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35–921 PDF 2007

RAIL SAFETY LEGISLATION

(110–39)

HEARING

BEFORE THE

SUBCOMMITTEE ON

RAILROADS, PIPELINES, AND HAZARDOUS 

MATERIALS 

OF THE

COMMITTEE ON 

TRANSPORTATION AND 

INFRASTRUCTURE 

HOUSE OF REPRESENTATIVES

ONE HUNDRED TENTH CONGRESS

FIRST SESSION

MAY 8, 2007

Printed for the use of the 

Committee on Transportation and Infrastructure

(

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 

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 

VACANCY 

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 Page

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

TESTIMONY 

Boardman, Hon. Joseph, Administrator, Federal Railroad Administration ....... 10

Brunkenhoefer, James, National Legislative Director, United Transportation 

Union ..................................................................................................................... 41

Durbin, Martin, Managing Director, Federal Affairs, American Chemistry 

Council .................................................................................................................. 41

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

American Railroads .............................................................................................. 41

Hyde, Kurt W., Assistant Inspector General for Surface and Maritime Programs, Office of Inspector General, U.S. Department of Transportation ........ 10

Pickett, Dan, International President, Brotherhood of Railroad Signalmen ...... 41

Rosenker, Hon. Mark, Chairman, National Transportation Safety Board ......... 10

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

of Teamsters ......................................................................................................... 41

Wytkind, Edward, President, Transportation Trades Department, AFL-CIO ... 41

PREPARED STATEMENTS SUBMITTED BY MEMBERS OF CONGRESS 

Costello, Hon. Jerry F., of Illinois .......................................................................... 69

Cummings, Hon. Elijah E., of Maryland ............................................................... 71

Lampson, Hon. Nick, of Texas ................................................................................ 76

Oberstar, Hon. James L., of Minnesota ................................................................. 77

Walz, Hon. Timothy J., of Minnesota ..................................................................... 82

PREPARED STATEMENTS SUBMITTED BY WITNESSES 

Boardman, Hon. Joseph H ...................................................................................... 83

Durbin, Martin J. .................................................................................................... 95

Hamberger, Edward R. ........................................................................................... 104

Hyde, Kurt W. .......................................................................................................... 124

Pickett, W. Dan ........................................................................................................ 135

Rosenker, Mark V. ................................................................................................... 141

Wytkind, Edward ..................................................................................................... 148

SUBMISSIONS FOR THE RECORD 

Boardman, Hon. Joseph, Administrator, Federal Railroad Administration, response to question from Rep. Higgins ................................................................ 30

ADDITIONS TO THE RECORD 

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

of Teamsters, joint statement of the Teamsters Rail Conference and the 

United Transportation Union .............................................................................. 152

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35921.010
(1)

HEARING ON RAIL SAFETY LEGISLATION 

Tuesday, May 8, 2007

HOUSE OF REPRESENTATIVES, 

COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE, 

SUBCOMMITTEE ON RAILROADS, PIPELINES AND HAZARDOUS

MATERIALS

Washington, DC. 

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

2167, Rayburn House Office Building, the Honorable James L. 

Oberstar [Chairman of the Subcommittee] presiding. 

Mr. OBERSTAR. The Subcommittee on Railroads, et cetera, will 

come to order. 

I am substituting today for Subcommittee Chairwoman Corrine 

Brown who had an emergency and left this morning for Florida to 

attend to her grandmother who has been taken seriously ill. I know 

Corrine is a very strong family person and she wants to be there. 

So the Subcommittee will have to do with the gentleman from Minnesota. 

I welcome the gentleman from Pennsylvania, Mr. Shuster, who 

has a long and abiding interest and very strong interest in railroads in his own district and from his service on the Committee. 

I ask unanimous consent at the outset of the hearing for Members of the Full Committee, Mr. Higgins, Mr. Salazar, and Mr. 

Arcuri to participate in the Subcommittee hearing and to ask questions after the duly constituted Members of the Subcommittee have 

completed their rounds of questioning. 

Is there objection? 

Without objection, so ordered. 

We are here to consider rail safety legislation including the bill 

that Subcommittee Chairwoman Brown and I introduced last week. 

The Administration has its own measure, H.R. 1516, and the Ranking Member of the Full Committee, Mr. Mica, and the Ranking 

Member of the Subcommittee, Mr. Shuster, have developed their 

own proposal and circulated it for comment. Of course, any aspects 

of those proposals are available and focus discussion at the Subcommittee hearing today. 

Frankly, safety legislation is long overdue. Congress last authorized the FRA in 1994, authorization that expired in 1998. The 

Committee on Transportation and Infrastructure has not ignored 

the issue and over the intervening years has held 22 hearings on 

rail safety. 

One of those I recall was a very pointed, a very harsh hearing 

with the then Administrator Jolene Molitoris in which in a particuVerDate 0ct 09 2002 17:37 Feb 26, 2008 Jkt 000000 PO 00000 Frm 00017 Fmt 6633 Sfmt 6633 P:\DOCS\35921 HTRANS1 PsN: JASON
2

larly sharp exchange I said, well, then get about the business of 

improving rail safety. 

And they did. Actions were taken within the Federal Railroad 

Administration, with the railroads and with the railroad brotherhoods. 

In the first four months of this Congress, we have had four hearings on rail safety, one of which was a field hearing in San Antonio. The time has come to take action to move through the Subcommittee and Full Committee process, a rail safety bill. 

The Federal Railroad Administration reports the number of train 

accidents, including collisions and derailments, has gone from 

2,504 in 1994 to 3,325 in 2005. Last year, that number was down 

to 2,835. That is good news. That is improvement, but it has a long 

way to go. 

Forty percent of train accidents, the FRA reports, are the result 

of human factors. One in four of those results from fatigue. 

Fatigue, I have often called the silent killer or put differently by 

Vince Lombardi when he was coaching the Green Bay Packers, fatigue makes cowards of us all. He didn’t mean it in the sense of 

people who are fearsome or fearful or cowardly but rather, as he 

said, it makes you lose your timing, lose your sense of direction, 

lose your sharpness and your perceptiveness. 

The NTSB put it differently: ‘‘The current railroad hours of service laws permit and many railroad carriers require the burdensome 

fatigue-inducing work schedule of any Federally regulated transportation mode in this Country.’’

Comparing the modes is a very revealing exercise. An airline 

pilot can work up to 100 hours a month. Shipboard personnel at 

sea can work up to 240 hours a month. A truck driver can be on 

duty up to 260 hours a month. Train crews can operate a train up 

to 432 hours a month. That is 14 hours a day, if you go to that 

number, for 30 days. 

There is, I think, widespread agreement—even the railroads will 

grudgingly acknowledge—that, yes, something ought to be done 

about hours of service. They certainly disagree with us on what 

and how far to go. But in consideration that there is 40 years since 

really substantial changes have been made, we ought to do something. 

In previous Congresses, I introduced legislation to strengthen the 

hours of service laws for the rail sector, and the Association of Railroads resisted it. Their view consistently has been that that ought 

to be dealt with at the collective bargaining table. 

I don’t think so. Safety is a matter of public interest. Public interest overrides whatever may, in this arena, be negotiated at the 

bargaining table. 

I recall a visit to one of the paper mills in my district, and some 

of the younger workers had, not in the collective bargaining agreement but in a verbal agreement with plant management, signed up 

for four twelve hour days and then a four day weekend. 

I asked one of the senior workers, some guy who had been in the 

plant for 38 years. I said, what do you think about that? 

He said, well, I know this. I don’t want to be standing alongside 

one of those guys next to this vat and he does something stupid 

and I wind up in the vat because he is stretched too thin. 

3

You don’t have a right to endanger yourself or anyone else in the 

workplace. 

The legislation that we introduced requires Class I railroads to 

develop and submit to the Secretary a plan for implementing a 

positive train control system by 2014. We are not saying do it tomorrow. We are giving them a considerable amount of time. 

But that proposal has been on the NTSB’s list of most wanted 

safety improvements since it was developed, since the technology 

was developed in 1990. Before we scheduled the hearing, I asked 

NTSB to search their records and provide us information on how 

many accidents in the past decade would have been prevented with 

positive train control in place. The answer: 52 such accidents. 

There is always the concern by industry, if you make us do this. 

I have heard it in aviation for years. If you make us do this, it is 

going to cost a lot of money. We pay a lot more money for fatalities. 

We also address track safety in the bill. In 2006, track-related 

accidents surpassed human factors-related accidents as the leading 

category of all train accidents. In Oneida, New York, Pico Rivera, 

California, Home Valley, Washington, Minot, North Dakota, 

Nodaway, Iowa, they all raise serious concerns about the condition 

and about the safety of track on the Nation’s railways. 

On April 18, as a result of the Oneida accident, FRA did an audit 

of CSX tracks in upstate New York and found 78 track defects and 

one serious violation. 

We need to strengthen safety at the grade crossings, an issue 

this Committee has dealt with for many, many years. I remember 

my former colleague from Northwestern Minnesota, Arlen Stangeland, a Republican who advocated for funding out of the Federal 

Highway Program to separate rail grade crossings. It goes back 

years. 

The DOT Inspector General says the railroads are still not reporting grade crossing collisions and injuries. They are not reporting them sufficiently to the FRA. Twelve railroads, according to the 

IG, failed to report 139 collisions within 30 days after the end of 

the month in which the collision occurred, and some were three 

years late. 

The FRA and the States use that information to find the dangerous crossings, to analyze accident trends and to take appropriate action. We have got to have information. That information 

has to be reported. It has to be available. 

The Inspector General says in 2006, FRA found an unusually low 

number of accidents for grade crossing collisions involving a Class 

I railroad when the train and/or motor vehicle was traveling in excess of 35 miles per hour. No injuries were reported for 154 collisions. Those grade crossing injuries were down in 2006, but if no 

injuries were reported for 154 collisions and that was just for one 

railroad, maybe the actual number went up. 

It reminds me of a period in 1985-1986 when the FAA told Congress and told the public that near mid-airs were down. We 

checked with the NTSB, Mr. Rosenker, and the NTSB at the time 

said, oh, no, they are up. 

We checked with hotline for reporting anonymously and found 

they were double. Something is wrong here. So we held hearings 

on the subject of near mid-airs and found there was a vast disVerDate 0ct 09 2002 17:37 Feb 26, 2008 Jkt 000000 PO 00000 Frm 00019 Fmt 6633 Sfmt 6633 P:\DOCS\35921 HTRANS1 PsN: JASON
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parity between what the airlines were reporting and what was happening in the air. So we have the same situation with what is happening on the rails. 

The FRA relies on just 421 federal safety inspectors and 160 

State inspectors to monitor safety compliance. Our bill will increase 

the number to at least 800 over the next four years. That is a good 

start and a better start is these hearings. 

I yield to the gentleman from Pennsylvania, Mr. Shuster. 

Mr. SHUSTER. Thank you, Mr. Chairman. It is good to have you 

here with us today. 

Also, I found out this morning that Chairwoman Brown’s grandmother is gravely ill in Florida. So I just want to offer my thoughts 

and prayers to her and her family. I hope their grandmother has 

a speedy recovery. 

Today’s Committee hearing is the fourth hearing we have had on 

rail safety this year, as the Chairman pointed out. I believe over 

20 hearings in the last 10 years. 

The message that I get and the facts that I see are that the rail 

industry is safer than it has ever been when you put it in the context of although there have been increases and decreases in the 

various accidents but when you look at the significant expansion on 

the miles that are put and the cargo that is carried. When you put 

that in context, it is a safer industry today than it was last year 

and the year before and the year before. 

The final statistics of 2006 show that it was the safest year on 

record in the rail industry. Nationally, accidents decreased 12.4 

percent, and Texas led the Nation with 51 fewer train accidents. 

Accidents caused by human error, the leading cause of all train accidents, declined by over 20 percent in 2006. 

But while the rails may be safer than ever, there is still much 

that we can do and must do. Last week, Chairman Oberstar filed 

a Rail Safety Reauthorization bill and, as many of you know, I 

have been circulating my own draft for the past several weeks, trying to get comment and work through to put together a bipartisan 

piece of legislation which I hope we can and I believe that there 

is common ground for all of us to work together on a rail safety 

bill. 

As we move ahead with a rail safety bill, one of the most important issues is unfunded mandates. If we impose new costs on the 

railroads, these costs ultimately are passed to customers and consumers who already are suffering the effects of fuel surcharges and 

other rate increases. 

The rail industry is currently spending about $10 billion a year, 

providing new track capacity. This is all private capital, and the investors expect a reasonable return. New and unfunded government 

mandates could sap money from the railroads’ infrastructure expansion programs and further increase congestion on our rails. 

I have read the Brown-Oberstar bill, and it has some very good 

points. For example, I agree that we need to make changes in the 

hours of service law. I also like the idea of developing model State 

legislation for grade crossing violations. 

We have not had much time to discuss the actual text of the rail 

safety bill, so I am glad that we are having today’s hearing. I hope 

5

that we can continue to work together and, in the next few weeks, 

develop a truly bipartisan rail safety bill. 

I am looking forward to this most informative hearing today. 

I yield back. 

Mr. OBERSTAR. I thank the gentleman for his comments. 

Of course, the purpose of introducing the bill is so it will be 

available. It is a culmination of—a compilation more than a culmination—a compilation of many of the pieces of rail safety legislation I have introduced over past years and certainly it will be available during this hearing, afterwards and then we will continue internal discussions in the Committee and work toward consensus 

legislation as far as we possibly can. 

Do other Members have comments? 

Mrs. Napolitano? 

Mrs. NAPOLITANO. Thank you, Mr. Chair. 

You have heard many of my comments before in regard to rail 

traffic in my area because of the Alameda Corridor East which has 

extensive and heavy use and will be increasing in the next few 

years. Currently, there is 150 trains through my district every day. 

It probably will double, triple with the transfer of the rest of the 

U.S. goods. Forty, forty-five percent of the Nation’s goods go 

through my area. 

The reason I am concerned is I was wondering if FRA can make 

stronger regulations for rail inspection for the maintenance for the 

hazmat cars because a lot of what will go through in my district 

is going to contain hazardous material and it is all highly populated. Los Angeles County has roughly 10 to 12 million residents, 

depends on who you ask. We have a very, very populated area. So 

it is a concern in regard to that. 

The other concern is the railroads have had an Operation Lifesaver which could help inform and educate children and schools 

about rail safety, and this was put into effect, I guess, some time 

back and utilized in one of my schools and then dropped because 

apparently it operated under volunteer staff. I am wondering 

whether you feel that FRA would be able to create such a program 

within FRA to be able to be uniform in educating the general public and children about delivering this lifesaving message of safety 

in vigilance around the railroads. 

Those two questions right off the bat to Mr. Boardman. 

Mr. OBERSTAR. We are not in the questioning period. 

Mrs. NAPOLITANO. Oh, I am sorry. 

Mr. OBERSTAR. We are not at the questioning point. 

Mrs. NAPOLITANO. I am trying to get ahead of the game here. 

Okay, well, actually in the 2095, there are a lot of provisions that 

I am very, very happy with, and it does improve a lot of the whistleblower protections, the fatigue and enforcement, et cetera. 

Again, because of the heavy use in my district, it is a very big 

concern, and I certainly want to thank Chairwoman Brown and 

Chairman Oberstar for putting this piece of legislation together, 

and I look forward to working with you. 

Mr. OBERSTAR. Mr. Cummings? 

Mr. CUMMINGS. Thank you very much, Mr. Chairman. Mr. Chairman, I do thank you and Ms. Brown for calling this hearing today. 

6

I think the thing that I am most concerned about is that I want 

to make sure that we make it happen. Mr. Chairman, as you well 

know, it has been a while since we last reauthorized the Federal 

Railroad Administration back in 1994, and that expired. That authorization expired in 1998. 

I think that the thing that I am concerned about is the urgency 

of making it happen. I have read the legislation, your legislation, 

Mr. Chairman, and it seems to address all the issues in a very 

practical and reasonable way. 

I realize that here on the Hill so often what happens is that folks 

get into a battle over a lot of the small things but forget the big 

picture, and the big picture is about safety. I think Mrs. 

Napolitano, in her zeal to get to the questions, pretty much said 

a lot of what I feel. 

We have got trains going through some very dense areas like the 

City of Baltimore. When I read that either the number one or number two cause of train accidents is defective tracks and then we 

look at the situation with regard to how those tracks are inspected 

and then we think about hazardous materials spilling as a result 

of a train accident in my city and bringing life as we know it to 

a halt, I think that this a very urgent matter. 

I know, Mr. Chairman, in my working with you as the Chairman 

of the Subcommittee on the Coast Guard, I know how determined 

you are to make it happen. We will make it happen, and we will 

make it happen in a way that is good for the people of our Country, 

good for the rail industry and good for the passengers and freight 

haulers in the United States. 

Like I said, I will submit a longer statement, Mr. Chairman, but 

I want to thank you again for your leadership. Thank you and Ms. 

Brown for producing such a comprehensive bill. 

With that, I yield back. 

Mr. OBERSTAR. Mr. Higgins? 

Mr. HIGGINS. Thank you, Mr. Chairman. 

I reluctantly would support an additional regulation of the railroads but for the fact that if industry fails to regulate itself to ensure the safety of its track bed, in this case, the railroad industry, 

it is the moral obligation of government to regulate. 

Despite some figures with respect to improvements and uptick in 

rail safely, it is not true in all areas of the Country. I represent 

an area in Buffalo, New York. It is a northeastern region area that 

is subject to harsh weather and an aging infrastructure. Western 

New York rose up as a great transportation hub, and the rail network remains extensive and fundamentally important to Buffalo 

and western New York. 

Over the past 10 years, 166 derailments in Erie and Chautauqua 

County, 73 of which were due to track defect. Over the past three 

years, 47 derailments, 20 due to track defect. This record is unacceptable. I would submit that if the major rail companies, CSX, fail 

to regulate their industry to ensure public safety, it is Government’s responsibility to do it. 

Recent derailments in western New York in December, trains derailed on overpasses in Chateaugay and Buffalo, New York on consecutive days. In April, seven cars spilled coal near Dunkirk, New 

York. 

7

I asked the Federal Railroad Administration and Administrator 

Joe Boardman responded, but because of a lack of resources, they 

were only able to inspect certain areas, not able to do a comprehensive inspection throughout the two county area. The lack of Federal 

Railroad Administration resources to inspect a two county targeted 

area is unacceptable. 

I am pleased with the legislation that Chairman Oberstar and 

Chairwoman Brown have introduced that will nearly double the 

number of inspectors and provide equipment the Federal Railroad 

Administration needs to conduct inspections in areas, particularly 

vulnerable areas like Buffalo and western New York. 

Thank you, Mr. Chairman, for your leadership on this issue, and 

I will submit my further remarks into the record. 

Mr. OBERSTAR. Without objection, complete remarks will be accepted for the record. 

The Chair recognizes the gentleman, Mr. Arcuri. 

Mr. ARCURI. Thank you, Mr. Chairman. I would like to thank the 

Chair and the Ranking Member for giving me an opportunity to sit 

in on this hearing today. 

I would also like to thank our panel for being here including my 

former constituent, Mr. Boardman. Thank you very much for being 

here. 

I would like to lend my support for the Federal Railroad Safety 

Improvement Act. This bill will improve the state of our Nation’s 

railroads and help minimize the number of future accidents, collisions and derailments. 

This bill will, among other things, ensure tougher requirements 

are placed on railroads to decrease fatigue among train crews and 

increase civil and criminal penalties for railroad companies that 

fail to comply with safety standards. 

The bill also provides funding for new track inspection equipment and increases the number of Federal Rail Safety Inspectors 

on hand that will identify problems and help minimize accidents. 

As the Chairman referred to, recently on March 12th, 28 cars of 

a CSX freight train derailed in Oneida, New York, which borders 

my district and was a mere two miles from Sherrill, New York, a 

city in Oneida County which I represent. Several of those cars contained chemicals such as ferric chloride which posed a grave health 

risk and required many people to be evacuated. 

Thankfully, no injuries or fatalities were the consequence of this 

disaster. However, the safety and comfort of people close to the accident was deeply affected. Additionally, the derailment caused the 

New York State Thruway, the main east-west thoroughfare in New 

York, to be shut down for several hours. 

My colleague whom we just heard from, Mr. Higgins, who is a 

bit further down on this line, knows all too well how critical to 

make sure our freight and passenger railroads are compliant with 

safety requirements. As he indicated, the numerous derailments in 

western New York over the last two years and now the Oneida incident is very alarming and raises many red flags about the state 

of New York’s rail infrastructure. 

While this concern continues to trouble the people of New York, 

a private company is seeking to build a 190-mile high voltage line 

from the town of Marcy in Oneida County down to New Windsor 

8

in Orange County. The company estimates that more than 90 percent of the proposed primary and alternative routes will follow existing right-of-ways, both along railroad tracks and natural gas 

lines. The transmission line would consist of 135-foot tall towers 

and be operated with a rated power flow of 1,200 megawatts. 

A portion of the proposed route follows the New York Susquehanna and Western Railway right-of-way, a very active rail line 

which runs through some of the more heavily populated cities and 

towns in upstate New York. 

This is a situation where the safety implications and risks are 

unknown. Imagine if a derailment occurred and the train struck 

these high tension lines. 

The well being of my constituents and the safety of New York’s 

railways is a top priority for me as a Member of the Transportation 

Committee. I have already called on the Department of Homeland 

Security and Transportation to conduct an assessment of the safety 

and security vulnerabilities of placing high voltage direct current 

electric transmission lines along active railroad rights-of-way. 

However, I want my colleagues to know this is not only a concern 

for New York State. The Department of Energy recently announced 

the proposal for two national interest electric transmission corridors designating, affecting 11 States and the District of Columbia. Parts of New York, Virginia and Pennsylvania in particular 

are faced with the possibility of having more major power line 

projects forced upon them due to this designation. 

