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PLEASE NOTE: The following transcript is a portion of the official hearing record of the Committee on Transportation and Infrastructure. Additional material pertinent to this transcript may be found on the web site of the Committee at [http://www.house.gov/transportation]. Complete hearing records are available for review at the Committee offices and also may be purchased at the U.S. Government Printing Office.






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MARCH 26, 1998—Resource Requirements, Personnel and Budget Issues
APRIL 1, 1998 —Safety Hardware Issues
APRIL 29, 1998—Human Factors Issues
MAY 20, 1998—Regulatory Process

Printed for the use of the

Committee on Transportation and Infrastructure



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MARCH 26, 1998—Resource Requirements, Personnel and Budget Issues
APRIL 1, 1998 —Safety Hardware Issues
APRIL 29, 1998—Human Factors Issues
MAY 20, 1998—Regulatory Process

Printed for the use of the

Committee on Transportation and Infrastructure


BUD SHUSTER, Pennsylvania, Chairman

THOMAS E. PETRI, Wisconsin
HOWARD COBLE, North Carolina
JOHN J. DUNCAN, Jr., Tennessee
JAY KIM, California
STEPHEN HORN, California
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BOB FRANKS, New Jersey
JOHN L. MICA, Florida
SUE W. KELLY, New York
RAY LaHOOD, Illinois
FRANK RIGGS, California
CHARLES F. BASS, New Hampshire
JACK METCALF, Washington
ROY BLUNT, Missouri
JOSEPH R. PITTS, Pennsylvania
JOHN R. THUNE, South Dakota
CHARLES W. ''CHIP'' PICKERING, Jr., Mississippi
JON D. FOX, Pennsylvania
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J.C. WATTS, Jr., Oklahoma

NICK J. RAHALL II, West Virginia
ROBERT A. BORSKI, Pennsylvania
ROBERT E. WISE, Jr., West Virginia
BOB CLEMENT, Tennessee
ELEANOR HOLMES NORTON, District of Columbia
PAT DANNER, Missouri
JAMES E. CLYBURN, South Carolina
BOB FILNER, California
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FRANK MASCARA, Pennsylvania
GENE TAYLOR, Mississippi
BILL PASCRELL, Jr., New Jersey
JAY W. JOHNSON, Wisconsin
JAMES P. McGOVERN, Massachusetts
TIM HOLDEN, Pennsylvania

Subcommittee on Railroads

BOB FRANKS, New Jersey, Chairman

KAY GRANGER, Texas, Vice Chairwoman
JOHN L. MICA, Florida
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JOSEPH R. PITTS, Pennsylvania
JON D. FOX, Pennsylvania
BUD SHUSTER, Pennsylvania
  (Ex Officio)

ROBERT E. WISE, Jr., West Virginia
ROBERT A. BORSKI, Pennsylvania
BOB CLEMENT, Tennessee
BOB FILNER, California
  (Ex Officio)




Proceeding of:
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March 26, 1998

April 1, 1998

April 29, 1998
May 20, 1998

MARCH 26, 1998


    Molitoris, Jolene M., Administrator, Federal Railroad Administration


    Shuster, Hon. Bud, of Pennsylvania


    Molitoris, Jolene M


Molitoris, Jolene M., Administrator, Federal Railroad Administration:
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Historical data on FRA's safety program, railroad accidents, and the railroad industry in general, charts:

Total Casualties, All Accidents/Incidents

Employee on Duty Casualties

Total Fatalities, Highway-Rail and Trespassers

Highway-Rail Crossing Accidents

Train Accidents, Excludes Highway-Rail Accidents/Incidents

Train Accidents Involving Hazmat

Train Accidents by Cause, Excludes Highway-Rail

Intermodal Traffic

Revenue Ton-Miles

Miles of Road and Track Owned

Employment and Wages
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    Site-Specific Inspections by Inspection Discipline 1997 versus 1992

Federal Railroad Administration, U.S. Department of Transportation, Safety
Assessment of CSX/NS Proposed Acquisition of Conrail, report, October 21, 1997*

Surface Transportation Board, Section of Environmental Analysis, Proposed Conrail Acquisition, draft environmental impact statement, Vol. 2, December 12, 1997*

    FRA's Safety Assurance and Compliance Program audit on CSX Transportation, Inc., executive summary, February 24, 1998

    Safety Assurance and Compliance Program, Safety Action Plan with CSX Transportation, Inc., April 1, 1998

    The U.S. Department of Transportation, February 23, 1998, filing with the Surface Transportation Board



    Hagen, James A., President, Association of American Railroads, letter to Rep. Franks, March 26, 1998
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    Hall, Jim, Chairman, National Transportation Safety Board, response to questions from Rep. Wise concerning railroad safety, May 29, 1998

    *Reports may be found in subcommittee files.

APRIL 1, 1998

    DeLibero, Shirley A., Executive Director, New Jersey Transit, on behalf of the American Public Transit Association

    Hagen, James A., President, Association of American Railroads, accompanied by Charles E. Dettman, Executive Vice President, Operations Research and Technology

    Inclima, Rick, Director of Education and Safety, Brotherhood of Maintenance of Way Employees

    Jones, Leroy, Vice President and National Legislative Representative, Brotherhood of Locomotive Engineers, accompanied by James Brunkenhoefer, National Legislative Director, United Transportation Unit

    Lauby, Robert C., PE, Director, Office of Railroad Safety, National Transportation Safety Board

    Molitoris, Jolene M., Administrator, Federal Railroad Administration

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    Shuster, Hon. Bud, of Pennsylvania


    DeLibero, Shirley A

    Hagen, James A

    Inclima, Rick

    Jones, Leroy

    Lauby, Robert C

    Molitoris, Jolene M


    Hagen, James A., President, Association of American Railroads, statement of the American Short Line and Regional Railroad Association

Molitoris, Jolene M., Administrator, Federal Railroad Administration:

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Train Accidents By Cause, excludes Highway-Rail

Train Accidents by Major Cause

Passenger Casualties by Type Accident/Incident

1997 Fatalities reported by Railroads, Federal Railroad Administration

Highway-Rail Crossings, Safety Improvements

Success of Section 130, Collision and Death Rates

Response to question from Rep. Franks concerning locomotive engineer qualifications

APRIL 29, 1998
    Brunkenhoefer, James M., National Legislative Director, United Transportation Union, accompanied by Richard Marceau, Vice President

    Dettman, Charles E., Executive Vice President, Safety and Operations, Association of American Railroads

    Hall, Gerri L., President, Operation Lifesaver, Inc

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    Hall, James E., Chairman, National Transportation Safety Board, accompanied by Robert Lauby, Director, Office of Railroad Safety, and Barry Sweedler, Director, Office of Safety Recommendations and Accomplishments

    Hanas, Gerald R., General Manager, Northern Indiana Commuter Transportation District, on behalf of American Public Transit Association



    Hucker, Thomas G., Vice President and National Legislative Representative-Canada, Brotherhood of Locomotive Engineers, accompanied by Leroy Jones, Vice President and National Legislative Representative

    Inclima, Rick, Director of Education and Safety, Brotherhood of Maintenance of Way Employees

    Loftus, William E., President, American Short Line and Regional Railroad Association

    Matthews, Robert A., President, Railway Progress Institute

    Molitoris, Jolene M., Administrator, Federal Railroad Administration, U.S. Department of Transportation, accompanied by George Gavalla, Acting Associate Administrator for Safety, and Dan Smith, Assistant Chief Counsel for Safety
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    Moore-Ede, Dr. Martin, CEO and President, Circadian Technologies, Inc., and Associate Professor of Physiology, Harvard Medical School

    Rosekind, Dr. Mark R., President and Chief Scientist, Alertness Solutions Inc., Cupertino, CA

    Volkmann, Richard T., Chairman, National Railroad Construction and Maintenance Association, Inc


    Shuster, Hon. Bud, of Pennsylvania


    Brunkenhoefer, James M

    Dettman, Charles E

    Hall, Gerri L

    Hall, James E

    Hanas, Gerald R
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    Hucker, Thomas G

    Inclima, Rick

    Loftus, William E

    Matthews, Robert A

    Molitoris, Jolene M

    Moore-Ede, Dr. Martin

    Rosekind, Dr. Mark R

    Volkmann, Richard T


Dettmann, Charles E., Executive Vice President, Safety and Operations, Association of American Railroads, report, Current Status of Fatigue Countermeasures in the Railroad Industry, prepared by Patrick Sherry, Ph.D., Counseling Psychology Program, Intermodal Transportation Institute, University of Denver, January 1998

Hall, Gerri L., President, Operation Lifesaver, Inc.:
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Summary of Penalties for Railroad Trespass Violations

Report, Safety at Highway-Rail Crossings: Train Horns and Alternatives, Federal Railroad Administration, U.S. Department of Transportation, May 1998

    Hucker, Thomas G., Vice President and National Legislative Representative-Canada, Brotherhood of Locomotive Engineers, CANALERT '95 Alertness Assurance in Canadian Railways, Phase II Report, May 1996

Loftus, William E., President, American Short Line and Regional Railroad Association, charts:

Operational Data

Train Accidents

Train Accidents by Cause



Other Train Accidents including Highway-Rail

Train Accidents by Type of Track
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Equipment Involved in Train Accidents


Train Accidents Involving Hazmat

Train Accident Severity

Total Casualties

Total Fatalities

Employee on Duty Casualties

Employee on Duty Cases by Occupational Category

Employee on Duty Cases, Moving on-Track Equipment vs. Other Incidents

Molitoris, Jolene M., Administrator, report, The Effects of Work Schedule on Train Handling Performance and Sleep of Locomotive Engineers: A Simulator Study, Garold R. Thomas and Thomas G. Raslear, Federal Railroad Administration, and George I. Kuehn, IIT Research Institute, July 1997

Moore-Ede, Dr. Martin, CEO and President, Circadian Technologies, Inc., and Associate Professor of Physiology, Harvard Medical School, charts:
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Shaping of RR Industry Behavior, Proposed Administration Bill

Activity Log

Alertness Assurance Case Study, Crew Management Layoff Transactions per Engineer

How many near miss accidents or injuries have you had on the job in the past 3 months?

Alpha-Burst Rate

CN Alertness Assurance System Implementation Plan for Western canada

Alertness Assurance Case Study: Improvement of Sleep

Conrail Alertness Assurance System (IMPAC)

Activity Log

Well Established Scientific Research Base on Alertness, Sleep, and Biological Clocks

MAY 20, 1998

    Dettmann, Charles E., Executive Vice President, Safety and Operations, Association of American Railroads
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    Itzkoff, Donald M., Deputy Administrator, Federal Railroad Administration, accompanied by Grady C. Cothen, Jr., Deputy Associate Administrator, Safety Standards and Program Development

    Jones, Leroy, Vice President and National Legislative Representative, Brotherhood of Locomotive Engineers

    Loftus, William E., President, American Short Line and Regional Railroad Association

    Mattingly, J.L., Vice President, Brotherhood of Railroad Signalmen

    Parry, James J., Assistant General President, Brotherhood Railway Carmen Division, Transportation Communications International Union, accompanied Gary Maslanka, Representative, Transportation Workers Union

    Prendergast, Thomas F., President, Long Island Rail Road, on behalf of the American Public Transit Association

    Rose, Matthew K., Senior Vice President and Chief Operations Officer, Burlington Northern and Santa Fe Railroad

Scheinberg, Phyllis F., Associate Director, Transportation Issues, Resources, Community, and Economic Development Division, U.S. General Accounting Office, accompanied by Joseph Christoff, Assistant Director, Helen Desaulniers, Senior Attorney, and Bonnie Leer, Evaluator
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    Shuster, Hon. Bud, of Pennsylvania


    Dettmann, Charles E

    Itzkoff, Donald M

    Jones, Leroy

    Loftus, William E

    Mattingly, J.L



    Parry, James J

    Prendergast, Thomas F

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    Rose, Matthew K

    Scheinberg, Phyllis F


    Dettmann, Charles E., Executive Vice President, Safety and Operations, Association of American Railroads, AAR Position on H.R. 3805, Federal Railroad Safety Authorization Act of 1998

Itzkoff, Donald M., Deputy Administrator, Federal Railroad Administration:

Response to question from Rep. Franks, concerning expansion of FRA's emergency order authority

Response to question from Rep. Wise, concerning harassment and intimidation of railroad employees, correspondence and report

Response to question from Rep. Wise, concerning employees of railroad contractors

    Parry, James J., Assistant General President, Brotherhood Railway Carmen Division, Transportation Communications International Union, responses to questions from Rep. Wise


    Ashby, Lindsey G., President, Tourist Railroad Association, Inc., statement
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House of Representatives,

Subcommittee on Railroads,

Committee on Transportation and Infrastructure,

Washington, DC.

    The subcommittee met, pursuant to notice, at 2:04 p.m., in Room 2167, Rayburn House Office Building, Hon. Bob Franks (chairman of the subcommittee) presiding.

    Mr. FRANKS. The subcommittee will please come to order.

    Today's hearing is the first in a series dealing with the reauthorization of the Federal Railroad Administration's rail safety programs. In the weeks to come, this subcommittee will be holding hearings that will deal with specific areas of FRA's substantive regulatory responsibilities, but today we are focusing on the resource and funding requirements of the FRA including the current administration budget proposal to offset FRA's safety enforcement and research and development costs with so-called user fees levied upon the railroad industry.
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    I know the members of this subcommittee on both sides of the aisle fully appreciate the importance of a safe railroad industry. This is a critical issue, not just for people who work in the industry but also for the communities through which so much of our rail freight travels, as well as for the passengers who ride inner city and commuter passenger trains.

    My own home State, New Jersey, encapsulates all of these concerns. We depend heavily on Amtrak and commuter rail service to supply the day-to-day functioning of our economy and we also have a major chemical industry pretense and substantial volumes of freight moving to factories and ports throughout our region.

    In the pending surface transportation board case governing the proposed Norfolk Southern-CSX acquisition of Conrail, the projections that if the acquisition occurs, there will be a further substantial increase in rail freight traffic in the region and all along the Northeast corridor. It's unmistakably clear that a safe, reliable rail system is a vital component of the well-being of individual States as well as the Nation as a whole.

    I look forward to an informative hearing to update the subcommittee on FRA's resource needs, and I'm delighted that today's witness, in fact, I understand, our only scheduled witness, is the Administrator. And I want to say that I had the opportunity yesterday to visit with the Administrator and had a wonderful opportunity to discuss items of mutual concern and I can tell you that I am heartened by that visit and feel that the opportunities before this subcommittee are great to make certain that safety continues to be the top priority, not only of the FRA but every member of this committee.

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    [The prepared statement of Mr. Shuster follows:]

    [Insert here.]

    Mr. FRANKS. Administrator, welcome. Thank you for being here, we look forward to your testimony.

    Ms. MOLITORIS. Thank you so much, Mr. Chairman and members of the committee.

    Mr. FRANKS. Jolene, let me apologize. I have overlooked, I assure you, negligently, the ranking member, my friend, Mr. Wise from West Virginia.

    Mr. WISE. The thing about ranking members: We will sit on the side for a while—


    No, I appreciate it, Mr. Chairman, and I appreciate very much your calling this hearing. It's a very timely matter. I know that we have others scheduled as well and certainly there's no more important issue that can come before this subcommittee than rail safety, and you have demonstrated your interest and commitment to it and we, on this side of the aisle, appreciate that and look forward to working with you.

    I will put my statement, essentially, in the record. The rail safety issue obviously comes home to all of us. It came home to me last year in Scary, West Virginia, when we had a fatality. It comes home again just yesterday in Indiana where there was another fatality. And so, while the statistics indicate that there may be less accidents overall, and yet, there are still too many and there are still too many deaths. And this is something that we all have to be working on.
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    I'm delighted that the administrator is here. In the 2 years, roughly, that I've had the privilege of being ranking member on this subcommittee, we've worked together and I've seen significant improvements that she's been working on during her tenure, I believe for 5 years now, with the FRA. And I'm encouraged because working, whether it's CSX or working with Union Pacific in developing safety plans, it does look to me that there's a direction that we're going in and that improvements are being made. And so it's a case of working together with rail management, rail labor, the FRA, and making sure the Congress is doing what it needs to do to assist in the process.

