reach. 

We looked in our report at several other models for doing that 

in related industries, in related organizations. So what we have 

laid out in the report is an approach to a risk system management. 

35

Essentially what that would involve is having the railroad industry 

itself identify precursors for accidents, look at the risks throughout 

its system, and then prioritize its resources to address the greatest 

safety risks. 

What we would then propose is that some of the inspection force 

that FRA has be used specifically to focus on those safety systems 

themselves and whether they are making sufficient progress in implementing that concept. Our view is that FRA could get a wider 

view of the compliance and the level of safety within the industry 

using that kind of an approach. 

Mr. SHUSTER. So I am not sure I understand, are you suggesting 

more personnel or— 

Ms. SIGGERUD. No, we are not. That is also because we looked 

specifically at that issue. 

Mr. SHUSTER. That was an issue in your studies? 

Ms. SIGGERUD. Yes, exactly. 

Mr. SHUSTER. Do you believe, or is there any evidence out there 

that more timely reporting on accidents will decrease accidents at 

the grade crossings? Because when I see the evidence, most of the 

time it is negligence on behalf of the motorist, and not necessarily 

the rail, or it is the local town that has not done something. 

Ms. SIGGERUD. The Inspector General’s work on this seems to me 

to be very thorough, and I am in agreement with their views on 

this issue. 

Mr. SHUSTER. So you believe that more timely reporting on accidents would help the situation? 

Ms. SIGGERUD. Yes. 

Mr. SHUSTER. Mr. Scovel, you said that 21 percent, I forget the 

time frame you reported on, is that a trend? Is it something that 

has been level for the past several years? Or is that something that 

has just peaked or is it on decline? 

Mr. SCOVEL. Yes, sir, that figure is derived from research we conducted for the period May 2003 through December 2004. We reported that number in November 2005. And specifically it was that 

21 percent of serious collisions had not been reported at all. Based 

on that finding, we recommended in 2004 that FRA reconcile the 

collisions in their own database with those in the NRC database. 

They have undertaken to do that, and as I mentioned before the 

break, during the first 10 months of 2006, our numbers show that 

they have reconciled 2,308 reportable collisions and found 12 collisions at that time that had not been reported. This is during the 

first 10 months. 

Mr. SHUSTER. So it has gotten significantly better? 

Mr. SCOVEL. It has, and we give full credit to the FRA for emphasizing those reporting requirements. 

Mr. SHUSTER. Did the FRA, did you do anything different in that 

regard, put a little more pressure on them, change rules, anything 

that would be obvious? 

Mr. BOARDMAN. I think we paid attention to what we were told 

and recommended, and developed a strategy for actually making 

that comparison. 

Mr. SHUSTER. Right. That is a significant improvement. 

Mr. Sumwalt, recently there was a serious accident in Massachusetts, I believe probably just a couple weeks ago, where a couple 

36

folks from a maintenance crew were killed, two or three. Do you 

believe that operating rules, changing the operating rules is a more 

effective way, maybe we could have avoided that, or are there technological solutions that you believe could be employed that would 

be maybe a better way to move forward? 

Mr. SUMWALT. Thank you. Our investigation is ongoing Congressman, and we will be issuing a report on that as soon as we 

have all the facts. 

Mr. SHUSTER. I will be interested to hear about that in the future. In general, though, could you comment on technological solutions? I think you talked a little bit about it in some of your testimony about using positive train control. 

Mr. SUMWALT. Absolutely. The Safety Board has had positive 

train control on our most wanted list since 1990. And it does offer 

a lot of promise. We are glad to see the industry beginning to move 

forward. And there is a lot of promise. 

Mr. SHUSTER. Where does the FRA stand on that? I believe I 

read you had not come out with findings, final findings? 

Mr. BOARDMAN. Positive train control is something that we have 

worked with Illinois on, with Norfolk Southern, and with BNSF. 

And we recently approved a product safety plan with BNSF so they 

could implement that on their service. That was done just in the 

last few months, in fact, last month. 

The other thing that we are looking at on technology for train 

handling are ECP brakes, which are electronically controlled pneumatic brakes. We recently, just this fall, issued a report that generated additional interest again back in the railroads. It was an 

initiative that actually the railroads, the AAR, really put out several years ago. What it really does is have an electrical line going 

down along the train, along with the air line, and control the air 

on the brakes electronically, which gives the engineer much better 

control of the train itself. We think that will substantially improve 

safety of train handling, and especially think it is good in unit 

trains, whether they be coal trains or intermodal trains. 

So we are making progress in those technological areas as well. 

Mr. SHUSTER. Thank you very much. 

Ms. BROWN. As we pass the reauthorization, revision or reform, 

what is it, and this is open to any one there, what are the most 

important areas for this Subcommittee to focus on regrading FRA 

safety activities? 

Ms. SIGGERUD. Chairwoman Brown, I think I will just expand on 

my remarks to Mr. Shuster. We think it is very important for the 

FRA, given what we have seen as a fairly static safety trend, and 

accident rates, to do a couple of things. One is to extend the reach 

of the inspection force it does have, by looking specifically at the 

safety management systems and the safety culture of these railroad organizations. 

This will not be an easy change. When it was adopted within the 

Office of Pipeline Safety within the Department of Transportation, 

this was something that required a pilot project and implementation over a number of years. Most participants view it as effective 

in our recent work looking at that. 

There is a pilot project that has been proposed in this area that 

I am sure Mr. Boardman can or will say more about. However, it 

37

is a pilot project, and it is voluntary. So it will take some time before we see results. 

We also think it is very important, given the static trend that I 

mentioned, for the Committee and the Railroad Administration to 

work together to understand really what are the effects of these 

various new initiatives. We think the inspection plan looks good. 

We think the new human factor regulation has a lot of promise. 

They both are really in the very beginning of implementation. So 

we need to understand what effect they really will have. 

Many of the other initiatives are voluntary and will take a fair 

amount of participation by the railroads to have an effect. 

Mr. SCOVEL. Chairwoman Brown, if I may address your question? 

Ms. BROWN. Please. 

Mr. SCOVEL. We would break it into two parts, if I may, first addressing the general topic of rail safety. We would ask the subcommittee to urge FRA to aggressively implement its National Rail 

Safety Action Plan. A component of that is the National Inspection 

Plan, which we see as holding great promise. We have it on our 

watch list, if you will. We intend to give it time, give FRA time to 

fully implement it. I will note that it has been less than a year 

since it was first instituted. So it is really not ripe yet for our review. But we intend to do that. 

Another area in the general topic of rail safety would be the 

items discussed by Mr. Sumwalt specifically, some of the technological and human factors issues that certainly merit this Subcommittee’s attention. 

With regard to the specific topic of grade crossing safety, we continue to be concerned with reporting requirements and the timeliness of those. While those, with regard to the most serious collisions, while those do not hold the promise necessarily of identifying 

causes, immediately by the report, they do permit the FRA and in 

some cases even the NTSB to decide whether a Federal investigation is warranted. Those investigations of course would be able to 

identify the cause. And timeliness of that initial report from the 

scene gives the Federal agencies time to make the call. 

The other area that we would urge the Subcommittee to work 

with FRA on is model legislation, if you will, to assist the states 

in developing standards for sight obstructions at highway-rail 

grade crossings. As I hope we made clear in our testimony, that 

will be key for many grade crossings where there are not active 

warning devices in place. 

Thank you. 

Mr. SUMWALT. Madam Chairman, thank you. I would like to 

weigh in on that. For at least a decade, the NTSB has issued recommendations to the FRA regarding the need to establish scientifically based principles for fatigue management. Fatigue is a big 

issue with railroads and all modes of transportation. 

But in the case of the FRA, they have replied that they do not 

have the statutory authority to enact the changes, due to the stipulation in the Hours of Service Act. So we have a situation where 

we are making recommendations to an agency, yet that agency 

does not have the authority to enact the changes that we would 

38

like to see, due to stipulations of the Hours of Service Act. That 

would be one area that we feel could greatly assist. 

Mr. BOARDMAN. Madam Chairwoman, we hope to have a bill 

through clearance and be able to talk about it a little more. I think 

there are three things I would say. One is that we believe that the 

pilot program that was talked about a few minutes ago on risk is 

a particularly important one, if what we can do through that is to 

ingrain an even greater level of safety culture in a railroad and in 

a specific location. 

We know today that we have to change the way that we hold 

railroads accountable. They have to change the way that they do 

their jobs today as we all have had to, as we have learned new 

science, as it is being talked about. So the second thing is that we 

want the opportunity to be able to apply that new science--that 

new understanding of what it takes to make sure that human factor issues and risks are reduced. 

Then lastly, we believe that it is also extremely important for us 

to have the right baseline data for grade crossings in this Country 

on an inventory basis. We have difficulty with some of the information that we get now that is not necessarily required. Thank you. 

Ms. BROWN. My last question. The old teacher in me, if we were 

going to grade the FRA, what grade would we give it? 

Mr. BOARDMAN. Shall I go first? 

Ms. BROWN. Yes, you can. 

[Laughter.] 

Ms. BROWN. A professor once told me, if you are going to get an 

A, what are you going to learn? Yes, sir. 

Mr. SUMWALT. You would like for me to answer that? 

Ms. BROWN. Yes, sir. I would like everybody to answer that. 

Mr. SUMWALT. Oh, great. 

Ms. BROWN. So we get a feel as to where we are and where we 

need to go. 

Mr. SUMWALT. Well, I look at numbers. We have over the lifetime 

of the NTSB and the lifetime of the FRA, issued to them 534 safety 

recommendations. Overall, the FRA has implemented 76 1/2 percent of those recommendations. 

Now, to put that in perspective, Madam Chairwoman, if we look 

at all of the other DOT modal agencies and we look at that as a 

composite, including the FRA, on average, the DOT modal agencies 

have implemented almost 82 percent of our recommendations. So 

with that respect, they are below the average of the other DOT 

modal agencies. 

But in certain areas, the FRA is doing very well. The Administrator mentioned that in October they issued a final rule on joint 

bar inspection. We think they did a nice job with that final rule. 

We also know that joint bar difficulties led to the accident at 

Minot, the accident at Pico Rivera. So we applaud their efforts for 

coming out with that final rule. 

On the other hand, the Minot accident, we found that the FRA’s 

oversight of the railroad’s continuous welded rail program was ineffective, because the agency neither had reviewed the program nor 

did their track inspectors have a copy of the program to determine 

if the railroad complied with it. 

39

Further, in the Flora, Mississippi accident, we found that an 

FRA inspector had identified deficiencies, but he did not ensure 

that these deficiencies were corrected. Thus, we found that the 

FRA’s oversight was ineffective in that case to ensure proper maintenance by the railroad. 

Additionally, after an Amtrak derailment at Nottaway, Iowa, we 

issued a recommendation to the FRA to require railroads to conduct ultrasonic or other appropriate inspections to ensure that rails 

used to replace rails were free of internal defect. That recommendation is currently classified as open, unacceptable response. Thank you. 

Mr. SHUSTER. I have one question, the 76 percent, does that reflect, that you just mentioned earlier, that statutorily they say they 

don’t have the ability to change, which I would imagine some of 

those 4,000 recommendations, is that accurate? 

Ms. BROWN. You said 540? 

Mr. SUMWALT. Yes, ma’am, of the 534 recommendations that we 

have issued, the acceptance rate is 76 1/2 percent. 

Mr. SHUSTER. Any of them dealt with fatigue? Because that is 

something they have said the law won’t allow them to— 

Mr. SUMWALT. I would have to defer to Mr. Chipkevich to see 

how we have classified that. That is a good question. 

Mr. CHIPKEVICH. Yes, sir, some of those are probably due to some 

fatigue. But then some were also closed reconsidered, so it would 

not have a negative impact against the FRA also, because of their 

response. 

Mr. SHUSTER. Thank you. 

Ms. BROWN. Anyone else? Yes. 

Mr. SCOVEL. Madam Chairwoman, if I may, we are greatly encouraged by the attention to a number of recommendations of ours 

that the FRA has devoted resources to recently. Attachment 2 to 

our written testimony is a table illustrating or setting forth the recommendations that we have made to the FRA in our recent reports, and giving the current status. You will see that a number 

of those have been closed satisfactorily in our review. A number are 

open, but we are satisfied that current FRA leadership is devoting 

sufficient attention to those. As I mentioned, the immediate notification requirement is one that we saw most improvement on recently. We are pleased to be able to report that. 

We would like to see greater attention to the following items. 

First moving away from a traditional and reactive approach to 

oversight by using its inspection and enforcement data to identify 

safety problems. Number two, issuing safety advisories and regulations to address safety problems before train accidents occur. And 

again, this would be feasible if FRA aggressively moves to use predictive factors in trying to assess the probability for future train accidents. 

Number three, using its National Inspection Plan to better focus 

its resources on key safety areas, like track defects and improperly 

lined switches, as well as other human factors. Number four, moving aggressively to implement its initiatives to improve oversight 

and enforcement, such as implementing our recommendation to 

work with the other states that continue to have the most grade 

crossing collisions. 

40

I mentioned the success, apparent success that we believe Louisiana has enjoyed with its State action plan on grade crossing collisions. Texas we understand is moving in that direction. But there 

are four other states that, together with Louisiana and Texas are 

responsible for a great number of grade crossing collisions. We 

would like to see the FRA move quicker and do more with those 

other states to develop their state action plans. 

And finally, we would like FRA to broaden its review of grade 

crossing collisions in order to verify information with independent 

sources, like state and local law enforcement. 

Ms. BROWN. Ms. Siggerud? 

Ms. SIGGERUD. Madam Chairwoman, I would like to answer your 

question in a couple of parts with regard to the grade. Looking 

back, I think it’s hard to give a grade in the area of rail safety 

greater than a C, given that we have not seen significant improvement on rail safety accident trends. 

However, looking forward, I am standing here with the IG in 

agreement that we are more hopeful. I would like to say a B going 

forward, as we look at the initiatives that have taken place over 

the last couple of years. 

I would like to explain why I cannot give an A at this time. 

There are really two reasons. One is that several of the initiatives, 

including in the key area of fatigue, do rely on voluntary actions 

by the railroad. 

The second is that we feel that the Railroad Administration 

needs to look within itself and report to this Committee and others 

more about the effectiveness of its key enforcement and compliance 

program. That is, giving violation notices to railroads and fining 

them. Other modal administrations within this Department have 

undertaken such an evaluation under our recommendation and 

found it to be very useful in adjusting their enforcement programs. 

Ms. BROWN. Mr. Boardman, do you want to add anything to 

that? 

Mr. BOARDMAN. Yes, ma’am. I guess in the time that I have been 

here, I would tell you that the people at the FRA get an A for excellence, an A for integrity, an A for teamwork, and an A for partnership. 

Ms. BROWN. What was the last one? 

Mr. BOARDMAN. Partnership. 

Ms. BROWN. Well, I really want to thank the witnesses for their 

valuable input and testimony and the members for the questions. 

Members of the Subcommittee may have some additional questions 

for the witnesses. We will ask you to respond to those in writing. 

The hearing record will be held open for those responses. 

Members are reminded that the Subcommittee will convene for 

the second part of this hearing tomorrow at 2:00 p.m. Until that 

time, the Subcommittee stands adjourned. 

[Whereupon, at 5:12 p.m., the subcommittee was adjourned.]

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152

REAUTHORIZATION OF THE FEDERAL RAIL 

SAFETY PROGRAM 

Wednesday, January 31, 2007, 

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

RAILROADS, PIPELINES AND HAZARDOUS MATERIALS, 

WASHINGTON, D.C. 

The subcommittee met, pursuant to call, at 2:00 p.m., in room 

2167, Rayburn House Office Building, the Honorable Corrine 

Brown [Chairwoman of the subcommittee] presiding. 