As a result, many communities across the County will now have 

to worry about the safety and security concerns of setting these 

power lines along railroads that currently are in violation of safety 

standards. It is an issue that should be of concern to all. 

I look forward to working with the Chair and my colleagues to 

continue to shed light on this troubling development and to ensure 

that this critical legislation is quickly considered before the Full 

Committee. 

I thank you, and I yield back the balance of my time. 

Mr. OBERSTAR. The gentleman from Colorado, Mr. Salazar. 

Mr. SALAZAR. I want to thank you, Mr. Chairman. I want to 

thank you for allowing me to attend this important hearing. While 

I am not a Member of this Subcommittee, I have a vested interest 

in the Federal Railroad Safety Improvement Act. 

I believe that this bill addresses many important issues that 

have been ignored for far too long, but I am here today to speak 

about one provision that authorizes funding for a tunnel to be built 

in the Transportation Technology Center, an internationally recognized train testing facility. This facility is located in Pueblo, Colorado. 

TTC is used by the Federal Railroad Administration to conduct 

significant research and development on rail safety. TTC offers 48 

miles of railroad test track to test rolling stock, track components, 

signal and safety devices, track structure and vehicle performance. 

It also has several one of a kind laboratory testing facilities used 

to evaluate vehicle dynamics, structural characteristics and advanced braking systems. 

TTC already operates a world class research and test center offering a wide range of capabilities in railroad and transit research. 

9

For the past two years, I have been working to get funding for the 

facility for an underground rail station and tunnel. The tunnel will 

add to the center’s capabilities and serve as an invaluable resource 

as we strive to ensure our Nation’s railroads are safe and secure 

as possible. 

Recent events have sadly demonstrated the vulnerability of underground mass transit systems. Safety experts have identified a 

number of technology and training needs to prevent attacks on tunnels and to lessen the consequences of such attacks. 

Technological needs include detection systems, dispersal control 

and decontamination technologies. The distinctive remote environment of TTC allows such testing and training activities to be carried out at this secure location without disruption of the flow of 

passenger rail traffic in and out of urban areas. 

I applaud Chairman Oberstar and Chairwoman Brown for recognizing the important role of such a tunnel and what it will play in 

the safety of railways. 

Last year, Chairwoman Brown and Chairwoman Johnson and 

Secretary Mineta and Mr. Petri from this Committee accompanied 

me for a tour at the TTC center, and I would encourage the Chairman of the Full Committee, Mr. Oberstar, to do as well and other 

Members. I would sure appreciate if you could see the abilities and 

the capabilities that we have at this center. It is one of its kind. 

There is not another one of its kind in the world. 

I believe that this bill is long overdue, and I look forward to today’s hearing and the witness testimony. 

Thank you. I yield back. 

Mr. OBERSTAR. I thank the gentleman for his comments, and I 

certainly do look forward to getting out to view your center and see 

its operations. 

The gentleman from New York, Mr. Nadler, do you have a comment? 

Mr. NADLER. Thank you, Mr. Chairman. I would like to thank 

you and Chairwoman Brown and Ranking Member Shuster for 

holding this hearing regarding rail safety legislation. 

I would also like to welcome Mr. Boardman who was our State 

Transportation Commissioner in New York under Governor Pataki. 

For years, he has heard me talk ad infinitum, perhaps ad nauseam, 

about rail freight issues, so I always look forward to his testimony 

as Administrator of the FRA. 

I have been a long time supporter of preserving this Country’s 

rail infrastructure. We spend tens of billions of dollars every year 

on highways and aviation, a lesser amount on passenger rail and 

virtually nothing, virtually no government funding on rail freight. 

I hope that this Committee will eventually find a way to increase 

funding for freight rail capital improvements, so that we can increase capacity. 

But to do so, we also need to ensure that rail continues to be one 

of the safest modes of transportation. Although rail is one of the 

most energy efficient and secure modes of transportation, there 

were over 2,800 train accidents last year. Most of these accidents 

were caused by things that are preventable. Over 1,000 were a result of track defects and another 1,000 were caused by human factors, chiefly fatigue. 

10

This Subcommittee has held several hearings over the years on 

rail safety including three hearings last year and four earlier this 

year. It seems to me we have held enough hearings and it is time 

to begin moving legislation. 

I am glad that Mr. Oberstar and Ms. Brown have introduced the 

Federal Railroad Safety Improvement Act, H.R. 2095, to address 

the main causes of rail accidents. Among other things, the bill includes hours of service reform that is desperately necessary to address fatigue, and it provides funding to double the number of 

track inspectors and to purchase equipment that can detect track 

defects. 

I look forward to hearing from the witnesses today, particularly 

as it pertains to this legislation, so that we can finally take adequate action to address rail safety. 

Thank you, Mr. Chairman. I yield back. 

Mr. OBERSTAR. The gentleman from Iowa, Mr. Boswell. 

Mr. BOSWELL. Just very briefly, again, I associate myself with 

what Mr. Nadler just said. 

Just looking over some of the information that has made available to us, when you look at some of the information from the Safety Board which we will hear from here shortly and compare the 

hours that are required and put upon people that work the rails, 

it is revealing. It seems to me like this needs some consideration. 

I think in terms of what is according to the NTSB, a commercial 

airline pilot can work up to 100 hours a month jetboard. It says 

240. A truck driver can be on duty up to 260. Train crews operate 

a train up to 432. Now if that would be what they do every day, 

that would equate to 14 hours a day for 30 days. 

So I think this discussion needs to take place and some action 

is needed. I appreciate the time, and I will yield back and listen 

to the discussion. 

Mr. OBERSTAR. I thank the gentleman. 

Now we look forward to testimony from our panel: Mr. 

Boardman, Mr. Rosenker and Mr. Hyde. I am anxious to hear Mr. 

Boardman defend the Administration’s bill. 

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

HONORABLE MARK ROSENKER, CHAIRMAN, NATIONAL 

TRANSPORTATION SAFETY BOARD; KURT W. HYDE, ASSISTANT INSPECTOR GENERAL FOR SURFACE AND MARITIME 

PROGRAMS, OFFICE OF INSPECTOR GENERAL, U.S. DEPARTMENT OF TRANSPORTATION 

Mr. BOARDMAN. Before I do that, with the indulgence of the 

Chair. 

Mr. OBERSTAR. Yes. 

Mr. BOARDMAN. I would like to correct the record. 

Michael, I am still your constituent. 

Michael’s father, Carmen, and I were good friends. I would like 

you to know, God rest his soul, that Carmen is no longer with us 

but was also a member of the Public Transportation Safety Board 

in New York, a very committed safety individual. So I am glad to 

be here, Michael. 

Thank you for your indulgence. 

11

Mr. Oberstar, Ranking Member Shuster and Members of the 

Subcommittee, I am pleased to be here today on behalf of the Secretary of Transportation to discuss our proposed rail safety legislation, and I look forward to working with the Committee. 

On the Administration’s rail safety bill, I also appreciate the fact 

that you entered that bill for us. 

I would like to talk just about two things today in that bill: authorizing the Safety Risk Reduction Program and protecting its 

confidentiality. 

I believe that the strongest argument for the FRA to exist is that 

it is the FRA which is expected to stand in the shoes of all those 

people that live, work, or have need of being within the vicinity of 

a main line railroad track. I believe it is the FRA that is expected 

to balance an equation that does not have proper third-party risk 

calculated today. 

I believe that railroads have miscalculated that risk equation in 

not ending main track, track-caused derailments. Railroads must 

do better, and they can. 

Before I came down here from New York two years ago, and 

since I have been here, I have referenced the work of Ian Savage 

in a book entitled the Economics of Railroad Safety. It was written 

at the request and the support of the AAR. It is a good book in 

helping to understand the many economic issues around railroad 

safety, but I have decided that it has it wrong when it comes to 

what is called railroad myopia in the book. 

‘‘The nature of the market for safety makes myopic Behavior possible. The costs of preventive effort are borne in the present whereas accident costs including liability to customers and bystanders 

occur at random times in the future.’’

The author goes on to argue that really the only two failures that 

exist out there today are those railroads that are inexperienced, 

and therefore do not understand what they must do, or the unscrupulous behavior by a railroad that reduces costs for today’s gain, 

gambling that a random event will not occur in their future. 

What I find wrong here is that these events do not happen at 

random times in the future. They happen because trains derail or 

collide. Nearly three-quarters of the time, it happens as a result of 

track failure or human failure, and data shows that it is not random. It is predictable. 

These events will continue to happen and may happen more frequently unless the railroads embrace a new cost factor in their risk 

equation that significantly reduces the probability of track-caused, 

main track derailments and human factor-caused events, especially 

by fatigued rail employees. The railroads are very aware of these 

costs, and they could wipe out their business as a result of the lawsuits and damages that occur with main line derailments. 

To be fair, they are doing what they believe they need to do to 

make improvements, but it is not enough because the public does 

not believe it is enough. Those third parties that live, work, or have 

occasion to be near a railroad say they want trains to stay on the 

tracks. 

The FRA has worked with industry in developing PTC, electronically controlled pneumatic brakes, continuous welded rail, rail integrity, rail flaw detection, track geometry standards, ground 

12

radar, real time track measurement, automated joint bar inspections, WILD systems, which are wheel impact detectors, and acoustic bearing sensors. 

It is about the track, and it is about technology—track that 

needs to be maintained at higher levels than minimum standards, 

and technology that needs to be deployed and used on both track 

infrastructure and equipment to reduce the probability of derailment. Together, they reduce risk. 

Some of our railroads today are embracing this risk reduction 

strategy. Some use the latest available science to improve track 

and equipment maintenance. But some have been slow to embrace 

that science, and all can do better. 

Human factors cause more than a third of all train accidents, 

constituting the largest category of train accident causes, and fatigue is at least a contributing factor in one of every four serious, 

human-factor caused accidents. We believe that fatigued crew 

members have played an increasing role in railroad accidents over 

the past decade through poor judgment, miscommunication, inattentiveness, and failure to follow procedures. 

Our challenge is to ensure that crew members have adequate opportunity to rest, are free of disorders that can disrupt sleep, and 

are fully engaged in maintaining alertness. 

With your indulgence, 100 years is long enough. It is time to 

make sure that we have people operating trains that are not subject to cognitive failure that causes catastrophic accidents as a result of fatigue. 

Congress created the FRA 40 years ago to ensure railroad safety. 

Congress needs to delegate, trust, and verify that its creation will 

end this dangerous problem with both reasonable and enforceable 

regulations that use the best science available today. It is about 

time on duty. It is about total time. It is about limbo time and, 

most importantly, it is about rest time. 

With your delegation and support, the FRA will use the latest 

science in a collaborative fashion with our well respected RSAC 

process to develop the right solution, and we will update that solution as the science improves or as we find a need to do so without 

passing a statute. These folks, those folks that live, work, and have 

occasion to be within the vicinity of a main line railroad track 

think it is about time. 

Thank you. 

Mr. OBERSTAR. So do we. Thank you, Mr. Boardman. 

Mr. Rosenker? 

Mr. ROSENKER. Good afternoon, Chairman Oberstar, Ranking 

Member Shuster and distinguished Members of the Subcommittee. 

I would like to thank you for inviting me to testify on rail safety 

issues that are being considered today in the proposed rail safety 

legislation and for your continued interest in furthering the safety 

of our Nation’s railways. 

Let me begin by addressing the decades long history of fatiguecaused railroad accidents and the frustration we share with the 

FRA regarding its lack of legislative authority to address the root 

causes of fatigue. 

The earliest railroad accident in which the Board attributed fatigue to the probable cause of the accident was a collision between 

13

two freight trains in Wiggins, Colorado in 1984. Fatigue accidents 

have continued unabated such as the collision between trains at 

Anding, Mississippi in 2005 and Macdona, Texas in 2004. 

In Anding, both crew members typically worked six days a week, 

11 to 12 hours each day. They were working the sixth consecutive 

day when the accident occurred. In Macdona, we found that the 

crew members failure to obtain sufficient rest before reporting to 

duty and the railroad’s scheduling practices both contributed to the 

accident. 

Proposals being considered for legislation this year address specific elements of employee fatigue. However, we believe that a comprehensive fatigue management program is needed that considers 

scientifically-based principles when assigning work schedules; 

these principles include factors that influence acute and cumulative 

fatigue, the body’s ability to adjust to rotating schedules and the 

responsibility of employees to get sufficient and timely sleep during 

their off duty periods. 

We believe that the best means to achieve this result is through 

regulations promulgated by the FRA that can only be modified as 

industry conditions evolve. 

My next topic addresses positive train control systems. Technological solutions, such as positive train control systems, have great 

potential to prevent serious train accidents by providing safety redundant systems to override mistakes by human operators. PTC 

has been on the Safety Board’s most wanted list of safety improvements for 17 years. 

In the past 10 years, the Board has investigated 52 rail accidents 

including 4 transit accidents where the installation of positive train 

control would likely have prevented the accident. Although we are 

encouraged with progress underway by some railroads, we believe 

that positive train control systems are needed on all railroad systems across the entire United States. 

My next topic addresses improperly positioned switches. One of 

the most serious train accidents occurred in Graniteville, South 

Carolina in 2005. A train encountered an improperly aligned 

switch that diverted it from the main track onto an industry track 

where it struck a parked train. The track through Graniteville was 

dark territory. 

Later in the year, a train encountered a siding at Shepherd, 

Texas and struck a parked train again in dark territory. 

The Safety Board first addressed this issue in 1974 after an accident in Cotulla, Texas. A safety recommendation to the FRA to address the safe train speed in dark territory was later closed as unacceptable. 

The Board believes that automatically activated devices are 

needed to visually or electronically capture the attention of employees involved in switch operations in dark territory and clearly convey the status of the switch. In the absence of automated switch 

systems that provide train crews with advance notice of switch positions in dark territory, trains should be operated at speeds that 

will allow them to be safely stopped in advance of misaligned 

switches. 

Additionally, the most expedient and effective means to reduce 

public risk from highly poisonous gases in train accidents is 

14

through operational measures such as positioning tank cars toward 

the rear of trains and reducing speeds through populated areas. 

Finally, a proposal for Rail Passenger Family Disaster Assistance 

mirrors the Aviation Disaster Family Assistance Act of 1996. We 

believe this legislation would be beneficial to victims and their families, following a rail disaster. 

The Board, however, has two concerns. The first is clarification 

of our responsibilities to victims in accidents where the Board is 

not launching an investigative team and, second, this legislation 

would present a significant demand on our already stretched resources. 

In closing, I would like to acknowledge that in our review of the 

proposed legislation, many of the Safety Board’s previously issued 

recommendations on rail safety have been addressed, and we appreciate this Committee’s interest in our safety concerns. 

Mr. Chairman, I would be happy to respond to any questions. 

Mr. OBERSTAR. Thank you very much, Mr. Rosenker, for your 

very frank and straightforward testimony. You know in what high 

regard I hold the NTSB and have done for many years. 

Mr. ROSENKER. Thank you, Mr. Chairman. I appreciate that. 

Mr. OBERSTAR. Mr. Hyde, we look forward to your testimony that 

you have from the Inspector General. 

Mr. HYDE. Thank you, sir. Chairman Oberstar, Ranking Member 

Shuster, and Members of the Subcommittee, thank you for the opportunity to testify today as you consider legislation to reauthorize 

the Federal Railroad Safety Program. 

On May 7, 2007, we released our fourth report on grade crossing 

safety. We found that FRA can do more to improve grade crossing 

safety by ensuring compliance with its mandatory reporting requirements for crossing collisions. Additional effort is also needed 

to address sight obstructions blocking the driver’s view of approaching trains. 

My testimony today is based on our body of work on grade crossing safety. We have identified five actions that railroads and FRA 

can take to reduce grade crossing collisions and fatalities. These 

are areas that you may wish to examine as you evaluate current 

legislative proposals. 

First, compliance with mandatory reporting requirements. Railroads are charged with two distinct reporting requirements when 

a grade crossing collision occurs. First, an immediate call within 

two hours to the National Response Center for all serious collisions, to determine whether a Federal investigation at the accident 

scene is needed. Second, within 30 days of the end of the month 

in which the collision occurred, the railroad must report every 

grade crossing collision to FRA. 

Timely and accurate reporting of collisions is essential to identifying dangerous crossings and emerging accident trends. More can 

be done to ensure compliance with both of these reporting requirements. 

In November 2005, we reported that railroads had failed to notify 

NRC immediately in 21 percent of serious collisions; most of these 

involved fatalities or multiple injuries. Our May 2007 report also 

cited concerns with another requirement, noting that railroads 

15

failed to report to FRA 139 collisions timely, with some being nearly three years late. 

Because FRA did not routinely review grade crossing collision 

records maintained by the railroads, it does not know whether 

some 15,000 collisions reported by the railroads between 2001 and 

2005 include all collisions that occurred. 

FRA has begun reviewing collision records maintained by the 

railroads. These reviews are intended to determine whether grade 

crossing collisions are being properly reported. The Subcommittee 

may wish to require that FRA periodically report the results of 

these reviews. 

Two, increasing FRA involvement in collision investigations. 

FRA’s 385 inspectors cannot physically examine every grade crossing collision. Instead, the Agency relies on railroad self-reporting. 

To better evaluate the causes of collisions and railroad compliance with Federal safety regulations, we recommended that FRA 

broaden its review of railroad-reported information. FRA has just 

completed a one-year pilot program to collect and analyze independent information. FRA should report the results of the study as 

soon as possible. 

Three, addressing sight obstructions. It is hard to steer clear of 

a train you can’t see, especially at the 76,000 public crossings that 

do not have automatic warning lights or gates. Obstructions, such 

as overgrown vegetation as illustrated in my written statement, 

can significantly reduce visibility. For example, between 2001 and 

2005, obstructions were present in 689 collisions in which a total 

of 87 people died and 242 were injured. 

As of this past March, only 13 states had laws regulating sight 

obstructions, and these varied widely. FRA should work with the 

Federal Highway Administration to develop model legislation for 

states in this area. 

Four, establishing mandatory inventory reporting requirements. 

FRA’s National Grade Crossing Inventory System identifies grade 

crossings and the types of warning devices installed. The accuracy 

and completeness of this inventory are essential because states rely 

on it to prioritize safety improvements. 

Voluntary reporting by railroads and states has not been successful. We found that 36 percent of public grade crossing records have 

not been updated since 2000. We believe that mandatory reporting 

should be required. 

My final point is requiring action plans for the most dangerous 

crossings. We have recommended that FRA identify states having 

the most dangerous crossings—those with the most accidents year 

after year—and develop with those states, action plans identifying 

specific solutions for improvement. 

In March 2006, FRA completed its first such plan with Louisiana. Officials acted to improve safety at 73 percent of the crossings with more than one collision. FRA is now working with Texas 

in a similar effort. The Subcommittee may wish to require action 

in other states with high numbers of grade crossing collisions. 

Chairman Oberstar, we will work with FRA as it focuses on 

these areas to make railroad crossings even safer. 

16

This completes my prepared statement, and I would be happy to 

respond to any questions from you or the other Members of the 

Subcommittee. 

Mr. OBERSTAR. Thank you very much, Mr. Hyde. We greatly appreciate the work of the Inspector General over many years. In 

combination with the work of the National Transportation Safety 

Board, it is an extraordinarily valuable asset for public understanding of the conduct of the affairs and responsibilities of the 

many modes of the Department of Transportation. 

Mr. Rosenker, are you familiar with flight time and duty time in 

the aviation sector? 

Mr. ROSENKER. I am, sir. 

Mr. OBERSTAR. Distinguish those two. 

Mr. ROSENKER. We are talking about flight time that is actually 

calculated from the moment that the aircraft pulls away from the 

gate. That amount would be at a maximum of 100 hours a month 

that we are talking about. 

Mr. OBERSTAR. From the time of release of the brake? 

Mr. ROSENKER. Yes, sir. 

Mr. OBERSTAR. When does it end? 

Mr. ROSENKER. It ends when it comes back to the gate and the 

brake is put on again. 

Mr. OBERSTAR. When the brake is applied. 

Mr. ROSENKER. Although 100 hours is authorized a month, it is 

rare that 121 pilots will reach that. They max out at 1,000 a year, 

so it would normally be somewhere between 65 and 80 hours a 

month that they are actually operating the aircraft. 

But duty time also would include flight planning and travel to 

and from their place of domicile where they are going to have rest 

as well. 

Mr. OBERSTAR. Pilots and flight attendants are paid for flight 

time, but duty time is a more encompassing term, is it not? 

Mr. ROSENKER. Yes, sir, it is. 

Mr. OBERSTAR. Do you know how long it took us to get legislation 

enacted to limit flight time? 

Mr. ROSENKER. Sir, I don’t, but I hope you will be able to give 

me that answer. 

[Laughter.] 

Mr. OBERSTAR. Fourteen years, 14 years of attempted rulemaking by the FAA, and then it took an action of Congress to get 

it done. 

Now, Mr. Boardman, your delivered testimony was wonderful. I 

nominate you for FRA. But your prepared testimony falls way 

short. On page five, your testimony says: Treating limbo time as 

on duty time would shift the law from a safety frame of reference 

to a fair labor standards frame of reference. 

Now, I just have to observe that if it was good enough for the 

Catholic Church to eliminate limbo, then it ought to be good 

enough for the railroads. 

Mr. BOARDMAN. You stole my line. 

[Laughter.] 

Mr. BOARDMAN. The reason that is there is limbo time comes 

after the train has stopped. In other words, the brake has been set 

in connection with the aviation example. So the reason that we 

17

would say that is there is because there is no more operating of the 

train, Mr. Chairman. So it is not a safety issue. 