    Today's hearing focuses on the question of the resource needs of the Federal Railroad Administration and I'm pleased that the FRA has asked for funding for an additional 16 full-time safety employees, bringing their safety staffing up to 415. And I'm going to put—I just want to warn the administrator, I'll put her on the spot a little bit, because I'm going to ask her whether this is enough. And I understand that of course there are constraints or others may put on testimony, but the fact of the matter is that, as I recall, Madam Administrator, you have roughly 400 employees, you're asking for an increase of 16, and I will be asking you—and perhaps you're going to touch on it in your testimony as well—the efforts that you have already, I think significant efforts, to develop safety plans and compliance plans, with our major railroads, and I know that these are draining on you and your resource needs, so I think it is important that this subcommittee look at what is needed to do the job.

    I'm also concerned about the heavy resource needs that have resulted from the break down in Union Pacific's safety effort last summer, the need to closely monitor the effects on safety of the proposed merger of Conrail with CSX and Norfolk Southern. Some of this is before the Surface Transportation Board, but certainly much of it is before the FRA as well.
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    So I look forward, Mr. Chairman, to this hearing and to the future ones we're going to be having and I thank Administrator Molitoris for being here today and for all the efforts that you've been making in working with this subcommittee.

    Mr. FRANKS. Mr. Wise, thank you very much.


    I'm sorry. I'm sorry, the ranking member of the whole committee has joined us.

    I apologize.

    Mr. OBERSTAR. Thank you very much, Mr. Chairman. I think it's a very significant statement on your part that you being you chairmanship of the subcommittee on railroads with this hearing on safety reauthorization, and the focus earlier on the STB. These are very, very important hearings. It's good to have the administrator here who has taken charge of the subject rail safety with a decisiveness that I'm very pleased with.

    Safety is the, arguably, the most important the Federal Government plays in transportation. Transportation plays an important role in the national economics. The Government role of safety, I think, precedes in significance that of ensuring the economic competitive marketplace. And through these hearings I think we take a fresh—or, at least, they give us an opportunity for a fresh, comprehensive review of the FRA's safety program and safety as practiced by the railroads. And also an opportunity to look again at the statute that underlies our whole rail safety programs.
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    This is the first of four hearings on this subject. I'd like to just define these issues. When we focused on rail safety in 1996, the FRA had a long backlog of rule makings mandated by Congress but not yet completed. Some of those rule makings have now been completed but some that were overdue 2 years ago are still overdue.

    The power brake rule was supposed to have been done by the end of 1993; it's now 4 years overdue. And I understand there are reasons and very difficult problems there, and I understand the efforts that the administrator has made to overcome them, but the fact is, it's 4 years overdue. The track safety rule is 2 years overdue.

    The FRA has adopted an innovative rule making process: the Rail Safety Advisory committee to negotiate rule makings between labor and management, and it has had some success. I think it has quieted the atmosphere, dispelled some of the distrust and misconceptions each side had about the other, but overall, the rule making process is too slow and it ought to be speeded up.

    We ought to, secondly, look at the process of safety enforcement and whether the resources for the FRA are adequate. Ranking Member Wise and I have consulted considerably on this subject and I think he made a very fine statement earlier about the matter of resources.

    The safety assurance and compliance program designed to take a comprehensive look at each carrier safety program and analyze the weaknesses is a good start. It's an effective way to approach safety enforcement, but GAO reported that staff demands have reduced the time available to FRA's available inspectors to be out on the rails reviewing whether the rules are actually being complied with. Does it make sense to have tough rules if you don't have enough inspectors to enforce them?
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    I just harken back to hearings I conducted in this committee room in 1985, 1986, 1987, and subsequently, on aviation safety. A time when the administrator of FAA was saying, we can do more with less, and let go 1,000 inspectors, and we had 1,300 inspectors for all of aviation and at the same time there was an increase in near midair collisions, runway incursions, and other safety violations. And inspectors, in this room, said, there are so few of us, we have so little time, we're only looking at paperwork, not engine work and airframe work. We have to see whether FRA has the inspectors it needs. I think it doesn't. I think they need more.

    Third, railroad grade crossing and trespasser accidents, the leading cause of fatalities on the Nation's railroads. We have to toughen the severity and the enforcement of laws that prohibit violators from driving around crossing gates. Half of the accidents that take place are at crossings that have warning devices; People go around them, they violate them knowingly. We got to get at that through education and tougher enforcement.

    And we have to ensure that the grade crossing infrastructure is as good as it can be; It is not. We have to get rid of humped crossings. I've seen this time and again in my district. Trucks get hung up; You have log hauling trucks that are stuck between a road and a grade crossing and the logs are hanging out—or you have full tree cuttings that hang out over the rail track and a train comes along and smacks the end of the trees. That's not good; That's not good enough for safety. We can avoid needless tragedy.

    Fatigue, the fourth factor, hangs heavily over this industry as it does over aviation, in particular, as it does over trucking. I know we have the rest rules, and I've heard again and again from the rail industry: Well, they work a 12-hour shift, they've still got 12 hours off.
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    Well look at what happens in those 12 hours. It takes maybe 2 hours to get home, take a bath, change clothes, talk to your family. Maybe you sleep 4 hours and then you're called up again. That's not adequate rest. That's not enough to be alert at all times. I think we need more study on what happens on the shift. We've found with air traffic controllers that the greatest number of accidents occurs at the outset of the shift, not at the end of the shift, and the FAA's undertaken some pilot projects to sort of condition controllers at the outset of the shift to get them warmed up, if you will. Maybe there needs to be some work in this arena as well, in the rail sector. We've learned a great deal about ceccadian rhythms and fatigue that should help us design more comprehensive fatigue management programs to minimize fatigue and help dispatchers, signal repairers and other operators of the rail system to do a better job when they're most alert. I remember my self working in the iron ore mines on the midnight shift, directly trains to different dump levels in the mines, so tired I could hardly keep my eyes open or keep track of where I sent trains. I know what it's like. That's a very serious problem.

    We've got to pay attention to passenger car safety. The safety standards were due in November and are now almost 5 months overdue. The only Federal safety standard that governs passenger cars is a requirement that it have unbreakable windows and four emergency windows per car. There are no regulations on structural integrity of the car, emergency exits or flammability of upholstery. We have those regulations in aviation. They exist. Stronger seat posts, standards on flammability for all the fabric and materials on the interior of the aircraft. We should be able to do that for our transportation on the ground.

    We have to get employees more actively involved in the safety process so that an employee that sees an unsafe car, an unsafe piece of equipment can put his foot down and say, this equipment doesn't move until it's fixed. And he won't be overruled. We had FAA maintenance personnel here in this room having to secretly tape record a shift supervisor telling that person: We don't want any show stoppers here; you move this aircraft. Well, we can't have that kind of stuff in the aviation sector and you can't have it on the ground either, in rails.
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    So, we have a lot of work to do. Some people don't think new safety rule making and enforcement are important. One of the issues when we first started looking into this issue was two-way end-of-train devices to allow the brakes to be activated from the rear when the blockage prevented forward-to-rear braking. Canadian railroad sector had installed the devices; U.S. industry dragged its feet and had numbers of accidents.

    Success story: This past fall, two trains lost their brakes going over the Cajone Pass in California, the same pass where two earlier trains in 1994 and 1996 lost brakes, crashed, and people died. This time, the trains had two-way end-of-train devices, they were properly maintained, properly armed and activated, and they allowed the trains to stop, and lives were saved.

    We can do better. This committee has a responsibility and I'm glad you're taking charge of this issue, Mr. Chairman, and starting very early in the year to move us in the direction of proper oversight so that we can have proper legislative action where it is necessary. Thank you.

    Mr. FRANKS. Mr. Oberstar, thank you for your comments and thank you for joining us this afternoon. We've been joined by a couple of other members; Mr. Pitts has now apparently ducked out.

    Mr. Blumenauer, an opening statement? Okay.

    I think now, Madam Administrator, welcome to the subcommittee.
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    Ms. MOLITORIS. Thank you very much, Mr. Chairman and members of the committee. Mr. Chairman, I'd like to focus my oral testimony today on some key issues that I hope you and the committee members will consider as you begin your important new role.

    First of all, the railroad industry is changing rapidly and dramatically. It's really becoming an industry of extremes. On the one hand, the last 5 years have seen the emergence of the mega-railroad, beginning with the merger of the Burlington Northern Santa Fe, then the Union Pacific-Southern Pacific, to, now under consideration, the acquisition of Conrail by Norfolk Southern and CSX, and, in the very near future, the proposed Canadian National merger with Illinois Central.

    At the very same time that these mega-railroads are coming about, we have a huge growth in the Class II and III railroads. Specifically, in 1975, there were 73 Class I railroads, and in 1997 there were 9. Regional and local railroads increased from approximately 400 in 1975 to over 700 in 1997. This enormous restructuring focused on competitive gains clearly has raised issues of safe operation that are monumental.

    When I arrived at the FRA in 1993, the FRA safety program focused primarily on site-specific inspections, looking for noncompliance with Federal regulation, and assessing fines for those that we found. This traditional approach to enforcement is very important, and it indeed is still a very strong part of our safety program, but three specific issues demanded that we look at evolving our program.
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    First of all, Mr. Chairman, the train accident rate between 1985 and 1993 was basically flat. In other words, it wasn't going down toward zero as our goal would have us go. Secondly, human factors were becoming a very large part of the reason for injury and death, and the resolution of human factors issues is much more difficult than the capital investment solutions to other causes. Third, rail traffic was, and is, growing significantly, (over 30 percent since 1990), and at the very same time, employee numbers are half of what they were in 1980.

    During all of these changes, the size of FRA's workforce has remained basically static: 750 safety professionals, overall, with approximately 456 of them spread across the country, dealing with a huge railroad system of more than 700 railroads, 265,000 employees, 220,000 miles of track, 266,000 highway-rail crossings, 1.2 million freight cars, 20,000 freight locomotives, and about 9,000 passenger locomotives, coaches, and self-powered coaches. In the face of the sheer size of this rail industry, and all the changes that I've described, FRA had to leverage its resources if we were going to increase safety. So we designed the FRA Safety Assurance and Compliance Program, which is our safety initiative to create safety partnerships among rail labor, management, and the FRA.

    SACP minimizes the hostile relationships that were historic between the parties and focuses everybody's efforts on eliminating safety hazards now. The SACP teams, rather than going site by site, focus on root causes of safety hazards to be solved across whole railroad systems. This process is growing on railroads across this country, and both the statistics and the people involved would testify that it is working.

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    Safety results are our most important measure, Mr. Chairman, and, for example, we believe that since 1993, our processes have proven effective. Since 1993, rail-related fatalities have decreased by 18 percent. On-the-job casualties have decreased 46 percent, train incident rates decreased 11 percent, and grade crossing incident rates by 20 percent.

    I believe the railroads are beginning to recognize that SACP brings both safety and business benefits because safety and productivity are always linked to one another. We continue to urge the railroads to address safety culture issues to assure that the words ''safety first'' are not just slogans but actually the motivating factor behind every factor and every decision.

    The first partnership with us and the SACP was with the Burlington Northern Santa Fe. Rob Krebs and his leadership team made a commitment and fully embraced this program. The most recent ''Business Week'' issue, which rates the top 500 companies on the Standard & Poor's Index rates the BNSF as number one among the railroads, and I think this is testimony to the fact that when you make the hard decisions and put safety first in operations and investment, you get a positive return to your company.

    In order to achieve zero fatalities and injuries, we know that we have to have a preventive, not a reactive, approach, that we have to have a balanced approach using the traditional inspections and the Safety Assurance and Compliance Program, not only to get long-term indicators, but to get real-time indicators of the safety of the railroads. In order to increase safety on the Nation's railroads, FRA is requesting $62 million for railroad safety, $20.8 million safety research and development, and $3 million for a nationwide Global Positioning System.

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    Mr. Chairman, FRA's experiences with BNSF, Union Pacific, and CSX, have shown us that we not only have to deal with mega-railroads, we have to deal with mega-issues that we have never been asked to address before, such as fatigue which is the number one underlying cause for human issue accidents, and hiring, training levels, and communication issues. Huge issues that are crucial to safety. There are tremendously complex issues that demanded that we retrain all of our team so that they would become expert in facilitating and uncovering these kinds of issues.

    The collaborative process is much more demanding for all of us—management, labor and FRA—demanding new behaviors, increased accountability, safety results that must be in place if we're going to increase safety. The challenge is very great, but the reward is extraordinary.

    We look forward to working with you and all the members of your committee to reaching that zero tolerance goal for any safety hazard that we all have. Thank you, Mr. Chairman.

    Mr. FRANKS. Administrator, thank you very much, and let me just begin by asking you a couple baseline questions so I can get a better sense of your jurisdiction.

    The overall size of the rail industry has gone through some transformations as has the structure of the railroad industry: fewer Class I's, more Class II's, more freight, half the track miles and half the employees of 1980. As we look at the resources that ought to be made available to the FRA, given this climate of change that we're seeing today, let me ask a baseline question: What were the number of employees, safety-related employees, at FRA back in 1980 and what are they today?
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    Ms. MOLITORIS. I don't know that I know the number from 1980, Mr. Chairman. I can tell you since I arrived 5 years ago. The Clinton administration has increased the budgetary resources by about 24 percent. And that is in the face of a real push to get to a zero deficit, so we appreciated that statement of support. We also got 11 new employees in 1995, and, as has been mentioned by Mr. Oberstar, we have, in the President's budget, recommended 32 positions. They are funded at half this year, but the 32 positions would be an increase that would be very important to us to keep going and try to respond to these tremendous changes in the industry.

    Mr. FRANKS. Maybe my question sounded a bit too oblique. Let me try to put it into perspective. What I guess I was looking to understand was, in its hay day in 1980 track miles and twice as many employees, what did the Federal Government deploy in terms of safety personnel through FRA versus where we are today. And I guess it's a broader question. There's more freight moving along fewer miles with fewer employees; how do any of those elements of the equation, how should we consider any of those elements as we try to allocate the appropriate amount of resources of the FRA?

    Ms. MOLITORIS. I hope what I've communicated in my brief statement as well as—and I forgot to ask that my amended written statement be submitted for the record, please.

    Mr. FRANKS. So ordered.

    Ms. MOLITORIS. I think what we are seeing is that the changes really are representing safety challenges that are much bigger than ever before. Clearly, with half the number of employees, even with improved technology, the whole issue of safety redundancy is often much more limited or absent. In the days of old, say the 1950's, the 1960's, the 1970's, there was much more safety redundancy, and I think of that as some leverage. If one thing goes a little wrong, another one helps to keep it safe.
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    In the whole evolution of 73 Class I railroads to 9, every time you have a merger and consolidation, the expectations are that you reduce your costs and, consequently, there would be employee reductions as well as resource reductions. And as we saw the human factor—I mean, when Staggers came into play in 1980, the railroad industry was allowed to become competitive in a way that it hadn't for a long, long time. So it was able to invest great capital funds—private dollars, by the way, which is, I think, a very important item—and, for example, since 1990, there's been about $90 million plus invested in railroad infrastructure by the companies. This is very important.

    So in those first years after Staggers, the safety statistics improved a lot and then, I mentioned to you, that that flat line of train incident rate basically appeared, and that's with us having a goal of zero and you having a goal of zero, we had to figure out: How do we do this?