Ms. BROWN. Good afternoon. The Subcommittee on Railroads, 

Pipelines and Hazardous Materials will officially come to order. 

I want to welcome the members and witnesses to Part 2 of our 

hearing on reauthorization of the Federal Rail Safety Program. In 

the interest of time, I will submit my opening statement for the 

record and reserve my remarks for questioning the witnesses. 

But before recognizing Mr. Shuster for his opening statement, I 

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

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

Mr. Shuster? 

Mr. SHUSTER. I will follow the Chair’s lead and submit my statement for the record, and welcome all the witnesses today, especially the gentleman from North Dakota. Welcome. 

Ms. BROWN. I am pleased to welcome Congressman Pomeroy to 

the hearing this afternoon. The Congressman has spoken with me 

on numerous occasions about the accident that occurred in North 

Dakota in 2002. I understand that a witness from the accident flew 

to D.C. to be with the Congressman for this hearing, and I want 

to welcome her also. And also my classmate. So welcome. 

TESTIMONY OF THE HONORABLE EARL POMEROY, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NORTH 

DAKOTA, ACCOMPANIED BY JEANNETTE KLIER 

Mr. POMEROY. Thank you, Madam Chair. It is indeed a pleasure 

to refer to you in such terms, as well as Ranking Member Shuster, 

thank you. 

I have outlined in this testimony a most extraordinary thing, 

something that I have not seen before, and that is innocent citizens 

injured as proximate cause to railroad conduct identified in the National Transportation report, and yet we have a very curious ruling 

by a Federal District Court that says, there is no remedy for these 

people, that 30 years ago, and in conflict with, by the way, 30 years 

of case law thereafter, that there was a complete and absolute immunity rendered to the railroad. That needs to be addressed as the 

Federal Rail Safety Program is reauthorized. 

The facts of this case are really striking. At 1:39 a.m., January 

18th, 2002, a Canadian Pacific Railroad freight train derailed near 

Minot. The freight train derailed 31 freight cars, 15 of them carVerDate 0ct 09 2002 15:17 Jul 24, 2007 Jkt 000000 PO 00000 Frm 00158 Fmt 6633 Sfmt 6633 P:\DOCS\34777.TXT HTRANS1 PsN: JASON
153

rying anhydrous ammonia. Seven of those cars burst. They sent a 

vapor plume of anhydrous ammonia about five miles long, two and 

a half miles wide, spewing into the air. The resulting explosion also 

blasted a tanker car almost 1,000 feet, took off the wall of a bedroom of a couple at a property close to half a mile away. It operated 

as a missile, as the anhydrous ammonia spewed out of the tear in 

that tank. 

This vapor plume spread throughout the valley around Minot. 

The fire department chief told me as they were dealing with the 

crisis, one of the things that occurred to him is they were going to 

need an awful lot more body bags. 

There were some fortuitous circumstances. It was 2:00 in the 

morning and it was 20 below outside. So houses were locked up 

tight and there wasn’t a lot of activity, otherwise there would have 

been in fact, I believe, a very significant casualty count. After the 

area was cleared, one individual, John Grabinger, had died from 

the injuries suffered after fleeing his house and becoming disoriented in this opaque, poisonous cloud of ammonia. Thousands of 

others have suffered injuries, including individuals who sustained 

second degree burns to their skin. Many people are still suffering 

long-term effects because they have scarred their lungs, they have 

damaged their eyes, permanent physical damage. Asleep one 

minute, next minute, fearing for their lives in some kind of unknown poisonous cloud that has descended over everybody. 

The National Transportation Safety Board, July of 2002, released 

its investigative report into the incident. They found nearly 2000 

defects, 2000 defects, along the railway line. However, in March of 

2006, a Federal district court dismissed the cases of several victims 

by ruling that the Federal Rail Safety Act contains a clause stating 

that States can only adopt or maintain and enforce an additional 

or more stringent law or regulation or order related to railroad 

safety under limited circumstances that these individuals cannot 

have a cause of action because the Federal law had granted a complete immunity to the railroad. A three-judge panel of the Eighth 

Circuit has upheld this ruling. And five years after this terrible 

tragedy, these victims have still not received justice. 

Madam Chair, I greatly appreciate your also listening directly to 

one whose life has been upended in this accident, just to establish 

really for the record the completely unacceptable state of an interpretation of this 30 year old law that says suddenly, railroads have 

total immunity. 

Madam Chair, I yield back, but I am very pleased to have with 

me a constituent, Ms. Jeannette Klier. 

Ms. BROWN. Ms. Klier. 

Ms. KLIER. Madam Chairwoman, my name is Jeannette Klier, 

and I am from Minot, North Dakota, and I am very grateful for the 

opportunity to speak to you today and represent the citizens of 

Minot regarding this derailment. 

The night of January 18th, 2002 was a cold winter night. Little 

did I know that when I went to bed that night, I would soon be 

fighting for my life. A train carrying anhydrous ammonia derailed, 

spilling seven tank cars of this deadly chemical into the neighborhood. The sound of the derailment woke me from sleep, but it never 

occurred to me that this was a derailment. 

154

Thinking I was safe, I went back to sleep. A co-worker’s phone 

awakened me and immediately, the smell of ammonia hit me. Following her instructions, I turned on the television for directions. 

The advice given was to go to the bathroom, turn on the water, put 

a towel under the door. I did this until I realized that I had inadvertently plugged the sink and the water had run over. This concerned me. 

I didn’t know if the gas affected a person’s ability to think clearly. So I went to the bedroom window and looked out towards the 

street, which had a street light. And what I saw scared me even 

more. This cloud was dense, swirling, greenish in color. It did not 

resemble fog. It was very noxious, and it burned to breathe. It was 

so thick that I was not able to see across the street. 

So I listened. And what I heard was unsettling. It was totally 

quiet. I didn’t hear the sound of traffic. There were no sirens. And 

I knew that if there were going to be a rescue, the ambulances 

would be roaring past my house. 

This meant that it was too dangerous for rescue. It occurred to 

me that everyone might be getting overcome by this terrible gas, 

and that I too might be overcome and die right here. Then I considered that this might be a flammable gas. I just didn’t know. 

So I knew that I had to make a careful and quick decision to stay 

and possibly die or to evacuate and possibly die. The odor was very 

intense in the house. So I decided that if I was going to die, I was 

going to die trying. I decided to evacuate. 

As quickly as possible, I threw on some clothes, grabbed a water 

bottle and a wet towel, took one last look at my kitchen, which was 

hazy with gas, put the wet towel over my nose and mouth and 

stepped out into the garage. It was stronger there. Moving as 

quickly as I could, I backed out of my driveway and proceeded 

down the street. But the anhydrous was so thick it was as if somebody had put a white sheet over my windshield. I couldn’t see anything. 

I tried to hold the wheel straight, knowing that I could possibly 

hit a car, but even more, hoping that I wouldn’t get hung up on 

a snow bank, because if I did, I would probably die. This anhydrous 

was so strong it burned my eyes. It burned to breathe. I was 

scared, but luckily, I was able to drive out of it. Living in North 

Dakota in the winter had taught me some blizzard driving skills 

that I found useful in this situation, as well as having winter survival gear in my car. I evacuated to my parents’ home in another 

town. 

The anhydrous initially caused nausea, loss of appetite, just a 

feeling of sickness all over, as well as intense burning in my nose, 

throat, trachea, lungs, all of which subsided in time. It was my 

eyes that sustained permanent damage. They are painful all the 

time and are only relieved temporarily by prescription eye drops 

and over the counter lubricating drops. Driving any distance in the 

winter with the defrost on is almost impossible. And when living 

in a northern climate, the defrost is necessary. 

But I feel fortunate. Many others, like my good friend, Jody 

Schultz, sustained permanent damage to her lungs. She uses oxygen and nebulizer treatments day and night. She is younger than 

I am, and this has greatly affected her ability to work. 

155

In January 2006, in Minnesota State Court, after a month-long 

trial was held for four victims of the derailment, the railroad admitted that it was negligent in causing the derailment, but would 

not take responsibility for causing the injuries to my eyes, as well 

as the injuries that the other three plaintiffs sustained. The jury, 

however, did not agree, and in my case, and in my case, they 

awarded me $300,000. The railroad is attempting to ignore what 

the jury had decided. Ultimately, this is not about money. I would 

much rather have the pain in my eyes go away. 

But without the ability to take CP to court, many others will be 

treated like me. Congress should now act to state again that people 

have the right to take railroads to court for personal injuries. Without this avenue, the railroads will continue to hurt people and just 

be able to walk away from the pain they have caused. 

I am concerned that this will happen again. The train passes by 

a grade school. Luckily, this derailment occurred at night and not 

when school was in session, or the tragedy would have been worse. 

This accident was not due to an act of nature, but to negligence in 

track maintenance. Canadian Pacific Sioux Line Railroad needs to 

be held responsible for the injuries that they have caused to the 

people in Minot. Injured people need laws to protect them in seeking just recourse through the court system. 

Please do all that you can to protect the injured. Mine is one of 

several hundred stories, some much worse than mine. And even 

though the railroad has admitted liability for the derailment, they 

are hiding behind the preemption argument. This may be even the 

bigger tragedy. This takes away all avenues for people to seek recourse for their suffering and allows CP Railroad to say, too bad, 

so sad, and go on with their usual business. 

This injustice must be rectified. The intent of the FRSA could not 

have been for this type of interpretation to take away victims’ 

rights. We have to get this law clarified before another accident 

happens somewhere else in this Country. It is not if, it is when. 

Don’t let the railroads use the preemption defense and use the 

FRSA as a shield for immunity and deprive victims of their rights. 

Madam Chairwoman, if you or any of the other members have 

any questions, I will try to answer them. Thank you. 

Ms. BROWN. Thank you for your testimony. 

I have a question for you, Mr. Pomeroy. Before I get into my 

question, can you explain to me one more time why the rule that 

kept the group from going to court—— 

Mr. POMEROY. Yes, Madam Chair. There were different court 

cases filed. The witness with me was a group filing in State court 

in Minnesota. In addition to that, there was a Federal case filed, 

and that was held in Bismarck, at Federal District Court. State 

court actions proceeding pretty much like State court actions have 

proceeded ever since 1970 under this Act. The surprising development came out of the ruling of Bismarck, where the District Court 

said, in spite of the fact that we have 35 years of litigation against 

railroads, we now hold that the Federal Rail Safety Act really does 

not afford this kind of State court remedy under State law. Nor by 

the way is there an existing Federal point of relief for the plaintiffs 

either. So they are just out of luck. So it was basically, it was a 

determination of complete immunity for railroads under this Act, 

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even though that was a very new and novel interpretation, compared to the bulk of case law since that time. 

This situation, Madam Chairwoman, we have all had town meetings. We have all had town meetings that have an element of outrage to them, given one circumstance or another that presents 

itself in this district. I will tell you, I have never seen a meeting 

like this one which I convened with the victims shortly after the 

accident. This happened in January of 2002, just a few months 

after 9/11. They thought that there had been a terrorist attack. We 

had weeping families in their home as this poison gas started to 

come in, they could visibly see it, as they said goodbye to one another and wrapped their faces in wet cloths, waiting for the end to 

come. It came for one man, who was out, got disoriented, hit the 

garage and couldn’t get into the house. But for everyone else, they 

just carry these scars. There were psychological scars, some have 

healed, some haven’t. But unfortunately, there are a lot of residual 

scars. 

Now, any fundamental notion of American justice is that when 

the National Transportation Safety Board did their exhaustive investigation, finds all this negligent operation of the rail by the railroad company, that there ought to be someone responsible for this 

damage. I think really that is the question before this Committee. 

You can clarify what has been the better than three decades standing in application of this law that yes, nobody gets immunity under 

this law. That is not what it ever meant. Or on the other hand, you 

can create a Federal claims system and have some kind of taxpayer 

pot that pays these people and gives the railroad a free pass. Or 

I guess the third alternative is you could say, well, Minot, tough. 

Most victims have recourse for negligent acts. If you have been 

hurt by a railroad—we love railroads, and they are important to us, 

so they do not have any responsibility for their negligent acts. Now, 

I do not think that that is a position that is going to wash with 

anybody. So I do put to you, to me the easiest thing to do is just 

simply clarify Congress’ original intent. 

I might to our new colleague, Congressman Walz, these tracks, 

by the way, they come on into Minnesota, the CP Rail. So the same 

entity operating the system in Minot also operates trackage in Minnesota. 

Ms. BROWN. Let me just ask, and you just answered part of my 

question, but as the Subcommittee plans for reauthorization of the 

Federal Rail Safety Program, what areas are most in need of revision or reform? And I just heard you, but do you want to add something else to that? 

Mr. POMEROY. No, just to try and put a fine point on it. I don’t 

think, in 1970 or at any point thereafter, there was Congressional 

intent for granting immunity to railroads under this Act. So as it 

is reauthorized, clarification, just a restatement of what has always 

been legislative intent here, in my opinion, would be helpful. 

Ms. BROWN. OK. Mr. Shuster. 

Mr. SHUSTER. Thank you. 

And this was the only case in 30 some years that a ruling came 

down like this? There are other accidents that have occurred, and 

lawsuits and damages. 

157

Mr. POMEROY. There have been plenty of actions. I am sorry, I 

didn’t mean to interrupt you. 

Mr. SHUSTER. Well, this is the main case? That’s the main point 

of my question, this is the only case in 30 years that there were 

no damages assessed? 

Mr. POMEROY. I can’t give you an exhaustive legal opinion, because I don’t know. But I am aware, as my colleague is aware, 

there have been a lot of lawsuits against railroads over the years, 

crossing accidents seems like present maybe the largest number. 

But there have been any number of them for negligent operation 

of the railroads. 

Now we have a Federal District Court in North Dakota ruling, 

this never should have happened, because the original 1970 Act 

really granted them immunity. It is a very novel ruling. It flies in 

the face of what has been kind of generally understood actions. To 

show you how generally understood it is, the Railroad Council 

themselves were settling some of the cases. They were litigating 

other cases. The railroad did not at any time act as though they 

had complete immunity until the Federal judge ruled. 

But there have been two other cases where other members are 

troubled about this recent trend of ruling. There was a case in 

Scotts Bluff, Nebraska. And I have talked about this matter with 

Senator Lindsay Graham, who is also very disturbed about plaintiffs in South Carolina being denied. So I am not going to say this 

is the only time it ever happened. I don’t have a comprehensive 

knowledge of it, but I believe that this trend of ruling is very recent, and I am only aware of those three instances, South Carolina, 

Nebraska and North Dakota. 

Mr. SHUSTER. And that was a Federal court where this ruling 

came down? 

Mr. POMEROY. Correct. 

Mr. SHUSTER. Thank you very much. 

Mr. POMEROY. Thank you. 

Ms. BROWN. Thank you very much for coming. I thank you, Ms. 

Klier. We will be working through these issues as we move forward 

with the reauthorization. Thank you. 

Mr. POMEROY. Thank you very much. 

Ms. BROWN. We will now proceed with Panel 2. Before we proceed, is the tape ready? 

Mr. HAMBERGER. I believe it is, yes, ma’am. 

Ms. BROWN. We do not have any popcorn or sodas, but we are 

going to watch a two-minute film, and then we will start the testimony. 

Mr. HAMBERGER. Actually, we have it worked into the script. 

Ms. BROWN. Well, first of all, let me welcome you all here. And 

we have Mr. Hamberger, who serves as President of the Association of American Railroads. Next is General Timmons, who is the 

President of the American Short Line and Regional Railroad Association. We have Mr. Wytkind, who is President of the Transportation Trades Department of the AFL-CIO. And we have Mr. 