What we don’t want to become, nor do you want us to become, 

is a labor department that looks to see whether there has been a 

violation by two minutes or five minutes in a non-duty, non-operating situation, sir. 

Mr. OBERSTAR. Isn’t there analogy between aviation flight time/

duty time and duty time and operating/running time on a railroad? 

Mr. BOARDMAN. Is there an analogy? 

Mr. OBERSTAR. Isn’t there? 

Mr. BOARDMAN. Yes, there is an analogy in every one of the 

modes, surface transportation and aviation, all operations. 

Mr. OBERSTAR. In this so-called limbo time, the railroad personnel are subject to order of the railroad, are they not? 

Mr. BOARDMAN. They are, yes. That is correct. 

Mr. OBERSTAR. You cannot be at rest. I remember doing a job in 

the neighborhood when I was a kid in high school for I won’t mention his name because he was pretty much of a taskmaster. He 

said, say, Oberstar, while you are resting, why don’t you pick up 

that bag of stuff over here and carry it over there? 

You are not resting anymore. If you are under orders, you are 

sort of always on the edge, aren’t you? 

Mr. BOARDMAN. I understand. I understand the analogy. 

I guess the analogy, sir, that I would make is that as a former 

truck driver, I was either at the wheel or I was on duty but not 

at the wheel, not driving. My responsibility when I was not driving 

certainly was not to let the truck roll away or let something happen of a vandalistic nature, but it wasn’t my job or duty at that 

time to drive, and would it become my responsibility, then I would 

have to go back on the logbook. So the analogy that I see here, to 

some extent at least, is that what we have is that the time is similarly done. 

I do not know under an emergency situation, and I don’t pretend 

to know the depth that my friends behind me, or lack of friends 

thereof, that are knowledgeable about the railroads could really tell 

us about what happens after a person or a crew ends their duty 

time, whether they are asked to do something else, but I believe 

that is not the intent. 

Mr. OBERSTAR. Your written testimony further suggests replacing the hours of services laws with flexible regulations based on 

modern scientific understanding of fatigue. 

I guess that raises the question of whose modern scientific understanding of fatigue we are going to accept and how flexible 

those regulations are going to be. As I hear from railroad workers, 

there is way too much flexibility as it now. 

Mr. BOARDMAN. I think what it means, Mr. Chairman, is that as 

a result of the report that we finalized and published on fatigue, 

and the understanding that aviation and NASA and all have done 

about fatigue, is we know much more about the circadian rhythms, 

and the activity—all the things that are occurring to an individual. 

For example, and this is a poor example but it is the one that 

is coming out of my head right this minute, and that is that you 

may be able to work longer during daylight and during those hours 

where you are typically and normally awake and be in a better cogVerDate 0ct 09 2002 17:37 Feb 26, 2008 Jkt 000000 PO 00000 Frm 00033 Fmt 6633 Sfmt 6633 P:\DOCS\35921 HTRANS1 PsN: JASON
18

nitive state than you can be than if you are working a graveyard 

or middle of the night kind of an opportunity. 

So our expectation is in the RSAC process, which is a very deliberative process I can tell you, that we can work through a lot of 

those issues to try to resolve them and come to a conclusion of 

what would a Fatigue Management Plan truly look like and what 

kind of flexibility makes common sense both for the worker and for 

the railroad, and that is the kind of flexibility that we are really 

looking for. 

Mr. OBERSTAR. Thank you. 

Mr. Rosenker and Mr. Hyde, is there limbo time? Is there a counterpart to limbo time in other modes of transportation? 

Have you investigated incidents like the Macdona, Texas situation where they expired their hours of service and then were left 

to wait for transportation back to point of origin for over 10 hours? 

Mr. ROSENKER. I don’t believe we have any type of similar characterization of limbo time in any of the other modes. 

Mr. OBERSTAR. Mr. Hyde? 

Mr. HYDE. Sir, I don’t have any information at this time about 

the other modes that have been audited by my counterparts. I will 

get back to you on that, though. 

Mr. OBERSTAR. Mr. Shuster? 

Mr. SHUSTER. Thank you, Mr. Chairman. 

Mr. Boardman, in the proposal that we put forth-FE and I want 

to ask all of you this-FE we have put down 276 hours, which according to my research and according to much of the testimony I 

have heard and talking to people in industry, it is rare somebody 

is working 432 hours today. Two hundred and seventy-six hours, 

is that a reasonable number of hours for somebody in the industry 

to expect to not go over that time according to what you have seen 

and your understanding? 

Mr. BOARDMAN. I think to answer that I would need to know, I 

guess, over what period. 

Mr. SHUSTER. One month. 

Mr. BOARDMAN. What we have found in terms of fatigue is that 

it is a combination of how many shifts are worked. It is also a combination of how much rest you have had before and so forth, and 

that again is part of, Mr. Shuster, the flexibility issue in terms of 

looking at a Fatigue Management Plan rather than just doing it on 

the basis of the number of hours. 

Two hundred and fifty hours a month is 3,000 hours a year. A 

typical year is 2,000 hours, 2,040 hours on an 8 hour day, 40 hour 

week. So 276 hours—and I won’t do the math fast enough,—is 

somewhere between 3,000 and 4,000 hours a year in which case everybody is then on overtime and probably working at a greater rate 

than 10 hours a day for a 6 day week. So it depends on how that 

time comes. 

Mr. SHUSTER. Go ahead, Mr. Rosenker. 

Mr. ROSENKER. I would have to agree with the Administrator 

that our recommendation is such that we believe there needs to be 

a scientific study and analysis done. There have been a great number of studies done on the aviation side. 

There is no silver bullet answer that the maximum is this number of hours if we are going to guarantee that someone is rested 

19

and be able to effectively operate a locomotive, for example. So we 

would believe that it needs to be studied. 

A host of issues are involved. It is a complex issue because of circadian rhythms and the schedules that you can bump up to each 

other. You may start on a day. The next time you start working, 

you might be starting to work at an odd hour that takes you overnight. That can change the way you are going to get recuperative 

sleep, restorative sleep. 

So we would like to see a method where, in fact, it is scientifically based, the creation of work schedules, rather than just to say 

12 hours is the max and if you get 12 hours here, you can do another 12 hour break. Then, of course, you are alert and able to 

work. That may not be right. 

Mr. SHUSTER. Well, that leads me to the next question. What is 

a reasonable shift for somebody? 

In scientific studies, what have you come up based upon what 

you have seen? Is it a 10 hour shift? Is it a 12 hour shift and then 

you need 12 hours, 14 hours rest? 

Mr. ROSENKER. Again, sir, I hate to be vague about this, but the 

reality is depending upon how you end up putting the schedules together. If it is going to be, for example, five or six straight days 

with the same schedule over and over and over again during a day, 

you can do it longer than you may be able to do it when you intersperse nights and overnights because at that point you haven’t 

been able to change the circadian rhythm. So it has to be done in 

a scientific way rather than haphazardly. 

Mr. SHUSTER. How far off are we from that scientific method? 

We have had folks before us, and it doesn’t seem to be a whole 

lot of consensus. That is what you are saying to me now. We are 

trying to figure that out. 

Mr. ROSENKER. We do know. We do know what the problem is 

today, and that it is unsatisfactory. It has created an environment 

where human error can occur and as a result of human error, catastrophic accidents. We have seen it in a number of the investigations that we have made. 

I would leave it to the professionals that are regulating this industry to come up with the appropriate science to offer that to the 

industry. 

Mr. SHUSTER. Mr. Boardman, do we have that appropriate 

science to be able to say 12 hours on in daylight, 10 hours at night, 

how much rest? 

Mr. BOARDMAN. I would like to get your focus off the hours. I say 

that from the standpoint of the flexibility end of this if you are only 

doing it by counting the hours. 

The hours are important. Don’t get me wrong. They are important for two reasons, one, in terms of the total number of hours 

that you really put out there. The unions understand that, and 

they also understand that the railroad has to operate its business. 

So if it cuts the hours too short and they can’t get to a reasonable 

terminal, the railroads have to add a whole lot and reduce their 

profits and reduce the ability to pay the unions. The unions understand that as well, I think. 

The reason that we want to get this to the RSAC for is to get 

at the flexibilities that you are asking about, that the Chairman is 

20

asking about. In some cases, it could be based on hours. Even the 

railroads today know that. Some of them run seven days on, three 

days off, and then seven days on. Other ones have straight picks 

and the same job every day, and they are off on the weekends. 

There are a lot of variables. 

The difficulty with establishing this based only on the statute is 

that those variables will be impacted all over, and there wouldn’t 

be an ability. Even though you offer, and I recognize that in your 

bill, Mr. Chairman, the ability to have Fatigue Management Plans. 

Without any teeth in it, without the ability for the railroad to manage their employees differently for the future, there won’t be an effective tool to be used in the future. 

Mr. SHUSTER. Thank you. 

I see my time is expired. I am outnumbered up here, so I wonder 

will I have an opportunity. I have a couple other questions, some 

other things. 

Mr. OBERSTAR. I turned the clock off for the gentleman. 

Mr. SHUSTER. I appreciate that. 

Mr. OBERSTAR. We are going to have a vote, though, I think momentarily here. I will go to other Members, and then we will break 

for the vote and then come back. 

Mr. SHUSTER. Will there be a second chance? 

Mr. OBERSTAR. Of course. Of course. 

Mr. SHUSTER. Thank you. 

Mr. OBERSTAR. Mr. Nadler? 

Mr. NADLER. Thank you, Mr. Chairman. 

Commissioner Boardman, the legislation that you have suggested 

proposed repealing the hours of service statute and replacing it 

with an FRA regulation. 

It took the Federal Motor Carrier Safety Administration from a 

notice of proposed rulemaking in 1996 until 2003 to issue the final 

rule, but they were then sued and forced to revise its rule. The 

next rule finally came out in 2005, and it is being litigated again. 

So from 1996, we still don’t have, 11 years later, a rule. 

I find it hard to believe, given the difficulties in such a rulemaking, that the current Administration would be able to issue a 

final rule by the end of its term in 2008. According to your section 

by section analysis, you want to run this rule through the Railroad 

Safety Advisory Committee which has been dealing with fatigue for 

years with no solution in sight. Then you want to tackle hours of 

service for one category of employee at a time, again, according to 

the section by section analysis. 

How will you get a final rule out by the end of 2008 under those 

circumstances? 

Mr. BOARDMAN. I think, first of all, we will have a rule right 

away when we put the statute into effect as a regulation. So the 

existing statute will become the rule immediately, so there won’t 

be any chaos here. There won’t be people not understanding what 

they are going to do. 

Mr. NADLER. Excuse me. You can determine if we say there 

should be a rule, you can say the existing statute will be the rule 

without any hearings and everything else? 

21

Mr. BOARDMAN. That is what we are going to have you do. That 

is our proposal. What you would do is have that become the initial 

regulation. 

Mr. NADLER. Then you would go through the whole process for 

years to see about revising the rule. 

Mr. BOARDMAN. It is not our intention to do it for years. I understand the cut, but I believe that, if we have motivated people—and 

I think we do—unions and railroads to resolve this issue, then we 

don’t have to wait forever for the RSAC to act. We can pull it back. 

Mr. NADLER. Okay, let me ask you a different question. Your bill 

authorizes a Safety Risk Reduction Program to focus on systemic 

safety problems. To describe it, you use an example where you say 

where a traditional enforcement approach would focus on finding 

cracked joint bars and securing their prompt repair, your approach 

focuses on systemic issues such as a process of deciding whether 

to use a joint bar or a weld, the process for restoring joint bars and 

so forth. 

My question is this: The bill bars any part of any record the railroads provide to the FRA or that the FRA obtains through some 

other means through the Safety Risk Reduction Program from public disclosure. That seems pretty broad since the rails could provide 

extensive information to the FRA under the guise that it is for the 

Safety Risk Reduction Program. Why shouldn’t the public have the 

right to that information? 

Mr. BOARDMAN. I think that what we are talking about here is 

when we ask the railroad to go out and look at its hazards, when 

we are asking them to find the risks and then find a methodology 

to reduce that risk, that is information that should be protected except for enforcement. 

Mr. NADLER. What information should be protected? What the 

risks are? 

Mr. BOARDMAN. When they identify for themselves on their railroads what might be necessary to improve. 

Mr. NADLER. All right, let us hone in on that. A railroad, FRA 

Rail, Inc. identifies that they have a problem with switches. Their 

switches are somewhat defective, and they have got to improve 

that. 

Why should that be proprietary information? Why shouldn’t the 

public know that? 

Mr. BOARDMAN. Understand; one of the criticisms for creating an 

FRA to begin with was that when you establish minimum standards, then a railroad would maintain something only to a minimum 

standard. 

Mr. NADLER. Would what? 

Mr. BOARDMAN. I think when you originally established the FRA, 

if you establish a minimum standard—

Mr. NADLER. They would only do the minimum. 

Mr. BOARDMAN. Then they would only do the minimum standard. 

To some extent, that is true for some railroads, that if they meet 

the regulation, it meets the minimum standard. We say it meets 

the minimum standard. These guys, oversight guys over here come 

and look at us and say, you need to do more than a minimum 

standard. 

22

Mr. NADLER. That just argues that you should raise the minimum standard. 

Mr. BOARDMAN. Sir, let me finish. 

Mr. NADLER. Yes. I am sorry. 

Mr. BOARDMAN. So the point here is that we are looking for a 

railroad today to maintain or operate at much greater than a minimum standard, especially in relation to the amount of weight or 

activity that there is on the railroad today. Part of what they have 

to do in order to do that is look at their risks definitely for the future. 

Mr. NADLER. I don’t understand that argument. 

Mr. BOARDMAN. Okay. 

Mr. NADLER. Obviously, you want the railroads to operate at a 

higher than minimum standard. If they are using 286,000 pound 

equipment, they are to operate at this standard. If they are only 

using 263, then at that standard. Why don’t you simply raise the 

standards so that if they are operating at the minimum standard 

you set, that is safe? 

Mr. BOARDMAN. Then we will have a new minimum. 

Mr. NADLER. That is what I just said. 

Mr. BOARDMAN. Right. 

Mr. NADLER. Why don’t you do that? 

Mr. BOARDMAN. Then you have the same problem all over again. 

There are railroads that would then maintain at that minimum, 

and there are some of them that don’t need to move up to that because they don’t have the amount of traffic, the weight that is out 

there. There is a difference among the railroads themselves, especially the smaller railroads. 

We believe, Congressman, and I think it has become an accepted 

kind of belief that one of the things that has to happen with every 

industry that is out there today is they need to find out what their 

hazards are and reduce the risks of those hazards, and this is one 

way to do that. 

Mr. NADLER. Yes, but what I don’t understand, and my time is 

expired, so I won’t continue arguing with you. 

Mr. BOARDMAN. I am not arguing. 

Mr. NADLER. Discussing. If you raise the minimum standard to 

an adequate amount so they will only maintain the minimum 

standard, what is wrong with that and why shouldn’t all that be 

public? 

Mr. BOARDMAN. I understand. 

Mr. NADLER. Thank you. I yield back. 

Mr. OBERSTAR. As always, a very lively discussion with Mr. Nadler. 

I would like to ask the forbearance of other Members so that Mr. 

Lipinski could have his time. He is committed to a time certain at 

the Rules Committee and will have to leave. 

Mr. LIPINSKI. Thank you, Mr. Chairman. 

It is clear as we are talking in this Congress about climate 

change and national energy security, rail is an important part of 

that equation. We need to do what we can to ensure that we do 

use rail as much as we possibly can. It is important that rail remains efficient. We have to do what we can for rail infrastructure 

certainly, but rail safety is also an important part of this. 

23

I thank that Chairman Oberstar and Chairwoman Brown for introducing this bill, and I look forward to going through and working out what will work best for continuing to use rail efficiently in 

this Country. Also, of course, the safety of workers is very critical 

and the safety of all those who use rail, but also with all the railroad lines going through my district, I know how important safety 

is in all ways. 

I want to focus on one particular issue here, positive train control, and I want to ask Mr. Rosenker, first of all, how long has PTC 

been on NTSB’s list of most wanted transportation safety improvements and why is PTC on the list? 

Mr. ROSENKER. It has been, and I happen to have brought a copy 

of the NTSB’s most wanted list, and it has been on our most wanted list since the beginning in 1990, 17 years. 

The condition or, if you will, the status of where we are with the 

FRA on this issue is—we have three statuses: a green, which 

means it is acceptable and progressing in a timely manner; a yellow, acceptable response, progressing slowly; and a red, unacceptable response. The color is yellow. It is progressing slowly. 

We believe it is time to progress in a much faster way, and the 

provision which is dealt with in Mr. Oberstar’s bill is a good provision, we believe, because it puts a date certain. The technology is 

there. It is a mature technology. Although it is experimental today, 

in the period of time that the legislation is talking about, significant improvements in the technology will have occurred, and I believe, as a result, significant numbers of derailments and collisions 

will be avoided. 

Mr. LIPINSKI. Do you have any type or sense of measure of how 

many accidents could possibly be obviated with PTC? 

Mr. ROSENKER. We did talk about 10 years that we took a look 

at this, and we saw 52 that dealt with fatalities, not just injuries 

but fatalities, and that there were approximately 500 injuries that 

could have been prevented as well. I think there were 37 fatalities. 

We could only find data on about half, 29 of the accidents, of the 

52 that we believe that we could end up preventing. 

This technology is really the future here, and it is not only technology that we believe can do so much for America’s railroads but 

technology in prevention. I must if I can have the moment to compliment NHTSA. They, in fact, recognized the importance of electronic stability control, a relatively simple technology compared to 

PTC but yet a technology which, when implemented by 2012 in all 

of the automobiles in our Nation, will begin the process of preventing the deaths, and this is projected between 5,000 and 10,000 

people a year. 

Technology has a wonderful place in accident prevention. PTC is 

a place where, in fact, it will do a great deal of good, and we believe it is now time to move forward on this technology. 

Mr. LIPINSKI. Thank you, Mr. Rosenker. 

Thank you, Mr. Chairman. 

Mr. OBERSTAR. I thank the gentleman. 

I will go back to Mr. Shuster. 

Mr. SHUSTER. Thank you, Mr. Chairman. 

A question on grade crossings and trespassers, overwhelmingly, 

the fatalities occur in these two categories and just a couple of 

24

questions on the split jurisdiction between the track which the railroads control and then at the intersection which the State highway 

departments control. I know there is something like 27 States that 

currently lack laws regarding the rail crossing. 

It seems to be a problem. Can you, Mr. Boardman, talk about 

what are things that the FRA can do to improve that and is there 

anything we can do here to improve that situation? 

Mr. BOARDMAN. Mr. Miller, if you could put my chart up for me 

now. 

Mr. Shuster, I don’t know how well this is going to show up. I 

kind of brought this along. I think this really kind of tells the 

story. 

It was a little better earlier. Jim or whoever is running it, if you 

could back it up and make it bigger. Yes, there, that works. 

The fatalities are below. 

Bring it up. Maybe it isn’t going to work here. 

The lower line you see headed down is the number of fatalities, 

and the line that you see kind of going up 45 degrees is the amount 

of traffic, railroad traffic today. What we are really seeing, when 

you combine that with what Mr. Rosenker just said about the number of deaths and injuries or deaths that they would actually reduce, I think he said between 5,000 and 10,000 injuries with the 

stability control, or deaths. 

Mr. ROSENKER. Yes. 

Mr. BOARDMAN. Deaths. That would be 10 percent, about 10 percent to 20 percent of the number of deaths that there are out there 

on the highway. 

Part of the problem we are having with the state highway departments is that the number is so low in terms of grade crossing 

accidents, and that is what is really captured in the state DOT 

books that they put out on their statistics every year. You won’t 

find it separately in here on highway grade crossing accidents because it is in the total number of highway accidents that are out 

there. 

So that number is so low dealing with the state highway departments. Every life is precious, but this particular part of it doesn’t 

rise to the level of need or where they are spending the dollars as 

what we would like it to be as a railroad agency. 

Mr. SHUSTER. Mr. Rosenker, your thoughts on it, what can we 

do? 

I know there has been Operation Lifesaver and, of course, we 

have some signage. What can we do to stop not only the grade 

crossings but trespassers? 

Mr. ROSENKER. I can suggest, and we always say this when we 

go to an accident, a horrible accident that involved a grade crossing, grade separation is the simplest answer. Take it out of play. 

It is not easy to do because it is expensive, but that guarantees the 

separation between a motor vehicle and a train. 

I went to a terrible accident that occurred on Thanksgiving, the 

eve of Thanksgiving about two years ago in Chicago. Seventeen 

cars were struck by a metro train. Amazingly, no one died, but this 

was such an unusual traffic crossing. It was built at such an oblique angle that you didn’t really realize you were sitting on tracks 

25

until it was much too late and you were piled up bumper to bumper. 

The State and the county finally said when we were so adamant 

about grade separation because they had fatalities before in the 20 

some years that that crossing had been there, that they finally decide to say enough is enough. We are going to separate this grade 

crossing. They will make a little bridge above it. 

That is the ultimate answer, but I recognize with the thousands 

and thousands that are out there, that is not always possible. So 

you will have to use other technological capabilities. I think the Administrator talked about some of those. 

But education clearly is an important part of that, recognizing 

you will not win if you are going to try to beat a train. You will 

lose. You can count on it. 

Mr. SHUSTER. Mr. Hyde, more inspectors at the FRA, is that 

something that would help alleviate the problem and is there any 

evidence that more inspectors would, in fact, cause the problem to 

decrease at the crossings? 