    The other part that I think is important, when you see this rise in human factor injuries and death, you know that the results of accidents are much more severe because the very precious life of each employee, man or woman, who is on the front line, is really at stake here. And so our goal was to really bring people into the process to give accountability and responsibility to everybody in the industry. Mr. Chairman, as we exist today, if we worked 24 hours a day, without sleep, without rest, 365 days a year—which, of course, we can't do, we could only, literally, inspect less than 1 percent of all the infrastructure that's out there. That's why I tried to mention those very, very big numbers.

    And, if you want to get to zero, you can't be satisfied with a flat accident rate line. You've got to start moving it down and getting better. The statistics show that we, together with the railroads and labor, are getting it better, but the ability for our staff to manage effectively the SACP process and the inspection process, both of which are key elements to safety, is a real challenge, sir.
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    Mr. FRANKS. Administrator, may be you could submit some historical data that goes along the lines of the question that I posed.

    Ms. MOLITORIS. I'd be happy to.

    [The information follows:]

    [Insert here.]

    Mr. FRANKS. I wouldn't expect you to have it off the top of your head—

    Ms. MOLITORIS. I'd be happy to, sir. Thank you.

    Mr. FRANKS. —but if it can become part of the record for the hearing, I'd appreciate that.

    In your testimony, you indicated that the office of the chief counsel at FRA has some 40 employees, 19 of whom are attorneys. And you also spoke to some of the new procedures that you have been responsible for implementing, which I think hold out great promise, the Safety Assurance and Compliance Program as well as the Rail Safety Advisory Committee. I'm wondering if by virtue of the implementation of those new vehicles, what has been the effect on the agency's ability to adopt final regulations without extensive litigation. Has there been any relationship there?
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    Ms. MOLITORIS. I'm glad you asked that because I really think the whole issue—-and Mr. Oberstar, you know, made a point of talking about rulemakings, and I really want to talk about that.

    First of all, the new way of doing business around RSAC, which is like a negotiated rulemaking—but let me say, for the record, it does not eliminate FRA's ability to have a stamp on the final rule. What it really does is get us the best information timely, and gives the parties an opportunity to present their case and to try and reach consensus on what the priority safety items are.

    We have found, say, for example, in roadway worker, the first negotiated rulemaking that we had, there was a great implementation even before the rule was final, and, in fact, all railroads had finalized and had that active on their property 6 months before the mandated deadline that Congress had placed before us. Now we unfortunately can't always say that we're 6 months ahead. We've been reminded very keenly by Mr. Oberstar of those delays.

    I'd like to mention two things, with all due respect. Sometimes Congress presents a deadline on an item that is very difficult to achieve. They have been—this committee and other Members of Congress—have been very helpful and supportive even though they always remind us that we are late. And, believe me, none of us likes to be late.

    The resources in the Chief Counsel's office certainly have some relationship to our ability to get out rules because many of those 19 are working on 2 or 3 at one time, and, obviously, you can't do it all at once. We try to prioritize. Deputy Administrator Don Itzkoff, who, as you know, is from your district, has been very focused on trying to prioritize the best we can.
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    I will tell you that I have some hopeful news; I'm not sure that it's satisfactory because in some areas, of course, we're still late and sometimes very late. But let me tell you what we expect this year, and if we can achieve this, we will, in fact, have a record year for getting rules into a variety of places in the pipeline, and I think what it says to you, Mr. Chairman, is that the results of RSAC are somewhat cumulative. When we first started the process, I mean everybody was learning. In fact, there are over 500 people, FRA labor, management, suppliers, actively involved in working groups in all of these rules simultaneously. It is an extraordinary feat. And I must give great praise to my staff who managed in, I would say, almost a miraculous way.

    Let me mention to you about these rules. The rules—I'm going to just look at 1998 and 1999—first of all, the rules to be issued in final this year: track safety standards, one that we all know is late and crucially important. It was an RSAC rule: it was hotly debated. I believe that the rule you will see, the final rule, which is in clearance, will certainly be one that adds to the safety of rail transportation in that area. Passenger train emergency preparedness is in clearance, a final rule. Passenger equipment safety standards is to be a final rule this year, and railroad communications, which is crucial. And proposed to go into either notice of proposed rulemaking and perhaps some of them into final, are 12 rules which could come out in 1998. That is our goal. It will certainly be a record if we can get those all through.

    Everyone is working truly tirelessly, Mr. Chairman. I can tell you that some of our lawyers have a briefcase that goes home with them every night and every weekend, and I wish that we didn't have to ask them to do that, but they do it willingly.
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    Mr. FRANKS. Mr. Wise.

    Mr. WISE. Thank you, Mr. Chairman. Madam Administrator, talking about resource needs, your agency in 1997, I believe it was, instituted with CSX a significant review in safety procedures. What kind of resources did your agency allocate to that?

    Ms. MOLITORIS. Mr. Chairman, Mr. Wise, we sent for an in-depth safety audit, over 80 inspectors for 24 hours a day for, about, I think, 12 days. That represents between 20 and 25 percent of our resources. Even more so on the Union Pacific. Those are only two examples, actually within the same quarter, that occurred.

    So one of the things that is difficult for us is that some of the same people in Chief Counsel, for example, who are working on all the rules, also work with the Office of Safety on the reports of the safety audits, and how we follow up on those.

    So, we're not an agency that has enough resources to be separate. We all pitch in and try and move the priority items. We work in teams, bringing the best resources to the issue. But I think you raise a good point, when we have some catastrophic events, we have to pull people off of ongoing work to do these intense safety audits. But they're critical if we're really going to get to some underlying causes with in-depth information.

    Mr. WISE. And you referenced the Union Pacific situation, as well. You performed a similar act there, didn't you? Roughly how many people would have been involved in that?
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     Ms. MOLITORIS. About 85 inspectors. And, of course, I should mention, it's not just the inspectors out there, it's all the people who are supporting them as they're out there 24 hours a day, 14 days, it was, at the Union Pacific. And then, what we all have to remember is, when we get all this information, we can't just make a report and put it on a shelf. It demands that we follow up to make sure that the actions they promised are going to be implemented. And that is an ongoing process. We've restructured our own structure to try and be present where the heartbeats of these major railroads are. So we have a team that focuses specifically on the BNSF, a team that focuses specifically on the Union Pacific, a team that focuses specifically on CSX.

    Mr. WISE. I happen to believe those procedures have been very worthwhile and, indeed, many of the recommendations, or perhaps what has been implemented, I note with interest some elements of those are actually in the safety legislation that Ranking Member Oberstar and I have introduced, and I believe others have introduced, as well. So, my hope would be that at some point there may be some codification of what you, the industry and labor have worked out through this process.

    But last year, GAO reported that the number of inspections conducted in 1995 was 23 percent below the number in 1994. I guess my first question is, does part of that reflect a conscience decision that you and the agency have made to go after the root causes, as you put it, versus the walking along every foot of track and looking at every wheel.

    Ms. MOLITORIS. Yes, it does, Mr. Wise. In fact, this year we still have done 57,000 inspections and have actually looked at over 500,000 units. So it isn't that it's become very small: however, what we do know is that when we did that primarily, we could not get to a timely resolution of a problem across a whole railroad.
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    For example, BNSF, through a listening post between labor and our people, which is part of the SACP process, we learned from engineers that they were facing a terrible dilemma. They were in their territory where they were gathered to talk to our people, signals were dropping red right in front of them so they had two unacceptable choices: A, they either went through it and risked their license, or, B, they threw it into emergency and risked a derailment.

    We went to the BNSF, we went to the dispatch center, we began digging everywhere, and they helped, they were part of it. We found a glitch in the software, and we found that it actually existed at 400 locations on the railroad.

    So that's the kind of impact, leverage, that we can get through a SACP type program which we could actually never get probably in a decade of doing individual inspections. So it's the two of them together, I think, that give us more strength and more timeliness.

    Mr. WISE. I see that the chairman has just dropped the red signal on me, but what I would like to ask are two things that you might be willing to respond in writing. Following up on my question, if it was determined that it was worthwhile to return to the level of inspections in 1994 versus 1993, what kind of additional resources would be necessary. The second request I would make is if it would be possible, could you provide the committee staff with a copy of your filing with the STB and of the safety integration plans developed by CSX and Norfolk Southern.

    Ms. MOLITORIS. I would be happy to do that, and we would have to go back and do some detailed figuring to come up with a reasonable estimate for you request, so if it is all right with you, we would submit that for the record.
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    [The information follows:]

    [Insert here.]

    Mr. WISE. Would it be possible also to have a chart? I was in a hearing earlier today in this room where we saw some charts that were pretty impressive, so I'm into charts today. I'd be interested though to have some charts of the trend lines of as FRA has shifted to looking at root causes, the allocation of resources there versus what has happened statistically on accidents, both fatals and nonfatals. I think it's worthwhile to look and see, and I believe you may have testified earlier that it's still a little too early to make a determination of whether this is completely the right approach. I happen to believe that you're probably going in the right direction, but to the point that we can document it statistically, I think it's important.

    Ms. MOLITORIS. Well, I believe—let me submit—

    Mr. WISE. My very able associate here has just put a nice chart in front of me, so apparently that's taken care of.

    Ms. MOLITORIS. Could I just give you a couple of very important statistics that may be could help? I've already mentioned the casualty rate, employee on duty, down 44.8 percent, and casualties down 45.9, and things like crossing fatalities, 27.8. So we're into big reductions and I think personally—I think the person who said they weren't sure if they could comment on it was GAO. I would say to you that I believe strongly, after almost 3 years, with the statistics, the testimony of the labor and management people involved, and our own employees, that it definitely is the right direction.
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    We continue though—I want you to know, we are having a SACP on the SACP, if that makes any sense. We are reviewing everything that we've done for 3 years to see how can we make it better, how can we hone it, how can we refine it, taking best practices from everyone.

    Mr. WISE. I appreciate that, and I might just not, Madam Administrator, that both administrators and Members of Congress often rush right into comment where GAO fears to tread. So, thank you very much.


    Mr. FRANKS. Mrs. Fowler.

    Mrs. FOWLER. Thank you, Mr. Chairman. And I welcome Ms. Molitoris, and I commend you for the excellent job that you have been doing since you have taken over at FRA. You've been doing an outstanding job and we appreciate you being with us today.

    I just have a couple of questions. I've been going through your testimony and some things from past years, and I know that transportation safety is your number one concern, it's the FRA's number one concern, and we all share that concern, and I was really pleased in looking through your testimony to see over the past 4 years there's been an 18 percent decrease in railroad related fatalities, there's been an 11 percent decrease in train accident rates, 20 percent in crossing incident rates. I mean the statistics—a 40 percent decrease in on-the-job casualties. So the statistics are very good for what you are doing across the board with transportation safety but yet I see that the administration, and I know this isn't coming from you, but has proposed in their Fiscal Year 1999 budget to fund all of the railroad safety programs and the research and development through user fees. And, as you know, this was a system that was in effect for a few years and we let it lapse because of the testimony that we heard across the board in this subcommittee about the great burden that it was placing on particularly smaller freight railroads and commuter lines, and now we see that these are being re-proposed by the administration to the tune of, I think, about $82 million to fund the whole program. But my understanding is they still would be deposited in the general fund of the Treasury and then you would have to go and get them appropriated to you so they aren't going to be coming straight to you. And I'm just a little concerned.
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    To me, the way they've got this laid out, it's really going to be a tax, not a user fee, because they're going to pro-rated across the industry, they're not transaction related, and it's one way to put fewer dollars of the general fund, let's just go assess the users.

    Could you comment on this and how it's supposed to be structured, too, and how you see this working?

    Ms. MOLITORIS. Congresswoman Fowler, thank you so much for your introductory comments. I appreciate them very much.

    The President's budget and the policy continues to be that the administration looks to those who benefit most to provide funding, and that appears again in this budget.

    Mrs. FOWLER. And it would not go straight to you, is that correct? It would go to the general fund and then you would have to request appropriations out of it?

    Ms. MOLITORIS. That's right.

    Mrs. FOWLER. Am I correct? That's the way it's been done before?

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    Ms. MOLITORIS. Yes.

    Mrs. FOWLER. Which, as you know, we have problems with and if this subcommittee and committee does as it has done in the past couple of years, then that's going to be a hole somewhere that's going to have to be filled. And without those fees, you have been compiling this outstanding safety record, since the fees expired in 1995, and these figures cover through 1997. I thought that was interesting to see the good safety record that has been able to be compiled without having the user fees in effect so I'm hopeful we can continue to work that out.

    The other thing I was interested in, was I saw I believe in your testimony, it was saying a 9 percent increase was to be used for a railroad safety and that's a big jump. Usually we've been going sort of with inflation.

    And I noted one of the concerns in your testimony was about the high rate of trespassing and fatalities as a result of that. But with the thousands of miles of rail lines that we've got throughout this country, there's no way we're going to police everyone and keep, you know, someone from walking on the lines, we just have to keep doing the education.

    So I wasn't clear exactly what these 32 additional safety employees were going to be doing as far as adding to the safety program other than—I noticed your main concern was on the trespassing.

    Ms. MOLITORIS. Congresswoman Fowler, the trespassing issue is one that is very, very severe, and difficult, however, I was encouraged at last Sunday's APTA commuter conference that one commuter agency was able to report a decrease, and it's because they, with their law enforcement officers and FRA and a whole team of people, put together a very structured and aggressive education program, and enforcement with the local authorities, and that really helped us a lot.
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    The other thing you might notice, and I talked to the Chairman about this, we are very concerned that the media continues to glamorize trespassing, whether it's Tiger Woods standing in the middle of the track with his American Express ad, if it's Nine West with a big close-up ad with the model standing in the middle of tracks, or movies where people are trespassing. It's a very frustrating issue for us. We're working with Operation Lifesaver, a totally volunteer group, to continue to try and press and turn those numbers around.

    The 32 professionals that I raised as being in the President's budget would be in the field where our people are enormously stretched. I mean if you look at the numbers and the size of what we are to inspect, you can see the very difficult challenge of trying to do that with the 400 people. And, in addition, in the Office of Safety and in the rulemaking process, again, we are very much stretched in terms of our resources. The 32-person increase is really critical and certainly an important first step to help us continue having the numbers go down. We have met with some success but, quite frankly, unless the numbers are zero in those fatality and injury columns, we will never be satisfied.

    Mrs. FOWLER. As you and I both agree, we would all love it to be a perfect world, and if we could have zero, it would be great. Unfortunately we're going to always have people that take risks and that's going to be the problem.

    I think it might be interesting, Mr. Chairman, I don't know whether it would appropriate for this subcommittee or not, but I share with your concern that when the media and advertising glamorize trespassing and that it does seem to be where there are the biggest problems, and the rate of incidents growth, may be we might want to have some type of hearing sometime on that. Because just as we're seeing the media's glamorizing of violence, and promotion, the impact it's having particularly on our young people, as evidenced yesterday. I think this, again, is something that needs to be brought more to the public's awareness and this might be the forum in which to do it, Mr. Chairman.
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    And I thank you, Ms. Molitoris, and look forward to working with you.

    Ms. MOLITORIS. Thank you, Congresswoman Fowler.

    Mr. FRANKS. Mrs. Fowler, let me note that a number of members of the committee on both sides of the aisle have brought up this issue of the glamorization of trespassing in the media and I do believe it may well be appropriate for a public hearing. The administrator and I spoke about it yesterday at some length. I think it's very much within our jurisdiction and within our sphere of influence so we may well get into this issue.

    Mr. Blumenauer.

    Mr. Nadler.

    Mr. NADLER. Thank you, Mr. Chairman. Madam Administrator, I have only one question here. On page 11 of your testimony regarding the proposed acquisition of Conrail, and you know those of us from the New York area, from the Northeast, are very concerned about how this merger or acquisition, really, goes through. You say that—of course the merger of Conrail is not really a merger, it's an dissolution and sale. The CSX and Norfolk Southern are taking over, in effect.