Rodzwicz, who is the Rail Conference Director for the International 

Brotherhood of Teamsters. He is here representing the Brotherhood 

of Local Engineers and Trainmen, and the Brotherhood of Maintenance of Way Workers. And finally, Ms. Sharon Van Dyck, who is 

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an attorney from Minnesota, representing the American Association for Justice. 

We are pleased to have all of you here with us this morning. 

Your full statement will be placed into the record. We ask that all 

witnesses try to limit their testimony to a five minute oral summary of their written statement as a courtesy to all of the witnesses. We will proceed in the order in which the witnesses are 

listed in the call of the hearing. 

Mr. Hamberger. 

TESTIMONY OF EDWARD R. HAMBERGER, PRESIDENT AND 

CHIEF EXECUTIVE OFFICER, ASSOCIATION OF AMERICAN 

RAILROADS; RICHARD F. TIMMONS, PRESIDENT, AMERICAN 

SHORT LINE AND REGIONAL RAILROAD ASSOCIATION; EDWARD WYTKIND, PRESIDENT, TRANSPORTATION TRADES 

DEPARTMENT, AFL-CIO; EDWARD W. RODZWICZ, PRESIDENT, 

TEAMSTERS RAIL CONFERENCE; SHARON L. VAN DYCK, 

AMERICAN ASSOCIATION FOR JUSTICE 

Mr. HAMBERGER. Madam Chairwoman, thank you very much. 

Let me add my words of congratulations to those you received yesterday on your ascendancy to the Chairmanship of this Subcommittee. We appreciated the opportunity to work with you in 

your position as Ranking Minority Member and look forward to 

working with you as Chairwoman. 

At the same time, to Mr. Shuster, congratulations on your election and appointment as Ranking Member on this important Subcommittee. And welcome especially to Mr. Lipinski, with whom we 

have worked on Chicago issues, and Mr. Walz, to this Subcommittee. 

On behalf of the members of the Association of American Railroads, let me before I start make some comments about the testimony we just heard. I would like on behalf of the industry to offer 

my regrets and the entire industry’s regrets to Ms. Klier for the 

suffering she went through. I think that in addition to the issue 

which she and Mr. Pomeroy raised, it raises a number of issues 

with which this Committee and Subcommittee have wrestled over 

the past couple of years regarding the transportation of hazardous 

materials, particularly toxic by inhalation hazardous materials, the 

common carrier obligation that the railroads have, and the liability 

that they have. So I think it is something that we need to take a 

close look at in the context of all of those issues. But again, our 

regrets and best wishes to her, and I thank her for coming here 

today, because I know it is a long way to come from North Dakota 

to bring her issues to the attention of the Subcommittee. 

I am going to run over, I can tell right now. May I ask permission to begin now? 

Ms. BROWN. As much time as you may consume. 

Mr. HAMBERGER. Thank you very much, Madam Chairwoman. 

On behalf of the members of the AAR, thank you for this opportunity to address railroad safety. Nothing is more important to the 

industry than safety. It is the focus of many of our investments, it 

is the focus of many of our research and development programs. It 

is the focus of our employee training, and it is the focus of our operations. 

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We are very proud of our safety record. Our industry has become 

much safer over the years. Between 1980 and 2005, railroads reduced their overall train accident rate by 64 percent, and their rate 

of employee casualties by 79 percent. Not coincidentally, this record 

of safety improvements began with the passage of the Staggers 

Rail Act of 1980, which partially deregulated the industry. Deregulation provided railroads with additional resources that were invested in maintaining and improving track, equipment and signal 

systems. In fact, through last year, the industry has invested over 

$370 billion in the last 27 years to improve its operations. 

I am pleased to say that that safety record continues to improve. 

Preliminary data for the first 10 months of last year indicate that 

2006 could well be the safest year ever for the railroads by the 

three most commonly cited rail safety measures: the train accident 

rate, the employee casualty rate, and the grade crossing collision 

rate. 

But let’s put that in context, because Mr. Gonzalez yesterday 

asked a very pertinent question: you’re safer, but compared to 

what? And as you can see from this chart, from my written testimony, railroads are not only safer than in the past, but they are 

safer when compared to injury rates of all other modes of transportation and in fact, most other industrial groups, including agriculture, construction, manufacturing and private industry as a 

whole. Available data also indicate that U.S. railroads have employee injury rates well below those of most foreign railroads. 

In addition to the dedication and professionalism of the industry’s employees—and I want to emphasize that—the dedication and 

professionalism of the industry’s employees—-credit for the industry’s safety record must also go to the use of new and safer technologies. We have many of these deployed under a program we 

refer to as advanced technology safety initiatives. 

The Subcommittee saw many of those during its two hearings 

last year in Pueblo, Colorado. Some of them include wheel profile 

monitors that use lasers and optics to capture images of wheels, 

trackside acoustic detectors and a rail defect detector car to detect 

internal rail flaws, using laser technology. Taken together, these 

technologies produced a 13 percent reduction in the rate of broken 

wheel and broken rail accidents in its first 25 months. 

I know this is a matter of great concern for Congresswoman 

Napolitano. I want to assure her that we are working very hard in 

this area. 

As discussed yesterday, the greatest challenge to improving safety lies in the area of grade crossing accidents and trespassers. I 

want to thank this Committee for its leadership in expanding funding for the Section 130 grade crossing program in the SAFETEALU bill. As you know, that program funds separation and signalization of grade crossings around the Country. As you can see from 

the 2006 data, this is already having a positive effect. 

You asked yesterday, Mr. Shuster, what causes these grade 

crossing accidents. The most recent study, a 2004 FRA report to 

Congress, confirms that over the previous 10 year period, 94 percent of public grade crossing accidents were caused by ‘‘risky driver 

behavior or poor judgment.’’ We have an example of two such accidents on the monitor. I would like to point out that you will hear 

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some comments from the crew. These are old tapes from Norfolk 

Southern. Norfolk Southern has since relocated the microphone 

outside the cab to address crew concerns. 

But the first one you will see, we are actually going to show it 

twice, first in real time, if you keep an eye on the left hand side 

of the track, you will hear the whistle blow by the way. It’s going 

31 miles an hour. 

[Video.] 

Mr. HAMBERGER. You hear the whistle. Watch the second car on 

the left. The gates are down. 

[Video.] 

Mr. HAMBERGER. We will see it again in slow motion, as he went 

around the car in front of him. 

[Video.] 

Mr. HAMBERGER. The second one is at a passive grade crossing 

where the driver, fortunately this was not a fatal accident, came, 

stopped too late, did not look and drifted into the right of way. If 

we showed you that again, you would see that there was no stop 

sign there. Fortunately, the Federal Highway Administration is 

changing its recommendations to the States to put yield or stop 

signs at all passive grade crossings. 

Madam Chairwoman, I spoke to one of your constituents yesterday from the Jacksonville school district, and she indicated a great 

deal of interest in having Operation Lifesaver volunteers come to 

her school district to explain the importance of stop, look and listen. We will make sure that that happens, working through your 

office. 

Finally, I want to address what may have been a mis-impression 

left with this Committee by Mr. Scovel, the Department of Transportation Inspector General, when he spoke about reporting accidents at grade crossings. What he did not tell you was that in a 

November 28th, 2005 audit of the FRA by his office, his staff wrote, 

‘‘The 115 unreported crossing collisions that were not reported to 

the National Resource Center were reported to the FRA within 30 

days as required by law.’’ So I want to emphasize that the railroads 

did in fact make the report. They made it to the FRA and not to 

the National Resource Center. 

His office went on to find: ‘‘FRA officials also stated that railroad 

employees were confused about which collisions to report to the 

NRC as opposed to which ones to the FRA. Their confusion contributed to missed reports. We found the reporting requirements to be 

complex and potentially confusing as well.’’ 

Consequently, his office went on to make a recommendation to 

the FRA, ‘‘In our opinion, to avoid confusion over the reporting requirements for railroads, FRA must clarify its requirements for reporting collisions to the NRC.’’ And as you heard yesterday from 

Administrator Boardman, they have since done that, and in fact, 

Mr. Scovel testified that a similar audit in the first 10 months of 

2006 found that only 12 accidents out of almost 3,000 investigated 

resulted in a missed report of that accident. That is way below the 

21 percent which he talked about yesterday. 

So I would say from the standpoint of trend analysis, 12 out of 

3,000, that number is statistically insignificant, and that in fact, I 

believe that issue has been satisfactorily resolved. 

161

Thank you for the opportunity to testify on rail safety. The industry is committed to working with you, the FRA, our employees, 

and our customers to ensure that railroad safety continues to improve. I appreciate your indulgence, Madam Chairwoman, in letting me run over time. 

Ms. BROWN. Mr. Timmons? 

Mr. TIMMONS. Good afternoon, Madam Chair. Let me offer my 

congratulations also to you and Mr. Shuster. It is a pleasure to see 

you both in those positions and I look forward to working with you 

in the future. 

I appreciate the opportunity to appear this afternoon on behalf 

of the American Short Line and Regional Railroad Association. Nationwide, there are over 500 short lines, operating nearly 50,000 

miles of railroad, employing over 23,000 individuals. Twenty-five of 

the 30 members of this Subcommittee have one or more short line 

railroads operating in their district. 

As has been said many times this afternoon, there is nothing 

more important to the success of railroading than safety. To short 

lines, it is not only good business, but it is a personal matter. Short 

lines are small companies, where every individual is well known to 

the other. Mr. Hamberger cited the considerable improvement in 

the railroad industry safety data. I am pleased to say the short line 

industry has contributed to that improvement. 

According to FRA data, in the five year period from 2001 to 2005, 

the short line industry’s total number of injuries has declined by 

26 percent. If you bump that through October of 2006, the number 

increases to 40 percent. So in the brief time I have, let me make 

three points. 

First, this is a hearing concerning the reauthorization of the Federal Rail Safety Program. I should start by saying that the short 

line railroads are generally very satisfied with the operation of this 

program. We believe the law itself and the administration of that 

law by the Federal Railroad Administration has made a significant 

contribution to the safety of the industry. 

Having said that, we do disagree with the FRA’s newly proposed 

provisions to revise the schedule of civil penalties, which will approximately double fines for safety violations. We have submitted 

comments on this subject to the FRA, and I will not repeat those 

here, other than to say that we believe the agency should adopt a 

sliding scale of penalties. Track violation penalties, as an example, 

could be based on track classification. Other categories of violations 

could similarly have an adjustable scale for us. 

Our railroads operate at much lower speeds and much lower densities, and thus have a much lower accident severity risk than the 

Class I railroads. To double fines under the current system is unreasonable and would impose a significant hardship on small railroads that is unjustified, considering our operations and safety 

record. Additionally, a fine-doubling policy clearly deviates from the 

FRA’s policy statement concerning small entities in CFR 49 Part 

209, where the FRA recognizes the special needs of Class II and 

Class III railroads. 

Secondly, we believe that the most important thing a short line 

railroad can do to improve safety is to improve its track. As you 

know, the short line industry inherited the worst of the Nation’s 

162

track infrastructure when we began taking over these properties in 

the 1980’s. Today’s short lines plow almost a third of their annual 

revenues back into infrastructure improvements. That is more than 

any other industry in the Country. Beginning 2005, we have been 

able to increase that investment, thanks to the rehabilitation tax 

credit that so many of you were helpful in securing. As our track 

improves, our safety record will improve. We think the statistics I 

mentioned earlier bear that out. 

Our three year tax credit expires at the end of 2007. And we are 

seeking a three year extension. Twenty-five of the 30 members of 

this Subcommittee were co-sponsors of our original tax credit legislation and we hope you will do so again. Of the remaining six, five 

are new members, and did not have an opportunity to co-sponsor. 

We hope they will consider doing so at this time. 

Third, I would like to briefly address the issue of hazardous material. Almost to a company, we would prefer to give up this traffic. 

We cannot adequately ensure the risk, and for most short lines, a 

single accident means going out of business. In the majority of 

cases, the short line does not even set the rate, so there is virtually 

no relationship between what we earn and the risk we assume. 

Compounding the rate inadequacy problem is the fact that for 

short lines, the cost to insure one car is just as much as it would 

be for 100. I fully understand how difficult this issue is for the Congress. There is strong special interest opposition to a meaningful 

cap on any liability. Neither the producers nor the end users are 

willing to pay the real price associated with this transportation and 

would vigorously and probably successfully oppose any such proposal in the Congress. 

But the fact remains that some day there will be an accident on 

a short line railroad. Ultimately, that railroad will be put out of 

business. When that happens, many more short line railroad owners will decide that the risk is too great and will throw in the 

towel, to the detriment of the communities and the shippers they 

serve throughout the Country. 

We believe that a realistic solution to this problem will involve 

some combination of a limit on liability, a greater assumption by 

the cost by the producers and end users, and perhaps some kind 

of Government insurance program that assumes the risk above a 

certain level. Possibly the Price-Anderson mechanism may be the 

most reasonable solution. For that to work for short lines, there 

needs to be some kind of bridge between our company insurance 

and what will undoubtedly be a much higher liability limit under 

the new mechanism. 

So I strongly urge this Committee to vigorously pursue a solution 

before, not after, a crisis occurs. The short line industry certainly 

stands ready to make whatever modest contribution we can to 

crafting a solid solution. So I appreciate the opportunity this afternoon to appear here, and would be pleased to answer any questions 

that you might have at the appropriate moment. 

Thank you, Madam Chair. 

Ms. BROWN. Thank you, Mr. Timmons. 

Mr. Wytkind. 

Mr. WYTKIND. Madam Chair, thank you for inviting Transportation Labor to appear before you today. And to all the members 

163

of the Subcommittee, I appreciate the invitation to appear before 

all of you. I too congratulate you, Madam Chair, for your rise to 

the chairmanship of this Subcommittee. We have a lot of confidence 

that rail workers’ voices will be considered as you deliberate over 

rail safety and the number of other initiatives before this Subcommittee. 

It is no secret that reauthorization of rail safety legislation is so 

long overdue. It is frankly outrageous that because of the opposition of the railroad industry, every attempt to pass authorization 

has been blocked for over a decade. Fortunately, it appears this 

Committee is now poised to act on much-needed changes to our 

Federal rail safety laws. 

The reason behind the delay has been real simple: stonewalling 

and political gamesmanship up on Capitol Hill by the railroad industry and its lobbyists. It is plain wrong to have the railroad safety laws of this Country held captive to special interest lobbyists of 

the railroad industry. I think it is time now to take a serious look 

at what has happened in the last 10 to 12 years that needs to be 

changed through very vigorous enforcement and oversight by our 

Government and by Congress. 

I reject the proposition that the railroads have been advancing 

now for over a decade, which is that which they agree to should 

be implemented by the FRA through their joint rulemaking procedures with the railroad unions and everything else should be 

scrapped. That is essentially the position they have been taking 

since the Federal Railroad Administration and the DOT tried to 

enact a number of rail safety initiatives in the 1990’s, which were 

also blocked by the rail industry. 

We have offered a number of proposals, but I will only summarize a handful of them, for purposes of today. We believe first and 

foremost that railroads must be held accountable for their conduct 

and must face not only aggressive enforcement action but also robust fines when they skirt their responsibility to run safe railroads 

and protect their workers. We must combine those enforcement 

tools with strong whistleblower protections for employees. Safety 

and security training must be mandated, because the industry is 

not performing those functions. 

Chronic fatigue must be addressed in any legislation. And we believe that the use of technology, including off the shelf signaling 

technology, can finally rid the rail network of many of its hazards, 

including so-called dark territory, which is unfortunately prevalent 

in the industry and is threatening public and employee safety 

around the Country. 