Mr. HYDE. Well, that can be one solution. I wanted to comment 

that while the number of grade crossing fatalities certainly is small 

in comparison to the other modes—the highway fatalities are very 

high, and I know alcohol impaired driving is extremely high—there 

are still some low hanging fruit that can be done, that can be attacked. That is one of the things that we want to encourage the 

FRA to do, that is to go after that low hanging fruit. 

One of the elements that FRA can be doing is helping the states 

create these action plans to address bad grade crossing collisions 

where there is, for example, multiple collisions at a particular 

grade crossing. They have done that in Louisiana. There has been 

success there. The accident or the collision rate has been coming 

down since they have implemented that plan. 

The other thing is that the Department has a very aggressive 

goal to get the fatalities down overall, and everybody has got to be 

doing a bit of their part. So we think that the FRA can take some 

action here. 

Mr. SHUSTER. Thank you. 

Thank you, Mr. Chairman. 

Mr. OBERSTAR. Mr. Boardman? 

Mr. BOARDMAN. I was just going to comment on that just very 

briefly. Thank you. 

We have 17 inspectors in the field right now on highway grade 

crossing, trespasser inspectors, and we are working with those 

communities. I think Kurt is right, that the kinds of things that 

we have done in Louisiana, we need to do other places. 

We are also working with the commuter railroads, a collision 

hazard analysis with those commuter railroads, and we are having 

some good successes working with them, especially in California 

and Florida. 

They are one of the ones, and I am sorry Jerry is gone at this 

point in time, but they are one of the ones where a lot of the data 

that is out there is data that needs to be protected, but you can’t 

really have 100 percent mitigation for all of those collisions. You 

really find that that is the case. 

26

I think Congresswoman Napolitano, when I met with her, identified a tremendous number of at-grade crossings on the Alameda 

East Corridor that are of a very great difficulty in terms of cost to 

find a solution to separating the grades and having a community 

that is satisfied and still keeping the economy moving. This is a 

very difficult problem. 

Mr. SHUSTER. Is that number of inspectors, 17, up, down? 

Mr. BOARDMAN. That is up. That is up from last year. It is up 

one. It is up in the last 10 years by double. It went from 8 to 16, 

17. 

Mr. SHUSTER. Thank you. 

Mr. OBERSTAR. What I have found in my years of oversight of 

safety is that more inspectors means more safety in pipelines, in 

aviation, in maritime, the Coast Guard arena. 

Mr. Boswell? 

Mr. BOSWELL. Mr. Chairman, I got in a little bit late. Did you 

talk about the deadhead time, the time that is spent in limbo, earlier? 

Mr. OBERSTAR. We have had some discussion, but it is a lively 

subject and worth further discussion. 

Mr. BOSWELL. Well, I don’t want to overdo it. 

Mr. OBERSTAR. I don’t think you can. 

Mr. BOSWELL. But I just am curious what their comments might 

be about how to deal with that because it seems to me like that 

the person is out there and puts in their hours, and then they have 

got deadhead or wait and so on. Then it counts against them, and 

they have to go back on duty. Would you talk about that a little 

bit? 

Mr. BOARDMAN. Certainly, Congressman. Let me, at least for my 

own purposes, define what you have identified. 

A crew comes in first in the morning and is transported out to 

its duty location. That is an on duty time that contributes to the 

overall total amount of time, whether it is going to be the 8, 10 or 

12 hours that they would actually work. 

Then they move their train or do whatever their responsibility is 

to the end, until they outlaw or come out of time which would be, 

let us, for example, say this case is 12 hours. At that point in time, 

they may be in a place that they have to be relieved by another 

crew that will be on its way out to them. 

The decision had become that that particular time, while paid 

for, is limbo time and often times is confused, that it is not paid 

for. It is paid for. But that is the time that is neither working nor 

is it a rest time because in the statute you are required to give the 

proper amount of rest time, which is normally eight hours. It can 

be 10 hours of rest time, undisturbed rest time. 

Then the time that it takes to get that same crew to a terminal 

or a proper relief point is also time that is not worked, but again 

it is time that is paid. In many cases, this is where the difficulty 

comes in in terms of determining whether they have the proper 

amount of rest time after the duty time. That is really where we 

are, I think. 

Mr. BOSWELL. Well, of course, you know what I am driving at. 

I think Mr. Oberstar is too. That is fatigue, and that is a contributor to the accidents. So what are we going to do about it? 

27

Mr. BOARDMAN. In our particular proposal, we believe that we 

should regulate the hours of service and that the statute would 

come into the FRA as it currently exists and that we would use 

that as the new regulation and have a process with the RSAC 

Committee to come up with a new solution that addresses fatigue 

using the best science available today. 

Mr. BOSWELL. I was in a different kind of service one time, and 

it seemed like we had a lot of that same situation. They called it, 

in my case, the military. What are we doing for the worker out 

there that have got to have the pay, got to have the job, and yet 

he has got to be held responsible? What are we doing for him or 

her? 

Mr. BOARDMAN. I am not sure I understand the question, sir. 

Mr. BOSWELL. I am not sure that I have heard a solution. 

Mr. BOARDMAN. Okay. We don’t regulate their hours of service at 

this point in time. We have no right to go out and do anything from 

a regulatory standpoint. 

Mr. BOSWELL. But you are concerned about safety. 

Mr. BOARDMAN. Yes, sir. 

Mr. BOSWELL. So what are you recommending then? 

Mr. BOARDMAN. Our bill is that we would want to regulate the 

hours of service. 

Mr. BOSWELL. Mr. Oberstar, maybe you could help me out here 

a little bit. I don’t think I am getting through. 

Mr. OBERSTAR. You are not. It is not an illusion. The Administration’s bill or proposal is very unfuscatory. 

Mr. BOSWELL. Is that French? 

Mr. BOARDMAN. Now, you are going to have to help me out here. 

[Laughter.] 

Mr. BOSWELL. Did you slip a French word in on me there? 

Mr. OBERSTAR. [Phrase in foreign language.] 

Mr. BOARDMAN. I need help. 

[Laughter.] 

Mr. OBERSTAR. Mrs. Napolitano? 

Mrs. NAPOLITANO. Thank you, Mr. Chair. I was just going to ask 

you, what does that mean? 

I just want to thank Mr. Boardman because his staff has been 

exceedingly helpful when we had derailments, rail derailments in 

my area, and they were very, very helpful. So thank you for that. 

My question relates to the States who can certainly play a very 

important role in assisting the FRA with ensuring the safety along 

the rail lines. As you well know, I have a lot of that in my area. 

Why has the FRA been so reluctant to allow the States to regulate 

the railroads locally in order to provide a safer environment for 

their residents? 

Do you think Congress should modify the section of the Federal 

Law to give the States regulatory authority where it does not exist 

currently, knowing that the National Conference of State Transportation Specialists, the Federal Rail Administration’s Association of 

State Railroad Safety, program managers, the California PUC, 

public utilities, the National Association of Regulatory Utilities and 

the California State legislators are all endorsing the proposal to be 

able to allow States rail regulatory authority? 

28

Now apparently the Federal courts have not allowed the States 

to preempt Federal law, and that can play havoc. Like anything 

else, I think we need to take a look at how we should be able to 

see how they can be helpful, rather than hindering the ability to 

be able to ensure safety at the local level. 

The states argue that their safety regulations are entirely consistent with the FRA’s regulations and are not an ‘‘undue burden 

on interstate commerce.’’

Would you address that, sir? 

Mr. BOARDMAN. Yes, ma’am. I appreciate the fact that we are 

working together to try to resolve some of these issues, and we 

work very well with California on many of these issues, but we 

don’t see eye to eye on this preemption issue. As a matter of fact, 

Congresswoman, when I was Commissioner of Transportation in 

New York, I might have provided some of those arguments myself 

when I had a particular railroad that I wanted to do something different with. 

Mrs. NAPOLITANO. What made you change your mind? 

Mr. BOARDMAN. Becoming the Administrator and understanding 

that it is particularly important to have the same regulations in 

New York as we have in Pennsylvania that we have in Ohio, just 

like it is important that the laws generally are the same on the 

interstate highway system or any of the surface transportation 

modes. 

We need to do a better job; we need to make sure that we are 

providing the assistance to the States and the regulations necessary for them to hold railroads accountable through and with us, 

and we have agreements with about 30 States with 160 inspectors 

that we work well with. 

So we prefer that those kinds of relationships grow and that you 

not have a hodge-podge, because we believe that some States, just 

like not all States participate with us on a State program. There 

will be some States that would have no regulation. There would be 

other States that would have very different regulations. It would 

be almost impossible for a railroad that is trying to run its train 

from California to Chicago, or from Chicago on to New York, to be 

able to understand what those regulations would be. 

Mrs. NAPOLITANO. I find that argument a little weak, sir, because there are many regulations that have been implemented that 

you could argue that different States would take differently. 

But I certainly have an opportunity to be able to talk to some 

of my State regulators, the legislators and the California PUC and 

others. In my long history, kind of long, being on City Council and 

being on State, I have dealt with many of those issues before, and 

let me tell you it is not easy to bring the railroad to the table, even 

asking CPUC, California Public Utilities Commission, to come in 

and take a look or listen to the arguments that cities have in regard to some of the problems they have with the railroad going 

through their communities. 

So to say that it would be a hodge-podge, it would help communities tremendously, working with the railroads, of course. I don’t 

mean to sound like I am trying to be condescending to anybody, but 

working together to be able to find out what is it that we can do 

to be able to effectively assist the communities in helping the FRA 

29

and working with the railroads to come up with a solution to be 

able to work better. 

Mr. BOARDMAN. I will find a better way to help you, Congresswoman, to get the railroad to the table. 

Mrs. NAPOLITANO. Well, the railroads have been very, very receptive in my area because we have had long discussions, especially 

with Union Pacific. I haven’t had an opportunity to sit with the 

BNSF, but I will do that. I don’t have a problem asking them to 

come to the table. That, I can do. 

I think what the communities, and I am not just talking about 

my own area but many of the areas who do not have the background or the expertise or don’t know how to begin the process of 

being able to speak to them openly and be able to get that information to be able to make it better for the community and for the railroad for that matter. 

Mr. BOARDMAN. I understand. 

Mrs. NAPOLITANO. Thank you. 

Thank you, Mr. Chair. 

Mr. OBERSTAR. With Mr. Shuster’s indulgence, although we normally come back to the Republican side, Mr. Higgins has been 

waiting a long time, and I will ask him to take his five minutes. 

Then we will break for the pending vote. 

Mr. HIGGINS. Thank you, Mr. Chairman. 

This is on the issue of track inspections to Mr. Boardman. In response to my request last December that your Agency conduct a 

comprehensive inspection of the integrity of the rail overpasses in 

Erie and Chautauqua Counties, your office had responded that the 

Agency lacked the resources to conduct a comprehensive inspection, 

and thus the investigation was targeted at the two overpasses 

where the derailments had occurred. 

My question is how many more inspectors would your Agency 

need to conduct a targeted comprehensive two county inspection of 

the rail overpasses? 

Mr. BOARDMAN. Brian, I don’t know. Excuse me, Congressman, 

I don’t know right this minute how many it would take. I can look 

into that. 

[Information follows:]

30


35921.011
31

I think one of our difficulties at the time is we had a lot of things 

going on, especially up in the northeast, east Rochester. We had 

them in Kentucky at the time, Brooks, Kentucky. We were in a situation where for one weekend there in January, I had taken 20 

percent of my workforce and did a focused inspection on that railroad. So we were just in a situation that we couldn’t look at all of 

those. 

But we have at this time, Congressman, gone through a track inspection process and are continuing that all out, throughout New 

York State on all of the major railroads and most of the smaller 

railroads, and we will continue to do that. 

Mr. HIGGINS. Is your Agency or the Administration seeking additional sufficient funds to hire additional inspectors to do this? 

Mr. BOARDMAN. We asked for approval, I believe, for a few more 

inspectors, but we have grown as an Agency on inspectors by about 

50 inspectors in the last 10 years. That is kind of where we are 

at this point in time. We put them on as we saw the need in a specific area to improve and strengthen. 

Mr. HIGGINS. But wouldn’t the Agency welcome the additional inspectors that are called for in the rail safety legislation under the 

sponsorship of Chairman Oberstar? 

Mr. BOARDMAN. Well, there are several things that we would 

welcome. I mean nobody that is in his right mind would stand 

around and say I don’t want any more resources to do what I need 

to do, but we think there is a balance that you have to have in 

terms of not only inspectors but research money. We just put two 

new rail inspection vehicles on T19 and T20, where we think part 

of the solution is technology. 

So it is a look at using and changing skills for the future, making 

the railroads do more risk reduction themselves. That is why we 

are looking at that. It is kind of the concept that we have to have 

a balanced and full plan. 

Mr. HIGGINS. Let me just switch to the issue of enforcement and 

the imposition of fines for track defect. What is the maximum fine 

assessed to a railroad for a track defect violation? 

Mr. BOARDMAN. I think the maximum that we could charge any- body is $27,000 per occurrence per day, but that would have to be 

after they didn’t do what we told them to do. There is a sequential 

process. 

Mr. HIGGINS. How many fines were issued in 2006? 

Mr. BOARDMAN. I could get back to you with that. 

Mr. HIGGINS. Okay. 

To Mr. Hyde, are enough fines being levied and are fines set at 

a high enough level to induce railroads to aggressively detect and 

correct potentially dangerous track defects? 

Mr. HYDE. We have just started an audit in that area, looking 

at the penalties assessed, how they have collected on those penalties and how it correlates to the violations that were issued. 

One of the things that we noted that when we were looking at 

the reporting conditions for grade crossing collisions, for example, 

reporting to the NRC, we found that one in five serious grade 

crossing collisions were not reported and that we encouraged FRA 

to begin issuing violations. They have started doing that. In the 

past two years, I think they have issued 17 violations in that area. 

32

In addition, with the other reporting requirement, they have 

started doing reviews of the railroads. We would have to look and 

see whether they have, in fact, started issuing violations for those 

failures to report to FRA, but I do know that the FRA has been 

proposing to increase the size of the fine for that type of violation. 

Mr. HIGGINS. Okay, my time is almost up. Thank you, Mr. Chairman. 

Mr. OBERSTAR. We have a couple of minutes. 

Mr. Diaz-Balart? 

Mr. DIAZ-BALART. Thank you, Mr. Chairman. I am fine. I may 

have something when we come back. 

Mr. OBERSTAR. We will recess for the pending vote and additional votes and return as soon as we possibly can. I hope within 

15, 20 minutes. 

I just want to put Mr. Rosenker on notice and also Mr. 

Boardman and Mr. Hyde to address the issue of monitoring railroad radio communications similar to the voice recorder in aircraft 

as a matter that I would like to explore further, and Mr. Shuster, 

I am sure, has further questions. 

The Committee will stand in recess. 

[Recess.] 

Mr. OBERSTAR. The Subcommittee will resume the hearing. 

When we broke, I said I want to pursue a matter among several 

items in the Administration bill authorizing the monitoring of railroad radio communications. In Mr. Boardman’s testimony, he made 

some very pertinent observations that FRA is allowed to monitor 

radio communications only in the presence of an authorized sender 

or receiver, a railroad employee, and yet when railroad employees 

know that FRA is present, they tend to be on their best safety behavior, a keen observation. 

But there are limits proposed by FRA to recording of communications, and they appear to parallel those of the cockpit voice recorder in aviation. In aviation accidents, the recording, the voice 

communication is not released except under very rare circumstances but maintained for investigatory purposes and for purpose of improving safety in the future. 

Mr. Rosenker, what are your thoughts about the proposal if you 

have had the opportunity to review it? 

Mr. ROSENKER. We would be in favor of two phases of the area. 

First, the area of potential monitoring on a random basis of communications, we believe would be quite helpful to understand what 

is really happening, what is being communicated on the railroad. 

Secondly, a device similar to what we have in the cockpit voice 

recorder would be extremely helpful and, again, should be treated 

exactly like the way we treat cockpit voice recorders in aviation. 

Transcripts after an accident only, after an accident would be potentially released and examined in the docket. The actual voice recording itself would be held without the ability to be used other 

than in the party examination for forensic purposes. 

Mr. OBERSTAR. It is in the Administration bill. It is also in the 

bill that I have introduced. I think those safeguards can be a very 

useful safety tool. 

Lufthansa, in the late eighties, 1988, 1989, did an experiment 

with its flight deck crews of having a television monitor in the 

33

cockpit to help pilots understand when they call out an action, 

whether they actually did what they called out. The flight deck 

crews were surprised on viewing the video afterwards to see that 

there were several missteps. It helped them immensely, but they, 

as U.S. pilots, resisted having a permanent video camera in the 

flight deck. 

Let us see. There were some other points that I wanted to pursue. 

The railroads would say that the provision in my introduced bill 

that would allow train crews and signalmen 24 hours consecutive 

off duty within a 7 day period should be extended to require 24 

consecutive hours off duty within an 8 day period. I wonder if you 

have any basis for or whether there is a basis for judgment one 

way or the other in light of your accident investigation of the event 

in Anding, Mississippi, where there were a number of consecutive 

days on duty that affected work performance. 

Mr. ROSENKER. Well, Chairman, again, I want to applaud the 

Congress and particularly your Committee for the great work that 

it has done in preparing this legislation. 

As I said earlier in my testimony and even in response, I believe, 

to the Ranking Member, there is no silver bullet answer to say this 

will guarantee a 24 hour separation from the last time of duty to 

the time you come back, that that will guarantee that fatigue will 

not exist and an engineer or crewman will come fully rested and 

ready to work. 

We would believe that it is best left to a scientific analysis from 

study before we would say that is the answer. The concept of recognition of fatigue and the amount of hours of service which is described in your legislation is a great, great first step forward, but 

I hate to hang my hat on it and say that is the answer until the 

science which we have recommended to the Administrator, the 

analysis, the study of fatigue itself in this community, we believe 

would provide us the best evidence to make good fatigue management decisions in scheduling. 

Mr. OBERSTAR. The constant refrain and insistence on science 

when it comes from this Administration, I am highly skeptical. 

They want science. They look to study global climate change until 

we are all inundated by the flood and then say, oh, my goodness, 

that last scientific report wasn’t quite good enough. 

In stress in air traffic controllers, in the late seventies, there 

were 27 different studies of stress. Each time the study was completed and submitted to the FAA, they found a reason to reject it. 

Finally, the major study that was so comprehensive that could not 

be avoided, they didn’t do anything. 

Now I have been on panels with Mark Rosekind of NASA AIMS 

and William Dement of Stanford on several occasions. I think they 

are top fatigue specialists and authorities in the world, and they 

would not support what the railroads are proposing and what their 

current practice is. They would more come down and decide of the 

recommendations of the NTSB. 

Mr. Boardman, how much more study do we need? 

Mr. BOARDMAN. We don’t think you need any more study. We 

think that we have a report that tells us the kinds of things on our 

fatigue report that are important. 

34

Mr. OBERSTAR. That is refreshing to hear. We don’t need any 

more study. Go ahead. 

Mr. BOARDMAN. Well, my researchers might say, wait a minute. 

But I think we are ready at this point in time to get to business, 

and that is why we are proposing what we are proposing. 

Mr. OBERSTAR. Mr. Shuster? 

Mr. SHUSTER. Thank you, Mr. Chairman. 

Talking about studies, I know that years ago the debate on airbags, and I forget her name. Joan Clayborn? 

Mr. OBERSTAR. Joan Claybrook. 

Mr. SHUSTER. Right. She pushed for them, and then later on here 

in the past couple of years she came out and said that maybe it 

wasn’t the right thing or maybe we did it the wrong way. So I 

think on both sides of the political spectrum, people push for something and then all of a sudden, years later, oops, maybe we did the 

wrong thing. 

I certainly don’t want to debate you on global warming here 

today, but as I start to learn more and more about it and the percent of the carbon put in the atmosphere, it is very, very small, 

what we put in through our cars and our trains and power plants, 

but anyways, that is for another time. 

Mr. OBERSTAR. We could have lovely debate on that one. 

Mr. SHUSTER. Technology and study, positive train control, I 

know there are some operations out there that are employing it. 

The law, I think, says 2014, it is to be deployed. Where are we in 

the study of it and what is your view and what is the potential 

benefit as far as safety goes? 

Mr. BOARDMAN. Well, we stopped the study that was going forward or that we were doing in Illinois, figuring that we had gotten 

what we needed out of it at that point in time. I think we have 

approved the ETMS system for the BNSF Railroad, and they are 

out beginning to employ it. It is the product safety plan that we 

really were looking for. 

But we have the other railroads that have the way that they 

want to do positive train control, and they are making their judgments right now in terms of how do they deploy this, how do they 

do it in a rapid enough fashion in the areas that they know they 

need it and that they can afford it from a standpoint of the competitive environment that they are in. 

You know I can’t take Mark’s little most wanted list and color 

it green at this point in time because he makes those decisions, but 

I think what he is trying to say is that we are pleased that we are 

actually making some progress here. We are also pleased, and we 

see the industry as doing that and embracing it and moving forward. 

Mr. SHUSTER. Is 2014 a reasonable amount of time? 

Mr. BOARDMAN. I don’t know. I don’t have an answer to that. 

Mr. SHUSTER. Mr. Rosenker? 

Mr. ROSENKER. Ranking Member Shuster, we do believe that 

2014 is a reasonable implementation date. The technologies are 

there. It is a decision on which systems do you wish to use. 

I am reminded of the time when there were discussions of many 

years ago when I was involved in high definition, the creation of 

high definition televison. There were 41 proponents that said they 

35

had the answer of what high definition television was going to be 

for the United States and not just the United States but the world. 

As the systems began to compete with each other for who was 

going to have the better system, we realized none of them had the 

ultimate answer. 

The system came about with what they call the Grand Alliance. 