    You say it was determined that CSX and Norfolk Southern provided virtually no safety planning in their operating plans—that's interesting. And then you say, in addition, there were at least four major route segments of the planned merger with projected safety risk increases of greater than 50 percent.
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    First of all, can you tell me where those four major routes are, if you happen to know off hand, and secondly, why the proposed merger or acquisition would increase the safety risks on these routes.

    Ms. MOLITORIS. Mr. Nadler, two of them I can tell you off the top of head, and one of them is the shared asset area which so affects—

    Mr. NADLER. There are several. Which one, the one in New Jersey?

    Ms. MOLITORIS. In New York. The one in New York that affects New York and New Jersey.

    Mr. NADLER. Well it's only in New Jersey, it's not in New York. But, okay, go ahead.

    Ms. MOLITORIS. Well, to us, it affects New York very much because it affects the traffic into New York.

    Mr. NADLER. Absolutely, yes.

    Ms. MOLITORIS. Okay. And in Ohio, which ends up being the middle of the great ''X.'' And the reason, it's different at every location. But what we did for the first time, is to have a safety audit on all three parties. And what we submitted to the Surface Transportation Board was a very detailed listing of what the safety hazards would be as a result of this proposal. We never did this before, Mr. Nadler, and—
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    Mr. NADLER. Could you submit a copy of that to the office?

    Ms. MOLITORIS. Certainly. But just let me close on that subject, or to continue, as you prefer, the experience we had with the Union Pacific-Southern Pacific, and the fallout with regard to safety as well as congestion, just showed us that in these mega-mergers, or acquisitions, or anything of this magnitude, you can no longer only look at the competitive aspects. You must look at the operational and safety implications to do a responsible job.

    [The information follows:]

    [Insert here.]

    Mr. NADLER. I commend your decision on that. I think it's entirely correct.

    Let me be parochial for a moment. With respect to the shared assets of New Jersey that you say affects New York, in what way or where would the increased risk be, and why?

    Ms. MOLITORIS. If it would be acceptable, it's quite a detailed—and we have a very detailed outline of what will occur in those areas, and our concerns about them, and I could submit those to your offices as well as the record.

    [The information follows:]
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    [Insert here.]

    Mr. NADLER. I would appreciate that, but in general you think that there would be increased safety problems in New York and New Jersey?

    Ms. MOLITORIS. Certainly in the area of the shared asset, yes.

    Mr. NADLER. Okay, thank you very much.

    Mr. WISE. Madam Administrator, one more, if I may, one more question, and I'll see if anybody has any further follow-ups. The budget request is about a 9 percent increase over last year, and that may well be in line and appropriate with our mission of enhancing safety on the railroads, but all of us have constituents who are demanding that the Government makes the most efficient use possible of the resources that we already give to every agency of the Government. Let me ask you to tell us some of the think that you've been doing that will give us the ability to assure our constituents that you are maximizing currently those resources provided for through the budget.

    Ms. MOLITORIS. As I said in my oral testimony, Mr. Chairman, we measure ourselves by results. When I came to FRA, one of the most difficult periods of any day was when I did the mail because the mail was a pretty dismal lot. Most of the mail told us all the things we were doing wrong, how poorly we did in just about every area, how unresponsive, how slow, and all of the various negative adjectives that you probably could imagine. And so one of the things when we gathered our staff together was that we were going to tell that we were doing better by the kind of service we give to our customers. And what Americans want, at least they tell me, and I'm sure the same to you, they want safety because they know that hazardous materials are coming through their towns; they know, maybe, someone who died in a highway-rail crossing incident, tragedy; so many families have rail workers involved, they want their men and women to come home safe; and, from the standpoint of the economy, this is a crucial element of our economy, we need a healthy rail system to move the products. This is a global marketplace; this railroad industry in its healthy aspect is very, very important.
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    I think our statistics show that we're getting the results that not only the Congress has asked for, GPRA, for example, but our customers. Our mail is very, very different today. I would be happy to share a few of those with you for your review.

    Perhaps the only thing I could say is if any one of the members of the committee would like to come for a minute, an hour or a day, to see the kind of workload that our field and headquarters people are carrying. I think it would be a testimony to a workforce, sir, I am privileged to serve with. They are as dedicated and professional and loyal as any servants of the American people that I know of.

    My only concern ever is that the kinds of fatigue issues that we're working so hard to eliminate in the railroads, I get very concerned, are going to be real issues, and perhaps are, at the Federal Railroad Administration because you can call just about any weekend, and people will answer the phone because there is that press to really produce the kind of results people want.

    Let me mention a couple of other things that my staff has kindly reminded me about. There is a streamlining plan that we have in the Government, in the Administration, that we have adhered to. For example, in our administrative side, which was one of the keyed-on areas for streamlining and reduction, we have reduced our numbers by 50 percent. We have the highest span of control in management, 12 to 1, in terms of a supervisory ratio, the highest in the DOT. And the administrative positions have been cut by 50 percent.

    Also, the total FTEs—and I think it really goes to, it was either Mr. Oberstar or Mr. Wise, asking about, and yourself, the total numbers—we actually have had 750 in 1993 when I came and now have 722, overall.
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    Mrs. FOWLER. Mr. Chairman?

    Mr. WISE. Thank you, Administrator. Mrs. Fowler.

    Mrs. FOWLER. Before you adjourn, can I make one comment?

    Mr. WISE. By all means.

    Mrs. FOWLER. Great. This is just in relationship to the situation that Mr. Nadler raised earlier. I'd just like to refer to page 12 of your testimony, which it further goes to state, and I think this shows the good way in which FRA is working the railroads to promote safety, because once those concerns were raised in August of 1997, then, as you explain in your testimony, you worked with CSX and Norfolk Southern, they were able to develop their safety integration plans and they were filed by the December 3 deadline, and as I will quote from your testimony, from you, ''We believe that the completed SIPs represent a strong basis to assume that safety will be an important consideration during the major integration process if approved.''

    So I think this is a perfect example of how you are working hand in hand with these railroads to make sure that safety is uppermost. And according to the plans that have been filed, I think Mr. Nadler and his constituents should rest well that safety is going to certainly be a major consideration and it's been taken care of in the plan.

    Ms. MOLITORIS. And may I just add one point, Congresswoman Fowler, the filings were done and were very good, but we did not stop working with CSX and Norfolk Southern. We have continued. We have a team only focused on that. We are fleshing out and making them much more detailed because we're really responsible, then, for making sure they're implemented. And I think the teamwork has been very, very good, and I think the railroads feel good about it, and I think we do, too.
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    Mrs. FOWLER. I do, too. Thank you so much.

    Mr. FRANKS. Mr. Nadler.

    Mr. NADLER. Mr. Chairman, thank you. I have one more question which your answer to the last question that Mrs. Fowler's question raises in my mind. In response to these safety concerns, you developed the requirement that the railroad develop safety integration plans, and you're trying to effectively structure them, or you gave them safety integration plan guidelines, and these all have to be part of the approval process by the STB for the merger and acquisition. In light of this extra work, do you feel that it's at all worthwhile giving consideration to extending the statutory deadline. In other words, there's a set time period within which the STB must consider everything and render a decision yes, no or conditional upon a merger application, do you think the current statute gives them enough time given the extra safety considerations, or should we consider, perhaps, making it a longer process.

    Mr. WISE. Let me—Madam Administrator, we have 8 minutes to get to the floor. I want to try to, during the hearing, in order to not have to come back, so if you could give an abbreviated answer.

    Ms. MOLITORIS. Yes, sir, Mr. Nadler, the STB did add 45 days in order for those plans to develop. They are now filed and they are adequate. What we are saying is, we are working with them continuously now. This is not going to stop.

    Mr. NADLER. Thank you.
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    Mr. WISE. I would request unanimous consent that the record of this hearing be held open for 30 days to allow members to submit written questions and receive written responses from the witness for inclusion in the record of this hearing.

    Without objection, so ordered.

    I request unanimous consent that the opening statement of the gentleman from Pennsylvania, Mr. Shuster, the chairman of the Transportation and Infrastructure Committee, be included in the record at the appropriate point.

    Without objection, so ordered.

    Madam Administrator, thank you for your appearance here today. It has been helpful for us in kicking off our inquiry that will hopefully lead to an improvement in rail safety in America. Thank you very much.

    Ms. MOLITORIS. Thank you very much, Mr. Chairman.

    [Whereupon, at 3:09 p.m., the subcommittee adjourned subject to the call of the Chair.]

    [Insert here.]

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U.S. House of Representatives,

Subcommittee on Railroads,

Committee on Transportation and Infrastructure,

Washington, D.C.

    The subcommittee met, pursuant to call, at 10:37 a.m., in Room 2167, Rayburn House Office Building, Hon. Bob Franks (chairman of the subcommittee) presiding.

    Mr. FRANKS. I call this hearing to order. This is our second oversight hearing on the Federal Railroad Administration. There are a number of important issues to be covered during the course of this hearing.

    Today, our focus will be on equipment-related matters. I want the members of the committee and the public to know that we plan to hold subsequent hearings on human factors such as fatigue and training, as well as on the FRA's regulatory process. But for today, we will restrict ourselves to the many critical safety matters involving equipment.

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    One of the issues before us today is Positive Train Control. This is a promising new technology into which the FRA and the AAR have conducted extensive research. I am interested in hearing about the progress of that research.

    Installation of Positive Train Control has been on the top 10 list of the National Transportation Safety Board for many years, and this technology has been cited as having the potential to prevent accidents. In fact, PTC may have been able to avoid a number of recent crashes, including one that occurred between two New Jersey transit trains in February 1996.

    We will also be hearing about the status of the passenger equipment safety standards. The Congress required the FRA to issue initial standards for passenger equipment by November 1997, with the final standards being completed by November 1999.

    With the consolidation occurring in the railroad industry and recent increases in commuter rail services, there is greater potential for crashes between freight and passenger trains particularly in high-density corridors. It is, therefore, imperative that passenger equipment be manufactured with safety in mind. I am eager to hear from our witnesses today on the progress that has been made in completing these important standards.

    Another critical area that we will be hearing about today is grade crossing safety. Fatalities of grade crossings, combined with trespasser fatalities, constitute 90 percent of fatalities attributable to railroad operations.

    The battle to improve safety at grade crossings is being waged on two fronts. First, there are campaigns aimed at changing behavior to reduce risky actions at grade crossings. We will be hearing about some of these efforts at our human factors hearing later this spring.
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    There is also research underway to improve the equipment at grade crossings. FRA and the AAR have investigated methods to ensure greater reliability of grade crossing equipment, as well as enhanced visibility of warning lights.

    I want to highlight one issue of particular concern to my own constituents. In 1994, based on safety data showing the value of audible warnings in avoiding grade crossing accidents, the Congress required that the presumed Federal safety requirement would be to have locomotives sound their horns at each crossing.

    I say presumed because the same law required FRA to establish final standards for grade crossing equipment that would suffice to avoid having the horns sounded. These equipment standards for the riskiest types of crossings were to be in place by November 1996 and for the rest of the crossings by November 1998. To date, there are not even proposed standards from FRA.

    Besides the potential safety cost of this delay, it has also had an unintentional adverse effect on the quality of life in many communities. The railroads, understandably seeking to avoid liability, has started blowing the horns at nearly every crossing, notwithstanding any local laws that may be in place, yet the communities themselves have absolutely no guidance from FRA on how to equip their crossings so as to avoid this source of incessant noise. The longer FRA delays, the longer the current chaotic situation will likely prevail.

    There are many other safety equipment issues that are critically important to the continued safe operation of the railroad industry. And I look forward to hearing from witnesses today from a variety of Federal agencies, railroad carriers, and rail labor. Let me turn to the ranking minority member, Mr. Wise.
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    Mr. WISE. Thank you very much, Mr. Chairman. I am glad you are holding the second series of hearings. Today, we are going to be concentrating on technology and how it can assist the railroad industry in its efforts to be the safest mode of transportation.

    I am looking forward to becoming more familiar with terms today such as PTS, PTC, ECP, EOT, and GPS and learning about how these new safety technologies have been put to use in many successful pilot programs all over this country.

    As we come to the beginning of the next century, it is time for the railroad industry to move forward with these various technologies and apply the ones that work as soon as possible. We know that technology can assist in saving lives. For example, since FRA's rule on Two-Way End of Train Device became effective, several train accidents have been prevented, including at least an additional one at Cajon Pass, California.

    Moreover, we know that railroad safety affects the lives of rail employees, rail passengers, and people in every community that a train passes through. Additionally, as many of you know, we are still waiting for the rail passenger equipment standards. I understand some progress has been made in this area, but no Notice of Proposed Rulemaking has been issued yet.

    I am very committed on this issue, and I know that all of us join in never wanting to see another tragedy such as the February 1996 MARC train accident in Silver Spring, Maryland, where 11 people traveling from my district were killed.

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    Let me just say on train technology, I have had the opportunity to meet with a number of persons involved in train technology, particularly dealing with the railroads, and I appreciate a lot of the efforts that are underway. There is a challenge in front of all of us.

    I get the sense that train technology is sort of like our family when we went out to buy a computer, which is do we buy it now, do we wait 3 months, do we wait 6 months, do we wait for the next software? The next model will be out in a year, and it is going to eclipse anything that was there before. When do you make that investment? And so the railroads do have that problem.

    At the same time, we can't continually just keep putting off the implementation of much of this technology which can save lives. So that is something we are going to have to I hope explore in this hearing and others to come.

    I do want to commend the FRA, rail labor, and rail management on working diligently on the Rail Safety Advisory Committee and Safety Assurance and Compliance Program. I support these efforts. I think that these efforts actually are going to be the genesis for whatever legislation comes from this subcommittee, and we expect to see them continue successfully in the future. Thank you, Mr. Chairman.

    Mr. FRANKS. Thank you, Mr. Wise. We have divided today's hearing into three panels. The first panel features the two agencies of the Federal Government who have the greatest responsibility for rail safety.

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    First, the Honorable Jolene Molitoris, Administrator of the Federal Railroad Administration, is with us, as well as Mr. Robert Lauby, the Director of the Office of Railroad Safety for the National Transportation Safety Board. I want to welcome both of our witnesses. Thank you for coming. It matters not to me who goes first. Madam Administrator, would you like to lead?


    Ms. MOLITORIS. Certainly, Mr. Chairman, and thank you so much for your leadership in establishing this series of hearings which really gives an opportunity for us to tell the message of railroad safety and what has been accomplished and what the future holds.

    One of the things I wanted to emphasize, Mr. Chairman, is that as we go forward with themes for each of these hearings that I want to encourage and urge all of us to remember that all of these things must work together. They have to be viewed as a system, and it is really critical that all parts of the system work well.

    Before I address elements concerning equipment and other hardware, I would like to mention that the Administration's bill and proposal for the railroad safety reauthorization has been brought forward today. I believe it has been delivered just now to you.

    I understand that you have not had an opportunity to review it with your staff or other members of the committee, but may I just mention three of what I believe are the most significant elements, and then I understand at our next hearing we will do a thorough vetting of all of the issues.
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    First of all, and it really sort of goes right with Mr. Wise's final comments, the proposal of the Administration looks for Congress in findings, at the beginning of the bill, to offer encouragement and direction for the Federal Railroad Administration to continue the work of the Safety Assurance and Compliance Program and the Railroad Safety Advisory Committee.

    I think Mr. Wise was very accurate in his support of all the people who worked together on this issue because indeed on the Railroad Safety Advisory Committee alone, over 500 rail labor, rail management, and FRA professionals are working together on a plethora of safety issues, and it really indicates the kind of commitment that this industry has to it.

    Second, the second major element of the bill looks at fatigue. There is no other issue that more directly affects working men and women than the issue of fatigue. And our proposal suggests a fatigue mitigation plan requirement of railroads; gives a year for the railroads with their employees to prepare this plan and submit it for Secretarial approval; and then a year to implement, fine-tune, and tweak it. After 2 years, this will become mandatory for the railroads.