First, regarding enforcement measures. It is a fact that for every 

violation the railroads are levied with, they pay on average $30. 

That is hardly a penalty that matches the crime, so to speak. We 

believe that the penalties must reflect the seriousness and the volume of the safety violations. 

Second, as a companion to these enforcement tools, harassment 

and intimidation in the railroad industry must be put to a stop. I 

have been talking about this for over a decade before this Committee and before the Senate Commerce Committee. The employees 

in the railroad industry are harassed and intimidated into not 

speaking up about safety problems. It is a culture that has been 

164

around for decades. It is something that the railroad industry and 

its representatives like to basically gloss over and ignore and make 

you believe they do not exist. But they do. And we believe it is a 

serious issues in trying to deal with safety and security threats in 

the industry. No worker should have to choose between his or her 

job security and the safety of the system. 

Third, training is not being done at the level it should be. It 

must be mandated in the legislation. And staffing shortages should 

at least be looked at by the Committee to make sure that the staffing needs of the industry are being met to meet the safety priorities of the Country. 

For years, we have listened to rail industry claims about all the 

training that takes place. It is not happening. I am told instead 

that these workers are overworked, understaffed and ill-equipped 

to manage the capacity crunch that plagues the system. I hear 

about new hires not keeping pace with an aging work force. I hear 

about a condensed, one size fits all training program, because there 

is not time to train the new hires. I hear about new employees resigning in droves because of the lack of quality of the job and the 

training, and because of their lack of preparedness for the job, because of the railroad’s inattention to those issues. 

In short, the FRA must be compelled to require strong training 

programs. Separately, on the security side, the same problem exists. Since 9/11, I have been talking personally about this and all 

of our unions have. Our members are not being trained to deal 

with security threats. No matter how many glossy overheads, no 

matter how many nice brochures get put out, no matter how glossy 

the curriculum looks, they are not getting trained. And until they 

are trained, we have a railroad industry that is exposed to security 

risks and threats, and it has a workforce that is not ready to deal 

with those threats in a head-on fashion. Showing low budget security videos for 20 minutes hardly constitutes real security training. 

Finally, on fatigue, I know you are going to hold a hearing and 

maybe a series of hearings on it, but I must address a couple of 

points. In the McDonough, Texas collision, where a hazmat release 

ensued and three deaths occurred, the worker on duty was very 

clear about the fact that he couldn’t come on duty, because he was 

tired. He tried to take a day off for rest. Instead, he got two hours 

sleep right before that accident occurred. 

This is the kind of story that is going on all over the railroad industry. Other workers are being pushed to the brink. It is not unusual for the railroads to game the Hours of Service Act and for 

workers like signalmen to work as much as 18 or 20 hours in a 24 

hour period. Something has to change, and I think this legislation 

has a chance to deal with fatigue problems in the industry. 

I will conclude, Madam Chair, I have many other things I could 

talk about and I will. But I will end with a quick story in Illinois. 

I apologize for going over as well. But in Illinois recently, rail employees and their unions attempted to pass a reasonable safety 

piece of legislation that dealt with the lack of prompt medical attention for rail workers. The bill enjoyed strong bipartisan support 

at the State level and the State legislature. The Illinois house 

passed it. 

165

The senate then took up a compromise bill that the railroads negotiated with the unions and the politicians and the State. The 

State senate passed the bill with the expectation that the State of 

Illinois would not get objections from the railroad industry. 

Well, before that train left the station, the railroads reneged on 

the deal. They filed suit in Federal court and they overturned the 

very legislation that they agreed to and in fact helped to write. 

I make this point only because this is exactly the kind of 

stonewalling we have been dealing with at the Federal level for 

over a decade. No matter what the initiative is, if it tells the railroads what to do, when to do it and how to do it, they say no. They 

say no all the time. They don’t just say no, they say, hell, no. And 

until the Committee and the U.S. Congress decides it is time to 

pass rail safety legislation over the objections of the rail industry, 

it is going to be very difficult to achieve it. 

But I have a lot of faith in you, Madam Chair, and in the full 

Committee Chairman, Mr. Oberstar, who has just joined us, and in 

all the members of this Committee, that we are going to finally get 

a chance to deal with the rail safety crisis that we think we have 

in this Country. 

Thank you, and I appreciate the time you have afforded me. 

Ms. BROWN. Thank you. 

Mr. Rodzwicz. 

Mr. RODZWICZ. Good afternoon, Madam Chairwoman, Mr. Ranking Member and Subcommittee members. 

As president of the Teamster Rail Conference, and on behalf of 

more than 70,000 men and women we represent, made up of the 

Brotherhood of Locomotive Engineers and Trainmen, and the 

Brotherhood of Maintenance of Way Employees, thank you for 

holding today’s hearing and providing us with the opportunity to 

give you our views on reauthorization of the Federal Rail Safety 

Program. 

Safety is a vital concern to our members who place their lives on 

the line every day in order to transport the people and the goods 

that keep our economy running. In the last six months, seven railroad workers have been killed in the line of duty. That result is 

unacceptable to the Rail Conference. I challenge the FRA and the 

industry to move forward immediately and decisively to correct the 

causes of those tragic deaths. 

BLET and BMWED both are proud members of FRA’s Railroad 

Safety Advisory Committee, and have served since RSAC’s inception in 1996. We believe that with some significant exceptions, we 

have made progress improving rail industry safety, because of consensus based rulemaking under the RSAC process. And, although 

we don’t always agree with them in the end, we appreciate the respect and consideration we receive from AAR and the Short Line 

RSAC partners. 

We are also proud of our relationship with the FRA. We believe 

that the FRA’s performance strongly warrants a multi-year reauthorization of the Federal Rail Safety program, so that we can proceed in an orderly fashion in the years ahead. Reducing accidents 

and injuries related to human factors cannot happen if we focus 

solely on the person who is closest in place and time to an accident. 

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ment must also include continuing study of and adjustment to the 

work environment as a whole. 

For this reason, we believe the Federal Rail Safety Program 

needs to address a number of issues to complete the circle to ensure employee safety. I will briefly identify some of them in no particular order of significance. 

Fatigue continues to be a major concern for us. Operating crews 

in freight service for the most part work on an unscheduled operation. At minimum, we need to address fatigue for operating crews 

by one, counting limbo time as hours of service; two, requiring a 

ten hour calling time, so people can have adequate opportunity to 

rest before reporting for work; and three, implementing basic, concrete fatigue counter-measures. At a minimum, operating employees should be permitted to request rest when an individual believes 

it is needed for a safe operation. 

Causes of maintenance of way worker fatigue also require additional study and counter-measures must be adopted. Maintenance 

of way workers are often required to travel hundreds of miles to 

report to work sites on their days off. These same workers are also 

the only rail workers who are expected to obtain adequate rest in 

multi-person occupancy lodging. On Norfolk Southern, for example, 

many employees in such service are forced to sleep eight people to 

bunk cars, not provided with potable water and forced to use outside toilets. These conditions on NS are intolerable, and the entire 

treatment of maintenance of way workers needs substantial improvement. 

We know that track caused derailments account for approximately one-third of all rail accidents. Railroads are not hiring and 

retaining a sufficient number of employees to adequately maintain 

the Nation’s rail infrastructure. Staffing levels have been reduced 

by nearly two-thirds over the past 25 years. While some of this decreased can be attributed to improved technology and greater work 

productivity, the fact remains the existing track force levels are insufficient for the task at hand. 

Madam Chairwoman, may I have additional time to complete my 

testimony? 

Ms. BROWN. Yes, sir. 

Mr. RODZWICZ. Thank you. 

The lack of manpower causes the Nation’s rail infrastructure to 

maintained in a reactive, rather than a proactive mode, putting 

other rail employees and the communities near rail lines at greater 

risk for injuries caused by track related derailments. 

Also on the subject of staffing and safety, I want to repeat something to you that you have heard from the Rail Conference and 

from our divisions in the past: we fully support development and 

deployment of positive train control. PTC is a safety overlay on the 

top of existing signal and train control systems and can provide 

each and every Rail Conference member with an important added 

margin of personal safety. 

However, we oppose implementation of PTC simply as a means 

of reducing crew size, because trading a set of known risks for a 

set of unknown risks will jeopardize public safety and the safety of 

our members. Increased individual worker liability and the testing 

and implementation of a number of next generation technologies 

167

also means the training standards need to be improved. Second 

class training won’t cut it if first class performance is expected and 

demanded of railroad workers. 

We also want to state that we fully support Mr. Wytkind’s statements concerning certification of car men, conductors, mechanics 

and signalmen, as well as with respect to staffing, training and certification for hazardous material movements. FRA is currently conducting a number of studies which we support. We believe several 

other studies are also warranted. Briefly, these include the safety 

impact of contract drivers, of railroad crews to and from duty assignments, and evaluation of conflicting and confusing railroad operating rules, follow-up studies of switching operations, fatalities 

analysis, and a collision analysis working group. And a study of locomotive cab environment and its impact on human performance. 

We also believe FRA should reopen its investigation and study 

regarding the discharge of human waste along tracks where maintenance of way workers perform their tasks, which I address in detail in my written testimony. I simply cannot believe that in the 

21st century, railroads use onboard toilets that dump human waste 

on tracks where our members work. 

We also believe reauthorization should address ongoing problems 

concerning main track switches and dark territory, routes on which 

no signal system is in place. My written testimony provides more 

details. In short, we believe that the NTSB recommendations from 

its report on the Graniteville tragedy should become mandatory requirements. 

Once again, I thank the Subcommittee for hearing us today. I am 

certainly happy to answer any questions you may have. As an echo 

to the other members testifying today, congratulations to you, 

Madam Chairwoman and to the Ranking Member. Thank you. 

Ms. BROWN. Thank you. 

We will hear the last testimony and then we will get into questioning. 

Ms. VAN DYCK. Thank you for inviting me to speak today. I am 

speaking on behalf of the American Association for Justice, formerly ATLA, one of the largest practicing trial bars in the world. 

My name is Sharon Van Dyck, and I practice law in Minneapolis, 

Minnesota. 

The purpose of my being here today is to make you aware, as the 

Railroad Subcommittee, of the scope of the problem that was referenced by Mr. Pomeroy and his client. That has to do with the 

way preemption is being interpreted by the courts in today’s environment. Because this Subcommittee and ultimately the Committee and ultimately Congress, has the ability to fix it, to fix it 

and make it clear that the courts have it wrong, and that they 

have it wrong because in 1970, when the Safety Act was passed, 

it was never intended to be done the way it is being done now. 

The FRSA is a safety act, and the whole purpose of it is to improve railroad safety for everybody, for railroad workers, for the 

public, and in particular the public is what is at issue here. The 

FRA has been empowered to draft safety regulations and has done 

it, has done a lot of it. The problem is that recent courts are dismissing State law based claims, leaving victims with no remedy 

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preted. And I believe that that goes to one of the questions, Madam 

Chairman, that you asked, what is happening, what is causing 

this. 

The Act has a preemption clause because everybody wants the 

uniform safety provisions that have been promulgated, which are 

minimum standards that everyone should be following. They want 

that to be the minimum standard. They don’t want people going 

below that standard. And for years, probably 25 years, courts pretty much interpreted the FRSA preemption clause that way. 

What has been happening approximately since about 1993 and 

increasingly worse, through the Minot case, and I think the reason 

Minot is such a terrible example—it is an excellent example, but 

a terrible event—is because it is the ultimate example of what happens when the law is interpreted the way it is being interpreted 

now, is that it leaves all these people with absolutely no remedy. 

The FRSA does not provide a remedy. 

What is being said is that if there is a regulation or it is an area 

that is regulated by the safety standards in the railroad industry, 

that the intent of Congress was in the past and still is to say the 

mere existence of a regulation for safety is enough, and that any 

citizen who is injured in a derailment, in a crossing case, in any 

kind of accident, where those standards have not been even upheld 

at all cannot be challenged. The mere existence of the safety regulation eliminates all State rights in terms of going to court and getting a remedy. 

And that is what happened in the Mehl case in North Dakota. 

The judge said, my hands are tied. The judge said, Congress, you 

have to fix this. And as much as I personally and many of us do 

not believe that that is what the law is or what the preamble actually says or was ever intended to say, that is what courts are interpreting it to do. So we have a Federal statute that provides no remedy. The mere existence of safety standards that courts are saying 

mean that if there is a standard, you have no remedy. And the latest is that it is being used with complete preemption to pull court 

cases out of State court into Federal court and then dismiss them. 

This was never what the Federal Safety Act was intended to do. 

It was not used that way for 20 to 25 years. The fix is simple. The 

fix is to add a sentence to the preemption clause that clarifies that 

the State law remedies are in place. That is my purpose in being 

here today and I thank you for your time. I am perfectly willing 

to answer questions. 

Ms. BROWN. Thank you. 

At this time, I am pleased that our distinguished Chair of the 

full Committee has joined us, Mr. Oberstar. Mr. Oberstar, as I said 

yesterday for those who were not in the room, you started out as 

a staffer with this Committee 44 years ago. And now his picture 

will be on the wall as Chair. I am very happy to be one of his 

chairs, and I can tell you, no one in the entire Country knows more 

about transportation in every aspect, probably in the world, than 

our Chairman, Mr. Oberstar. 

Mr. OBERSTAR. My goodness, thank you, Madam Chair, for those 

kind words. I will have to work overtime to live up to them. 

Congratulations on your second Subcommittee hearing on the 

subject of rail issues. Again, I welcome Mr. Shuster to the SubVerDate 0ct 09 2002 15:17 Jul 24, 2007 Jkt 000000 PO 00000 Frm 00174 Fmt 6633 Sfmt 6633 P:\DOCS\34777.TXT HTRANS1 PsN: JASON
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committee and a new assignment for him, the Chair of the Economic Development Subcommittee in the previous Congress, and 

the former Chair of the Subcommittee, Mr. LaTourette, who devoted a great deal of time and energy to rail issues and whose leadership was much appreciated on both sides of the aisle. 

Madam Chair, you have worked diligently to master the issues 

of railroading and we are proceeding with a very vigorous schedule 

in all of the subcommittees of the Committee on Transportation 

and Infrastructure. This is our fourth hearing, and we have already 

had a markup of several water related bills. We will have more to 

come in the next few weeks. We have an agenda to report out and 

bring to the House floor before the President’s day recess, at least 

half a dozen major issues, most of which are bipartisan items that 

carried over from the last Congress, and others are new issues. 

This proceeding on rail safety stems from nearly a dozen years 

ago when our Committee, in the reorganization that the Republican leadership of Congress undertook to redistribute committee 

responsibilities, and one of the best moves they made was to consolidate all transportation in the Committee on Transportation and 

Infrastructure, including rail, Coast Guard and others. When I took 

a look at rail safety and compared it to safety in the aviation sector, given adjustments for differences in modes, I was, to put it 

mildly, appalled and set about inquiring into conduct of safety in 

the railroad sector. 

The result of which was a comprehensive bill that I introduced, 

along with a number of co-sponsors in roughly 1995, 1996, I think 

it was. There is a great deal, some progress has been made by the 

Federal Railroad Administration. FRA has implemented some of 

the recommendations by the National Transportation Safety Board. 

But FRA still has only 421 inspectors, States have 160. 

But only 2 percent of railroad operations are inspected every 

year. Only 13 percent of the most serious rail grade crossing collisions were inspected from 2000 through 2004. In comparison to 

FAA, 93 percent of the general aviation accidents were investigated 

by the FAA. The Federal Railroad Administration has a long way 

to go to pick up the ball and be vigilant on rail safety. 

The RSAC that was established under Jolene Molitoris during 

her tenure at the Federal Railroad Administration was a splendid 

effort to bring management and labor together to work out issues. 