About 10 companies got together, the best of all of the systems out 

there, to create what we now know as high definition television, 

and the system originally may have come out at a very expensive 

figure, perhaps two, three, four, five thousand dollars for these 

televisions. Today, you will buy them for $699. 

I am not suggesting that you are going to get it that cheap in 

positive train control. But the one thing about technology we do 

know: The technologies get better. The technologies get more reliable. They get smaller, and they get cheaper as we evolve through 

the future of these technologies. 

We have to make a decision in saying it is now time to do something about positive train control. It will be a device that, in fact, 

will save lives. It will begin the process of assisting humans when 

they may do the wrong thing for whatever reasons, whether it is 

distraction, whether it is fatigue, whether it is lack of training. 

Whatever it is, positive train control will help and begin to stop the 

train and brake the train at the appropriate times if, in fact, it is 

not being done by the crew. 

Mr. SHUSTER. How many systems are out there that you know 

of? 

Mr. ROSENKER. Oh, there are a number of systems. I know BNSF 

has one. I think the Alaska Railways is experimenting with one. 

Amtrak has a form of it on the northeastern corridor. These are 

good systems. 

I don’t want to be the decision-maker on which system is best. 

That is for the industry to decide. 

Mr. SHUSTER. Right. 

Mr. ROSENKER. But it is time to say it has now evolved. It is mature enough that you can begin to use it, and it will get better. 

These things are scalable in many cases. There will be newer and 

more interesting applications of positive train control as we get into 

the future as we have seen with other technologies. 

Mr. SHUSTER. Thank you. 

Mr. OBERSTAR. Mr. Boardman, we have been, in the many weeks 

of developing this legislation and years previously of creating its 

predecessors, given to understand that the six-year time for implementation was the time that those in the industry and your associates, current and preceding, said that is about the time it would 

take to actually implement such a move. You said you didn’t know 

when. 

Mr. BOARDMAN. I just don’t know right this minute, Mr. Chairman. I can go back and look and see. 

I guess, is it going to be just areas right now that are signal territory? Are we talking about non-signaled territory as well? I don’t 

know. 

Mr. OBERSTAR. I don’t think we would legislate where. I think we 

would give regulatory flexibility to apply such a rule in the highest 

need and highest incident areas. 

36

Mr. BOARDMAN. I promise you an answer. I just don’t have it 

today. 

Mr. OBERSTAR. That would be useful. 

The wonderful thing of the NTSB, Mr. Rosenker, and I have described it over years, is that it is normative. You do have to be 

somewhat sensitive to what it costs to implement what the Board 

recommends, but your job is not to do benefit-cost analyses. The 

railroads claim that the costs of implementing positive train control 

is too high in comparison to benefits. 

Thank goodness we have the Board, and we also have the Inspector General’s Office. The Federal Railroad Administration has to do 

the implementation. It is like the Corps of Engineers when they 

have to go out and do analysis on a project. They say, well, yes, 

it would provide flood control, but the cost is way greater than the 

one house that it protect, for example. 

But this argument about cost is not new. Let me go back to the 

predecessor Committee on Railroads in a hearing they had in 1969. 

Mr. Thomas Goodfellow was President of the Association of American Railroads, and he said: ‘‘In these difficult circumstances, to 

add to already severe inflationary pressures by imposing costly restraints on hours of service of railroad operating employees would 

clearly be contrary not only to the interest of the railroads but to 

the national interest as well.’’

My God, we have heard this all over again and again. Thank 

heavens, I have been here long enough to have heard most of it. 

[Laughter.] 

Mr. OBERSTAR. Does the gentlewoman from California have anything further? 

Mrs. NAPOLITANO. Mr. Chair, I totally agree with you because I 

hear those arguments in many other areas also. 

But I would like to just comment briefly on the issue of the joint 

bar simply because that was one of the areas that caused an accident in my immediate area and the fact that there was no technology that could see through the epoxy to be able to determine 

whether there was indeed danger. Come to find out, after the report finally came to me about a year and a half later, there had 

a prior crack that had not been detected over and above the one 

that really caused the accident. 

So I would hope that there would be enough funding and support 

to be able to get the research and development one, so that this 

kind of an accident in the future can be prevented. 

Thank God, there was no loss of life or injury. There was loss of 

property. But, in essence, the laws need to also protect the people, 

not just the railroads. 

So I would appreciate any information that can be forthcoming 

because they have talked about welding the bars. They have gone 

in and done a whole bunch of infrastructure repair by taking off 

the bars and putting cement bars. My concern at this point is just 

on a common sense basis. If you replace wooden ties with concrete 

bars and you have an excessive amount of traffic, how long before 

that concrete starts breaking up? 

I am talking about research and development. How long did they 

actually go through and determine that this was the best, cheapest 

or whatever economic way to deal with that? 

37

While you may know the answer, my constituents certainly don’t, 

and I certainly would want to know and have the information to 

be able to give to them to ameliorate a little bit of the concern they 

might have over the safety of their area. 

Mr. BOARDMAN. I understand. I think it was a general concept 

of what we need to do in terms of research and improvement. We 

have an automated joint bar detection program that is underway. 

It is actually now being marketed, and we have some railroads that 

are beginning to purchase that equipment and deploy it. It is also 

being improved as we go along, and we are well aware of the NTSB 

wanting us to even move further in terms of, especially, plug rail 

and figuring out how we are going to be able to improve that as 

well. 

So those are areas that we are spending time on, spending resources on, and we hope to have even a better future in the automated detection system. 

Mrs. NAPOLITANO. Is there any plan to be able to oversee how 

many of those joint bars will actually be checked for cracks as this 

equipment? 

The railroads have an option to buy it or not to buy it, right? 

Mr. BOARDMAN. That is correct. We are encouraging them to do 

that. They still have an obligation to get out and look for cracks 

in those joint bars themselves, but this is a technology that allows 

them to do it quicker and we think better in the end, and that will 

be good for the entire industry. 

Mrs. NAPOLITANO. Thank you, Mr. Chair, for your indulgence. 

Mr. OBERSTAR. Mr. Brown is here, and I acknowledge the gentleman from South Carolina. 

Mr. BROWN. Thank you, Mr. Chairman, and thank you gentlemen for coming and sharing this information with us. 

Mr. Boardman, in examining the Federal Railroad Administration’s web site, I noticed that the Administration had already developed the National Rail Safety Action Plan which includes action 

items and deadlines. Can you talk a little bit about how this plan 

compares to the plan called for as part of H.R. 2095? 

Mr. BOARDMAN. The plan—thank you, Congressman—is a plan 

that will be strengthened by the kinds of things that are being 

talked about in the bill. In fact, one of the key elements of this Rail 

Safety Action Plan is making sure that we are using the proper 

data to determine where we need to apply our resources, whether 

it be inspector resources or in any of our regions across the Country. 

So we are supportive of taking that Rail Safety Action Plan and 

accelerating our research as the Congresswoman over here talked 

about in terms of what is important, especially in the area right 

now of hazardous material tank car inspections and focusing our 

inspections for the future. We will make those improvements. 

Thank you. 

Mr. BROWN. Okay, thank you very much. 

My next question is to Chairman Rosenker. Grade crossings 

come under many different jurisdictions. From a safety expert’s 

point of view, what are some of the challenges this situation brings 

when it comes to ensuring that a single crossing meets safety 

standards? 

38

Mr. ROSENKER. Sir, I talked earlier about the best solution. Unfortunately, the best solution is not possible throughout the United 

States. The best solution, of course, is grade separation. Where we 

can do that, we heartily recommend that, and we can guarantee at 

that point you won’t have a grade crossing problem. 

Next to that, technology and also education. We have worked 

closely with the Administrator. This is a combined railroad/highway issue. I wish I had the silver bullet for the answer. 

There are too many people that are dying annually at these 

grade crossings. Too many of them believe they can throw the dice 

and win. I said it earlier. I will say it again. No one wins against 

a train. Unfortunately, I have seen some horrible results of folks 

that have tried to throw the dice and lose. 

The only thing I can suggest is what Operation Lifesaver is doing 

and more enforcement from the States and local authorities. As a 

highway issue, I believe we will go a long way, but technology will 

also have to play a significant role. 

Mr. HYDE. Congressman, if I can add to that, that is true. There 

is not any one single magic bullet. There are a number of different 

challenges at these grade crossings. You can even put in the automatic gates, and I have seen videos where cars go around those 

gates. 

But you have to use a multiprong approach in order to ensure 

better safety at these grade crossings. Having the education, doing 

driver education, we have seen data out there where a number of 

the accidents that are occurring, the collisions that are occurring 

are in the 18 to 25 year old range. There is also information out 

there that many of the accidents are caused by male drivers, so you 

have to target your education to that cohort in order to change 

their behaviors. 

Mr. BROWN. Thank you. 

Thank you, Mr. Chairman. 

Mr. OBERSTAR. On that score, I would simply observe that on our 

Committee inquiry in Europe, meetings with the European economic community on the Open Skies Agreement, euro control and 

European Safety Agency, we traveled from Brussels to Paris on the 

TGV the day after it set the world speed record. Not the same 

train, we did the Thalys, not the main line TGV, but this was not 

shabby. This was 185 miles an hour. 

With an opportunity to be in the cab with the locomotive engineer, I asked, do you have any people who fancy challenging the 

train? 

He said, oh, yes, along about our late runs, 11:00 at night, we 

are doing 185 miles an hour, and there is always some fool who 

wants to try to outrace the train. 

Now, there are no crossings. When they get up to 100 miles an 

hour, they lose control of the car and then fatalities result. So madness is not confined to the United States. 

[Laughter.] 

Mr. BOARDMAN. Mr. Chairman, are you saying they are mad in 

France? 

Mr. OBERSTAR. Belgium. 

Mr. BOARDMAN. Oh, Belgium, sorry. 

Mr. OBERSTAR. And France. 

39

Mr. BOARDMAN. I didn’t know with the most recent election in 

France. 

Mr. SHUSTER. I thought they stepped in the right direction in the 

last election. 

Mr. OBERSTAR. It was quite a step in the right direction, yes, depending on who you are and which party you are in France. 

[Laughter.] 

Mr. SHUSTER. I wanted to make a point about the technology and 

the positive train control, and I looked back to the airbag. When 

I go back in history, I am always on shaky ground, talking to the 

transportation historian or with the transportation historian next 

to me. But as I recall in 1979, there was a big fight over the airbag, 

and I believe at that time it failed. Eventually, though, the Federal 

Government passed a law and put in place a timeline to put airbags into cars. 

What really caused the airbag to put in the car in mass numbers 

was that Lee Iacocca of Chrysler decided or saw or identified the 

marketplace would accept an airbag. So he used it as a marketing 

tool and helped to save the company by putting airbags in cars. 

Today, people don’t have to have the side airbags, but they purchase them because of the safety involved in them, and it comes 

down to companies, people, all look at the cost-benefit of a technology. 

I think we certainly want to be as safe as we can out there, but 

companies and people don’t want to spend money on technology 

that may work or may not work. 

I think that if we open this debate up, and again I am new to 

this Committee, so I may not have the parties right, but I think 

there was a debate that occurred over the last couple of years in 

this industry and some wanted positive train control because they 

could go down to one man crews. When you look at it from their 

side, they could increase their capacity greatly. Buy more locomotives without having to find hundreds of thousands of new people. If companies can do those things, then they are more apt to 

say, okay, we will take the risk. 

But there were some that didn’t want that to happen for various 

reasons, whether they were other companies or whether it was 

labor. They were concerned about that. 

I think when we are talking about technology, we need to make 

sure here in Congress where we are pushing forward solutions but 

not burdening industries, companies with what we think may work 

and instead look at the cost-benefit analysis. If we are going to 

mandate that companies do certain things, if people have to buy 

airbags, then we have to decide whether the government should 

foot some of that bill. 

But if we let the market work and let the process go forward, I 

think at the end of the day private industry, businesses will purchase those technologies, and things will get better for all of us involved when you deploy that type of technology. 

Mr. OBERSTAR. The gentleman makes a very thoughtful observation. In that 1969 testimony that I cited, the President of the AAR 

referenced tax credits that were made available by Congress to 

stimulate some of the safety initiatives, and I think that is entirely 

40

appropriate. Wherever we can submit it, we ought to do that. We 

ought to provide such assistance. 

I also remember the debate in aviation in 1985 and 1986 and 

1987 about aircraft coming too close to each other, near mid-airs, 

near misses in the air, and no one knew how near was near until 

we finally pushed FAA to make a definition, 500 feet. At 500 feet, 

you can just about see what the guy is eating in the other airplane. 

Then the argument was: Oh, TCAS. No, this TCAS 1 is not good. 

We have to wait for TCAS 2 which will tell you to move up and 

down in addition to moving to the left or to the right. 

Then two airplanes collided over Cerritos, California, and there 

were fatalities. 

It was a Member of our Committee, Ron Packard, who represented that district, who came to me and said, we have to legislate. We have to require the FAA to install traffic collision avoidance systems and mode C transponders aboard airplanes and use 

them—from a right conservative Member of Congress. 

I said, you introduce the bill, and we will hold further hearings 

on it. 

We did, and we moved that bill through the Subcommittee and 

the Full Committee. Passed the House. Passed the Senate. All the 

whining from the airlines went away because they knew if they 

didn’t, people in droves were going to be reluctant to get on board 

airplanes. So, yes, there is a consumer choice at the end of all of 

this. 

You have all been very forthcoming and patient. There are many 

other questions that I would like to pursue as we could probably 

do this better in a roundtable than at the hearing table. So we hold 

you excused and thank you for your testimony. 

Mr. BOARDMAN. Thank you, sir. 

Mr. SHUSTER. Thank you, Mr. Chairman, Ranking Member, distinguished Members. 

Mr. OBERSTAR. Our next panel waiting anxiously for their turn 

at bat: Mr. Hamberger, President and Chief Executive Officer of 

the Association of American Railroads, familiar to this Committee 

room, having worked in it once and having testified here many 

times; Mr. Ed Wytkind, also a frequent witness and voice at our 

hearings, President of the Transportation Trades Department of 

the AFL-CIO; Mr. John Tolman, Vice President and National Legislative Representative for the Brotherhood of Locomotive Engineers and Trainmen, the International Brotherhood of Teamsters; 

Mr. James Brunkenhoefer, National Legislative Director of the 

United Transportation Union; and Dan Picket, International President, Brotherhood of Railroad Signalmen; Martin Durbin, Managing Director, Federal Affairs, American Chemistry Council, welcome. 

Oh, yes, I want a copy of that photograph taken of Mr. Hamberger and Mr. Wytkind that close together. That may be the last 

time. 

Mr. HAMBERGER. We have broken bread together on several occasions in a polite way. 

Mr. OBERSTAR. Mr. Hamberger, you are first. 

41

TESTIMONY OF EDWARD WYTKIND, PRESIDENT, TRANSPORTATION TRADES DEPARTMENT, AFL-CIO; JOHN TOLMAN, 

VICE PRESIDENT AND NATIONAL LEGISLATIVE REPRESENTATIVE, BROTHERHOOD OF LOCOMOTIVE ENGINEERS AND 

TRAINMEN, INTERNATIONAL BROTHERHOOD OF TEAMSTERS; JAMES BRUNKENHOEFER, NATIONAL LEGISLATIVE 

DIRECTOR, UNITED TRANSPORTATION UNION; DAN PICKETT, INTERNATIONAL PRESIDENT, BROTHERHOOD OF RAILROAD SIGNALMEN; EDWARD HAMBERGER, PRESIDENT AND 

CHIEF EXECUTIVE OFFICER, ASSOCIATION OF AMERICAN 

RAILROADS; MARTIN DURBIN, MANAGING DIRECTOR, FEDERAL AFFAIRS, AMERICAN CHEMISTRY COUNCIL 

Mr. HAMBERGER. Thank you, Mr. Chairman, Mr. Shuster, Congresswoman Napolitano. Thank you so much for the opportunity to 

be here. On behalf of the Association of American Railroads, I 

would like to thank you for the opportunity to address rail safety 

and specifically, Mr. Chairman, the bill that you and Chairwoman 

Brown introduced. 

The views contained in my statement also represent those of the 

American Short Line and Regional Railroad Association, and I 

would like to submit for the record a letter from that association’s 

president, General Richard Timmons, in which he endorses my testimony and emphasizes five provisions of particular concern to 

smaller records. 

Mr. OBERSTAR. Without objection, that letter will be received for 

the record. 

Mr. HAMBERGER. Thank you, sir. 

We recognize that the primary purpose of H.R. 2095 is to improve safety, and the railroads wholeheartedly share that goal. 

Let me start out by pointing out that the rail industry’s safety 

record is excellent and getting better. Since 1980, railroads reduced 

their overall train accident rate by 69 percent, their rate of employee casualties by 81 percent, and their highway rail grade crossing incident rate by 76 percent. The employee casualty rate and the 

grade crossing incident rate in 2006 were at their lowest levels ever 

while the train accident rate was just fractionally higher than the 

record set a few years ago. 

I would emphasize that we believe that the accident rate is the 

best metric rather than the raw numbers of accidents since the 

rate reflects the growth in traffic which we have experienced in the 

past few years. 

I also want to express strong support for the provision that authorizes funding for the design, development and construction of a 

tunnel testing facility at TTCI in Pueblo, Colorado, as Mr. Salazar 

mentioned earlier today. 

While my written statement goes into detail on a great number 

of issues, I would like to focus on two areas here today, Hours of 

Service and technology. 

Obviously, a primary focal point of H.R. 2095 is fatigue. As I 

noted in my testimony before this Committee in February, it is not 

in the railroads’ best interest to have employees who are too tired 

to perform their duties properly. Consequently, individual railroads 

are pursuing a variety of fatigue countermeasures based on what 

42

they have found to be most effective for their particular operating 

environments. 

Combating fatigue, of course, is a shared responsibility. Just as 

employers need to provide an environment that allows employees 

to obtain the necessary rest during off duty hours, employees themselves must set aside time when off duty to obtain the rest they 

need. 

Generally speaking, railroads support provisions in the legislation prohibiting train and engine employees from working unless 

they have had at least 10 hours off duty, up from 8 hours, and 

those 10 hours should be uninterrupted as called for in the legislation. 

The provision eliminating limbo time, however—that is time 

spent after a crew has reached its 12 hour limit and is awaiting 

transportation or being transported—is another matter. We believe 

that it would impose intractable scheduling problems for the railroads. Let me underscore that railroads do not intend for their employees to get caught in limbo time. It is not part of the operating 

plan. 

What happens is in the very nature of railroad operations, trains 

can be subject to unplanned events, a grade crossing accident, for 

example, a washout, a hotbox detector indicating that a car needs 

to be set out of service. All of that requires time and can prevent 

a train from reaching its scheduled destination within its crew’s allotted 12 hours. Under this legislative provision, that could cause 

a violation of the Hours of Service Act through no fault of the railroad. 

We believe there is a better way to combat any cumulative sleep 

deficit that may occur as a result of limbo time. First, any employee who works 12 consecutive hours on duty and then at least 

one hour of limbo time should receive, under our suggestion, 14 

consecutive hours of off duty time. That goes to the issue of what 

the limbo time concern is, and that is fatigue. You don’t want to 

have a cumulative sleep deficit. Let us have 14 hours off. 

Second, train and engine service employees should be subject to 

a new monthly maximum on duty time of 276 hours. That compares to the 260 hours that the trucking industry has, but we believe that even though limbo time is not on duty time, that it 

should count toward that 276 hour limit. 

These measures would significantly reduce the maximum monthly time for train and engine employees from the 432 you mentioned, Mr. Chairman, and we believe it would strike a balance between fatigue concerns and the 24/7 reality of railroad operations. 

The legislation also prohibits railroads from requiring signal employees to perform emergency work more than three days in any 

seven consecutive days. There are occasions when this limitation 

would cause significant harm to rail operations and actually to the 

greater good. 

Hurricane Katrina is a vivid example of this. After that storm, 

signal workers performed herculean tasks in getting the rail system up and running again. Had this provision been in place at that 

point, the railroads’ ability to respond to the storm would have 

been severely diminished and service restoration would have taken 

far longer. 

43

A similar situation is occurring even as we speak in Kansas and 

other midwestern States hit by tornados this past weekend. We believe the concerns raised by the BRS both at the February hearing 

and here today can be addressed by more tightly defining what is 

an emergency versus routine service without placing handcuffs on 

the industry in these kinds of situations. 

Finally, in the Hours of Service area, we believe that these recommendations are sound recommendations, but in the alternative 

we would also support a transfer of all hours of service to the FRA 

with reliance on the FRA’s professional judgment as is the case 

with FMCSA and the trucking industry. 

I know I am running over, Mr. Chairman, but I ask. 

Mr. OBERSTAR. Finish your statement. 

Mr. HAMBERGER. Thank you, sir. 

The railroad industry shares the goal of the legislation to develop 

and employ effective technology, and let me just move quickly into 

that area of positive train control. We believe that the deadline imposed in the legislation is, in fact, too rigid. 

We are developing and testing advanced train control systems 

that can help prevent accidents by automatically stopping or slowing the trains before they encounter a dangerous situation, but 

those systems are indeed very complex. At the minimum, they 

must include reliable technology to inform dispatchers of a train’s 

precise location, a means to warn the operator of the train of the 

potential problem and a means to take action, that is, override the 

individual in the cab if necessary and independent of the train operator to prevent an accident from occurring. 

We are committed to using advanced train control technology. 

The tremendous complexities involved in those systems and the 

need for interoperability across the system argue for flexibility instead of a rigid schedule. We would recommend an approach in 

which the railroads would submit their implementation plans as 

called for in your legislation to the FRA with the FRA then reporting back to Congress on what they believe might be an appropriate 

timeframe, and at that time perhaps a firmer implementation 

schedule could be established. 