    And the third major element is the whole issue of intimidation and harassment. Our ability to deal with this issue is somewhat limited, and so we have offered some expansion in that area to give us the opportunity to help working men and women prevent, or have a way to address, any retaliation that may come to them with regard to pointing out safety issues, refusing to move on safe equipment, and so on. And we can discuss that more completely in our next hearing.
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    I believe those three major elements are really crucial in what I know you and your members want, Mr. Chairman, which is a 21st century railroad system which is safer than any and truly helps us get to the zero tolerance goal that we all have.

    Today, I would like to at least review and highlight several of the areas that you have received in the written testimony, which I would respectfully request you submit to the record, Mr. Chairman. First of all, the Federal Railroad Administration has been pursuing advances in hardware and equipment since our last reauthorization. And I believe that we will have an opportunity to demonstrate that we have made many, many successes.

    The policy that drives us, Mr. Chairman, is to try and get lifesaving rules and other activities to the front lines where men and women are most at risk. That is the policy of our reauthorization proposal. It is also the policy of the decisions that we have taken in the past 4 years.

    For example, with very large and complex rules, like the track rule and power brake rule, I directed staff to take out of the larger rule those most critical lifesaving events; in power brake, for example, the end-of-train device, which became effective in July 1997, 6 months ahead of the congressional mandate, and which has already saved lives.

    With regard to track, we pulled out the roadway workers safety element because, in fact, men and women on those jobs were being killed, and we had to put a stop to it. The roadway worker rule is in effect, and it too is saving lives.

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    With regard to the larger elements of the bill, the track rule is in clearance for the final rule. So we are very hopeful that this rule will be coming out of clearance soon and that very important track rule will be there.

    In terms of the power brake rule, as you know, we did a very intense effort with RSAC. We could not reach consensus, but we learned valuable information. And I believe that the notice of proposed rulemaking, which will go into clearance in about a month, should reflect a much more in-depth, refined level of information which is the basis for this important rule.

    With regard to positive train control, this has been a high priority, not only with the NTSB, but also with the FRA. And I want to mention that I am really grateful for the kind of support and partnership that Chairman Jim Hall has given us on positive train control. The Administration has invested over $30 million in the first 5 years to put and support and team with state and private railroad companies to develop the technology that can really get us there.

    Just about 2 months ago, the Association of American Railroads presented a decision to Secretary Slater telling him that they had agreed to cooperate and invest in the positive train control project in Illinois. This project's product will be software that can be used by all railroads to develop positive train control in their systems. It will also be an opportunity to demonstrate the interoperability qualities that are so important.

    This is also a subject of RSAC. There is a very large group, over 70 people, working together on defining these systems, so I believe the movement toward getting this to the marketplace, which is what we are all after, is certainly in the right direction, and we look forward to this happening.
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    Passenger equipment: The final rule on passenger emergency preparedness—we should have the final in midyear, and the passenger equipment rule should be going to clearance for the final rule in about a month or a month and a half.

    So I think all of the issues that have been raised by you and your committee members are in movement, some of them close to final, some of them in the pipeline for clearance. We know that there are many rules still to be accommodated.

    We have hope that in 1998, Mr. Chairman, all of the benefits of the RSAC will begin to take even more hold, and we could get final notices and other movements of rules on 10 different subjects. That would be somewhat of a record for FRA. We are working with staff very hard to make sure that this happens.

    We appreciate the opportunity to take your questions. I would like to introduce our Chief Counsel, Mark Lindsey, who is with me today, and also Grady Cothen, who is our Deputy Associate Administrator for Safety Standards and Program Development. And we appreciate being here today.

    Mr. FRANKS. Madam Administrator, thank you very much. Before I recognize our next witness, let me greet the distinguished member from New York, Mr. Quinn, who joins us. Thank you, Mr. Quinn. Mr. Lauby, welcome.

    Mr. LAUBY. Thank you. Thank you very much. Good morning, Chairman Franks and Members of the Committee. It is a pleasure to appear today before your committee regarding railroad safety.
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    Today, we are here to discuss hardware related safety issues on today's railroad. There is certainly a lot of work as far as the Safety Board is concerned that needs to be done in this area. And to illustrate my point, I would like to give you the Safety Board's perspective in several areas where we do see these safety issues.

    I would like to start with the Safety Board's most wanted list. The most wanted list currently contains two items that are directly relevant to today's proceedings, and those are positive train separation and the safety of passengers in railroad passenger cars.

    The Safety Board for many years was discouraged by the pace at which the railroad industry and the Federal Railroad Administration were developing a train control system that could provide PTS. However, in recent years there has been significant activity. We are very pleased that there has been some important developments, including the establishment of more and more PTS test projects in the industry. We are also pleased with the increasing commitment from the railroad industry to invest in PTS.

    But why does the Safety Board continue to talk about PTS? Frankly, because accidents that cause human lives will continue until we get PTS in place on the mainline of our nation's railroads. That really has to be our objective.

    The safety of passengers in railroad passenger cars is another success story. This item was added to the Safety Board's most wanted list after the tragic Silver Spring, Maryland, accident. The Federal Railroad Administration proposed safety standards for passenger cars last fall, and the American Public Transit Association is currently producing safety standards for the commuter rail industry through their press committee.
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    Although important progress is being made on the passenger car safety standards, developing such standards, is not a one-time activity. These standards need to be continually reviewed and revised based on the lessons that we learn from each accident investigation and through our research activities.

    Discussion on rail safety would not be complete without a discussion of power brakes. This is an area where the Safety Board believes that the railroad industry could be doing a better job. Dynamic brakes, in particular, is an issue of interest to the Safety Board.

    Dynamic brakes are electric brakes that are used on a locomotive. The kinetic energy of the train is used to generate electricity through the locomotive's traction motors and cause a retardation force on the train.

    When the dynamic brake system works properly, total dependence on the air brake system can be avoided. However, when dynamic brakes don't work properly or when they fail suddenly, the engineer can lose control of the train, and a runaway can result. This is what occured on the Union Pacific in Kelso, California, in January 1997.

    The Safety Board believes that an important brake system, such as the dynamic brake system, should be operational when the train is dispatched and should be monitored for correct performance during the run. Currently, there are no requirements for proper operation of the dynamic brake system.

    Track safety standards and inspections is another area in which the Safety Board has concerns. The current climate of railroading in the United States, with increased car loading and rail traffic, has placed ever greater demands on rail performance. Railroads today are trying to maximize the gross tons of traffic that can be carried on mainline rail. Rail cars weighing up to 315,000 pounds, over 150 tons, are now common on our railroads.
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    The Safety Board has investigated and continues to investigate many accidents caused by undetected rail defects. Advances in rail defect inspection technology need to be able to detect defects that are currently being missed. Until inspection equipment technology is improved, railroads need to take a more conservative approach regarding rail defect detection to limit the catastrophic consequences of accidents caused by these undetected problems.

    I would like to end up my remarks with a discussion about grade crossing safety, an issue which the Safety Board has had a longstanding concern. The Safety Board in its history has issued more than 100 grade crossing safety recommendations.

    Although we may never completely solve the grade crossing problem, we should be able to do a better job of controlling it through hardware-based solutions. One such solution may be proximity warning devices that could be carried in school buses and HAZMAT carriers. These, for example, might provide the warning necessary to prevent some of the tragic accidents at both passive and active crossings.

    What is really disturbing to the Safety Board is that our investigations continue to indicate that it is extremely difficult to hear a train whistle inside a school bus. Who can forget the tragic photos of the October 1995 Fox River Grove, Illinois, school bus accident?

    The driver testified that she never heard the train. The body of the bus was torn from the chassis, and seven young lives were lost. Despite everyone's best efforts to address the problems found at Fox River Grove, train and school bus collisions continue to occur.
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    In just the last 2 months, the Safety Board has investigated two such collisions. On February 28, 1998, a school bus carrying 15 members of the Beesville, Texas, high school girls' track team and three adults was struck by a train in downtown Sinton, Texas, at an active crossing.

    The bus entered the crossing while the warning lights were flashing and the warning bells were ringing. The train clipped the right rear of the bus, sending 12 students and the driver to the local hospital. Luckily, there were no fatalities in that particular accident.

    Passengers on a school bus in Buffalo, Montana, were not as lucky. On March 10, 1998, at approximately 7:35 a.m., a 48 passenger school bus from the Hobson Public School District carrying five children was eastbound on Buffalo Canyon Road near Buffalo, Montana. The bus stopped at the highway railroad grade crossing with the Burlington Northern Santa Fe railroad tracks.

    While the bus remained stopped at the grade crossing, a student brought a music cassette tape forward to the bus driver to play on the bus's tape machine. After the student returned to his seat, the bus driver proceeded across the tracks and directly in the path of an oncoming BNSF freight train.

    The bus was struck on the left side near the rear axle by the locomotive, and as in Fox River Grove, the cab of the bus separated from the chassis. Two children in the back of the bus received fatal injuries, the driver received moderate injuries, and other children received minor injuries.
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    Mr. Chairman, while the state of railroad safety is generally good in this country, there is much that needs to be done to improve that level of safety. That completes my testimony, and I will be happy to respond to any questions. Thank you.

    Mr. FRANKS. Mr. Lauby, thank you very much for your testimony. Let me begin, Administrator, in your testimony you indicated that on the subject of Two-Way End-of-Train Devices that the FRA issued its rules on 6 months ahead of the statutory schedule. But in looking at the specific content of the law, didn't the law require having all trains equipped, not the FRA rule issued, by the end of 1997?

    Ms. MOLITORIS. Mr. Chairman, the rule became effective in July of '97, and all of the railroads were equipped at that time. In fact, most of the railroads were equipped far earlier than that because after the tragic Cajon event, we gathered together all the chief operating officers, and I spoke to each of the CEOs, as well as the Board of the AAR.

    And they worked with us to install these pieces of equipment as early as possible. There was a big demand. I believe in one case there was a manufacturing difficulty, and there was one waiver requested so that the elements that were delivered and did not work were replaced.

    But I believe that you will see on the railroad industry today not only the equipping of the locomotive, but actually the necessary training and the requirements of the railroads' operating rules that these be not only installed but used and their personnel know how to use them and do use them.
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    That was part of the tragic story of Cajon, that, in fact, there was an installation which was not properly connected and did not work, and this was not something that notification was made and handled.

    Mr. FRANKS. So you would maintain that the schedules established through the statute was adhered to by FRA?

    Ms. MOLITORIS. In terms of the end-of-train device. Now, in terms of the whole power brake rule, all those other elements, as I mentioned, will be going forward into clearance with the notice of proposed rulemaking. And that entire rule is late—significantly late.

    And I can go through that if you want to hear sort of the chronology of why that has occurred. But what I mentioned earlier is that what we really were looking for is to try to bring the most lifesaving elements forward to get them done as quickly as possible.

    Mr. FRANKS. Let me move on to another subject. GPS is being used by a number of government agencies and holds out great promise for improving safety, not only on the rails, but other forms of transportation as well.

    The current Administration budget proposal includes, as you noted in your statement, $3 million from FRA and 5.5 million from the FHWA to install and operate enhanced GPS based train control systems. But at the same time the budget states that this is the first phase in what apparently is an already decided effort to mandate a national GPS-based system.
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    My question is, first, who is going to pay the rest of the cost of such a system? The estimates that I have seen are somewhere in the $1 billion range. And, second, how does the FRA reconcile this apparently foreordained decision to go with national enhanced GPS when at the same time FRA is funding experimental projects with various other types of advanced train control in selected locations, as was noted in your statement?

    Ms. MOLITORIS. Mr. Chairman, probably I am going to have to get some clarification on that, but let me answer it as clearly as I can. GPS can be an element of Positive Train Control. The funding that we requested is a way of bringing GPS into the positive train control arena.

    We are working with the Air Force, as a matter of fact, to use towers that they are decommissioning so that we can bring cellular and GPS advanced technologies into the whole PTC development.

    What we mentioned about Illinois was a project which is going to evolve into the products of which will be a complete system with flexible blocks and the ability to really not only enhance safety but achieve business benefits that I think are motivating for the railroad companies.

    In addition, the whole Intelligent Transportation System project has the grade crossing elements included—GPS elements potentially on railroad locomotives, on trucks. They are developing an architecture which will help do the kinds of increased notifications that Mr. Lauby mentioned to you.
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    GPS is not—it sounds as though you were talking about it as a totally separate endeavor—and we see it as part of the positive train control development that we have been working with States, railroads, and regions on for the past 5 years.

    And, as I mentioned, the AAR made a decision to not only approve and participate but invest in this most highly technologically advanced opportunity in Illinois from Springfield a hundred and some miles north.

    Mr. FRANKS. I hope we get a chance to come back to this. It is an exciting topic. Mr. Wise.

    Mr. WISE. Thank you, Mr. Chairman. Ms. Molitoris, the power brake rule reached an impasse in RSAC about a year ago. When you first drafted a proposed rule on this, I think it took around 2 years.

    Now, despite having drafted a proposed rule and despite having the RSAC process in place, it is taking about 2 years to draft this proposed rule. I guess it is as much a question about process as much as the power brake rule. But does the RSAC process really reduce the time it takes to get rules completed?

    Ms. MOLITORIS. Mr. Wise, I think it is a very substantively good process. In some cases, like this one, you could say that it added time. However, let me just explain my view of it. I got there in '93. A good deal of the work on preparation had been done. There was more that was done. We had the hearings after the notice, and I will say to you, sir, that it was an eye-opener for me.
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    I was in Chicago listening to very, very complex and fairly volatile presentations about many, many elements of our proposal. And when I went back and talked to our people about the database which supported many of the proposals, we clearly needed more information to do a good job of supporting that.

    Our goal was to do our best to reach consensus in the RSAC process. It was a very, very difficult process, and everybody worked hard on both sides—management and labor. But one of the things about RSAC that is different from other kinds of groups like that in other Administrations is that this has a time table, that if you get to a point and you just can't get there, you don't keep on going, you pull out. And we folded our tent; we have done our best; we are going back to the drawing board.

    However, we are much, much smarter I believe than we were, Mr. Wise. We have much more data to support the kind of initiatives that we are looking for, and that will be in our proposed rule going into clearance in about a month. So it is I guess—you would have to decide whether it was worth it.

    I think we will do a better job. It is worth it, but I want to emphasize that we didn't wait on the end-of-train device. The power brake rule, very large and complex, that was the most crucial lifesaving part, and that was something that went on while the other parts were being debated in RSAC.

    Mr. WISE. Are there resource constraints that slow down the rulemakings?
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    Ms. MOLITORIS. Well, Mr. Wise, I suppose any entity has desires about resources. I mentioned in my first hearing, and I will say it again, our staff never wants to be late. They are inordinately loyal and committed to doing this, but clearly we have many individuals working on several at one time. And when we push to go to closure, they have to put this one down and go to closure. So those are realities.

    Mr. WISE. I remember your testimony from last week in which we were talking at great length about all that FRA had done, and I think in a very impressive way, on what I call the wall-to-wall reviews of UP and CSX and the accident safety plans, and a lot of improvements have come. But you also have very limited staff. And my question is whether rulemakings can move more quickly if there were more, heaven forbid, lawyers, economists, technical specialists?

    Ms. MOLITORIS. Well, Mr. Wise, you know, each rule must have cost-benefit analysis, and I must say we have one extremely talented woman who works with us in that area. And she has been appointed to become a deputy regional administrator, but these folks haven't let her go yet because they need her to finish on these crucial rules that we are trying to move forward. It is very challenging—all of the pieces, and everybody is working beyond any normal workday.

    Mr. WISE. You know, Mr. Chairman, I have noticed there is a problem in any Administration. It doesn't matter whether it is Republican or Democrat or whomever. We really ought to grant every agency that appears in front of a congressional committee immunity from OMB, to be able to say what really needs to be said about staffing needs.
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    Ms. MOLITORIS. I am doing my best, Mr. Wise.