In the end, voluntary agreements are no substitute for vigorous 

enforcement of oversight responsibility. And as we have seen in the 

testimony today, as we have heard over many years, there are serious gaps and shortcomings, failure in rail safety that have to be 

addressed. Either this Federal Railroad Administration takes appropriate action through regulatory authority that it has or we will 

move legislation that makes those changes in law. 

Thank you, Madam Chair. 

Ms. BROWN. Can we go back to the first film with the railroad 

crossing? Is it possible? 

Mr. HAMBERGER. Mr. Miller, the Chairwoman would like to see 

the film of the grade crossing accident. 

Ms. BROWN. While he is doing that, what are the railroads doing 

to prevent fatigue? We have had a lot of discussion about it. 

170

Mr. HAMBERGER. Madam Chairwoman, we will be talking in 

great detail about that in two weeks. We are working very diligently to hopefully have some very specific recommendations, consistent with what the Chairman just said, for things that this Committee can do in the area of fatigue. 

Having said that, we anticipate working with labor, because 

what needs to be understood is that many of the issues surrounding fatigue are also part of the negotiated process between 

management and labor. But several of the railroads have instituted, for example, increased rest times between calls. We have instituted models to try to take a look at how long people should be 

off, how to guarantee certain days off, improving crew scheduling 

practices on a work district by work district basis, and working 

with the crew to make sure that they understand that when there 

is time off, there is a responsibility at the same time to try to get 

some rest during that time off. 

Ms. BROWN. Did they find the tape? Because I wanted to ask a 

question about the rail crossing. They took it, OK. 

Well, we are going to stand in recess. We have three votes, one 

15 minute vote and then I guess two other 5 minute votes. Then 

we will come back, I guess we should be back in about 30 to 45 

minutes. Members will have an opportunity to ask as many questions, we can have a couple of rounds. 

Mr. HAMBERGER. We will have that disk by the time you get 

back. 

Ms. BROWN. Yes. So feel free to please, members, come back, because we want to have this question and answer period. 

Thank you. 

[Recess.] 

Ms. BROWN. The Committee will come back to order. I am glad 

we were able to vote and get back early. 

On the film, Mr. Hamberger, I was trying to figure out whether 

or not it was railroad crossing. 

Mr. HAMBERGER. On the first one, there was a crossing gate. I 

think you can just, as we run the tape and you get a little bit closer, you can see there is a shadow there on the right side. You can’t 

really see it on the left, but of course, if they have it on the one 

side of the track, it’s going to be on the other. 

[Video shown.] 

Mr. HAMBERGER. Did you see it there on the right? If we can just 

back it up a touch, Mr. Miller. 

[Video replayed.] 

Mr. HAMBERGER. The second one did not have active warning 

lights. 

Ms. BROWN. I think you said the second one also did not have 

a stop sign. 

Mr. HAMBERGER. That is correct. That requirement will soon be 

part of the MUTCD, which stands for the Manual of Uniform Traffic Control Devices. We did support the NTSB recommendation 

that there be a stop sign at the grade crossings where there are 

no gates and lights. 

Actually, they have left it up to the States to have either a stop 

sign or a yield sign. It looks like we are going to make another run 

171

at it here. If you look on the right side, right about there, you can 

see the gate is down on the right hand side. 

Ms. BROWN. I see. And he just went around the gate. 

Mr. HAMBERGER. And there was a corresponding gate up on the 

left hand side. And if we could back it up, you will see there is a 

car in front of him, and he went around the car in front of him and 

around the gate. You see him going around. 

Ms. BROWN. I guess that is what I was asking you, is the technology there that you can, we can make sure that you can’t go 

around? 

Mr. HAMBERGER. The technology is there. Obviously it is a matter of resources, and that is why it is so important that this Committee fully funded the Section 130 program for the States to have 

more money to put into this area, and did not take the advice of 

the Administration, which is wanting to make that a block grant 

for safety. 

So the leadership of the Congress is very important there. As you 

know, the industry maintains all of those lights and gates around 

the Country. It is our responsibility and it is about $200 million to 

$250 million a year we spend on doing that. But it is a cooperative 

effort. The one in North Carolina, with Norfolk Southern and the 

State of North Carolina, to have a corridor that is basically sealed, 

so that the number of accidents there should drop dramatically 

there as it gets put in. 

Ms. BROWN. OK. I have lots of other questions, but I am going 

to go to Mr. Shuster. 

Mr. SHUSTER. Thank you very much. 

I think that all of us can agree on the importance of safety and 

security. These are serious issues and quite frankly, complicated. 

As the new Ranking Member on this Committee, I am trying to get 

my arms around them. So I have been meeting with a number of 

people throughout the industry and if we haven’t, if my staff has 

not called you, I would encourage you to call our office. Because I 

really want to sit down and again, try to understand all sides of 

the issues. I know that there are different views, and that I need 

to hear them and understand them to be able to make decisions 

and to be able to have vigorous oversight on this Subcommittee. 

The statistics that I have seen, whether they have been industry, 

whether they have been Government or independent studies, demonstrate to me that rail safety has gotten better over the last couple of years. And as I think Mr. Hamberger said, this may be the 

safest year in rail history. 

So Mr. Wytkind, when I hear your testimony, you made some 

claims, which again I am certain you feel strongly about. But for 

me, I need to see the facts. You and I talked earlier during the 

break. I hope you will come by the office and we can sit down and 

discuss this more at length. I am sure we are going to be cut short 

here today. 

But I wonder if you might comment on that. Because again, for 

me, all the charts that I have seen show important strides in a 

positive way, not perfect. We want to move towards becoming even 

more safe. 

Mr. WYTKIND. I would be happy to come in and talk to you, and 

I would probably bring with me some of the rail safety experts that 

172

work within some of the railroad unions, who have been living and 

breathing these issues for their whole careers. 

But I won’t get into the statistics, because statistics are however 

you present them. I think the Association of American Railroads is 

good at presenting the statistics in a way that reflect well on its 

safety operations. 

Mr. SHUSTER. But I would be curious to see your statistics. 

Mr. WYTKIND. Well, I don’t keep statistics. I just analyze what 

is happening through a worker’s perspective. I would say to you the 

following: I have been representing transportation workers on Capitol Hill for about 16 years. I have been before this Committee and 

many others, talking about rail safety and security on several occasions. 

When I start talking about the lack of enforcement and the lack 

of robust fines to, as I said, make sure that the punishment meets 

the crime, I think that is borne out by stats. When you have as 

many safety violations as you have around the Country on an annual basis and the average fine is $30, that is the charge of dinner 

for two at a diner for the average violation, which is hardly a deterrent to unsafe operations. 

When I talk about the whistleblower issue, the reason I brought 

this issue again to the Committee is because there has been a culture of harassment and intimidation in the railroad industry way 

before, obviously, you began your service in the U.S. Congress. It 

has been documented on several occasions, including by investigations into the issue by the Federal Railroad Administration, where 

it did cite that issue as a big concern as they looked into the labor 

management issues. All we are saying is, if you are going to pass 

the financial services legislation that you all passed in the previous 

Congress to deal with a lot of the problems with financial services, 

whistleblower protections were put in that bill. We would argue 

that for the same reason that they were put in that bill, you should 

put strong whistleblower protections to stop harassment and intimidation in any rail safety bill. 

So I think there are a number of issues that need to be dealt 

with. They are really not just about statistics or the way in which 

statistics are presented. They are about a culture in an industry 

that we believe is unsafe and that workers and the public are suffering because of that. 

Mr. SHUSTER. But again, in a way, I think you can make informed decisions looking at the numbers. You say there are a number of, that is, you know, what is a number? The number to you 

may be 100 and that may be a lot. But if there are thousands or 

millions, then that is a very small number. Again, I would like you 

to come by and let’s sit down and let’s talk about this. 

But for me, I have to see the measurements. If you do not have 

the measurements, I think you make decisions, just like on Sarbanes-Oxley, we passed it and probably one of the worst votes I 

have ever made in hindsight, because it has caused so much damage to many of our small businesses that can’t comply with the 

costs. They are so huge. 

Mr. WYTKIND. The point I am making is you put whistleblower, 

and that is not the problem you are referring to. There are a lot 

173

of other problems. I don’t think whistleblower protection has been 

a subject of criticism in that piece of legislation. 

Mr. SHUSTER. And I do not want to debate on whistleblower, but 

I understand there is a whistleblower protection in the law now. 

Mr. WYTKIND. It is inadequate. 

Mr. SHUSTER. OK. You and I can sit down and we can talk about 

that. 

Mr. WYTKIND. I am happy to. 

Mr. SHUSTER. OK. Thank you. 

In the regulatory climate that seems to be changing out here in 

the rail industry, you have cities wanting to reroute or even stop 

hazmat materials from going through and re-regulate shipping 

rates, TSAs, looking at new regulations, and just the cost and the 

complexity that we are talking about, changing on shipping these 

hazardous materials. My concern is what kind of impact is that 

going to have on the rail industry, and are we going to stop or at 

least decrease significantly private capital coming into the rail industry which is, I think, extremely important that we have an understanding of what is going to happen to that private capital coming into the industry. 

Mr. Hamberger, Mr. Timmons, anybody else that wants to comment on it, I certainly would appreciate it. 

Mr. TIMMONS. The hazmat issue is a serious predicament for the 

small railroad industry. In the month of January, we had 126 of 

our railroads move hazardous materials. If you look at the predicament that they face in that context, and the potential implications 

for communities if we start to curtail the movement of chlorine, for 

example, it becomes a very, very difficult problem for communities. 

On the reverse of that, the railroads are required to carry this 

material as common carriers. In the small railroad context, they 

can’t charge enough to cover the cost of insurance that would adequately protect them from a derailment resulting in a spill or a 

breach. So we are confronted with risking the small railroad company and not having any good course of relief. 

We have to carry it, we can’t buy the insurance to protect ourselves from it, and therefore we risk the company. Now, we have 

had some small issues with hazmat. I will cite to you one small 

anecdote that occurred within the last month or so where we had, 

in a yard, the rear trucks on a chlorine car derail. The car is upright, it is the middle of the morning. Normally the car would be 

re-righted. 

That resulted in an over-reaction, where 75 fire engines, all businesses and 40 square blocks were evacuated. The Holtcher Company came in and re-railed the car at 3:00 o’clock in the morning, 

while large numbers of apartment dwellers and home dwellers 

stood in the outside freezing temperatures. The litigation that will 

go on for that small railroad will be endless, and the railroad 

owner says he will never again carry another bit of hazardous material. He can’t afford to, on the bring of going out of business because of that issue. 

And this is just the trucks coming off the track, going at 2 miles 

an hour, which is a very common predicament in the railroad industry. But the over-reaction, and the Transportation Security Administration taking charge of the site itself, trying to determine 

174

whether this was a terrorist act, had an enormous impact on the 

community and on the small railroad. 

So we think we need some kind of relief in this regard. The common carrier dimension is important, and the movement of hazardous materials by rail is clearly the safest way to move the materials. But to put the companies at risk and the communities suffer 

as a consequence is unreasonable. Something has to be done. I 

would strongly urge serious review of this problem. 

The railroads, the small railroads anyway, their revenue generation is very, very modest in this regard. So the business of rather 

give up the material or the product, moving the product than risk 

my railroad, is a common theme in the small railroad world. 

Mr. SHUSTER. Would anybody else care to comment? 

Mr. HAMBERGER. If I might, the issue is no less of a concern for 

the larger railroads. While the larger railroads can of course get 

more insurance, there is a limit on the amount of insurance they 

can get. And to put all this in perspective, last year there were 

about 33 million carloads of traffic moving around the United 

States. Of those, 100,000, less than 1 percent, about three-tenths 

of 1 percent, were toxic by inhalation. Anhydrous ammonia and 

chlorine were about 80,000 and the rest were spread around some 

other commodities. 

So 100,000, three-tenths of 1 percent, it drives about 80 percent 

of the insurance costs, not only for the short lines but also for the 

larger Class I railroads; it could be a bet the company situation. 

Last June, there was a hearing in this Subcommittee where we 

tried to point out the issues with the common carrier obligation. 

This stuff right now has to move; chlorine is used to purify much 

of the Nation’s water supply. So it has to get there. We have a common carrier obligation to move it. 

But yet we are stuck with a bet the company situation. We are 

stuck with the cost of the insurance that we can get that is out 

there. And at least one of the Class I railroads and several others, 

I think, has said this publicly. Others believe it: that were it not 

for the common carrier obligation, they would exit the business. 

With all due respect to my friends in the trucking industry, I have 

noted that many of them are exiting the business of moving hazardous materials because of the liability issue. They apparently do 

not have that same requirement. 

At that hearing, Congresswoman Eleanor Holmes Norton said 

that the rail industry is, in her words, in an untenable position, 

forced to carry it, can’t get relief at the top end for liability. So we 

are working the ASLRRA in trying to come up with some sort of 

approach, a Price-Anderson kind of approach, the same situation 

that was faced by the nuclear industry many years ago, to see 

whether or not there is a way we can continue to move it. We are 

proud of our record in moving it, with 99.997 percent getting from 

origin to destination without a release. 

But as we have heard and as we have seen, that .003 percent can 

be very tragic. So we want to work with the Congress, and we do 

not yet have a proposal put together, but we are working to try to 

come up with some sort of an approach that would put a cap on 

liability, so that we can continue to move it. If that does not occur, 

the industry, at least the AAR, is going to have to take a look and 

175

say, should we try to get out of this common carrier obligation. 

That is where we are. It is a huge concern, a major concern, because there is a limit on the amount of insurance that you can get. 

Mr. SHUSTER. Does anyone else care to comment on that? 

Mr. WYTKIND. I might add a comment, if you don’t mind, Congressman. 

Mr. SHUSTER. Sure. 

Mr. WYTKIND. We are not in a position to endorse what has been 

suggested here today. But I will say that notwithstanding the fact 

that the Committee may address these common carrier obligations 

that my colleagues here are addressing, I don’t think you can look 

at this issue as this kind of issue in a vacuum. If we are going to 

deal with that type of problem, you can’t deal with that problem 

if you are also not going to deal with all the myriad issues that 

have made this industry, we believe, unsafe, and that I think contributes to not only the perception that the railroads are unsafe but 

the reality that they are unsafe when they have these horrific accidents. 

So I would argue that before you fix that problem, you also need 

to look at what problems you also need to fix, which is how do you 

make this industry safer, so that you don’t have fatigued workers 

who contribute to unsafe operations, and so that you don’t have 

these horrific accidents in our rail system. I think that should be 

the focus of this legislation. For that reason, I don’t think we could 

endorse something like that until we have a comprehensive addressing of these kinds of issues. 

Mr. SHUSTER. Do you do it in conjunction? 

Mr. WYTKIND. It is not a question of conjunction. I think that you 

can’t look at that issue in a vacuum. It is easy to come to Congress 

and ask for relief in this particular area, but Mr. Hamberger is not 

asking for action in a number of other area that we al know need 

action by the U.S. Congress. I think that that would be a singular 

fix of his members’ problems, but it wouldn’t fix the underlying rail 

safety issues that I believe contribute to the problem. 

Mr. SHUSTER. The Chairwoman is giving me the hook. 

Ms. BROWN. Yes, listen, you all are moving a lot faster than I 

am. I do understand that we have a lot of issues, and we want to 

be fair with everyone as we move forward. There are many, many 

issues that we have to deal with. 

I just want to say, before I go to the next person, that the situation in the industry is not as bleak as it sounds here. Of course, 

I can bring out Mr. Oberstar to give you the history of the industry, 

and the history of how we even separated the railroad industry and 

how we developed these different railroad lines. The last time I 

went to the railroad conference, that we are not having this year, 

we brought in the people from Wall Street. I can bring them here 

and talk about how in the black we are right now. 