Finally, we are concerned about a provision in the legislation 

mandating regulations with respect to the misaligned switches in 

non-signaled territory. We have gone through the FRA accident 

data, and last year there were three accidents attributable to 

switch positions not in alignment that we believe this provision is 

meant to address, three accidents. 

Morever, the FRA is already addressing this through an emergency order issued in 2005 and a rulemaking that will supercede 

that emergency order. 

As General Timmons points out in his letter, this provision 

would be beyond the resources of many short line railroads to implement and would produce a strong incentive to remove many of 

those switches to the detriment of customers. 

Let me just reiterate that safety is our top priority. We believe 

that shows through our improving safety record. We are committed 

to working with you and others in Congress and our employees and 

customers to ensure that rail safety continues to improve. 

44

Thank you and thank you for indulgence in allowing me to run 

over time. 

Mr. OBERSTAR. Your complete statement will appear in the 

record. 

Mr. HAMBERGER. Thank you. 

Mr. OBERSTAR. Mr. Wytkind? 

Mr. WYTKIND. Thank you, Mr. Chairman and Mr. Shuster for 

having transportation labor present its views on the important 

issues facing the Nation and this Congress about the safety of rail 

transportation. 

I want to thank you, Chairman Oberstar, and of course Chairwoman Brown for making passage of this bill such a top priority. 

I have already testified once before the Committee not long after 

the new Congress began its business, and we are certainly pleased 

to see such aggressive actions being taken by this Committee to address a long overdue rewrite of Federal rail safety programs. 

Let me say up front that the Federal Railroad Safety Improvement Act represents a historic step forward in improving the safety 

of our rail system and its workforce. We strongly endorse the Oberstar-Brown bill, and we strongly urge its adoption without any further delay. We also appreciate the fact that the Committee is seeking the input of rail workers in this Country and their unions in 

trying to address many issues in the rail safety arena that have 

been largely ignored over the last several years. 

Second, we applaud the Committee for moving forward with this 

bill despite the opposition of the railroad industry which has grown 

accustomed to stopping any meaningful attempts to pass rail safety 

reform legislation. Make no mistake about it; we will see and have 

seen in the submitted testimony fancy charts and a lot of spin 

about government data, and we will be impressed, I am sure, with 

all the myriad programs that the railroads are running. 

But, ultimately, the railroads are truly dismissing most of what 

is in the Oberstar-Brown bill. In the end, they will talk about 

working with the Committee but will probably spend most of their 

time trying to derail a comprehensive rewrite of rail safety laws in 

this Country. We hope the Congress says no to those political attempts by the railroad industry. 

Let us hope that the facts about safety hazards in this industry 

that have been well documented just today, the facts about this industry’s safety culture, the facts about tired, poorly trained and 

harassed and intimidated employees, and the fact that we still 

haven’t addressed rail safety since the last rewrite in 1998 will far 

outweigh the rail lobby’s political reach into the Congress in trying 

to stymie efforts to pass rail safety legislation. 

Third, fatigue in the rail industry has reached a crisis. The AAR 

seems to devote about seven pages of its testimony to tell you why 

most of the measures in the bill shouldn’t be adopted, yet they 

claim that flexibility is their goal and safety is their objective but 

do not see any value, from what I can tell at least—I tried to read 

it carefully—in moving forward with a legislative measure that attempts to address fatigue in a responsible way. 

We wonder why the railroad CEOs and the senior management 

do not understand the point that it is not good business to run a 

45

company with fatigued workers, especially in a business like railroading that clearly affects public safety. 

Clearly, Congress has the responsibility to act on the fatigue concerns being raised by the operating unions and by the signalmen 

union, which we will hear from momentarily, before yet another accident results in this Country from sleep-deprived employees. 

Fourth, training is sorely lacking in the rail industry, and Congress must speak forcefully on this safety issue. It is appalling that 

so many workers are receiving such substandard training in an industry that prides itself on running 24/7, a safe, state of the art 

rail system. It is equally appalling to read the rail lobby’s response 

to the training requirements in H.R. 2095. They are ‘‘redundant’’ 

and unnecessary. 

The workers are telling me that they are not receiving the kind 

of training they need and that there is a brain drain going on 

among the workforce because veteran employees, which are more 

and more relied on to train the younger workers in the workforce, 

are retiring and we are losing a lot of institutional knowledge. So 

the recurrent training portion of a training regime is much needed. 

Moreover, since the September 11th attacks, I have testified 

probably a dozen times since that horrific day, calling on Congress 

to require true mandatory training for rail workers in this industry 

in dealing with the security risk that we now face in this Country 

as a result of 9/11. I think it is inexcusable that so many of the 

workers in this industry are not being trained for security risks. 

Fifth, Congress does need to beef up the Federal rail inspector 

force. One of the facts that was left out in the exchange with the 

panel about hiring more inspectors and about the levying of fines 

is that the average fine is $39.00 across the whole rail industry 

which is less than a parking ticket in the District of Columbia, and 

a parking ticket doesn’t risk anybody’s life. 

So I think there needs to be serious consideration to dealing with 

that fact. You have got to create the right incentives for railroads 

to operate safely, and a rule infraction shouldn’t just cost $39.00. 

Let me provide some focused discussion on the whistleblower 

issue as well because we think workers continue to routinely face 

management intimidation and harassment. For too long we have 

seen reports about the culture of intimidation and harassment that 

is pervasive in the industry. When faced with an injury or safety 

or security risk, rail workers are being discouraged by managers. 

This is not hyperbole. It is happening. 

I reject categorically the industry’s claim that there is no compelling case for enhancing whistleblower protections. One documented 

case after another show a management culture of harassing and intimidating and suppressing employees on the job when they are 

trying to report injuries and other events, and they use heavyhanded tactics, often illegal, to disguise the facts. 

The stories are appalling. We have cases that we have documented and that have been given to this Committee, one after another of management obsessed with making medical incidents and 

injuries non-reportable, even pushing them not to take prescription 

drugs when they have been told they need prescription drugs, delaying medical treatment for injured employees, underreporting injuries, forcing employees to wait often two hours for a supervisor 

46

to arrive at an accident scene on the job before that person can be 

transported for medical treatment. 

Just this morning, I read about a case where an employee with 

a cut in his back requiring stitches, due to company policy, was 

forced to wait for a supervisor to drive 89 miles from a different 

part of Michigan to that location before he could leave to receive 

medical attention. This is just plain wrong, and I don’t really understand how the AAR and its member carriers can defend this 

kind of regime. 

The Committee must act before this culture results in silencing 

workers who would otherwise speak out about safety hazards and, 

God forbid, pointing out about safety and security hazards in the 

event of a terrorist wanting to do harm on our Nation’s railroads. 

Section 301 sends a very clear message, and I will wrap up, to 

management: If you suppress accident and injury report, if you 

willfully harass and intimidate employees, if you deploy policies designed to suppress rather than foster an environment in which 

workers can speak out about safety and security risks or report and 

get treatment for injuries, you will be held responsible and you will 

pay a price. 

We think that is the right thing to do. We urge the Committee 

to move on this legislation, and we hope to have an opportunity to 

work with you on any questions that you have and on any further 

enhancements in this bill that we can be of assistance on. 

Thank you. 

Mr. OBERSTAR. Thank you very much, Mr. Wytkind, for your testimony. 

Mr. Tolman? 

Mr. TOLMAN. Good afternoon, Mr. Chairman, Ranking Member 

Shuster and Congresswoman Napolitano. 

On behalf of the Brotherhood of Maintenance of Way Employees, 

the Brotherhood of Locomotive Engineers and Trainmen and the 

Teamsters Rail Conference as well as my colleague here with the 

United Transportation Union, with whom the Rail Conference has 

submitted extensive testimony, I want to begin by also thanking 

the Committee for addressing many issues in this legislation that 

are of vital importance to our members. 

I especially want to thank Chairman Oberstar and Chairwoman 

Brown for introducing this legislation and bringing these issues forward after 13 years. This is the most significant piece of rail legislation in more than a decade. 

I want to first address the hours of service issue which we are 

pleased to see bipartisan support to resolve these outstanding 

issues and the hours of service issues legislatively rather than in 

regulatory process. We fully support the changes made in Chairman Oberstar’s and Chairwoman Brown’s legislation, H.R. 2095. 

By amending the Hours of Service Act, this bill addresses one of 

the most pressing issues in our industry, and that is fatigue. 

There are three factors that we believe are responsible for the 

vast majority of operating crew fatigue. One is the uncertainty that 

crews face with respect to advance warning when they will be required to work. The approach to this problem is to amend the 

Hours of Service Act and to require a minimum time off duty to 

be undisturbed, and we fully support this approach. 

47

A second major factor that aggravates fatigue is the industry’s 

manipulation of the Hours of Service Act by leaving crews stranded 

by unconscionable lengths of time as a result of the Supreme 

Court’s 1996 limbo time decision. 

On February 13th of this year, we presented detailed testimony 

on this subject, so I won’t burden the proceedings by repeating 

those facts. It is clear that our concerns have been taken into consideration in a bipartisan way which we deeply appreciate. 

A third major factor is work time. There is a bipartisan proposal 

to reduce the threshold for requiring 10 hours off duty which we 

support and applaud. We also support the notion that crews should 

have mandatory time off after performing covered service for seven 

or eight consecutive days. 

On behalf of the BMWED members of the Rail Conference, we 

wish to express our appreciation and strong support for the proposed amendment concerning employee sleeping quarters. We also 

support the hours of service amendments proposed by the Chairman for signaling and dispatching service employees and urge their 

adoption. 

Also, we would like to applaud the inclusion of strong whistleblower protections in H.R. 2095. The Teamster Rail Conference 

supports the inclusion of whistleblower protection in this legislation. Railroad workers cannot and should not be subject to dismissal when they provide information regarding unsafe issues to 

the government agencies responsible for promoting safety and enforcing safety laws and regulations. Strong whistleblower protections for rail workers are needed to stop employers from harassing 

and intimidating employees who speak out about safety and security issues. 

I can tell you that every Class I railroad has been reported for 

engaging in harassment. In testimony, we cite a report done by 

FRA entitled ‘‘An Examination of Railroad Yard Worker Safety’’ 

done in July of 2002 which talks about the commonplace culture 

in the railroad industry of harassment and intimidation. The incidents, frankly, involve attempts by management to have crews 

skirt the Federal safety regulations, often rudely berating an engineer or trainman who objects to train makeup by telling the crew 

to shut up and get your train out of town. 

We strongly support those provisions in H.R. 2095 that address 

several recommendations made by the National Transportation 

Safety Board in the wake of the tragic accident of Graniteville, 

South Carolina, which resulted in the death of a BLET member, 

Chris Seeling, and eight others when a tank car containing chlorine was breached, releasing a deadly cloud of chorine gas. 

The NTSB has been concerned since at least 1974 about the 

issue of non-signaled track or dark territory. The Graniteville accident was caused by a misaligned switch in dark territory. Forty 

percent of our Nation’s railroads are in dark territory without 

switch position detectors to help prevent accidents like 

Graniteville. 

Finally, one of the most outrageous abuses that occur in the rail 

industry is the interference by carriers in the medical care of injured workers. 

48

This outrageous behavior is meant to discourage injured workers 

from reporting their injuries and trying to recover damages caused 

by carrier negligence. H.R. 2095 outlaws the interference, and we 

fully support this provision. 

Once again, Mr. Chairman, thank you for the opportunity, and 

I will be willing to answer any questions. 

Mr. OBERSTAR. Thank you very much, Mr. Tolman, for your testimony. 

Mr. Brunkenhoefer? 

Mr. BRUNKENHOEFER. Yes, sir. I had always thought that I 

would be responsible for protecting my members sometimes from 

themselves because they are not trained, some of the times from 

management. I have an instance here where I think is an example 

of the necessity to have some regulation in training. 

Recently in a hump yard in east St. Louis which is a very busy 

location on the railroad, we had an employee who said he did not 

feel he was comfortable operating remote control and told the supervisor. The supervisor disregarded his concern and told him to 

use the equipment and go to work. Then he assigns a student or 

a trainee for him to teach how to operate the equipment. Then in 

the process of that day, they put two trains together and caused 

a collision. 

Now what kind of supervisor would do this? The trainee’s father. 

Now if the father won’t protect him, then I think that we do have 

a responsibility to appeal to other people to say let us don’t let 

these inexperienced people who don’t know what they are doing out 

there, injuring themselves and causing accidents. 

If that wasn’t bad enough, then after the unfortunate accident, 

the supervisor had both crews in and told them that there better 

not be any injuries involved or they would lose their jobs. 

I have an instance here of limbo time. A crew in Iowa dies on 

the Hours of Service Act. That means they have to stop working 

after 12 hours. The train master gets a crew from the terminal, 

brings them out to the train that has died and replaces the crew. 

Then the train master tells the crew that is new that the conductor of the new crew is not to ride the train. He is to drive the 

crew that has already been on duty 12 hours, so that the engineer 

is now operating alone. But if that is not bad enough, he is told 

to stop at the stations that the train would still have switching to 

do, park the car with the crew in the car and go into the yard, do 

the switching. When they were completing with the switching of 

that terminal, to get back in the car, go to the next station and 

switch the cars because the crew was on limbo time and it didn’t 

matter. 

Harassment and intimidation, it is, I think the word is endemic 

throughout the industry. It is not so much the protection of being 

able to involve the government. That is good, but the language that 

you have needs to be strengthened. Injuries are not reported. 

One of the things you brought up, Mr. Chairman, involved the 

FAA in many instances and how thorough investigations have 

shown that the information was not correct. Our injury reports 

start with the employee who fills out a form who hands it to a supervisor who fills out a form and that then becomes the basis for 

the data that at the Federal Railroad Administration. So if the suVerDate 0ct 09 2002 17:37 Feb 26, 2008 Jkt 000000 PO 00000 Frm 00064 Fmt 6633 Sfmt 6633 P:\DOCS\35921 HTRANS1 PsN: JASON
49

pervisor can convince the employee not to make the report, then it 

didn’t happen. 

We have enormous amount of information of where if you fill 

that form out, you will be disciplined. You will be disciplined. It is 

real. 

What I have here is a deposition. I would prefer that we not give 

this to the Committee. I am not out to attack anybody. I am out 

to report instances that have taken place. 

This is an attorney asking a train master: Have you ever been 

to a hospital as a train master and spoken with an injured worker’s 

doctor for the purpose of trying to convince him not to prescribe 

medication? 

There is an objection by the attorney. At the end of the objection, 

the train master said: Yes. 

Why? You did that so it wouldn’t be an FRA reportable, didn’t 

you? 

The answer was yes. 

Okay, the company’s attorney is representing the employee, I 

mean representing the train master in the deposition. This employee that was a supervisor wasn’t fired, wasn’t demoted. He was 

promoted and is now the manager of safety of that Class I railroad. 

They have a total disregarded interest about let us play it the right 

way. 

We need to prevent the carriers from using a threat of discipline 

to discourage people from reporting injuries. We need to stop the 

harassment and intimidation of employees after they are injured. 

An employee should not be required to return from the emergency room to go back into the yard under medication and painful 

to reenact the accident, so that the supervisor can say: You are 

lying because it couldn’t have happened that way. You are not 

doing it as you have described to me, and so I am going to remove 

you from service or hold you out of service because while you were 

reenacting it, it is not coming out the same way as you told us. 

Can you imagine we are bringing people from hospitals to railroad yards to reenact accidents? Employees are in pain. They are 

under medication. They shouldn’t be required to do this. 

Every accident that we have that results in a carrier using discipline should be investigated by the Federal Railroad Administration to assure that that carrier is not using discipline or the threat 

of discipline to prevent reporting. 

To change the subject, in the training section, it is very well written, and its says that each craft should be trained. We need to add 

the word class. Some of the crafts are described as classes. We 

have a class of engine service that has the craft of engineer. We 

have a class of train service that has a conductor, a brakeman and 

a switchman. 

So in order that we don’t come back here in a few years and try 

to get an amendment, it would be easier to put into the training 

and qualifications point, craft and class. 

Ms. Napolitano hit on something. We need to allow the States to 

have a freer hand. The Federal Railroad Administration says that 

when we get local safety hazards relieved. Right up I-5 in this little 

town called Dunsmuir, there was an accident many years ago, 

about a half a dozen, of where there was a derailment. The city deVerDate 0ct 09 2002 17:37 Feb 26, 2008 Jkt 000000 PO 00000 Frm 00065 Fmt 6633 Sfmt 6633 P:\DOCS\35921 HTRANS1 PsN: JASON
50

cided that they wanted to slow the trains down around a specific 

curve. 

So the California PUC passed one regulation about one curve, 

one curve. This railroad took the PUC to court and had it ruled it 

was preempted by the Federal Railroad Administration, that the 

city or the State could not do this because there were other curves 

in the United States just like this one. 

We also look at 2095 as not the final word on fatigue. It is the 

first word on fatigue. It is the start, and we have to start some 

place. In the document as drafted, we have in there language that 

will allow for rulemaking to build on the fatigue situation. 

One quick caveat off to the side, one of the questions came up, 

and I think, Mr. Shuster, you talked about the marketplace and 

PTC. I don’t want to spend a lot of time there, but I hope whatever 

comes down is common. 

The engineer goes on duty on the Burlington Northern and goes 

50 miles, goes onto the Union Pacific for 40 miles, goes back onto 

the Burlington Northern and may end up on the CSX. You will 

have the operator continually change from one program or one I 

like this because it is mine to the next one I like this because it 

is mine. Then they have to make the decisions and calculations 

they have to do in safety, I think is wrong. So I hope whatever 

comes out in PTC that it will be something that will be interchangeable on all railroads. 

Also, both of you have been blessed with excellent staff people. 

I have enjoyed working with them. They don’t always agree with 

me. I think something needs to be done about that immediately. 

They keep telling me that they have to do what you want, but we 

have been very blessed to work with both of them. 

Thank you. 

Mr. OBERSTAR. Thank you, Mr. Brunkenhoefer. 

Dan Pickett? 

Mr. PICKETT. Thank you, Mr. Chairman. I would like to thank 

the Chairman and the Members of the Committee for introducing 

H.R. 2095 and for holding this hearing. 

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

Signalmen also install and maintain grade crossing signal systems 

used at highway rail grade crossings. 

The BRS has always made safety our number one priority. A safe 

rail network is an efficient network, and this bill is the first step 

to improving rail safety and therefore improving the efficiency of 

the railroad. 

For too long, fatigue-related errors in the rail industries have 

contributed to rail worker injuries and death. The fatigue management plans proposed in this bill will correct many of those issues 

that lead to our employees being so fatigued. 

The reforms to the Hours of Service Act contained in this bill 

long overdue. Increasing consecutive hours of rest from eight to ten 

hours has long been advocated by the BRS. This bill prohibits railroad employers from communicating with signal employees during 

their rest time, something that happens all too numerous times 

today. 

51

Doing away with the limbo time and having a straight-up hours 

of service law is long overdue. 

The bill will also place all workers doing signal work under the 

Hours of Service Act. This has long been needed. 

Today, the BRS has long advocated the need for a required toll 

free number at grade crossings. The establishment of a toll free notification number will allow the public to provide more timely reports of highway rail grade crossing signal malfunctions. 

While there has been much advancement in the signal system 

technology at highway rail grade crossings, even the most high tech 

equipment is rendered useless if the traveling public does not obey 

the warnings they receive. Enforcement of laws and penalties that 

come from noncompliance are critical in order to increase safety at 

highway rail grade crossings. 

By conducting audits in the timeframes contained within this 

legislation, the FRA and the industry can ensure that they are getting all of the correct data relating to highway rail grade crossing 

accidents and incidents. 

It is and has been the position of the BRS that the FRA is understaffed. This bill will increase the number of FRA inspectors that 

are needed to ensure proper accident/incident reporting. 

This bill provides language that will require within 12 months 

the railroad develop and submit a plan to the Secretary, implementing positive train control systems by December 31st, 2014. 

The BRS concurs with the requirements of this section, and also 

I would like to add that we also concur with what Brunkenhoefer 

said about having a system that works over the entire railroad 

rather than one railroad versus another. 

The BRS agrees with the provisions contained in Title VI Miscellaneous, Section 602 Warning in Non-Signaled Territory. The 

hardware and software is available today to prevent many, if not 

all, of the accidents and incidents involving misaligned switches in 

non-signaled territory. As railroads continue to increase capacity, 

these types of accidents will likely increase if we do not take any 

action. 

As the complexity of all railroad equipment increases, it is important to make sure that all employees have the necessary training 

to perform their duties. The BRS praises the provisions regarding 

minimum training standards in this bill. 

The bill provides language to ensure that all injured railroad employees get the proper medical treatment for any on-job injury. An 

injured employee should not have to worry about reporting an injury, let alone getting the proper treatment for that injury. 

Mr. Chairman, H.R. 2095 is a giant step toward improving safety 

in the Nation’s railroads. This bill addresses many issues very important to railroad signalmen. This bill, if passed into law, will improve rail safety across our Nation’s railroads. On behalf of the 

Brotherhood of Railroad Signalmen, I congratulate all who helped 

to craft this bill. 

I appreciate the opportunity to testify before you today, and at 

this time I will be glad to answer any questions. 

Mr. OBERSTAR. Thank you very much, Mr. Pickett. We greatly 

appreciate your testimony. 

Mr. OBERSTAR. Mr. Durbin? 

52

Mr. DURBIN. Thank you, Mr. Chairman. 

I am Marty Durbin with the American Chemistry Council. Our 

members are committed to the safe movement of our products, and 

we believe H.R. 2095 provides an important framework to improve 

safety performance for transporting these critical materials. In particular, we support provisions of the bill that seek to implement the 

NTSB recommendations. 