    Mr. WISE. I know you are doing an excellent job, Madam Administrator. My time has expired. If I could though just ask very quickly because this matter has come up before, what is the status of—RSAC was working on a consensus rule on radio communications. This was published as a proposed rule last June. What is the status of this rulemaking?

    Ms. MOLITORIS. Radio communications is being finalized within FRA. It has come out of RSAC in a very, very timely fashion, and I think great consensus was built. It is a very important rule.

    Communications in the industry for safety are crucially important, and we believe that will be going into clearance in about another month. So that would be an example, Mr. Wise, of where a rule was very well expedited through the consensus process and going into clearance in about a month. I think it is a very good record on that.

    Mr. WISE. Thank you very much.

    Mr. FRANKS. I would like to welcome Mr. Mica and Ms. Granger to the hearing. Let me invite them if they would like now to ask questions of either of the witnesses? Okay. Mr. Mica.

    Mr. MICA. Thank you, Mr. Chairman. I just arrived but I would like to ask our Administrator a couple of questions if I may. One of the things that interests me is the utilization of some of our existing railroad right-of-ways for resolving some of our passenger transit needs. I am not sure what you have proposed specifically, and I apologize for not having had a chance to go through it.
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    But maybe you could detail for me some of the safety proposals or emphasis that you may be considering that would deal with—sometimes we have these folks in the same corridor. Sometimes we want to utilize those existing right-of-ways, and we have seen some incidents of problems and accidents. Maybe you could just tell me briefly—summarize how this is going to help folks like me that are looking at dual use.

    Ms. MOLITORIS. Mr. Mica, specifically in the written testimony—no, it isn't in the written testimony, but I could comment on a couple of actions FRA has taken after the tragic Silver Spring collision and deaths. We issued Emergency Order 20, but, in addition, we realized that there was a loophole in the working elements between FRA and FTA.

    For example, FTA had provided a grant for the MARC system to upgrade their signal system, and the review on the safety side, there was no requirement for them to have us review it.

    We have an MOU now with the Federal Transit Administration to assure that any grants for upgrading or changing systems are reviewed jointly by both of us. So I think that increases safety particularly on existing systems, but it could also apply on new start systems, which would be things that I believe you are interested in.

    Second, the fact is that most rail lines in this country are owned by a private company, and that is the railroad company. And so it is incumbent upon the region, the entity, interested parties like yourself to engage those systems in a dialogue about their ability to include a new transit system or a new commuter system or whatever kind that you might be envisioning, sir, in your district.
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    And that is a very, very important dialogue because safety is crucial, and as we mentioned in the first hearing—I am not sure that you were here at the time—the evolution of much of the railroad industry into a set of mega-railroads shows that many, many more ton-miles are being carried on fewer track-miles.

    And so the ability of those ton-miles and those trains to go safely to their destination and to their shippers has to be accommodated, as well as the ultimate safety of the passengers on any commuter or other rail passenger system that you might be talking about.

    We, of course, have Amtrak which has a relationship of some longstanding with the railroads, and I think that there is an increasing dialogue among the railroads to help improve even the cooperative measures there with the passenger systems.

    Mr. MICA. Let me ask you another question. In regard to your reviewing some of the safety problems, what factors have you found most prominent in the cause of these accidents that particularly involved passenger and freight trains? Is it human factor, training, drugs, something like that? How many instances do we see that fall into that category versus technical failures? Where are the safety problems as far as mixing freight and passenger?

    Ms. MOLITORIS. Mr. Mica, each incident is certainly unique, and the NTSB is the entity that focuses on cause and comes out with that report. And I think Mr. Lauby would tell you that there are a number of issues.

    However, as we look at events throughout the freight and passenger industry, the two elements that really stand out are human factors and track. And so those two elements certainly are crucial. Sometimes weather has something to do with it, depending on where this passenger service might be traveling.
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    Mr. MICA. Tell me if you can—I guess, you know, when we write the laws and we put our money, congressional emphasis, and your emphasis towards safety, you want to do it where you have the highest incidents of problems. So what I was trying to determine is human versus technical.

    Ms. MOLITORIS. Well, I think certainly we have found, Mr. Mica, that as—I mean, the reality of the railroad industry is that we have very large mega-railroads, a very large number of small railroads, and the lowest railroad employment numbers in this century.

    And so there is a minimizing of any sort of safety redundancies. So every deed, every thought, every act of the employees is crucially, crucially important. And so it is a human factor issue that we are responding to, in things like positive train control, for example.

    Mr. MICA. So most of the safety problems result are you saying from human factors?

    Ms. MOLITORIS. You know, every year there is a little change, but there has been an increasing number of human factor incidents, although track incidents continue to be significant given the large expanse of the railroad industry.

    Mr. MICA. Well—

    Ms. MOLITORIS. Mr. Mica, could we take an opportunity to submit to your office and for the record a review of the causal elements over the past years and also the passenger relationships.
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    Mr. MICA. What I would like to do, if you could, is provide the subcommittee with that information, and then maybe we can take apart what you have proposed as far as remedies and see how they fit into, again, the cause.

    You know, it is nice to pass regulations and rules and changes, but I want to make certain that they are addressing the specific problems that we have seen. And the way this testimony and information is provided, I don't exactly see that. And it can be done in a page or two. I don't want to belabor it, but I think that that is an important consideration as we, you know, consider any changes here.

    [The information follows:]

    [Insert here.]

    Ms. MOLITORIS. Mr. Mica, this particular hearing was focusing on the equipment and hardware side, and, of course, passenger equipment standards is an important rule that is moving forward.

    However, we are really concerned about prevention. And as you and your staff review our rail safety reauthorization bill, you will see that a key element is fatigue mitigation plans, and if there is any issue that is important to assist working men and women in avoiding any kind of human element, that issue of fatigue is critically important. So that would be in our bill which has just been delivered to you.

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    Mr. MICA. Thank you, Mr. Chairman.

    Mr. FRANKS. Thank you, Mr. Mica. Mr. Wise.

    Mr. WISE. Thank you, Mr. Chairman. Continuing, actually, I want to switch to Mr. Lauby if I could. You mentioned in your testimony a variety of Positive Train Control systems, the UP, BNSF, Pacific Northwest Project, ITCS, ATCS, ACSES, and Norfolk Southern-CSX-Conrail Joint Project. Could you discuss briefly the advantages and disadvantages of these different approaches to Positive Train Control, and do you see us moving towards any common system?

    Mr. LAUBY. Well, I basically laid out in my testimony the different projects that were ongoing. There is more than one way to skin a cat in this case. There is a combination of using GPS as a location method.

    There is combining that with transducers that are located in the rail. There are lots of different ways to do it. My own feeling is that whatever system surfaces that the best system will probably rely heavily on GPS as a primary component for location.

    Mr. WISE. Do you have any observations on the speed at which this is being implemented? Is it moving fast enough for the NTSB?

    Mr. LAUBY. I think it is difficult for anybody to move fast enough for the NTSB, and I think the Administrator would agree with that. We would like to see it done faster. As, you know, we are called out on accidents time after time that are caused by, in many cases, human factors where we see that a Positive Train Separation system could have prevented the accident.
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    You can't make a regulation that is going to keep everybody alert all the time. You can't make a rule that says that you have to pay attention. That is something that can't be enforced.

    We need a backup for our locomotive engineers so that when they do make a mistake or they do miss a signal or maybe they are just not feeling well that day, when they do have these problems that we don't get so quickly to the point where we have a catastrophic accident.

    So, yes, I am very encouraged with a lot of the things that are going on. But we think the technology is there, and when somebody really wants to make a commitment to put PTS in place, that it is going to happen, and it is going to happen very quickly.

    Mr. WISE. You say the technology is there, and that is the point I was trying to make earlier in my opening statement. The technology is there, but my sense is by talking to different railroads, there are different types of technology being used or being tested, and that everyone seems to be waiting to see when we get to the final, ultimate technology which is always evolving. Do you have any concerns about when we finally nail down who is using what?

    Mr. LAUBY. Certainly. But at some point it is time to make the decision and make the commitment and get on with it. And they are looking at lots of different systems.

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    The AAR is very concerned about the software that has to be developed to make the system work, and they are finding some problems with the software. But I think there is a point where you have enough information to go forward to the next step.

    The NTSB is waiting to see a real live system in place on a mainline railroad that is not there for a test base, not there for overlay system, but a system that is going to make sure the trains operate safely day in and day out.

    Mr. WISE. Okay. If I could also, I have a couple of other questions on inspection of track and methods used, but I would like to submit those in writing to you.

    Mr. LAUBY. Certainly.

    Mr. WISE. If you would return those to the subcommittee, I would greatly appreciate it. Thank you, Mr. Lauby.

    Ms. MOLITORIS. Mr. Wise, could I just add a comment there?

    Mr. WISE. Certainly.

    Ms. MOLITORIS. One of the elements that is part of the RSAC work is to really examine which of the collisions and accidents could have been prevented by PTC. I think that is very important. In terms of the actual fatalities in 1997, there were 37, and seven of those were in automobiles or trucks.
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    And I think my message to the committee is that I feel just as passionately as NTSB and Mr. Lauby about PTC. It is crucially important, and we have pushed very hard. But we must not forget the other elements. There is not one silver bullet for this thing.

    If we want to get to zero, we have got to do it all. Buckle up your seat belt when you are in an automobile or a truck, and the fatigue issues are involved there. So I just want to encourage the committee to realize the importance of sort of the low tech, the high tech, and everything in between.

    Mr. WISE. That is a good point. Thank you.

    Mr. FRANKS. I would like to welcome Mr. Fox. Mr. Fox, any questions?

    Mr. FOX. Thank you, Mr. Chairman. Ms. Molitoris—

    Ms. MOLITORIS. Yes, Mr. Fox.

    Mr. FOX. —how are you today?

    Ms. MOLITORIS. Very well, sir.

    Mr. FOX. I wanted to ask you a question. Several of the witnesses today have pointed out in their statements that 90 percent of the rail-related fatalities in the U.S. occur in grade crossing collisions or trespassing, with the vast majority being, of course, the grade crossings.
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    And in that context, I would like to know why FRA has not apparently placed a higher priority on completing the rulemaking on sounding of whistles at grade crossings that the Congress determined was to be completed by November '96?

    Ms. MOLITORIS. Mr. Fox, two things. First, in terms of the actual numbers, we at the Department have had an enormous focus on grade crossing—highway-rail crossing incidents, both injuries, incidents, and fatalities. Since 1994, we have had an intermodal team effort, all the surface modes working together, and we have achieved tremendous improvements in terms of reductions of those.

    I might point out that actually in 1997, the major cause was the death of trespassers. That is an element going up. It is one that is very, very difficult to get your arms around. As I mentioned in my first testimony at the last hearing, it is not only urban center issues like homelessness and other things, it is rural issues—fishing off of railroad bridges. It is also the glamorization of hoboing and jumping freights and standing in the middle of tracks by the media. It is a very hard one to focus on.

    With regard to the so-called ''whistle ban'' rule, we have put enormous resources into this rule, and it is in clearance. We have been in over 200 communities, Mr. Fox, throughout this country because there is a wide variety of issues out there.

    And we believe, given the kind of input that we have, that we may have to do an environmental impact statement before we can go to the hearing process. So we are struggling with this.
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    It is absolutely inaccurate to presume anything but a tremendous focus. In fact, then Secretary Peña actually with the President identified highway-rail crossing safety as a national transportation safety priority.

    We have done a good job of continuing to move it down. It is not to zero. That is where we want to go. We have closed over 27,000 crossings. This is another very, very important effort. The railroads are very involved in this, the states, the communities.

    I believe the issues around this rule on whistle-blowing are very, very complex. In fact, we have just been talking this week about the need to do this environmental impact statement. So that is the status, sir.

    Mr. FOX. A follow-up question. You mention in your written statement that the FRA is continuing research and development work on reflectorizing rail cars so they show up at night at grade crossings. And I know some years ago the idea was explored, then dropped I guess because of either the dirt or deterioration obscuring the reflectorized materials.

    Reflected markings are widely used on trucks and delivery vehicles and school buses. What particular hazards are peculiar to rail cars, and is the material siding such that we could try the reflectorizing as one of the safety features that could be implemented?

    Ms. MOLITORIS. Mr. Fox, the technology is getting better. In fact, the Volpe Center has been engaged in a review of this. I know this issue was important to other members as well. We have done some initial testing, and the results so far are quite good. And we still have to do a cost-benefit analysis on this, but it may be another opportunity that doesn't make good business sense. The technology has come a long way since the first effort.
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    Mr. FOX. Thank you very much.

    Mr. FRANKS. Thank you, Mr. Fox. Mr. Lauby, you mention on page five of your testimony that the NTSB has made some comments concerning FRA's proposed passenger car safety standards. Could you briefly summarize NTSB's comments?

    Mr. LAUBY. We have asked that the proposed standards be strengthened and applied more across the board to different types of equipment. We also had some specific comments on numbers of emergency exits that were required.

    We had specific comments on the sizes of exit windows because we wanted to make sure that emergency workers that may have breathing equipment on would be able to get inside those windows and remove people on backboards, which have certain standard sizes. We wanted to make sure that was considered in the rule.

    Mr. FRANKS. Thank you. In the aviation field, it is a well-accepted principle that passenger survivability is much higher with rearward-facing seats due to the ability of the human body to withstand greater G forces in that position. Has NTSB ever considered this issue in terms of applying it to rail passenger service?

    Mr. LAUBY. We have looked at different issues. What we found in general is that because of the massive size of the equipment that we are using, the G forces that you experience during an accident do not tend to be so high that it is really going to cause that many severe injuries. When a rail car meets a brick wall, the brick wall always loses and the rail car continues.
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    Probably a bigger concern for the NTSB is seats that face each other, where we have passengers on both sides, because we find that one of the most lethal things inside a rail car is another passenger. And when they go flying across and hit the other passenger in the head, that can cause some severe injuries.

    Mr. FRANKS. Thank you very much, Mr. Lauby. Are there any further questions for members of the panel? Ms. Granger.

    Ms. GRANGER. Thank you. Mr. Lauby, you mentioned that the NTSB conducted a public hearing on Union Pacific's recent rail accidents in Springfield, Virginia. It is my understanding that this was an unprecedented event because the hearing was not part of the NTSB's normal accident investigation procedures that focus on individual accidents. Would you explain why NTSB, which we understood to be short of resources, devoted considerable time and energy to what appears to be an extracurricular event?

    Mr. LAUBY. Yes, Ms. Granger, and I would not characterize it as an extra ordinary event. What drove us to have this public hearing was the sheer number of accidents that we were having on the Union Pacific railroad. In a 1-year period, we had 15 significant accidents that the Safety Board was investigating.

    Now, the Union Pacific is a large railroad, probably 25 percent of the railroad industry. As a comparison, the Burlington Northern railroad is slightly smaller than the UP. On their railroad, we had five accidents during that same period. Of those five accidents on the Burlington Northern, only one of those was a collision. On the Union Pacific, we had seven collisions that we were investigating ourselves, with 11 fatalities associated with those collisions.
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    So whenever we see collisions or whenever we see fatalities, that sends up a red flag for the Safety Board that there is a problem because there are certain types of incidents that you can expect. You are going to expect a certain number of grade crossing accidents. You are going to expect a certain number of problems with broken rails. But the system is designed that collisions should never happen.

    So when we got up to the 15th accident, it was obvious that we needed to do something and we needed to investigate this further. We scheduled an oversight hearing, and we tried to look at the effect of the merger on Union Pacific operations, and other elements because the Union Pacific was standing out by itself with a safety problem.

    Ms. GRANGER. Thank you very much. Thank you, Mr. Chairman.