So we want to be fair, and we are going to move forward. But 

we want to be fair moving forward together. 

Mr. RODZWICZ. Madam Chairwoman, may I add a comment to 

Mr. Shuster’s question? 

Ms. BROWN. Yes, sir. 

Mr. RODZWICZ. I am not sure there is an answer to that question 

that would satisfy everyone. In fact, the question may beget actuVerDate 0ct 09 2002 15:17 Jul 24, 2007 Jkt 000000 PO 00000 Frm 00181 Fmt 6633 Sfmt 6633 P:\DOCS\34777.TXT HTRANS1 PsN: JASON
176

ally more questions. For example, worker reallocation. We don’t 

have people that are qualified on every area of track where these 

hazardous materials may run. So you would probably eventually 

have to reallocate crew members. 

I am somewhat familiar, as I told you earlier, with your particular district. In many instances, towns grew up around railroads. Our infrastructure, track capacity, is at or near maximum. 

What you may end up doing is actually centralizing this hazardous 

material where it becomes even more dangerous. These are different perspectives and questions I ask myself, that people perhaps 

with TSA or whomever, perhaps this body will have to come up 

with the solutions. Tracks only run in certain locations right now. 

So you may not be always able to reroute hazardous material. 

So I just think that is a process where I do not know if there is 

a right answer. Thank you. 

Ms. BROWN. Well, we are going to go down that track together. 

[Laughter.] 

Ms. NAPOLITANO. Thank you, Madam Chair, for the hearing. I 

have a lot of questions formulated, I just won’t have the time to 

ask them all. But I have certain areas that are very key in my 

urban area that have been a bone of contention for I would say 

about 20 some odd years. That goes back to my city council days. 

Part of it is that the railroad had been less than, the railroad 

representatives had been less than helpful when the cities were 

having concerns and wanted to meet with them. That aside, at the 

current time we were working on the Alameda Corridor East, 

which is that stretch from Los Angeles into the Inland Empire and 

on to delivery for the eastern area. 

Part of what we found out in some of the briefings that we had 

with the railroad and with other individuals, including State officials, was the life of the rail and how does the railroad determine 

when it is time to replace it. My understanding from some of the 

briefings that we had from railroad officials were that the steel 

they were using had been not quite up to par, so they quit using 

it. That was something that was of concern, because of how much 

of that had been laid and replaced or not replaced. 

Well, if that gives, if there is stress, and there is ability for even 

when it is joined to another rail, whether it is welded or whether 

it is a joint bar issue or whatever, those are issues that I am very 

concerned about, whether or not the research has been done, to determine whether or not the rail itself has been adequately upgraded or replaced. And then when we go to the insulated joint 

bars, it is whether or not the research has been completed. Because 

there was going to be some research given to a university, and I 

can’t remember off-hand what it was, I would have to look it up, 

whether or not that has been successful or what has come of it. 

That is question number two. 

Then we go on to the grade separations. Is the railroad, any of 

the railroads, assisting the communities in being able to support financially the building of those grade separations? And how much 

are they working with the cities and the States to be able to ameliorate the impact it has on the community, especially in heavily 

populated areas like ours? 

177

And if there has been an investment, and as we hear that the 

biggest number of accidents are at the junctions, at the crossings, 

so whether or not there has been information that would determine 

whether or not it is a vehicle problem, is it not enough signage, it 

is updated rail instrumentation to be able to warn people, what is 

it? 

Then we go to the issue of training of railroad personnel. Because at the time when I began getting involved in this issue, there 

had not been, as I mentioned before, there had been retirement, 

and this came to us from the railroad officials, of many people after 

9/11, and they had not been replaced. So they were putting people 

on and it would take what, two years, for training? Minimum? 

Something to that effect. That is what we were informed. These 

were at hearings with the board of supervisors in L.A. County, 

along with Congressman Linda Sanchez. 

And what that told us is we may be having individuals who are 

not fully trained manning trains that might not have enough experience to be able to deal with issues that come up that might involve an accident. So those are some of the issues. 

And the third one would be the impact that, and thank God we 

are having one of the local railroads replace some of the wooden 

ties with cement ties, but they are closing off a mile and a half, 

which means that now the L.A. County fire department is having 

to place emergency centers on both sides of those closures to deal 

with any kind of accidents, whether it is railroad or whether it is 

automobiles. People are trying to make turns into the previously 

opened crossings. 

And it is not an inexpensive thing for them, and there is no other 

way of being able to reimburse. Whether or not at the time this is 

done the railroads are considering working with the communities 

to be able to address how they can cut down, whether it is the extent, or the length of the changes, or whether it is something that 

they can work with the cities and try to work out beforehand. Take 

your choice. 

Mr. HAMBERGER. I am going to assume that was for me. Thank 

you very much, Congresswoman Napolitano. I mentioned right before you came in that one of the things that we are spending a lot 

of time and energy and resources on is research at a place called 

the Transportation Technology Center, which is located in Pueblo, 

Colorado. It is a 54 square mile research facility that the AAR operates under contract to the FRA. 

We have been running it now for about 20 years. Last year, 

under the leadership of then-Chairman LaTourette, Chairman 

LaTourette and now Chairwoman Brown came out twice to see a 

demonstration of the technologies that we are trying to develop out 

there. They include wheel profile monitors that use lasers and optics to capture the images of the wheels as the train goes by, acoustic detector systems that offer predictive safety tools, such that 

when a car goes by whether or not the bearings need to be changed 

and get that car out of service before it causes an accident. 

Then rail defect detector cars, which I think goes to exactly what 

you were talking about yesterday, which uses laser technology to 

try to identify internal flaws in the rail and in the joint bars. 

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Ms. NAPOLITANO. It is not effective, sir. I am sorry, but we were 

told it is not effective. There is no way they can look inside that 

insulation. 

Mr. HAMBERGER. As I say, they are working on that. We have 

a couple of machines that are being tested out there. I understand 

one of those is now actually in service out on the road. So we are 

trying to move to address that very specific issue that you raised 

a concern about. 

We are also working on new metallurgical, you mentioned the 

kind of steel, something called banitic steel, which is a new kind 

of steel alloy that would last longer and not wear out as soon. The 

interface between the wheel and the rail is a very important aspect 

of safety, and in fact, TTCI was hired by the London Underground 

after they had several accidents, to go over and investigate and 

give advice as to how to improve safety, because of that interface 

between the wheel and the rail. 

So it is something that we take very seriously. We are spending 

on technology, and Madam Chairwoman, you have a standing invitation to come back. We do hazmat training out there as well, and 

we would love to have the Committee come back, for all the new 

members who have not had a chance to see that technology. 

You mentioned grade crossings. I mentioned again in my statement that 94 percent, according to the FRA report to Congress, 94 

percent of all the grade crossing accidents are a result of driver 

error or driver misjudgment. But each of the Class I railroads has 

a program in place to work with communities to try to close grade 

crossings and to try to help provide active warning devices at those 

that are open. It is a fact, of course, that only a closed grade crossing can be totally safe. So where there are grade crossings, then 

you want to have the active warning devices, and as I was discussing with the Chairwoman, there are technologies out there that 

can actually cut down on accidents, like median barriers, for example, that pop up when a train goes by. 

Ms. NAPOLITANO. I am sorry, sir, but that does not stop pedestrians from trying to beat the train. We have had several accidents 

where children go across because there are no grade separations. 

Mr. HAMBERGER. You are correct, it is the number one issue in 

safety, in our opinion, and that is to try to get people to understand 

through Operation Lifesaver that it takes a mile for a train to stop, 

and just try to educate them. 

Ms. NAPOLITANO. Operation Lifesaver, sir, they started trying to 

implement it in some of the grammar schools and middle schools 

close to where the accidents had happened. And they were volunteers, they never went back. So what good is it? 

Mr. HAMBERGER. It is a volunteer program. The AAR sponsors it. 

Individual railroads sponsor it. Congress and the FRA give them 

some resources. The program is there to try to get the word out. 

It is an educational effort. 

Your next issue was training. Mr. Wytkind and I disagree on the 

level of training that employees receive. I know that the Chairwoman did have the opportunity to make a trip to about a $50 million new facility in Atlanta that one of our members has for training. I will again invite the Committee to come down there and see 

the kind of training that does occur with respect to engineers. The 

179

training program has to be developed and submitted to the FRA for 

review. We believe that again, the proof is in the numbers. This is 

the safest year on record. 

With respect to security training, the security training program 

we developed last year with the support and actually the leadership of Rutgers University, the National Transportation Institute 

at Rutgers. That program was submitted to the Department of 

Transportation and the Department of Homeland Security. 

And the rulemaking Mr. Shuster is referring to that the Department of Transportation put out in December, the Department 

opined in its rulemaking that the AAR-sponsored training program 

met their security training requirements. We do have a situation 

in place where every member of every Class I will receive that 

training. So we think that we have addressed the training issue. 

I will now yield to my friend, Mr. Wytkind. 

Ms. NAPOLITANO. Is this offered to all railroad employees? 

Mr. HAMBERGER. That is correct. 

Ms. NAPOLITANO. What is the number of hours they must put 

into training? 

Mr. HAMBERGER. The number of hours in training depends on 

the craft which the person is involved in. I will get you some information on the record about that. 

Ms. NAPOLITANO. I would appreciate it, sir. 

Mr. WYTKIND. Yes, if I could, thank you for the question. I can’t 

address all the issues, obviously, you are dealing with in your district. But on the issue of training, it is absolutely absurd for the 

railroad industry to claim that its workers are being trained to the 

level that they should be. To have the Department of Homeland Security claim that it meets their security requirements, there is a 

little problem with that: they don’t have any. So to say that it 

meets a requirement, there are no security training requirements. 

We have been trying to get that enacted into law—— 

Mr. HAMBERGER. Department of Transportation. 

Mr. WYTKIND.—for quite some time and have failed to do so, although I have a lot of confidence that in this Congress, the mandate is finally going to exist. Until the mandate exists, the workers 

are not going to be trained. 

I would like to know who the workers are that Mr. Hamberger 

is referring to. I on my own have periodic briefings with rank and 

file representatives from around the Country, both on the passenger rail and on the freight rail side. Every single call I have had 

with these groups of workers, the universal message is that training is grossly inadequate, it is typically a ridiculous, low-budget 

video, and they have no idea what to do in this post–9/11 world 

that we are living in. They do not have the knowledge and the 

training and the expertise, hands-on expertise that you need to 

know to be able to respond to and deal with security breaches and, 

God forbid, actual attacks on our rail system. 

So I am sure the curriculum is real nice. The NTI does some 

good work. I have seen some of it. But unless it touches the workers at the rank and file level and they get real, classroom style 

training on the job, not to take home to do some interactive CDROM, they will then not be trained. 

Ms. NAPOLITANO. Thank you, Madam Chair. 

180

Ms. BROWN. You are welcome. Let me just say, this hearing is 

a different kind of safety. And we will have a hearing on homeland 

security and what we are doing in the industry post–9/11. So we 

had to separate it a little bit. 

I did go for the training, and one of the things, as we worked 

through the issues, for example, the train has to have so much 

time to stop. We have to educate the public about going around the 

safety bars, because clearly, the train cannot—I crashed the truck 

in my training. I failed. 

So we have to make sure that—this is going to be a homework 

assignment for all of the members. I am going to make sure that 

they all go through the simulators and they experience it. Because 

clearly, they need to know that you cannot, if you are in a little 

car, and you go up against a train, you are going to lose. I am just 

very happy that the former Chair of the Committee has joined the 

Committee and is going to be here to provide the expertise and the 

knowledge to help us work through this reauthorization. Mr. 

LaTourette. 

Mr. LATOURETTE. Thank you very much, Chairwoman Brown. 

Before I begin, now that the new majority has stopped these pernicious private travel trips that have obviously corrupted us—— 

[Laughter.] 

Mr. LATOURETTE.—I would hope that the gentlelady would consider a Congressionally sponsored trip out to TCC. I found it to be 

illuminating, and I think the new members of the Subcommittee 

would as well. From my observation, they are doing pretty good 

work. 

Ms. BROWN. I have already approached them, and I am going to 

write a letter to the Committee and ask for a waiver. Because it 

was one trip I took every year, because it was educational and informative. It was an opportunity to talk to the Senators and talk 

to the people in the industry. And one of the things that I think 

is very important is to educate people on issues that we are going 

to be dealing with as we move forward. It was very educational in 

the industry. I want my constituents to know it. It is what we are 

supposed to be doing. 

Mr. LATOURETTE. I couldn’t agree with the Chairwoman more, 

and I hope that you are successful. If you need any help on our 

side, I am happy to supply it. 

I want to thank you all for coming. Mr. Hamberger, I was not 

in the room for your testimony, but I read it. I was in the room 

for most everybody else’s. 

Just referring back to yesterday first, Mr. Hamberger, I listened 

to the new Inspector General. I would hope that your membership 

would take to heart his observations about not reporting. I think 

we had a little dust-up about what reporting was, and is it a telephone call, is it in the mail. But if the rule is that serious collisions 

at at-grade crossings need to be reported, they should be reported. 

I know you agree with me, and I would hope you are going to do 

whatever it takes to make sure that your membership complies, 

one. 

And two, my view is if they don’t, they should pay a fine. If it 

is a rule, you should follow it. I assume you don’t disagree with me. 

181

Mr. HAMBERGER. I learned when you were Chairman it was not 

a good idea to disagree with you. 

[Laughter.] 

Mr. HAMBERGER. But if I could just illuminate one second, and 

I would be remiss if I did not say for the record that we appreciate 

the leadership you did provide when you were Chair of the Committee in the last Congress. 

What came out under questioning of Mr. Scovel was that in 2006, 

of close to 3,000 accidents, 12 were mis-reported. And in his own 

report that he issued in an audit in 2005, his predecessor found 

that the reason for the mis-reporting in that time period was because of a change in the criteria for the call into the NRC versus 

the written report to the FRA. We take it very seriously and you 

are of course correct, when there is a violation, there should be a 

penalty. But I would say that 12 mis-reportings out of almost 3,000 

is hardly a crisis. 

Mr. LATOURETTE. And I was glad to talk to the Inspector General about that. The second part of my remark is not a question 

to you, but his facts and figures differed from the ones you have 

testified to today. I heard what Mr. Wytkind said to Mr. Shuster 

about statistics, but there is a reason we do keep them. So I do not 

think that either party is entitled to their own set of statistics. We 

should know how many accidents there were and how many were 

reported, how many were not reported. My position continues to be, 

I do not think 12 is a big number, but they should be reported. If 

they are not reported and that is the rule, you should follow the 

rule, and if you do not follow the rule, you should be fined. 

Ms. Van Dyck, I want to get to you for just a second, because 

Federal preemption is a huge issue that we discussed not only in 

this Committee, but on every other Committee that I serve on. A 

great deal of tension between State legislatures, city councils and 

the United States Congress. I happen to think that there are some 

areas where the Federal Government needs to act and preempt the 

field. I think transportation in many regards is one of them. 

Just so I am clear, you are not arguing against preemption, you 

are arguing against the way it is being applied currently in the 

courts? 

Ms. VAN DYCK. Preemption, you understand my basic premise, I 

believe. 

Mr. LATOURETTE. Sure. 

Ms. VAN DYCK. I do not disagree with you that there are some 

areas that require uniform handling, and transportation is undoubtedly one of them. I don’t disagree with you at all. What I am 

talking about is, the way this Act was written addresses that precisely, in the preemption section itself. Federal law, where there 

are standards that have been promulgated, and the FRA has promulgated many, many of them, those are the standards that should 

be followed. And States cannot have contrary standards. They can’t 

have standards in conflict with those. And I have no problem with 

that. 