The business of chemistry depends on the Nation’s railroads to 

deliver about 170 million tons of products each year, accounting for 

more than $5 billion in annual railroad freight revenues, making 

chemicals the second largest railroad commodity. 

Sound engineering and common sense teach us that for rail 

transportation, hazmat safety is the result of many interrelated 

factors. The avoidance of accidents and accidental releases of hazardous materials is a primary focus for our member companies, the 

broader chemistry sector, our transportation partners and emergency responders. Together, we have invested billions of dollars in 

training, systems, technology and tank car safety. 

And H.R. 2095 goes even further by requiring such measures as 

positive train control, warnings in non-signaled territory and enhanced track inspection. These provisions in addition to the bill’s 

treatment of employee fatigue will significantly enhance rail safety. 

Safety performance improvements for hazmat rail shipments is a 

collaborative process that must involve all relevant stakeholders including rail carriers, shippers, tank car suppliers and government. 

The ACC is pleased to hold a seat on the Tank Car Committee of 

the Association of American Railroads. We have long found the 

committee to be an effective forum for cooperative risk management. 

We are concerned, however, that recent actions by our rail partners could jeopardize that history of successful collaboration. Following last year’s controversial decision by AAR to approve a new 

tank car design which was opposed by all the shipper representatives on the committee, FRA expressed its concern that AAR had 

abandoned a consensus process that ‘‘yielded so many significant 

improvements in the railroad transportation of hazardous materials.’’

We were grateful for FRA’s leadership to bring all stakeholders 

back together under a collaborative approach toward a new tank 

car design. AAR wisely delayed implementation of its decision 

thereby allowing tank car design to be considered through a Federal rulemaking which is progressing on a positive path. 

But this collaboration is in jeopardy. For example, under the 

guise of improving safety, one railroad has announced that it will 

revise its tariffs to encourage shippers to use a tank car that is not 

yet available. We are also disappointed that AAR is now pursuing 

tank car designs for additional chemical products instead of working through the rulemaking process. 

Now, in addition, we are aware that the railroads propose to 

limit their liability resulting from hazmat incidents. While it is in 

nobody’s interest for railroads to be put out of business due to unwarranted lawsuits, we have serious concerns with the proposal. 

ACC works with many organizations to help restore fairness to 

our civil justice system, but we don’t believe a party should be reVerDate 0ct 09 2002 17:37 Feb 26, 2008 Jkt 000000 PO 00000 Frm 00068 Fmt 6633 Sfmt 6633 P:\DOCS\35921 HTRANS1 PsN: JASON
53

lieved of appropriate liability for harms it has caused. Railroads, as 

well as other stakeholders, should continue to bear liability for 

their own conduct. A system that shifts liability from the party at 

fault to other parties serves as a disincentive to improve safety. 

So any decision to limit rail hazmat liability, should Congress 

find such a major change to be in the public interest, must involve 

input of all stakeholders. If all parties were to agree that some limits need to placed on liability, any resulting proposal must clearly 

distinguish between accidents and gross negligence and must be 

strongly tied to ongoing safety performance improvements. Therefore, ACC cannot support the railroads’ narrow one-sided liability 

proposal, and I know other rail customer groups share our concern 

and will be submitting their own statements. 

An important related matter is the common carrier obligation 

under which railroads are required to transport commodities for 

their customers. The common carrier obligation is the framework 

on which the entire national railroad transportation system was 

founded. Railroads are allowed to operate in the public interest because the Nation depends on safe and reliable delivery of a wide 

range of products on which we all depend. 

ACC and its members recognize that safety requires effective collaboration and, despite the concerns I have cited today, I am also 

pleased to say that we have a long history of partnership with rail 

carriers on safety programs. One example is TRANSCAER which 

helps communities prepare for and respond to possible hazmat 

transportation incidents. 

In addition, ACC’s CHEMTREC program, now in its 36th year, 

shares expertise and experience with emergency responders. Our 

emergency center in Rosslyn is a 24/7 reminder of our commitment 

to enhance the safety of every hazmat shipment. 

We look forward to working closely with this Committee, the 

Congress and the Agency and other stakeholders to enhance the 

safety of rail transportation. 

Thank you for allowing the ACC to present its views, and I am 

glad to answer questions. 

Mr. OBERSTAR. We are grateful for your testimony. Thank you 

very much for being here with us. 

Mr. Hamberger, I wrote down with interest your comment about 

switch out of alignment. You said there were only three in 2006. 

Mr. HAMBERGER. There were more switches out of alignment 

that occurred when the switching itself was occurring at the customer’s facility or going into the customer’s facility. 

What we tried to do was to take a look at those accident codes 

in the FRA database in dark territory and then try to address the 

situation where a main line train goes into the siding and then 

does not realign the switch, so that the next main line train would 

continue on the main line but instead is shunted into the siding. 

I said we believe that that is what this provision is meant to address, that kind of accident. If that is what we are talking about, 

we have identified three. 

Mr. OBERSTAR. The FRA, from their own database, which I asked 

to be taken down from the infamous internet as you can get every 

piece of information in the world apparently, they have a very interesting printout which I used in preparing this legislation. In deVerDate 0ct 09 2002 17:37 Feb 26, 2008 Jkt 000000 PO 00000 Frm 00069 Fmt 6633 Sfmt 6633 P:\DOCS\35921 HTRANS1 PsN: JASON
54

scending order of frequency, the second most frequent incident is 

switch improperly aligned, and they list 136. 

Mr. HAMBERGER. Yes, sir. But, as I say, we tried to get behind 

that number and those often times are when the work is being 

done. 

Mr. OBERSTAR. You want that number or that category differentiated according to various listings that you just cited a moment 

ago. 

Mr. HAMBERGER. To see whether or not lining up the switch 

would have prevented that accident, correct. 

Mr. OBERSTAR. Mr. Pickett, do you have any comment? You are 

a signalman. 

Mr. PICKETT. We don’t keep on dark territory. We don’t have any 

information on dark territory. We are not involved other than a 

grade crossing in dark territory. 

Mr. OBERSTAR. Okay. There also is on page 18 of your testimony, 

a comment about Section 606 of our bill. 

Your quote: ‘‘It appears to mandate that railroads transport injured workers to a hospital of the worker’s choosing with no limitations on that choice,’’ so forth and so on and then says ‘‘A railroad 

should be able to override the health care provider.’’

What do you mean override the health care provider? That is an 

intriguing comment. 

Mr. HAMBERGER. As I was trying to point out, there may be occasions where a doctor says to an employee, you are cleared to go 

back to work, but that employee is on medication that causes 

drowsiness. In that case, the employee should not be. 

Mr. OBERSTAR. You would say the railroads should override the 

decision to return to work, not override the medication. 

Mr. HAMBERGER. That is correct, yes, sir. 

Mr. OBERSTAR. That is not clear from your statement. 

Mr. HAMBERGER. I apologize for that. 

Mr. WYTKIND. Mr. Chairman, it is also not happening that way. 

The situation that Mr. Hamberger is addressing, it is not when it 

is being used. It is being used to override doctors. It is being used 

to force employees to say no, for example, to prescription drugs, so 

that it is not reportable. 

So while it may be a tool that they want to use to help the worker not have to come back to work, it is not a tool they are using 

for that purpose. 

Mr. OBERSTAR. I specifically reference that. Mr. Hamberger, do 

you want to respond? 

What we are concerned about is that the railroads, there have 

been reports that they have actually intervened in the choice of 

medication. 

Mr. HAMBERGER. Well, I am sitting here, listening to these kinds 

of reports as well, and I have to say that on behalf of this industry, 

and I will not be obfuscatory about it. I will say straightforwardly, 

I reject the idea that there is a culture, an endemic culture of intimidation and harassment, and I say very clearly right here that 

it is not proper and appropriate to intimidate and harass. It is not 

proper and appropriate to stop an employee from getting appropriate medical care, and if it does happen it should be punished. 

55

Mr. OBERSTAR. Since your statement says the provision appears 

to prohibit railroads from overriding the treatment plan and appears to mandate. Suppose you suggest language to us that would 

protect those concerns. 

Mr. HAMBERGER. Thank you. 

Mr. OBERSTAR. But without overreaching. 

Mr. HAMBERGER. Yes, sir. 

Mr. OBERSTAR. I would like to see what your comment would be. 

Mr. HAMBERGER. Yes, sir. Thank you. Thank you very much. 

Mr. OBERSTAR. In limbo time, what are train crews supposed to 

do? 

Now I raise that question, and I do that against the backdrop of 

the hours of service legislation that we had several years ago and 

then in the surface transportation bill when a wide range of trucking interests got engaged in this, became engaged in this issue, including the electric power industry and the movie industry. 

They said, oh, my goodness, we have these folks sitting around 

here for 14 hours. They got up at 7:00. They are on duty at 7:00 

in the morning. They have got to drive all the equipment to the site 

of the movie shoot and unload the truck. Then they have nothing 

else to do for 12 hours until they load the truck up again, and then 

they can drive back. 

We are not imposing any burden on them. I would call that limbo 

time. I lost that battle to the movie industry because every Member 

of Congress thought there was a movie in their back yard or in 

their district. They thought this would be just fine to have movies 

made in their districts, and they voted overwhelmingly, 300 something to whatever. We lost that battle, but I am not going to lose 

it again. 

[Laughter.] 

Mr. OBERSTAR. As I said earlier, if it is good enough for the Pope 

to rescind limbo, by golly, then we can deal with it here in this category. 

Tell me, Mr. Tolman, what is your experience? 

Mr. Wytkind, you cross over a lot of transportation venues including railroads. 

Mr. TOLMAN. Mr. Chairman, crews are supposed to remain vigilant and watch out for mechanical failure as well as safety of the 

train while they are in limbo time. I have traveled across the Nation in the last six months and talked to various members throughout the railroad industry. It is the number one issue of abuse in 

the industry is limbo time. 

You know we submitted recent testimony, and we submitted 

crews being held out of service. Three-thousand three-hundred and 

thirty-five [subsequently altered by witness to read: three hundred 

thirty-five thousand] crews were measured over the past six years, 

2001 to 2006, and in that data that we received, I would say that 

part of limbo time is now part of their scheduling. It would suggest 

that the part of limbo time is part of their scheduling. 

I quote. In their testimony, it says intractable scheduling problems if you deal with limbo time. 

I beg to differ. I mean I sincerely beg to differ because they have 

built this into scheduling. If we took those numbers that I just gave 

56

to you, 150 crews exceeded the hours of service by a minimum of 

two hours every day for 6 years, every day for 6 years. 

One other thing I would like to comment is on the return to work 

problem of a person that may be on some medical prescription 

drug. Part 219 of the Federal Railroad Administration regulations 

would not allow an employee to go back to work if they were under 

some type of prescription drug. That is covered. That doesn’t happen, shouldn’t happen and wouldn’t in the industry. 

One other thing I would like to touch base on is the switching 

issue. I mean one accident in my eyes is one too many, and I am 

sure that everybody in this room could agree with that. But, God 

forbid, if that accident in Graniteville happened 12 hours previously with an elementary school 500 yards from there. I mean 

God forbid. We wouldn’t be sitting here, questioning whether we 

should put targets there. 

Thank you. 

Mr. OBERSTAR. Mr. Wytkind? 

Mr. WYTKIND. Mr. Chairman, the only thing I would add is I represent 32 unions in the transportation sector in five modes, and the 

gaming of hours of service, the gaming of how you schedule workers, the ability to extract every possible ounce out of the workers 

is something that is pervasive throughout the transportation industry. 

The problems we have in the railroad industry are severe. This 

whole limbo time debate, we ought to end this debate. The workers 

should be protected from the obvious safety hazards that that issue 

among many others under the fatigue and hours of service debate 

brings to the industry. I don’t really understand how the industry 

can basically defend this at a safety hearing. 

It is one thing to argue that they need flexibility and they need 

to run 24/7 railroads. We are not disputing the fact that they run 

large nationwide 24 hour operations, but there is nothing incompatible about flexibility and efficiency and safety on the other 

hand. I think you can do both, and it can be achieved, and the 

measures in your legislation ought to be enacted. 

Mr. OBERSTAR. Mr. Shuster? 

Mr. SHUSTER. Thank you, Mr. Chairman. 

The one thing that I have learned since coming to this Subcommittee is that the railroad companies and labor and the unions 

are similar to Republicans and Democrats. You are not all one 

monolithic group. You don’t necessarily all speak with one voice. 

I think it is important to find compromise here and come together, whether we are talking about, well, I know right now presently you have got about 50 percent of the workforce has agreed 

to a labor contract and 50 percent are still negotiating. We have 

got one rail company that isn’t real hot on positive train control 

and another that wants it. So within both sides of this issue, people 

are disagreeing. 

I think that there is some compromise here, and I think that 

talking about limbo time and worker safety and hours of service. 

I looked at what the Chairman’s bill and Ms. Brown’s bill says, and 

quite frankly I think my numbers, according to what I see but 

again not necessarily the way you view it, is it is safer. I am giving 

57

you more rest time than the Chairman’s bill on the same amount 

of work. 

But that being said, safety is critical to all of us. I think everybody in this room, whether it is the folks in the rail industry, the 

companies, the AAR, labor unions, myself who drives on roads, my 

wife and kids who drive on roads and cross railroad tracks. We 

have got to make sure that we are as safe as we possibly can be. 

I will ask it to Mr. Wytkind and Mr. Tolman and Mr. Broken 

Rail. I don’t think I can still pronounce your name. Besides, I want 

to know what you are running for as you are complimenting both 

our staffs. And Mr. Pickett. 

Mr. BRUNKENHOEFER. I am trying to borrow money. 

[Laughter.] 

Mr. SHUSTER. The Chairman’s bill is 12 hours of work, 10 hours 

of rest. Mine, that we have introduced or we put out there at least, 

is 12 hours of work, 14 hours of rest. Can you comment on that? 

What is the best mode? 

Going back to, which we are going to get to that, the FRA, that 

you have said is a starting point for fatigue study and which I 

want to talk about that. But tell me, based upon your view, how 

many hours of work and how many hours of rest, uninterrupted 

rest, is the optimal? 

Mr. BRUNKENHOEFER. Most of America works 21 and three-quarters days a month, 22 days a month. Under 272 hours in a 22 day 

month, that is 12 hours and 30 minutes. 

We already have a 12 hour law. So we start off with that number 

of the premise that we are going to have a built-in 30 minutes a 

day or we are going to have to work more than 5 days a week. And 

so, I think that the cumulative time should be significantly lower 

than the 272. 

As far as the 14 hours, I know that Altoona is a delightful city. 

I have visited it. 

But if you live in Tucson, you may not be considered getting rest 

if you are spending 14 hours in Yuma, that when a crew gets to 

the other end of the railroad, they strongly want to go home to be 

with their wives and families. What the 14 hours appears to do is 

to punish the crew for a mistake that management made of being 

unable to run the train. It would probably cause them to lose additional turns in a month by the way they turn. They want their 

time at home, not at the other end of the railroad. 

So I think that it is well intentioned, but if you are 14 hours 

stuck at the wrong place, it is not going to release the stress that 

you have to deal with on a daily basis. 

Mr. SHUSTER. And 10 hours is better, is a shorter period of time? 

It allows them to get home. Is that what you are saying? 

Mr. TOLMAN. I guess I will try to answer it. I think the most important thing in the industry, and we have heard various testimony, is that there is no one silver bullet that resolves the fatigue 

issue in most modes. But in my eyes there is one silver bullet, and 

it is in the Chairman’s bill, and that is elimination of limbo time. 

That addresses the primary issue. Fourteen versus ten, I think Mr. 

Brunkenhoefer answered it correct, that our members and anybody 

in their right mind don’t want to lay over for 14 hours at an away 

from home terminal versus being home in their own bed. 

58

Another way to look at it is if you give the opportunity of employee empowerment, and that would be giving the employees—

trainmen, conductors, engineers—the opportunity to take leave 

when they are exhausted, when their rest is up, that would be the 

right approach. 

Fourteen versus ten, I think ten is the answer. I embrace the 

Chairman’s legislation. 

Mr. SHUSTER. Because, again, if you are in Altoona and you are 

going from Harrisburg to Pittsburgh, those runs are a lot shorter 

than if you are out west somewhere. So no matter what the time 

is, you can’t necessarily guarantee, especially when you have got 

these long, long runs, that somebody is going to be in the right 

place at the right time. Truckers have that problem. Airline pilots 

have that problem. 

Mr. PICKETT. Mr. Shuster, if I could address. 

Mr. SHUSTER. Yes, sir. 

Mr. PICKETT. For the signalmen, we have got it completely different. We could go home at 3:00 this afternoon if that completes 

our shift. We are on call 24/7. 

Under the current regs, what Tolman said is correct. If we had 

the opportunity to say, hey, I can’t go out now. But we could possibly be called out at 11:00 tonight if it was at 3:00 we finished our 

shift, completely rested and ready for 12 more hours in 24 hours. 

There is no way. 

Also, you could even get two or three calls during that night if 

you were called out right after your shift as long as you didn’t exceed the four hours and clear trouble, and then you would only 

have the eight hours rest. 

So we see a big advantage in the 10 hours. We would like to see 

more done on the fact that let the individual be empowered to 

mark off without repercussion of marking off when he feels that he 

is tired. 

Mr. SHUSTER. Limbo time, we have it down to propose one hour 

of limbo time in case things occur. A tire gets flat on a van on the 

way home, things like that happen, and that is unforeseen things. 

That one hour limbo time, that is something that is going to cause 

fatigue. It is going to cause great safety concerns. 

Yes, Mr. Tolman. 

Mr. TOLMAN. That is, I guess, a misuse of limbo time. Right now, 

the FRA has a regulation that provides for relief on certain issues 

that are under the definition of an emergency. 

It is kind of misleading testimony that would say that limbo time 

won’t address the Hurricane Katrina. There is already a change in 

the law that would address Hurricane Katrina, that the FRA can 

immediately amend the regs in order to address the Hurricane 

Katrina issues. It is not correct use. 

Obviously, if there is an act of God—a hurricane, tornado, whatever—there is a regulation that provides for emergency relief on 

the hours of service. 

Mr. HAMBERGER. Since I have been called misleading, if I might 

just jump in there, Mr. Shuster. 

Mr. SHUSTER. Sure. 

Mr. HAMBERGER. It is unclear to me, and if that is what the 

Chairman means and if that is the interpretation of Mr. Tolman. 

59

It is unclear based on the draft legislation whether the exercise of 

that kind of regulatory authority by the FRA would still exist 

under this legislation. It is a key matter that we need to continue 

to discuss as we go forward. 

Mr. SHUSTER. Rest is the key. Rest, uninterrupted rest, that is 

the key, right. Everybody agrees on that. 

Well, then it becomes a question, and I said this before. How are 

we going to ensure that that guy or that gal goes home and actually rests for 10 hours? What are we prepared to do? 

Last time I talked about the sleep police. Are we going to have 

bed checks? 

It becomes a concern. If getting that rest is so critical for improving safety, then how are we going to ensure? How are you going 

to ensure that they are going to take that rest? 

I know people out there who have second jobs at part time. Is 

that something that we say because it is such a great concern, because safety is hand, that we deny people to be able to have a second job? Is that something that you are prepared to put forward? 

How do you ensure they are going to get that rest? 

Mr. BRUNKENHOEFER. First, it is never going to happen if we 

don’t give them the chance. And so, if we build a system that says 

you can’t even a chance at getting your rest. 

Mr. SHUSTER. Right, that is what this is all about. 

Mr. BRUNKENHOEFER. Then it doesn’t matter what your personal 

responsibility is. 

As Mrs. Napolitano’s district is where you have got the backup 

on I-5 and you are two hours getting home and two hours getting 

back to work and you have eight hours off and you are supposed 

to eat, sleep and bathe in the four hours that are left. It doesn’t 

matter what the personal provides. 

Mr. SHUSTER. But that is what this is all about. We are going 

to move forward. So what happens if we are able to craft a deal? 

How do we ensure that those folks are getting the proper rest? 

Mr. BRUNKENHOEFER. There is either a longer notification that 

says 10 hours from now you are going on duty, and I don’t think 

that is unreasonable, or that people have assigned starting times 

and know when you are going to go to work. 

So what we live in is that we never know. If I call the crew dispatcher and I call up and I say, when does it look like I am going 

to out. They say, Mr. Brunkenhoefer, it looks like you are going to 

get out in eight hours from now. That means you are going to get 

out at 2:00 a.m. So I better hurry up and go to bed. 

The phone don’t ring at 2:00 a.m. The phone don’t ring 4:00, 

6:00, 8:00, 12:00. Now I have worn out the bed. I am going to wake 

up, okay. I may be awake for 10 or 12 hours now that the phone 

call comes. Then I am 12 hours on duty. Then I build a limbo time 

on that, and then I go out and get on I-5 or the Pennsylvania Turnpike after I have been up 25 or 30 hours. 

And so, eventually at some portion out there, maybe that is 

something the positive train control will do, is we will have a better 

prediction or a better window to get to the solution. 

Mr. SHUSTER. That is going to ensure that everybody gets eight 

hours of sleep? 

60

Mr. BRUNKENHOEFER. No. It is like today you know that you are 

going to probably be back here tomorrow morning at 8:00 a.m. So 

you have an oportunity to choose if you want to go to sleep at 9:00, 

10:00, 11:00 or stay out all night. 

Mr. SHUSTER. That is the point I am trying to make. If somebody 

decides that they are going to stay out all night or work a second 

job or do whatever, that is going to create a safety problem also. 

Look, I have put forward a proposal that I think is decent. I have 

heard a couple of people say that is reasonable. There needs to be 

some compromise. I have said that from the beginning. 

But how do we ensure that people are going to be responsible?[AFTER 6:00 P.M.] 