    Mr. FRANKS. Thank you. One last question. Administrator, one of the serious mishaps that we suffered in New Jersey, among the factors that were in the mix as the safety investigation proceeded after the accident was the fact that one of the engineers was colorblind, had driven the train for a number of years. How is it that people could be railroad engineers and be colorblind if, in fact, the color of signals is one important component by which we indicate safety along a track?

    Ms. MOLITORIS. Mr. Chairman, as we understand it, the physician involved used inappropriate techniques, and in our engineer certification rule that is being revised and going forward this year, we are correcting that loophole, if you will. I think that it was one element and a very severe and difficult element.
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    I would mention though with regard to trying to prevent anything in the future that Shirley DeLibero, whom you will be hearing from later, who is head of New Jersey Transit, has taken the very strong leadership decision to invest in PTS for that system. So she will have positive train stop, and I think that is the kind of initiative that Mr. Lauby and all of us applaud.

    Mr. FRANKS. Madam Administrator, let me bottom line this and we can move on. Are the regulations in place that will give this committee adequate assurance that if color is in the mix of characteristics that are going to be part of our overall safety program that the FRA's regulatory scheme is adequate to make certain that before someone drives a train they are not colorblind?

    Ms. MOLITORIS. Mr. Chairman, the engineer certification is moving forward, but I think the same loophole exists until it is final. However, the notification to employers has been made. Perhaps I need to review that to see if there is an emergency stopgap measure that we could give until the rule is final.

    I think it was very well publicized, and APTA, certainly with the commuters, has certainly discussed that issue. But in terms of the actual rule, until it is final, there would be a gap. So perhaps I should review that and consider whether we can do something on an emergency basis to fill that gap until the rule is revised and final.

    Mr. FRANKS. Upon reviewing the current status of the rules, would you let me know?
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    Ms. MOLITORIS. I certainly will call your office but also submit it for all of the members.

    [The information follows:]

    [Insert here.]

    Mr. FRANKS. I would like to thank the panel very much; appreciate your testimony.

    Ms. MOLITORIS. Thank you very much, Mr. Chairman.

    Mr. LAUBY. Thank you.

    Mr. FRANKS. There is a vote over on the floor right now. I think we are going to take a break to walk over and cast our votes on this measure. We will be returning immediately.


    Ms. GRANGER [presiding.] The hearing will come to order, and our next panel will have Mr. James Hagen, President of the Association of American Railroads, accompanied by Mr. Charles Dettmann, Executive Vice President, Operations Research and Technology, and Ms. Shirley DeLibero, who is Executive Director of the New Jersey Transit. And, Mr. Hagen, if you will begin.
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    Mr. HAGEN. Madam Chairman, thank you. The Association of American Railroads appreciates this opportunity to present its member railroads' perspective on rail safety legislation. I will summarize the prepared testimony and request that my full written statement be made a part of the record.

    The railroads support reauthorization of the Federal Rail Safety Program without the imposition of new Federal mandates. The industry's safety record and ongoing programs demonstrate that the railroads are on the path to further safety gains. Since 1980, railroads have cut the overall train accident and employee injury rates by almost 70 percent, and this is according to official Federal Railroad Administration statistics.

    Department of Labor statistics also show that the rail industry's employee injury rate is substantially lower than the injury rate for other freight transportation modes and is lower than the rate for the private sector as a whole. This remarkable improvement is truly a credit to the dedication and hard work of the men and the women of the rail industry.

    This success stems also from the $100 billion that the railroads have invested to improve and maintain plant and equipment since 1990. The ability to make infrastructure improvements is indispensable to improved safety. Those infrastructure improvements owe much to rail deregulation, which occurred in 1980. Deregulation made the investment possible by improving the industry's financial health.
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    Railroads also engage in self-regulation to ensure the safety of the rail network. One example of this involves our interchange rules, which apply to railroad equipment moving from one railroad to another, and give assurance to the railroad and the public at large that the rail equipment is safe to operate. These rules go beyond Federal standards and are monitored by AAR inspectors.

    The railroads, through the AAR, also have an internationally recognized research and technology subsidiary, the Transportation Technology Center, Inc., which conducts industry funded safety research, as well as research for the Federal Government and other organizations.

    Railroads have underway a number of initiatives to make rail transportation even safer. For example, railroads are investigating new train control systems called Positive Train Separation and Positive Train Control. Their objective is to reduce the possibility of mainline and siding collisions.

    On the average, these only comprise about 2 percent of the railroad accidents. But we are still driving hard to make improvements. These systems reduce the possibility of overspeed derailments and protect our ontrack workers when they are out there maintaining the railroad.

    These systems require rigorous testing and analysis to ensure they are interoperable among railroads. We have railroads crossing each other. We share trackage rights. So we have to make sure that they work for everybody and not just on one system.
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    And we also have to make sure they are effective in the real world of operation of multiple tracks. A system that is even a few feet off in pinpointing train location could literally mean the difference between death and life.

    The accident rate attributed to equipment defects has decreased 77 percent since 1980. Railroads have underway a number of initiatives to reduce these accidents further. These include accelerated replacement of straight plate wheels with curved plate wheels and research into acoustic bearing defect detectors that can detect problems before the bearings become overheated.

    Our current system in most of the railroads alongside the track picks up heat from the bearings if they are overheated. This would do it before they overheat. And electronically controlled air brakes could reduce stopping distances.

    To further ensure the safety of railroad equipment, this year the AAR is expanding its certification program for freight car repair facilities to include 800 additional locations. Other initiatives focus on reducing the number of accidents attributable to track defects, an accident rate that has already declined 74 percent since 1980.

    The most vexing problem facing the railroads is that of highway rail grade crossings and trespassers. Together, they account for more than 90 percent of rail-related fatalities. The Federal Railroad Administration confirms that the vast majority of crossing fatalities are caused by driver error. Railroads cannot control that, but they are doing what they can to provide some remedies.
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    The industry today spends well over $100 million annually to maintain and improve grade crossings. Railroads also spend millions more on educational programs, including substantial funding for Operation Lifesaver education programs that focus on grade crossing safety and the hazards of trespassing on rail properties.

    Congress can ensure grade crossing safety by continuing to fund the Section 130 grade crossing program. Partially because of this funding, grade crossing incidents have declined 60 percent since 1980. Railroads are disappointed, however, that the pending ISTEA legislation would give states greater flexibility to transfer crossing improvement funds to other highway programs. We urge Congress to send the states a strong message on the importance of grade crossing improvements by providing that Section 130 funds can't be transferred to other programs.

    In summary, few industries can match the improvement in safety achieved by the nation's railroads. The railroad industry looks forward to a continuing positive relationship with the Federal Railroad Administration as we move ahead to seek even greater safety successes. With railroads and their employees working together, the foundation has been laid for even more gains in the future. And I will be pleased to answer any questions.

    But I have one additional item here, if you would. Madam Chairman, I would like to ask permission to submit a statement for the record on behalf of the American Short Line and Regional Railroad Association. While they are not here today, they would like to have their written statement accepted.

    Ms. GRANGER. Without objection, so ordered.
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    Mr. HAGEN. Thank you.

    Ms. GRANGER. Thank you, Mr. Hagen. Ms. DeLibero.

    Ms. DELIBERO. Good morning, Congressman Granger and members of the subcommittee. I have submitted for the record a comprehensive testimony, but I would like to go through some of the highlights of my testimony.

    My name is Shirley DeLibero, and I serve as the Executive Director of New Jersey Transit Corporation. I am also the First Vice Chair of the American Public Transit Association, and I am here today testifying on behalf of APTA.

    I want to begin my testimony by congratulating Congressman Franks on being selected to serve as Chairman of the Subcommittee on Railroads. As the Executive Director of New Jersey Transit, I am personally delighted by his appointment. But from the Association's perspective, we are very pleased that the subcommittee is chaired by someone who fully appreciates the critical role that commuter rail service plays in the United States economy and in the mobility of the nation's dense urban areas.

    As you know, over 1 million people a day and 370 million annually ride the nation's 15 commuter railroads. In fact, commuter rail ridership is growing by over three percent a year. New systems in California and Vermont that will start operations during the next 12 months will bring additional growth in commuter rail ridership.

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    Safety, even more than expanding ridership and the bottom line, however, is most important to the nation's commuter railroads. While we are pleased with our current safety record, we are constantly seeking to do better. As FRA Administrator Molitoris has said in the past, commuter railroads carry the nation's most precious cargo, and because of that, we work hard to have the safest operation possible.

    In my testimony, I want to bring you up to date on what we are doing to improve the safety of commuter rail operations. I want to focus on three areas in particular—our Passenger Rail Equipment Safety Standards effort, known as PRESS; our activities in the area of grade crossing and trespasser safety; and Positive Train Control.

    It is important to note from the outset that much of what we are doing, we are doing in partnership with the Federal Railroad Administration and rail labor. Under the leadership of Administrator Molitoris, the FRA has established a consensus based rulemaking effort, leading to the successful development of new rules and standards that will work from an operational standpoint and will enhance the safety of the nation's railroads.

    The first issue I want to talk about—PRESS—is a good example of the cooperative effort that is reflected in our work to improve safety. About 2 years ago in response to requests from the FRA, the nation's commuter railroads set out to update and revise the physical standards and inspection and maintenance practices established for passenger railroad cars and locomotives.

    For many years, neither the Federal Government nor the rail passenger industry has maintained formal safety standards specific to our equipment. To help fill this void, our members elected to take on the responsibility for developing and maintaining passenger rail equipment safety standards.
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    APTA's commuter rail members and Amtrak initially contributed over $1.2 million to fund this effort. More than 100 people representing passenger railroads, equipment builders, and suppliers, labor organizations, government agencies, and consultants to the rail industry are participating in the PRESS effort.

    The Task Force Committees identified a need for over 60 safety standards and recommended practices pertaining to passenger rail equipment. Approximately one half of these documents have been completed, and the remainder are in progress for completion by the end of 1998. APTA believes that the PRESS effort has become a model for how rulemaking and standard setting should be accomplished.

    Trespasser and grade crossing safety is another important area where the nation's commuter railroads are working to enhance safety. As you know, as many have spoken today, over 90 percent of the fatalities associated with railroad operations are the result of trespasser accidents and those ignoring the grade crossing devices, accidents which railroads cannot in large part control.

    APTA's commuter railroad members are continually working to improve grade crossing and trespasser safety. And every commuter railroad has aggressively undertaken public education programs to warn the public about the hazards of walking on the tracks or ignoring grade crossing warning devices.

    At New Jersey Transit, we know that the profile of our average trespass fatality is a 44-year-old male, and that in 1997 more than half of our 24 fatalities were confirmed or suspected suicides. Recognizing the importance of requiring trespassers to take responsibility for their actions, earlier this year the New Jersey legislature passed and Governor Whitman signed legislation that makes New Jersey railroads immune from liability in trespasser accidents.
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    Each year, our safety education program reaches over 100,000 school students, and last year we completed a new safety video, this one aimed at the older teen and the young adult market. Last summer, we produced a railroad public service announcement that ran for 2 months in 20 movie theaters located in areas with high incident rates.

    APTA feels that there are four major ways to address the grade crossing and trespasser problem—elimination of unnecessary grade crossings, installation of safety devices, enforcement of safe grade crossing usage, and increased enforcement of highway traffic laws and increased public education.

    APTA is pleased that both the House and the Senate ISTEA reauthorization bills continue to direct states to use a percentage of the funding available to the Surface Transportation Program for the Section 130 grade crossing program. In New Jersey, we are working closely with the Department of Transportation to ensure that our grade crossings get the proper oversight and timely inspections.

    While many people have suggested fencing as a panacea for these accidents it isn't. As you know, Madam Chairman, when we fence areas where trespassing frequently occurs, those fences are continually cut, and we end up spending excessive time and resources struggling to keep them maintained. And the presence of fencing along railroad rights-of-way has raised a number of issues regarding liability in the Courts.

    The final area I want to talk about is Positive Train Control, known as PTC, another area where FRA's consensus based rulemaking process is working. Since last fall, rail management and labor and the FRA have been working to understand the capabilities of PTC, the feasibility of implementing PTC, including its cost, and the strategies for its implementation, including the necessary rules and standards.
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    This is not something that can be done overnight, and it needs to be done carefully, carefully because it involves a significant investment of funds, and it constitutes the next level of rail safety improvements that will be protecting our grandchildren decades from now.

    There are a number of PTC systems and technologies in the marketplace. And while that diversity is an asset, it also creates a problem with implementation. Because we have a national railroad system, we must have a design for PTC that every railroad can use. The technical term for it is interoperability.

    New Jersey Transit operates on tracks that we own, but we also run on Amtrak right-of-way, Conrail right-of-way, and Metro North right-of-way. And New Jersey Transit's right-of-way is used by a number of freight railroads. This joint use makes it imperative that PTC systems are interoperable and that they also meet the needs of each individual railroad.

    New Jersey Transit is undertaking a program that will cost an estimated $150 million to upgrade all 550 miles in the system with both a nine aspect automatic train control system and a Positive Train Control system that will accommodate civil speed restrictions and ensure that our trains will not be able to go through a stop signal at any speed.

    However, not all railroads need that level of protection, and one size does not necessarily fit all in this instance. New Jersey Transit is incurring this extra cost to ensure that its railroad is the safest that it can be.

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    New Jersey Transit's commitment to safety and the use of Positive Train Stop system is reflected in our recent negotiated agreement that we signed with CSX, Norfolk Southern, and Conrail for the operation of freight trains on New Jersey Transit's passenger lines.

    CSX, Norfolk Southern, and Conrail have agreed with New Jersey Transit that they will equip their locomotives with automatic train control/Positive Train Stops, onboard apparatus. This agreement can serve as a model to enhance safety where both freight and passenger trains share a common right-of-way.

    The nation's commuter railroads have demonstrated a strong commitment to enhance the safety of their passengers, employees, and the American public, a commitment that continues to be a top priority. So we urge the House to reauthorize the Rail Safety Act as it is currently written, building on and strengthening the successful consensus based rulemaking efforts that the FRA has established.

    We feel this may be the ideal time to move towards a more performance or experience-based process already embraced by other transportation modes. Thank you for the opportunity to testify. I will be happy to answer any questions or provide any additional information that may be useful to the Subcommittee.

    Ms. GRANGER. Thank you very much. Mr. Hagen, the last time the AAR testified before this subcommittee on Positive Train Control in 1996, the AAR testimony stated that Positive Train Control was not yet ready for application and years of additional research were needed before it could be installed. Is this still the position of AAR, or has sufficient research been completed to allow for installation of Positive Train Control? One thing also, if more research is needed, how long do you estimate it will take before the technology is ready?
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    Mr. HAGEN. Let me start in, and then I will ask Mr. Dettmann to elaborate. Basically, we have moved from thinking about it in a laboratory setting and testing the systems into actually putting them on the railroad and testing them there.

    I think that the testimony here from my fellow panelist is in concurrence with our view that, one, you have got to make sure you test it because you can't have a software system that has some bugs in it that you are going to put out there because you are going to get somebody killed.

    Second, you need to test it for interoperability. Can you put it on various railroads and make it work? So we are in that phase right now. Mr. Dettmann, is there anything you would like to add?

    Mr. DETTMANN. Madam Chair, there are 11 separate systems that are under study now and in various phases, all the way from the ones that are close to implementing such as New Jersey Transit and Amtrak are doing, to the one that Administrator Molitoris described, which is the Positive Train Control project in Springfield, Illinois, which is just getting underway. And we have a 4-year tentative timeframe to do that.

    Now, between those two extremes are various other programs such as the Burlington Northern Santa Fe-Union Pacific project in the Pacific Northwest, which has been underway for 18 months so far, and they look to have their first results late this year or early 1999.

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    Another technological approach that both Norfolk Southern and Burlington Northern Santa Fe are looking at has the potential of being perhaps one-tenth of what the costs of the larger systems are, and it would provide similar safety benefits.