Mr. LATOURETTE. Good. 

Ms. VAN DYCK. My problem is, when courts are interpreting preemption to mean that if a standard exists, or the existence of a 

182

standard eliminates a common law right of action, if what you are 

saying is the standard was not met, that is not OK. 

Mr. LATOURETTE. Right. I do not disagree with you, I just wanted to be clear on your position. Because some of the tension we 

have is that some of the States want to go in and have 50 different 

standards. That is a difficult thing for a railroad, it is a difficult 

thing for a bank. So as long as there is a regulation that is fair 

and people are not cheated out of their remedy, whatever that remedy is, I think that we are OK. 

Just as an aside, I thought one of the most brilliant things that 

I ever saw was when the American Trial Lawyers Association 

changed their name to the American Association of Justice. 

[Laughter.] 

Mr. LATOURETTE. If you look at public opinion polls, the only 

people that score lower than attorneys and trial lawyers are members of Congress. 

[Laughter.] 

Mr. LATOURETTE. So after the last election, I am going to suggest 

to the Republican Party that we change our name to be like the 

Party for Truth or something. I really thought that was a great 

move. 

[Laughter.] 

Mr. LATOURETTE. Madam Chairwoman, we are going to have another round? I want to talk about fatigue. 

Ms. BROWN. Go ahead. 

Mr. LATOURETTE. We talked about grade crossings earlier, and 

Mr. Rodzwicz, I agree with you, most railroads were there before 

the towns were there. And a lot of the difficulties we have, if you 

have ever been in the cab of a train with your membership, it is 

like driving down a tunnel. The trees are on all sides, I think it 

is a very, very scary thing. I don’t have any sympathy for the nuts 

who decide to beat the train, I don’t have any sympathy for trespassers. 

But I do think that the reason most of us support the Section 130 

program is that a lot of these intersections are poorly designed. 

You can’t get the cities—because they don’t have the cash to do it, 

the railroads really are not in a position to build a grade separation 

at every at-grade crossing in this Country. So I would like to see 

us, in the next highway bill, make the Section 130 program more 

robust than it is. 

But on the issue of fatigue, I would hope that both you and Mr. 

Wytkind, I think that we need to have a discussion about limbo 

time. I think that is a valid observation. I think we have to have 

a discussion about crew size and staffing. 

But one of the things that I have noticed in your contracts, and 

maybe you can comment on it, you used to have provisions in your 

collective bargaining agreements dealing with mileage. What I hear 

when you talk about fatigue, when you talk about people working 

too long, when you talk about limbo time, is that you have some 

of the tension that the airline pilots have. And the airline pilots, 

there was just a big news story the other day that the guys who 

are turning 60 want to keep flying until they are 65. The young 

guys that are first officers want the old guys to retire so that they 

can become captains and fly the planes. 

183

What I hear from time to time is that you have some more senior 

engineers that are mileage hogs, that love driving the train from 

the east coast to the west coast, because it pays better and they 

get more time, things of that nature. So if we, in exploring safety 

and the issue of fatigue, and we did have a hearing last year on 

circadian rhythms and stuff that I don’t even understand, but if we 

look at limbo time, if we look at hours of service, if we look at staffing levels, don’t you think that some of these things are better negotiated in collective bargaining agreements? And why, if I am 

right, has the mileage thing been taken off the table in your collective bargaining agreements? 

Mr. RODZWICZ. First of all, I hope no one is hoping that I retire. 

It is not going to happen. 

[Laughter.] 

Mr. LATOURETTE. Listen, when I get into the plane, I like the 

pilot to have a little snow on the roof, because I feel better. 

[Laughter.] 

Mr. RODZWICZ. I want to answer your question, but I would take 

the snow on the roof right now versus what I have. 

[Laughter.] 

Mr. RODZWICZ. There are collective bargaining agreements in 

place that discuss time off. And they have been there for a long 

time. Unfortunately, for one reason or another, they don’t occur. 

But we have other ideas that we are ready to present. We would 

like to see, for example, train scheduling. That would tell the operating crews pretty much when they are going to work and allow 

them to get proper rest. We would like to see the Hirsch model, 

that has been validated by FRA, we would like to explore that possibility. 

The best one that we have presented to several agencies is called 

employee empowerment. What that means is, who knows better 

than me if I am fatigued and I can’t go to work? Unfortunately, because of understaffing, when one of our members or members in 

other unions in the operating crafts calls up and say, I would like 

to mark off, you can’t, because we need you. Well, I am fatigued. 

Are you refusing to perform service? 

But we are willing to explore different alternatives to discuss 

finding, hopefully, some type of solution to fatigue. Because it is 

preeminent in our industry. 

Mr. LATOURETTE. And I am, too. I tell you that the question that 

deals with mileage, I would hope as we explore that, which I know 

the Chairwoman will, that the issue of mileage be resubmitted. 

The other thing that I would ask you to think about, I visited the 

CSX yard in Cleveland, Ohio, just outside my district. And the 

crafts that work in the yard complain that the hours of service regulations, which are important on some of the operating crafts that 

we are talking about, really hamper them to have the ability, if 

they want to, and again, you go to employee empowerment, that if 

they want to come in and work additional hours, if they want to 

work overtime and things like that, that some of our hours of service stuff gets in the way. I would hope that we would look at perhaps the difference between those men and women that are out 

driving the trains and repairing the trains and traveling great distances to repair the trains and compare those to the guys who get 

184

up just like everybody else in Cleveland with their lunch box, go 

to work and come back home. 

So I think if everybody is willing to put everything on the table, 

maybe we can get this thing done. 

Mr. Wytkind, did you want to say something? 

Mr. WYTKIND. Yes, just one, thank you, Mr. LaTourette. Thank 

you for your engagement on this and all the other issues that we 

work on. 

I think that having a reasonable discussion about all the issues 

is the way this debate ought to occur anyway. And having a discussion about what the real rank and file worker needs and what he 

or she is experiencing in the practical world of working in the industry I think is obviously a relevant issue to the discussion. 

But one of the examples I gave in my testimony was the fact, 

and I spoke a little bit to Mr. Hamberger about this during the 

votes, I think there are some issues here that we might be able to 

find some common ground on. There is no one, I can’t believe that 

the executives that sits on his board of directors think that there 

should ever be many scenarios where workers are working 18 to 20 

hours out of 24 hours. If that worker said, well, I need the overtime, at some point, that is just too bad. You need to have standards in place that deal with the real safety consequences of having 

overworked employees. 

And so I think the gaming of the system, the way in which they 

schedule the employees, both in the operating and non-operating 

crafts, the way in which the statute has been interpreted to mean, 

I talked to the signalman’s union, which told me about, they call 

it this creeping effect of changing the interpretation of what the 

law says, it went from 12 hours to 16 hours. There is just chronic 

fatigue in the industry, and coupled with all the staffing shortages 

that clearly exist, because the AAR’s own numbers show they need 

80,000 employees in the next five years. The NTSB’s numbers are 

actually higher. I think you have a pretty chronic issue and problem that needs to be addressed by Congress, or it is not going to 

be fixed. 

Mr. LATOURETTE. I couldn’t agree with you more. Nobody wins 

with an exhausted work force. It creates a situation with the railroads where your membership gets pissed off, they are exposed to 

liability and Ms. Van Dyck has more business. That is the only 

thing that works out there. 

So I do think that there is a will to work this out. If there is any 

way I can be helpful, I look forward to it. 

Mr. WYTKIND. Thank you. 

Ms. BROWN. Thank you very much. 

As we move forward, this is a very interesting issue, because I 

have heard both sides. Yes, the men and women that work in the 

industry want to know that they have a certain schedule. But then 

when they have the certain schedule, when they can’t get overtime, 

then they are concerned about their income. 

So as we work through it, we need to bring in some of those rank 

and files to get their input as we move forward. But I have one 

question, then I will go to the next person. 

Mr. Rodzwicz, you mentioned something about sanitation two or 

three times. Can you tell us a little bit more about that? Because 

185

you know, we have had some of the same problems with the cruise 

industry and they had to address it. Can you expand on that just 

a little bit more? 

Mr. RODZWICZ. I can. It is really a maintenance of way situation. 

Certainly they are going to work with human waste sitting in between the six foot of the tracks. I can tell you as a locomotive engineer that on I do not know how many different occasions I have 

gotten on an engine and I was actually afraid to use the facility, 

because of its filth. We have still some railroads, and it is probably 

an isolated situation, where we have engineers using bags to do 

their business, and then throwing the bag out the window. 

So the railroad tried to cure that, this particular railroad, by 

making you sign your name to the bag. And of course, our operating crews are pretty innovative. They started to sign other people’s names to the bag and they still threw them out the windows. 

[Laughter.] 

Mr. RODZWICZ. But what I would like to do, Madam Chairwoman, is have a representative from BMWED respond to your 

question in writing, if I may, please. 

Ms. BROWN. That would be good. 

Mr. HAMBERGER. If I might jump in, Madam Chairwoman, one 

of the things I have discovered in this job over the last close to nine 

years is that many an issue sticks around, and even when it has 

been resolved, we go back and talk about things the way they were 

a few years ago, as my colleague just did. 

That issue was resolved five years ago by a rulemaking at the 

Federal Railroad Administration. The practice the gentleman 

talked about does not occur. It is prohibited. And if he has examples of where that is occurring, I will go with him to the FRA to 

report it. Thank you. 

Ms. BROWN. So you will be giving us something in writing also? 

Mr. HAMBERGER. Yes. 

Ms. BROWN. One other question for you, sir. You cannot investigate an accident if it is not reported within 30 to 560 days. The 

law says you must reopen the National Response Center within 

two hours. Is that accurate? 

Mr. HAMBERGER. That is correct, depending on the severity of the 

accident. And as we heard yesterday, in an audit of the 2006 grade 

crossing accidents, Mr. Scovel testified that of those close to 3,000 

accidents, only 12 were not reported properly. 

Ms. BROWN. OK. Mr. Braley? 

Mr. BRALEY. Thank you, Mr. Chairwoman, and thank you, all the 

members of the panel, for spending time with us today. I represent 

the State of Iowa, which grew up with railways. The first railway 

bridge across the Mississippi River was built in my district in Davenport, Iowa, in the 1850’s. A member of Congress who represented 

the State of Iowa, Dr. Grenville Dodge, was the chief engineer for 

the Union Pacific Railway, and served in Congress, and by all accounts spent most of his time here lobbying on behalf of the railway. So we understand the significance of rail transportation to the 

people of our State. 

But I am also very concerned about some of the statements that 

were made today, particularly because of the focus of this hearing, 

Madam Chairwoman, which is the Federal Rail Safety Program. 

186

And whenever there is a concern about how the economic impact 

of transporting particular cargo affects the issue of rail safety and 

someone suggests that the quick fix to that is caps on liability, the 

question that I have for two of our panelists, Mr. Hamberger and 

General Timmons, is can you explain to me how capping liability 

to people who are injured by ultra-hazardous chemicals transported 

by your railways promotes safety? 

Mr. HAMBERGER. Yes, I can, because it starts with the fact that 

we have an obligation, a common carrier obligation to move it. 

Now, the reason there is a Federal mandate, I presume, is because 

there was a judgment made that moving it by rail was safer than 

not moving it at all or safer than moving it by truck. 

So if that is the conclusion, then you want to continue to move 

it by rail. But what we have heard from General Timmons and 

what I am asserting is that the liability threat of these toxic by inhalation hazardous materials that we move, is such that it could 

put his members out of business, could put my members out of 

business. So if we want to continue to move it by rail, because that 

is good public policy, then it seems to me there needs to be something at the high end that says, this is not a bet the company kind 

of situation. 

The other alternative which I would posit is get rid of that Federal mandate that says we have to move it and then see what happens. Will it move? I don’t know. And since a lot of it that moves 

is chlorine, about 35,000 car loads, which is used to purify the Nation’s water supply in many cities, having it move is an important 

thing. 

So that I think is the conundrum or the policy judgment. As I 

said, Congresswoman Holmes Norton said it was a patently untenable position. I hope that helps. 

Mr. TIMMONS. Let me just add to that. As I reviewed the TIH 

movements for January that I alluded to a little earlier, somewhere 

in the vicinity of 85 of those movements were less than five cars 

a month. Very, very small railroads. Those are clearly chlorine cars 

servicing water treatment facilities in the smallest communities 

across the Country. 

If that individual has an accident and goes out of business, that 

community is in serious difficulty. Because we don’t move chlorine 

by tank truck. It is moved by rail car. 

Mr. BRALEY. Can you cite for the Committee one example of any 

member that went out of business because of the risk you are talking about? 

Mr. TIMMONS. No, I cannot. However—— 

Mr. BRALEY. Mr. Hamberger, can you? 

Mr. HAMBERGER. No, sir. 

Mr. TIMMONS. But I can tell you that the insurance predicament 

that the railroad industry faced over the last five years is such that 

we can no longer afford that insurance. And if we do have an accident, the litigation costs, damage costs, et cetera, are so exorbitant 

now, and they have not been heretofore, that those railroads will 

go out of business. There is just no question about it. You are making the small railroad carry it. He has no way to pay for the insurance to possibly cover it. So if there is an incident, he is out of business. 

187

Mr. BRALEY. So why do you put the burden of that risk on the 

injured bystander, as opposed to the people who are benefiting economically from using your status as a common carrier to require 

the transportation of that material? 

Mr. TIMMONS. What I would say is that this a collective problem 

that users, producers, transporters, insurers and potentially the 

Federal Government tries to deal with. I have no problem with 

those that are injured receiving just compensation, if it is the result of negligence by the small railroad. My problem is that you 

have told me to carry it, I can’t foot the bill, and out of business 

we go. Communities and shippers alike across the Country will feel 

the impact. All I am looking for is some equation, some formula 

that helps us put together a solution to this problem. 

Mr. BRALEY. And spreads the risk in a way that is not so burdensome to your members, is that correct? 

Mr. TIMMONS. Absolutely. 

Mr. BRALEY. Madam Chairwoman, I just have a follow-up question for Ms. Van Dyck. One of the things you were talking about 

is the impact of these Federal preemptions, when they are applied 

in such a manner that completely deprives someone who is injured 

of a remedy, any remedy. 

And in your written statement, you talked about a point that I 

think is rarely mentioned on hearings on safety. You wrote, when 

no remedy is available to persons who have suffered severe injuries 

due to the negligence of another, those persons rely on taxpayer 

funded programs, such as Medicaid and Social Security disability 

payments. That burden then gets passed to on the American taxpayers when there is no private remedy available. 

Could you comment on the implications that that brings for your 

clients and the people you represent in seeking to have some 

means of putting their life back in order after being subject to this 

type of an injury? 

Ms. VAN DYCK. Yes, I can. The whole purpose of Sate law remedies and State law courts is simply to make people whole, not to 

give them a windfall. And the course have been doing that forever. 

What happens when you have a derailment such as Minot, or 

crossing cases, I have one where the signals did not work and a 

family of five were catastrophically injured, with brain injured children who are going to need 24 hour attendant care the rest of their 

lives, when those kinds of things happen because of negligence, and 

that is what I am talking about, where a standard has not been 

met, where safety has not been maintained, how do those people 

pay for that? 

Well, if you can’t go to the source of the negligence, if you can’t 

hold that entity or person accountable, and our society always has 

done that with just about everybody, every industry, we hold them 

accountable for the damage they have caused. The life care plan for 

one little boy I represent, it is going to cost him between $8 million 

and $10 million by the railroad lawyers’ calculations just to take 

care of him. His family can’t pay for it. 