Mr. BRUNKENHOEFER. First of all, you have got to give them the 

opportunity. 

Mr. SHUSTER. That is what we are trying to do. 

Mr. WYTKIND. Mr. Shuster, if I could just for a minute, I don’t 

think you can make sure of anything. 

I remember in the debate about the trucking industry’s rewrite 

of the hours of service was that it got mired in litigation and other 

public disputes. The solution to the rewrite of the trucking hours 

of service was not to let some of corporate America, which they did 

attempt to do including Wal-Mart, to allow drivers to work longer 

hours behind the wheels which was certainly not conducive to creating the environment that you are referring to which is trying to 

make sure that workers get their rest period. 

I think Mr. Brunkenhoefer and Mr. Tolman have both raised 

some very important points in their answers which is if you create 

an environment where you are guaranteed a certain amount of rest 

time, where you are guaranteed a cap on your number of hours, 

where you eliminate limbo time, where you eliminate the ability to 

call someone three hours into their sleep like they do regularly, 

those are the environments you can create to hopefully eliminate 

many of the fatigue problems in the industry. 

You are not going to eliminate it altogether, and you are not 

going to regulate behavior. I can’t promise you today that if you 

enact this bill tomorrow, every rail worker in this Country is going 

to show up to work 100 percent rested. There is no way you could 

ever do that. 

But what I think you can do is create an environment that gives 

us a chance to have these workers get adequate rest at home, so 

when they show up at work, it is reliable time. The call comes at 

the right time. When they are told it is 2:00 a.m., it is 2:00 a.m., 

not 12:00 p.m. the next day. 

I think those are issues that need to be dealt with both in the 

regulatory process and in the legislative process and in the way 

that labor and management conduct their affairs with one another. 

Mr. SHUSTER. Sure. Labor and management, that brings up another point. When you start to talk about allowing the Federal 

Railroad Administration to basically have an open checkbook as we 

talked about this is a starting point on fatigue studies. My concern 

is we are going to have a bureaucrat in Washington determining 

what should be happening in labor negotiations and with management as to who is working, what is the hours of service instead of 

61

just leaving it wide open to the Federal Rail Administrator to decide that he is going to change it, that he is going to increase it. 

Mr. WYTKIND. Well, but that is not the point I am making. Mr. 

Tolman wants to respond. 

When I say labor and management, there is responsible behavior 

that management can have in the conduct of its affairs with its employees. That has nothing to do with collective bargaining. It has 

everything to do with responsibly running your company and making sure your workers aren’t exposed to safety risks. 

My reference to labor and management has nothing to do with 

collective bargaining. I think this matter needs to be dealt with 

through public policy in the public policy arena because the carriers are not willing to do this without Congress telling them they 

shall. 

Mr. SHUSTER. That is what we have laid out to put it forward. 

Mr. WYTKIND. Right. 

Mr. SHUSTER. Again, I want to come to some resolution, but at 

the same time I think you are absolutely right. You can’t guarantee. You can’t guarantee anything, whether if we set up a regimen of time and then who is going to make sure that everybody 

is doing the responsible thing, getting the proper rest. I guess that 

is my point. 

When we try to regulate or over-regulate, at the end of the day, 

it is not going to be perfect. It is not necessarily going to give us 

all the outcomes that we think it is. 

Mr. HAMBERGER. If I could just respond to something. I don’t 

want to jump in here but if I could. 

Mr. Broken Rail mentioned that the employees are being punished for the mistakes management made. Management made no 

mistake when the hotbox detector goes off and that car has to be 

set out and they are out in the middle of, as he said, Yuma somewhere and it takes a while to get somebody out there to relieve 

that crew at the end of their 12 hours. 

But, yet, under the provision that would eliminate that, eliminate limbo time and make that an hours of service violation, that 

is a $100,000 fine because the hotbox detector went off. Somehow 

that doesn’t seem quite equitable. There is no mistake that management made. 

The concern has got to be fatigue and sleep deprivation and sleep 

debt. That is why we are suggesting that when that does happen, 

that there be a 14 hour period, whether it is at Yuma where you 

don’t want to be, as Mr. Broken Rail said, or you are home in Tucson, wherever it was. It is a 14 hour window where you can be 

given the opportunity, as they both just said. Set up the environment, as they both just called for, to have that rest. 

It is not a mistake management made. There are times that 

something happens. If they hadn’t stopped and taken out that car 

that had the hotbox, there would have been an accident. 

Mr. SHUSTER. Thank you, Mr. Chairman. 

Mr. OBERSTAR. The gentleman has pursued a very important line 

of questioning. 

The people we are talking about here—locomotive engineers, signalmen, maintenance away personnel—are safety professionals. 

62

There are safety professionals on a flight deck in an aircraft. There 

are safety professionals in the cabin, the flight attendants. 

My father was chairman of the safety committee of the Godfrey 

underground mine for 26 years when he worked there. He worked 

rotating shifts. We didn’t have a whole lot to live on, but he didn’t 

take a second job. When he came home, he went to bed. He got rest 

because he knew he had to be on the job. 

And so, he was alert that fateful morning when the main tubers 

that the mining company insisted be put in the shaft where they 

were working, in the drift as they were called in the underground, 

and he heard the timbers cracking. He took his two partners and 

threw them out the mouth of the drift while the whole shaft collapsed in around him and stopped right here at his shoulders. 

Safety professionals don’t risk their own lives. 

But I would suggest that in response to the gentleman’s concern, 

that we include a provision in this legislation that would require 

rest counseling. Have counseling for workers. We are going to put 

this provision in. We are going to limit hours of service, and then 

let us make sure that everybody is covered by and gets some counseling. When you go home, you get some rest now. 

I don’t think we have to counsel people to do that, but I think 

the gentleman’s point about maybe there is some temptation to go 

take a second job. I think folks in this sector are pretty well paid. 

They don’t need a second job, but there might be temptation to do 

that. Let us put a provision in there that requires it. 

Mrs. Napolitano? 

At this point, I am going to ask Mrs. Napolitano to take the 

Chair as I have another transportation commitment elsewhere. I 

regret to leave. 

But before I do, I just want to observe on the airbags. In the seventies, the National Highway Traffic Safety Administration issued 

a performance-based standard, not a technology-based standard. 

The companies went out and got the lowest cost airbags and installed them. Some of them were defective. Some were way overpowered. After hundreds of children were injured and a great many 

killed, Congress stepped in and said, fix this, and did by moderating and modulating the airbags for the individuals. 

Mr. Hamberger, the Association of American Railroads has on its 

web page that just came to my attention, commentary on not the 

subject of this hearing but the legislation I have introduced to deal 

with competition. It has a very intriguing character, and I just 

want to know which one of these I am. 

[Laughter.] 

Mr. HAMBERGER. I can’t see it. 

There are a number of folks in town right now, Mr. Chairman, 

trying to drive support for that bill, and we felt it necessary to get 

our view out as well. 

Mr. OBERSTAR. Let us not call it reregulation. You call it whatever you want. It is your web site, and you can call it whatever you 

want, but this is extending the benefits of deregulation. 

Mr. SHUSTER. I think you are the guy on top there. Wasn’t there 

one guy on top? 

Mr. OBERSTAR. The one guy on top there, yes, he has got his 

hand up in the air. 

63

Mrs. NAPOLITANO. [Presiding.] Thank you, Mr. Chair. 

I believe it was my turn, so I will take it and then pass it on. 

I was listening with great intensity to some of the finer points 

brought out about the average fine for a railroad for certain infractions being as low as $39.00, and I am thinking that is an invitation to just pay the fine. 

There is a concern even in my district of the elected officials at 

the local level, that they feel there is just not enough emphasis 

being put on the seriousness of the infraction and how we are dealing with it or not dealing with it, I should say. That is just a statement that I thought I would make because that caught my ear. 

One of the things that I did find out when we were doing some 

of the research for the derailments within my jurisdiction and just 

outside my jurisdiction was that the accidents within the yard, confined within the rail yard, were not being reported, and that could 

be a cause for concern because some of those could conceivably 

have impact on whether the equipment is failing, on sleep deprivation, a number of other things, not just necessarily the fact that 

there have been accidents within the yard. 

I would hope that that is part of what we are going to start looking at is that we are honest in being able to report and being able 

to then to determine what it is that we need to do, whether it is 

training, counseling to the employees about sleeping, whatever it 

is. But then you have identified because in the end not only does 

the rail image suffer because of the derailments, but there are people’s lives at stake besides the cargo that they are carrying. 

Rather than just arbitrarily say you are doing this wrong, let us 

work together to be able to find out how we can address this, so 

that we do address things that we know are happening and are not 

being taken care of. 

Training for supervisors, I am hearing. Well, personally, I had 

heard about the type of training some of the employees were not 

getting, but as I am listening to the testimony from some of the organizations, that the supervisors are giving instructions that might 

be contrary to the efforts being put forth by the railroad and saying 

we do not do this. Whether or not you have considered doing some 

training for the supervisors to ensure that whatever policy is out 

there, that it is carried out with the intent fully to not only protect 

the company but protect the employee and their integrity. 

Mr. HAMBERGER. Yes, Madam Chair, those kinds of training programs indeed do exist, and there are several different kinds of 

training out there, one of which Mr. Wytkind referred to in the security area. While we believe—and we have had this discussion before this Committee in the past—that we are indeed providing security training. It is a security training module put together by the 

National Transportation Institute of Rutgers University, approved 

by the Department of Homeland Security. 

There is a provision in the House-passed security bill that will 

mandate a training module, a training provision in security. So I 

am hoping that in future hearings we can have that one set aside. 

With respect to training for the individual job that an employee 

holds, those kinds of training modules, it is my understanding, for 

example, with the UTU that those are put together in conjunction 

with the unions to make sure that the training is accurate. For the 

64

BLE, it is a training program that the FRA, we have to submit to 

the FRA. 

So, yes, there is that kind of a commitment to training because, 

as you point out and Mr. Broken Rail pointed out, there is in fact 

a new level, a new wave of people coming into the industry. We 

have to make sure that they understand the safety rules. We have 

to make sure that they are trained. I think the fact that in 2006 

that we had the lowest accident rate in history indicates that we 

must be doing the job right. 

Mrs. NAPOLITANO. I am glad to hear that because at some of the 

hearings that we had in Los Angeles, it was brought to my attention that the extent of the training was limited to handing an employee a video or sitting them through to a video and giving them 

a booklet. The statement was made that you were lucky if you got 

a trained engineer to work with. This was something that kind of 

horrified me because that is putting a lot at stake, a lot. 

Mr. LaTourette? 

Mr. LATOURETTE. Thank you very much, Madam Chairwoman. 

I am sorry that the Chairman left, and I will tell him this personally. I hope we don’t spend a lot of money in this bill on sleep 

counseling because anybody that doesn’t belong to a fraternity that 

can’t figure out that they need to get a good night’s rest, I really 

think is a waste of time and exercise. 

I want to talk about an issue that came up a couple of weeks ago, 

and then I want to get to this issue of limbo time as well. Mr. 

Hamberger, I want to start with you and, Mr. Durbin, I don’t want 

you to feel ignored down there, so I am going to include you as 

well. 

When we did the rail security bill of maybe a month ago that 

came out of Homeland Security, sort of air-dropped in that bill was 

a provision removing the Federal preemption for the Nation’s railroads. My understanding is that it had something to do with Minot, 

North Dakota. We had a hearing on this last year. I don’t think 

it had anything to do with Minot, North Dakota. I think it had to 

do with the American Association of Justice which used to be the 

American Trial Lawyers Association. 

Mr. Hamberger, I will start with you and just ask you what you 

think that removal of Federal preemption would do to affect the 

Nation’s railroads, one, and if you can just tell us, give us a little 

update on where the Minot, North Dakota stuff is, litigation. 

Mr. HAMBERGER. Let me start with that update if I can, Mr. 

LaTourette. Indeed, there was an accident in Minot, North Dakota, 

in 2002, a derailment. An anhydrous ammonia tank car breached. 

One person was killed. Many were injured. The district court ruled 

that the FRA preemption prohibited a lawsuit from going forward. 

We believe that that should not be the case, that that was an improper assessment of what FRA preemption means. We have legislative language that we have presented to the Committee staff. We 

presented it to the Department of Homeland Security staff when 

we found about the amendment that was going to be on the floor 

at 2:00 in the afternoon. We found out about it at 9:00 that morning in the technical corrections amendment offered by the Chair. It 

was impossible at that point to get that accepted. 

65

We are talking to the Homeland Security conferees about taking 

language that will make sure that where there is a violation of the 

Federal Railroad Administration rules or guidance, that that does 

not extend to a preemption of being able to get into court. But what 

it does do is say that there will not be a patchwork quilt around 

the Country of various safety regulations, that there should in fact 

be because we are a network. 

I am pleased to say that many of the cases in Minot are being 

settled. The named case, in fact, settled last week. Negotiation are 

ongoing, and the circuit court was supposed to hold oral arguments 

next week. I believe that has been postponed. 

So I am hoping that that can be resolved and that the sympathy 

engendered and real sympathy for the citizens of Minot who were 

not given the opportunity to go to court will not drive Congress to 

go beyond fixing that narrow problem as you so eloquently put it. 

Mr. LATOURETTE. I appreciate that. My time is brief. Let me just 

say I thought that the district court was wrong, but I thought that 

that provision was trying to kill an ant with a sledgehammer, and 

I hope that it is resolved. 

Mr. HAMBERGER. I wish I had said it that way. 

Mr. LATOURETTE. Well, it would have been shorter. 

[Laughter.] 

Mr. LATOURETTE. Mr. Durbin, has your group at all looked into 

what it would do to your ability to ship chemicals or hazardous materials? 

Mr. DURBIN. We have, Mr. LaTourette, and we would agree with 

AAR’s interpretation here. I think, again, it was a narrow language 

that intended to fix that one issue, but our concern as well is that 

it would have a much worse effect on the overall preemption issues. 

Mr. LATOURETTE. I just thought it was nutty. 

Mr. Pickett, I would go to you. I hope that in the Oberstar-Brown 

bill, that we can work together as Republicans and Democrats and 

come up with a bipartisan agreement on this limbo time and hours 

of service and everything else. 

I wrote down, Mr. Pickett, that you said let the employee be empowered, I think you said. I couldn’t agree with you more. I am the 

lead sponsor on a mandatory overtime for nurses. Just like truck 

drivers, just like people who operate the trains, I don’t want some 

tired nurse taking care of me if she doesn’t feel or he doesn’t feel 

that they want to work that mandatory overtime and that they 

need their rest. I think the employee is in the best position to make 

that determination. 

I have to tell you that I visited with some of your members at 

the Collinwood Yard, the one that CSX operates, and they have a 

view. What I am worried about when we have inflexibility rather 

than flexibility, when we don’t empower employees and come to 

some agreement based upon whether you are in Yuma, Arizona or 

wherever else, Pennsylvania or things of that nature, when we 

have a one size fits all, I don’t think you are empowering the employees. 

So one of your guys said, come on out in the yard, and he threw 

a switch. He said, now that I have thrown that switch, I am on the 

clock. 

66

But he said, you know what, if I want to work some overtime, 

if I want to work a little bit more to feed my family and take advantage of that, I should have the opportunity to do that. I know 

when I am tired. I know when I am not tired. 

You don’t think so, Mr. Brunkenhoefer, that this guy didn’t know 

when he was tired? 

Mr. BRUNKENHOEFER. We have worked with NTSB and a lot of 

other people. It is like taking drugs. You feel fine. 

Mr. LATOURETTE. Sure. 

Mr. BRUNKENHOEFER. But you don’t know that your judgment is 

impaired. So people who work beyond a certain extent are not judgments, as much as their intentions are, of their ability to be able 

to perform. 

I feel real good. I am going to drive on to Erie or to Buffalo, but 

when I go through Ashtabula from Collinwood, I had already been 

up 24 hours, but I felt fine when I left. 

Mr. LATOURETTE. Yes, but that is kind of an extreme example. 

You are right. Some people feel they are invincible. When I was 21 

years old, I felt I could do a lot more than I can now at 52 years 

old. 

But if an employee says, you know what, I am feeling pretty 

good, and I think I can work 10 hours today as opposed to 8 hours 

a day, I think they are capable of making that judgment. I think 

that there does come a point when they are not able to make that 

judgment, and that is when hours of service and limbo time and 

other things have to come in and come into play. 

I would hope. I know that everybody is excited about the Oberstar bill, but I would hope that we could resolve this in a way that 

builds more flexibility in, that makes the railroads safer, protects 

workers’ rights, protects their sleep, gives them the opportunity to 

get the rest they need to do their job but also recognizes that not 

every train route is the same, not every employee is the same, not 

every job is the same. 

I worry about the direction of the current bill, and I hope that 

the Chairman will work with Mr. Shuster and others, and we can 

come up with a product that everybody is proud of. 

I thank you. 

Mrs. NAPOLITANO. Thank you. 

Mr. PICKETT. I would like to respond. 

Mr. LATOURETTE. Sure. 

Mr. PICKETT. I also do support the hours of service. We have 

worked on it since 1976 when we became part of it, and I do support it. 

I think that there are times, though, that the people don’t get the 

adequate rest that they should be allowed. That is what I meant. 

To empower them to mark off without being jeopardized or being 

hurt by saying, hey, I didn’t go to bed tonight like I should have. 

I didn’t go to bed at 3:00. I didn’t know I was going to get called 

out at 11:00 tonight. 

Mr. LATOURETTE. If the Chair will indulge me, I agree with that 

100 percent, and that is the whole purpose behind the nurse mandatory overtime. That person is subject. Not Mr. Brunkenhoefer’s 

analogy of driving 24 hours, and I hope when you have been up 24 

67

hours, you please stay out of Ashtabula County, Mr. 

Brunkenhoefer. 

But I do think that that employee should have the opportunity—

that is what I am talking about—to say, you know what, I am beat, 

I am beat, so that we empower you. 

That employee, I do think, within certain reasonable standards 

has the opportunity to say, you know what, I can go another couple 

of hours today to feed my family. That is where I worry that when 

we become inflexible in our rules, we don’t completely empower the 

employee the way that we want to. 

I would invite you to talk to the guys in the Collinwood Yard because they don’t necessarily agree with that position. 

Thank you. 

Mr. TOLMAN. Mr. LaTourette, if I can also, please. 

Mr. LATOURETTE. If the Chairman will let you, you can talk all 

day. 

Mr. TOLMAN. Madam Chairman? 

Mrs. NAPOLITANO. I think my Ranking Member here is getting 

a little antsy but go ahead. 

Mr. TOLMAN. Thank you. 

You know, it brings up a great point. Yes, we should be working 

together and cooperating, but for the last 12 years we have had 

that 45 U.S.C. 2108 [subsequently altered by witness to read: 45 

U.S.C. 21108] section of the Hours of Service Act, which has provided both labor and management the opportunity to cooperate, to 

introduce pilot programs. Nothing has happened. There is no cooperation. 

Hence, that is why the legislation in front us, 2095, is the right 

direction. It is the only direction. 

Mr. HAMBERGER. Cooperation would extend to the seniority districts of your members who voted down 10 hours of rest at their 

away facility because they were more interested in getting back 

home than having 10 hours of rest. It goes both ways. 

Mr. TOLMAN. Yes, it does. 

Mrs. NAPOLITANO. Okay, gentleman, thank you very much. 

The last question that I have is to Mr. Durbin. We kind of left 

you alone, so I don’t want to make you feel neglected. 

Mr. DURBIN. I appreciate it. 

Mrs. NAPOLITANO. The railroads have a proposal to limit their liability resulting from hazardous material accidents or incidents, 

whichever, and their proposal requires chemical shippers to cover 

part of the liability in the event of hazardous material spills. Did 

the railroads involve you in the development of the proposal and 

what do your members think of it and which members support or 

oppose the proposal? 

I will tell you I have had chemical spills in my area, and it is 

not a very nice thing to happen. 

Mr. DURBIN. Mrs. Napolitano, as I mentioned in our testimony, 

we were not consulted as far as putting together the proposal that 

AAR has circulated. Now they have shared it with us, the completed version, and we have shared that with our members. The 

very clear answer back, as I mentioned in my testimony, was very 

clear concerns about the proposal as it is being one-sided. 

68

Again, I think that this is a proposal that if we are going to go 

down this road, it has got to include all the different players, all 

the different stakeholders that are involved in the safe movement 

of hazardous materials. Again, should it be decided that this is a 

good way to go as far as limiting liability for any of the players in 

that chain, we need to make clear that there is a distinction between accidents and negligence and again to make sure that the 

liability is spread across all the different players. 

Mr. HAMBERGER. If I might just end on a more civil note, Mrs. 

Napolitano, we did indeed share it with the ACC, with the Fertilizer Institute. We tried at one point to try to come up with a joint 

proposal with the Fertilizer Institute but did not come to resolution 

on that. So we thought it was important to get out our views. We 

did indeed share it. I sent it to Jack Gerard and to their counsel. 

Obviously, something like this is not going to go forward without 

the full participation of everybody in that supply chain, and so we 

look forward to being able to sit down and talk to ACC as well. 

Mrs. NAPOLITANO. That would be tremendous, especially if there 

are shipments of ammonia and things that could harm the environment that are very critical in many areas. 

Mr. HAMBERGER. Absolutely. 

Mrs. NAPOLITANO. Well, with that, I thank the Ranking Member 

and the witnesses for their valuable testimony and for your indulgence. 

Again, Members of the Committee may have additional questions 

for the witnesses, and we ask you to respond to these in writing. 

The record will be held open for 14 days for these responses. 

Unless there is further business, the Subcommittee is adjourned. 

Thank you very much. 

[Whereupon, at 6:28 p.m., the Subcommittee was adjourned.]

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