The insurance company, he had insurance through his father, 

but his father had to quit his job to take care of the boy. So now 

the family is on Government benefits. Well, Government is going 

188

to be paying that $8 million to $10 million. It is not that nobody 

is going to pay it. 

When the injured worker is the one that is hurt and has those 

kinds of bills, it is the employer’s insurance whose premium is 

going up that is going to end up paying for that. Ultimately, you 

probably have a worker who isn’t going to be able to stay in the 

job. 

So in the end, without the ability to place the burden where it 

belongs and have compensation for the injury cased only if there 

is liability, only if there is negligence, not over the board and 

across the board, if you don’t have that, someone else is going to 

pay for it. And the someone else is going to be the family, the community, the employer and the taxpayers of this Country. That is 

why our law recognizes the State causes of action. 

Mr. BRALEY. Thank you. 

Ms. BROWN. Mr. Walz. 

Mr. WALZ. Thank you, Madam Chair, and thank you to all of 

you. I know it has been a long day and I appreciate your patience 

in staying with us. This is truly an important issue and it is one 

of the prime responsibilities I have as a Congressional representative, is safety, and in terms of railroad safety is why we are here 

today. 

I represent Minnesota district that is prepared and on the verge, 

and ironically enough, I am sorry I stepped out of this, but a call 

from Secretary of Transportation Peters concerning the largest railroad expansion in 100 years is going to go through my district. 

Large project upgrade, track expansion, things like that. No one is 

denying, again, in this hearing, the need for rail travel, the need 

for improving the ability to do that. 

My question again focuses on the safety of this. This railroad 

itself will run through the major city in my district, which is Rochester, Minnesota. It will run within a few hundred feet, feet, of the 

Mayo Clinic. This institution and the people in Rochester and others have expressed concern about safety. 

Now, what I have heard, and General Timmons, I looked and in 

reading your report and listening to you, the answer I get a lot of 

times is that safety is predicated on age of equipment, or in this 

case track, and that if you improve track, you are going to improve 

safety. I did also hear that we are showing an improvement for 

2006, I would caution you that we are not done yet with 2006. I 

had a 30,000 gallon spill a few miles from my house in November 

that is not showing up yet. So that is yet to be seen, and we need 

to work that out. 

My question on this is, though, and I don’t come from the railroad experience on this, I come from a couple of decades of working 

with heavy artillery. The question there, or I guess always our 

focus, our institutionalized focus, is on safety and accountability, of 

being able to show and certify how we are safe. 

My question that keeps coming up on the railroad, whenever I 

ask, is the increased incidents or the chance of a problem near the 

Mayo Clinic or anywhere along this line will decreased and be nonexistent if we simply put the track in. I don’t think I am a believer 

in that, per se, in that I believe safety comes from an institutionalized safety program with redundant features in there to make sure 

189

it doesn’t happen. I worked on equipment that being in the National Guard was many generations outdated, yet our safety record 

was very good, because I can tell you it was accepted. There was 

no need for whistleblower protection in that everyone was trained 

and expected to stop any unsafe act at any time, no matter what. 

My question when it comes to the railroads is, I am wondering, 

when I am hearing representatives from the people working on the 

railroad and they are telling me they do not have enough training 

and they are not comfortable with that, that makes me concerned 

that the institutionalized safety program is not there, that the ability to certify, to pre-operational checklist and all the things are not 

there. And I am concerned and think that the rail safety program 

should include those. I know that you are basing it more on performance based. I don’t think you ever get to performance based 

unless you do those previous steps. So maybe I will just address 

that to both of you gentlemen. 

Mr. TIMMONS. Good observations. And let me start by talking 

about this business of rail replacement. Permit me just a moment 

or two of history here. The small railroad industry, as we know it 

today, over the last 25 years, is as a consequence of the Staggers 

Act where we were fortunate enough to acquire large portions, 

about 44,000 miles worth of railroad, over the last 25 years, that 

had not seen significant upgrades and maintenance, simply because it was economically unfeasible from the large railroad perspective. So our priority in that time is to ensure that the rail 

weight, gauge, tie, ballast, switches and all of the other infrastructure that we put this equipment on are suitable for the loads that 

they are required to carry. 

As we approached that problem, a $7 billion to $11 billion challenge, by the way, as we have approached that problem, the industry shifted from a 263,000 pound axle weight car to a 286,000 

pound axle weight car, which forced us to re-look at how we were 

going to address this problem. So from the small railroad perspective, it is extremely important to get the infrastructure up to the 

right standard. We can’t interchange 286,000 pound cars with the 

Class I railroads unless we have infrastructure and equipment that 

is suitable for the job. 

Now, having said that, the fact that we have rail in the ground 

today that is 90 pound rail, standard Class I railroad track today 

is probably anywhere from 128, 130, 142, somewhere in that range, 

we have railroads that are running with 90 pound rail, 110 pound 

rail. But the speeds on which we operate over that rail are slow 

enough that it is not so much of a problem if the right of way, the 

ties, tie plates, et cetera, are all in good shape. 

So from my perspective, in order to make sure that we can carry 

the loads, that the market force has driven us to a larger car, we 

have to make sure that the right of way is right. So that will help 

reduce derailments and other related problems as far as the track 

goes. 

Now, as you are probably aware, track is inspected every two 

weeks. So track inspectors are assigned to look at the railroad, 

physically look at the railroad. The small railroads also operate geometry cars. 

190

Now, contrary to the Congresswoman’s observation, the geometry 

cars and some of the more sophisticated equipment, gives a very, 

very high probability of a solid rail bed and infrastructure set. So 

by the time you have run geometry cars over it and some of the 

analytical equipment that looks at the metallurgy pieces, you have 

a reasonably reliable rail. The small railroad is moving in that direction. 

We use Class I geometry equipment. Some of the States have 

their own geometry equipment. So we have spent a lot of time 

working that particular problem. 

As far as the training goes, I have to say that we are in arrears 

in the small railroad industry. We need a lot of work in that regard. We have to offset that, however. We have some very experienced railroaders who trickle down from the Class Is that bring an 

awful lot of experience. We also are contracted with the National 

Academy of Railway Sciences, Overland Park, Kansas, which has 

a national training school there, and through their internet system 

and through arrangements that we have made with them, we are 

focusing hard on the professionalism and competence of the small 

railroad folks. 

Plus we do our own internal inspections. My safety and operations inspector today is on a railroad analyzing that work and will 

give them a full report on their shortcomings and how they need 

to do this. This guy goes around on a continuous basis. We have 

contractors that do that also. 

I don’t mean to belabor the point, and there is certainly a lot of 

room for us to improve. But the areas, the physical, the mechanical 

pieces, are important for us. The training piece is extremely important for us. That gets to the economics. If we can’t interchange the 

cars with the Class Is because our infrastructure is weak, then we 

are going to go out of business. It is a compelling requirement. 

I know many of you have heard this story before, but I am compelled to tell you again. The two enormously important funding 

streams that have come from the Federal Government for the small 

railroad industry are the Railroad Rehabilitation and Infrastructure and Finance Program, which I am not sure we want to get 

into that right now. But that is a troubled program. And despite 

the good work that the FRA has done, the Office of Management 

and Budget has made that enormously difficult for us to capitalize 

on that program. 

Nonetheless, in nine years, we have gotten over $500 million for 

that program to pump into our system. The other was the enormously important tax credit that most of you in this body sponsored. It exhausts this year. It worked out to be about $501 million. 

We need to extend that for another three years. And that money 

is designed specifically to work infrastructure and maintenance 

problems which directly relates to the safety dimension of the small 

railroad industry. 

Thank you very much for your forbearance for that long discussion. But I think it is important for you to appreciate where we are 

coming from in the small railroad world. 

Ms. BROWN. Thank you. 

I have three questions, and I will give each one of you an opportunity to answer those questions. You can just kind of jot them 

191

down, so if, in any of your closing remarks you want to respond to 

the question. 

As we plan for reauthorization, what areas are most needed for 

revision or reform, one; what are the most important areas for this 

Subcommittee to focus on regarding FRA’s safety activities; and the 

last one, if there was only two things that you would like to see 

FRA accomplish, what are those things? I think, Mr. Timmons, you 

just summed up one of them. But that gives you a moment to think 

about it. As they think about it, Mr. Shuster, do you have any 

other things you want to add to that list of three things? Do have 

something? 

Mr. SHUSTER. No, I think I have all my questions in. I appreciate 

everybody showing up today and I look forward to meeting further 

with those of you that I already have, so we can continue to discuss 

some of these issues. Thank you. 

Ms. BROWN. Mr. Walz? Do you want to add anything to that list? 

Mr. WALZ. No, thank you, Madam Chairwoman. 

Ms. BROWN. All right, then, the old teacher in me is coming out. 

Mr. WYTKIND. I am happy to answer your question. I don’t think 

I just have two things, but I guess if I answer question one, then 

I don’t have to answer question three. 

The issues that we are going to focus on are one, accountability 

and enforcement, to make sure that our Government does what it 

needs to do to enforce the law and make the requirements stick, 

including robust fines when they are needed. 

The second thing is we are going to fight for stopping this harassment and intimidation through stronger whistleblower protections. Safety and security training is going to be a huge mandate, 

because despite the comments we heard today, too many of the 

rank and file workers are not receiving the training they need. 

Four, we are going to try to find a cooperative way to work on 

this fatigue issue, reflecting a little bit on Mr. LaTourette’s comments. And lastly, I think we do need to deal with the technology 

issues that we can address through this legislation that begins to 

fix the problems we have with items like dark territory, where you 

have off the shelf technology that could eliminate a number of hazards, that if you implemented, would hopefully begin to alleviate a 

number of the safety hazards in the rail industry. 

Ms. BROWN. Thank you. 

Mr. WYTKIND. Thank you. 

Ms. BROWN. Mr. Rodzwicz. 

Mr. RODZWICZ. While I certainly concur with all of Mr. Wytkind’s 

statements, there are three areas that I think cover all three questions, really. That would be training, staffing and fatigue. 

Thank you. 

Ms. BROWN. Just one second. That did not cover your other area 

that you mentioned earlier, about sanitation. 

Mr. RODZWICZ. Madam Chairwoman, I promised you that we 

would give you a written response, and I am a man of my word. 

Ms. BROWN. Ms. Van Dyck. 

Ms. VAN DYCK. Thank you, Madam Chair. 

The thing I would like to see with respect to focusing on the 

FRSA in particular, because that is where the problem lies, on the 

issues that I spoke about today, it is a simple fix. And the fix is 

192

basically an amendment to the preemption language that does not 

get rid of preemption where it is appropriate. What it does do is 

basically say what was intended all along, because it focuses on 

safety, it encourages safety. Nothing in this Act is intended to preempt State law remedies, or something along those lines. That is 

all it would take. 

Because if people can’t bring a cause of action and challenge, 

whether all these safety regs that are intended for safety are met, 

then there is no incentive to continue to meet the standards, because it is that incentive that is needed here, and I think it is basically a one line fix. 

Ms. BROWN. Thank you. 

Mr. Timmons? 

Mr. TIMMONS. Madam Chair, I think there are a couple of things 

that we have to focus on. I have touched on them lightly before, 

but I am going to say again as a reminder, this business of doubling the penalties for small railroads is something that has been 

proposed by the FRA, is under consideration now. 

Ms. BROWN. Would you repeat that again? 

Mr. TIMMONS. Yes, ma’am. The doubling of penalties for violations that occur on the railroads. As you know, the inspectors find 

these violations and there is a standard set of violations. This past 

December, the FRA published a very exhaustive recommended 

schedule of penalties for TIH equipment, which are pretty significant, 343 different categories of penalties for small railroads and 

large railroads that have very substantial costs. 

The doubling of those and doubling of the current penalties we 

think is unreasonable for the small guy. So I think that needs clear 

attention. 

This liability issue for hazardous materials is something that the 

Congress just must address. Collaboratively, Ed Hamberger and I 

are trying to work with our constituencies to figure out how we can 

best do that. But this is a challenging problem. There are a number 

of very, very difficult and vexatious dimensions to this thing that 

are going to require some help at this level. So I would say that 

we need some assistance there. 

I would also tell you that while these areas need attention, the 

RSAC, the Rail Safety Advisor Committee, is very effectively looking at a host of issues that need attention. And I am convinced that 

they will be successful in that regard. But many of them are technical matters, but all of them have an impact on small railroads, 

as well as large. I can provide that information to you in detail if 

you would like, with greater explanation. 

Ms. BROWN. Yes, sir, and General, I think you and I need to have 

some extensive follow-up talks. 

Mr. TIMMONS. Yes, ma’am. I will be happy to do that. 

Ms. BROWN. I think we have met before, when we were discussing bonding and other things. It could be bipartisan, it could 

be with the committees, but I think we need to talk about the short 

lines in particular and how we can assist them. 

Mr. TIMMONS. I would welcome the opportunity to do that, 

ma’am, and I will work with your staff to get on your calendar. 

Ms. BROWN. Yes, sir. 

193

Mr. HAMBERGER. I would like to associate myself with the remarks of the General and just add one or two things to your point, 

Congressman Walz. I believe that we in fact have a systems approach. Fortunately, I am a Washington lawyer, but I take a look 

at the end result. 

But let me get to you examples of the kinds of redundant procedures that are there, the kind of focus on safety. And I have been 

out on the railroad as well, and I have been to safety briefings, I 

have been to safety fairs where the culture is instilled that safety 

is our number one priority. And if there is a failure on the part of 

my association with this Committee, it is not getting across the 

point that there is not a culture of harassment and intimidation, 

there is a culture of safety. That is what we are going to try and 

get across. We know we have to work with the Committee and with 

our friends in labor on the fatigue issue, a huge challenge ahead 

trying to unwind all of that with respect to the negotiated contracts. But we know we have to take a look at that, and look forward to the hearing on the 13th to get into that. 

And then of course, as we take a look at the whole issue of 

hazmat, the issue of a Federal preemption, I hope. I associate myself with Mr. Wytkind’s remark. It must be looked at in the context 

of everything. I agree that we have to take a look at all of those 

issues from tank car safety to a cap on liability to Federal preemption. So I hope we can take a look at that as a group. 

And again, I would just close with an emphasis that in the railroad industry, both short line and the Class Is and our employees 

are focused on safety. That is part of our culture. Thank you for 

staying with us. 

Ms. BROWN. I don’t know that you answered my question. I was 

looking to hear your answers, what do you think are the one or two 

things that we need to do? 

Mr. HAMBERGER. I think we need to, number one, take a look at 

the fatigue issue, number two, take a look at the hazardous material issue. I was trying to associate myself with General Timmons 

there. So I guess those would be the two in the overall context. 

Ms. BROWN. And of course, safety. 

Mr. HAMBERGER. We are not recommending at this point any 

changes in the Federal Rail Safety Act. 

Ms. BROWN. I see. 

Mr. HAMBERGER. We will have some comments perhaps on the 

Hours of Service Act, but not on the Federal Rail Safety Act. 

Ms. BROWN. We are going to talk about it as we move forward. 

One of the things we are going to be is fair. 

Mr. HAMBERGER. Yes, ma’am. 

Ms. BROWN. I want to thank all the witness in particular for the 

time and the lateness of the hour, for the valuable testimony of the 

members and the questions. The members of the Subcommittee 

have some additional questions for the witnesses, and we will ask 

you to respond to those in writing. The hearing records will be held 

open for those responses. 

If there is no further business, I again thank the members of the 

Subcommittee and our witnesses and the Subcommittee stands adjourned. 

[Whereupon, at 5:25 p.m., the subcommittee was adjourned.]

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