    So all of these are underway, but except for the systems that we have on Amtrak and the systems that are in existence in the rail industry from the '20s, there are no other off the shelf systems that will be cost effective and work today.

    Ms. GRANGER. Thank you. Another question, Mr. Hagen. The Federal Railroad Administration has requested $3 million in the President's budget for installation of ground based global positioning system transmitters. This is to be combined with 5.5 million that is requested in the Federal Highway Administration budget.

    This request is in anticipation of a Federal Railroad Administration requirement for installation of Positive Train Control. What do you estimate would be the total cost of such a system, and how does this Federal contribution of 8.5 million compare with what the industry would ultimately have to pay for such a system?

    Mr. HAGEN. I will ask Mr. Dettmann to give us an estimate here.

    Mr. DETTMANN. First of all, Madam Chair, the differental GPS system is not a railroad system. It is for all transportation. It was designed originally for the Coast Guard on the coasts, and I commend Administrator Molitoris for the wisdom of looking at how this can be expanded across the country in order to broaden the potential application of Positive Train Control.
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    Now, obviously, your statement that the FRA is looking to mandate Positive Train Control, we are not comfortable with that because have notyet fully developed the technology, or evaluated its costs and benefits.

    Now, in the Springfield to Chicago corridor, we would expect to have differential GPS available to use because that is the only train positioning or train locating system that is accurate enough to be safe. And even that is used with onboard initial guidance systems such as aircraft in order to be functional. But we don't know what the overall cost is, and its benefits are multimodal, not just rail related.

    Ms. GRANGER. Thank you. Ms. DeLibero, one question. You mention on page four of your testimony that the New Jersey Transit is undertaking a program that will cost an estimated $150 million to upgrade the 550 miles with a nine aspect train control system and a Positive Train Control system.

    As you also note in your testimony, interoperability is critical given the multiple users of the same track. Could you tell us what steps New Jersey Transit would take to ensure that the new system will be interoperable with other systems?

    Ms. DELIBERO. I think in my testimony I said that the CSX and the merger that just happened, they have agreed that they will put on board equipment so it will be comparable so they will be able to use our system as well. What this system does, when we had our accident in 1996, only 50 percent of our railroad had automatic train control. The other 50 percent had nothing.
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    So what we are doing, and I took a trip to Europe to look at—because the United States didn't have Positive Train Control—and I went to Sweden to look at theirs and to actually drive the train and to see if I could go through a signal and what that was all about.

    And I was very pleased to see that when I drove this train, and even though I ignored the signal, that the train stopped at its proper interval. And I was very pleased that there was some device out there that could help or stop an accident that we had at New Jersey Transit from happening. And the Board was committed to spend whatever money.

    So this 150 million that we are doing will make the railroads that travel on our system compatible; will also give us the maximum of security because we will have automatic train control which each one of them has its points.

    The automatic train control can detect a broken rail; where if you have a speed restriction—like my accident happened at 17 miles an hour, and had I had automatic train control, that accident probably still would have happened because of the speed. With Positive Train Control, it has a zero speed. So we feel with a combination of both, we are as protected as we can be with man and machine.

    Ms. GRANGER. Well, the question—you mentioned on page three of your testimony that elimination of unnecessary grade crossings is one of the most effective ways of reducing grade crossing accidents. What are some of the obstacles that commuter trains have encountered if there are any, in trying to eliminate grade crossings?
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    Mr. DELIBERO. Well, it's a lot easier said than done, because when we try to eliminate grade crossings in a town, everyone tells you how important that particular road is and how necessary that is and so it's not an easy thing to do. Where we can, we have. And I think all the commuter railroads are working on that but it is not an easy task. Because when you get with the municipalities, everyone feels that that road is very necessary and closing it would cause hardship. So the best that we can do is try to eliminate those that we can get agreement on that can be eliminated.

    Ms. GRANGER. Mr. Wise, do you have questions?

    Mr. WISE. Thank you, Madam Chair. Mr. Hagen, good to see you.

    Mr. HAGEN. Thank you.

    Mr. WISE. And congratulations on your assignment. You bring a long distinguished experience to this position and I'm delighted to have you working with AAR.

    Mr. HAGEN. I hope everybody knows it's interim.

    Mr. WISE. I noted that and I note that you're very quick to note that as well.

    Mr. HAGEN. I add that for my wife's sake.

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    Mr. WISE. You stated in your testimony, Mr. Hagen, that Congress should reauthorize the rail safety program, without including new requirements for additional regulations. I'm just curious, does that mean that in all areas, including hours of service, the FRA has all the regulatory authority that is needs?

    Mr. HAGEN. I think that we feel that it does. We're working on, for example, the Hours of Service issues. We're working very closely with the FRA and with the union operating people to really work on this issue of fatigue, how to take care of the problems and what to do about it. So I think right now that they have sufficient authority. Also in that vein, I think that we would like to see a little less regulation but more performance standards. Say, okay, now we want you to achieve these particular goals in safety. And therefore, you go to work and come back to us and tell us how you're going to do it. We're not going to tell you specifically about every little piece. So that's kind of our view of that issue.

    Mr. WISE. That actually is going to lead into my next question, so I thank you. But I also want to thank you, your statement, your written statement, gives me about as good an explanation of the various safety initiatives that the railroad industry is undertaking, whether it's in positive train control, whatever, it's an excellent report—

    Mr. HAGEN. Thank you.

    Mr. WISE. —so thank you for that. But now, you mentioned, and Ms. DeLibero did as well, the importance of inter-operability as a feature in any positive train control technology that makes sense. You also speak, and you just did, about setting a standard, a performance standard be given wherever FRA sets a specific safety objective but how that objective is obtained is up to the railroad. And I might just note that we have this discussion a lot in the chemical industry and others whether you get—a federal agency should be in a command and control mode or whether you ought to set the standard and let them get there. In fact, I just filed legislation today dealing with EPA, this is exactly what you're saying. So we will reach a standard but give us, the states, the flexibility on how we get there. Anyway, that was a little added comment. If anyone is from EPA, I want you to know that bill was dropped and you now have a marker down and you're now free to come negotiate with us. At any rate, let—there does seem to be a little bit—is there a conflict in some ways, because how do you get inter-operability if railroads are free to adopt whatever systems they choose, subject to the performance standard and yet at the same time, we want everyone to be compatible. How do we square that circle?
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    Mr. HAGEN. Well, because of the interchangability of all of our equipment, rail locomotives and ears, as you know, can go anywhere on the system. We have an elaborate system of working together, what we call interchange rules. For example, there are rules that the AAR has about cars and couplers and various things that are not in the federal regulations, but are enforced by the AAR, so that our member roads give us the authority, in other words, they all vote on them to say these are the standards and we'll all adhere to them. We will then come to some agreement and we will enforce that. Mr. Dettmann, is there anything you can add to that?

    Mr. DETTMANN. I would say, Congressman Wise, one of the major reasons why the AAR Board agreed to commit $20 million to the Springfield Project, is that there have been many projects that FRA has funded including those in Michigan and some in the northeast, and some here on the east coast. AAR and FRA wanted to explore the interoperability issue to determine will it work, how does it work, and are the benefits there? Can we take care of the interoperability issues existing in the 11 systems that are out there today.

    Mr. WISE. How long, Mr. Dettmann, do you estimate that it would take to get some kind of conclusions about that? Is—you probably heard my earlier remarks.

    Mr. DETTMANN. Yes, I did.

    Mr. WISE. I'm just concerned we're always going to be following, trying to anticipate.

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    Mr. DETTMANN. Congressman, there are three effective systems out there with new technology. One is the least expensive system which I mentioned that could be one-tenth the amount of the others that indeed satisfies the safety objective. We ought to know by late '98 or early '99 whether that will work. It shows a lot of promise. Second, there is positive train separation or PTS, which uses the full computer based software but is an overlay over the existing signal systems that are out there—all it does is enhance safety. BNSF and UP and the Santa Fe as well as Norfolk Southern, CSX and Conrail are puring that and we ought to know more about that again late this year or early '99. Third, there is positive train control to be demonstrated in the Springfield Project. The project will replace the existing signal and other control systems and that is the one that potentially would provide both safety benefits and business benefits. That's 4 years away before we know if that one will bear fruit.

    Mr. WISE. You got to educate me a little bit here. And how do those relate to the differential GPS that you talked about earlier with FRA and it's been—that the coast guard was using?

        Mr. DETTMANN. They all use the differential global positioning for train location. The systems are common in that you need to locate the train and have an odometer which gets it much closer. Then, in addition to locating the train, you have a computer on board the locomotive that has a picture of the track, whether you're going uphill or downhill, and it computes continuously the stopping distance of the train. All of those in one form or fashion are there, as well the major communications system back to a dispatching office. The latter two, PTS and PTC, have major communications interface requirements for both digital radio and computers all the way along the line. The first one does not have that, which is the reason for the potential of reduced cost.
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    Mr. WISE. I see. Thank you very much.

    Ms. GRANGER. Thank you. I appreciate the panel being here, thank you very much.

    Mr. HAGEN. Thank you.

    Mr. DETTMANN. Thank you.

    Ms. GRANGER. Thank you very much. Our next panel will consist of Mr. Leroy Jones, Vice President, Brotherhood of Locomotive Engineers; Mr. Rick Inclima, Director of Education and Safety for the Brotherhood of Maintenance of Way Employees and Mr. James Brunkenhoefer, National Legislative Director of the United Transportation Unit. Mr. Jones, we'll start with you. Thank you for being here.


    Mr. JONES. Thank you, Madam Chairman and FRA Member Wise. I appreciate the opportunity to speak before the committee. I am Leroy Jones, Vice President and National Legislative Representative for the Brotherhood of Locomotive Engineers. I have been a railroad engineer and in the industry for about 25 years and have handled about every major rulemaking before the FRA over the last several years. Also, in an new era of cooperation, I'm here also to testify with the guidance and direction of Mr. Brunkenhoefer of the United Transportation Union. This is kind of a new occasion for our two unions.
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    Because of changes at the FRA the last few years, with the guidance and direction of Jolene Molitoris, FRA Administrator, she has brought everybody to the table, labor, management and government, suppliers, everybody to the table during these rulemakings and she should be commended for this because this is something she has done—and she's been very good at bringing us all together and educating both sides why we should do some things that we all don't want to do or we should do. Because I've handled most of the rulemakings over the years, there's several issues I want to bring up, and I'll try to go through them as quick as possible.

    Radio rule. That's a very important item on a locomotive and in train operations. We have not had a regulation that even required a radio on a locomotive. The first hearing on that was in 1987 before the Federal Railroad Adminstration. It has taken until just recently to promulgate a rule, work out a rule and as of January 24, 1997, we finally come up with some proposed rules that will help the industry. Considering that we handle passengers and hazardous materials, this is really something that the industry has needed for a long time. Jack Shaver for the UTU Director in Colorado brings an issue here to us also that one of the problems we've had with the radios that we have been working with is all the clutter, the chatter, the overlays, the interference, what we call walk-ons when other radios black out—become louder than the one you're trying to listen to in train operations, it becomes an unsafe situation. We tried to address that in the rulemaking, I think that when it comes out, those kinds of issues have been addressed by the FRA and we're waiting very patiently for that to come out.

    Power brake was a very contentious rulemaking, as Mr. Dettmann and Jolene Molitoris, FRA Administrator had maintained. We worked very hard on that. It was very, very tense and the technical respects to this. We started in September 16, 1994, we finally reached an impasse—I guess the NPRM was introduced in September 16, 1994. April 1, 1996, we finally came together to work on this rule. And it became an impasse December 4, 1996, with the railroads threatening to take us to court with litigation because some of the aspects of the inspections and who does them and the amount of people involved. With that, the FRA, of course, took that rule, pulled it off the table out of the RSAC and put it back into their legal counsel and it's now going to have a proposed rule out sometime this year. In that rule, it's a must, BLE feels, and the UTU, that we have to have dynamic brakes addressed in that. Dynamic brakes is, as Mr. Lauby said in the early testimony, is an initial part of braking, especially in mountainous territories.
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    Two-way End of Train Devices (EOT), that's an issue, it took a long time. I first testified at the FRA in 1984 on that issue and we finally got that issue finished, in fact last year.

    Passenger Car Safety Standards. Mr. Wise has been very, very instrumental in looking into this because of the accident at Silver Spring. We are now working with APTA, which testified here earlier, with crash-posts, corner gets posts. And one of the things that's very important is the structure of the front of that car, whereas we're trying to get corner posts and take the steps out so when the corner hits by another train, it doesn't tear open and let the passengers feel the terror as it comes down the side. That's one of the problems we had with passenger cars, which there has been no regulation up until this group is getting together. I think we're going to have very good regulations on that.

    The Passenger Car Safety Standards, also the Emergency Preparedness to get people out. We also have had positive train control. Positive train control also in that area, deals with fatigue and fatigue is what happened in New Jersey, either whether it was fatigue or whether it was color blindness, we feel that that this accident would have been prevented by positive train control.

    Bridge displacement is a big issue to us. We had three of our members on the lead of a locomotive and several passengers die in an accident in Mobile, Alabama that went into the Bayou and we think that there is thousands of bridge out there that can be hit by barges and other waterway vessels that can move the bridges, it did in this instance. And what happened there, there's no advance notice to the engineer that there is a problem down the track. We think the FRA should address that, we think something should be done.
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    I'll finish, even though I've got a thousand other things to talk about, because I participated all the rulemaking. One, I'm concerned as a railroad engineer and grade crossings, I have been very unfortunate to have as many as three grade crossing accidents in 1 week. And it's really stress on the crews, the engineers and conductors that are up there see this first-hand, see the car go in front or see the trespasser go in front. It's a terrible thing to experience. And often, all of us have nightmares and bad feelings about when this occurs. We want to have those problems taken care of, we support the industry and the FRA on the advancement of taking grade crossings out and whatever we can do for trespassers.

    Three recommendations. One of the problems we're having with this process of RSAC, is when labor and management comes to an agreement on a rule, after many months, then ask you to go through all bureaucracy, it takes more months, maybe 2 years to get through the entire process before it can go in effect. This is something that if agreed to by the industry and by labor, we think that once we come to agreement, that that regulation should be put in effect, because it's us, labor and management, that are effected most by it.

    The second thing, FRA does not have enough personnel. In 1980, they had about 400 inspectors. Today they still only have 400 inspectors. They need more inspectors, more support staff. A study in late 1970's showed that they needed an additional 400 inspectors back in those days. They got more regulations now, they only inspect less than 1 percent of the rolling stock every year and that's not good enough to make sure the railroad industry is safe.

    And the last thing that we have tried for years, I, as a federally-certified, locomotive engineer, if I find something wrong on that locomotive that I think is a federal defect, I do not have a right to refuse to move that locomotive. They can tell me to move it and either I get fired for insubordination or I move it. That's the bottom line. Its the same way with conductors and brakemen. If they find defective cars, they should have the right to turn those down because if we look at the passengers we carry, look at the hazardous materials, all the things that can happen out on the railroad. And it's very important for us to have that right. And I'll stand for any questions when the others finish their testimony. Thank you.
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    Ms. GRANGER. Thank you, Mr. Jones. Mr. Inclima?

    Mr. INCLIMA. Thank you, Madam Chairwoman. Members of the subcommittee, Madam Chairwoman, my name is Rick Inclima, Director of Education and Safety for the BMWE. Our members build the railroad tracks, bridges, related infrastructure, we do the maintenance and the inspection of that infrastructure in both the U.S. and Canada. On behalf of the BMWE and the workers we represent, I appreciate this opportunity to appear before you today. I'm a voting member of the RSAC Committee and participated as BMWE's representatives on the roadway worker regulations, the track safety standards, the high-speed rail standard, the GRMS standards, and the developing track equipment standards, as well as radio rules, locomotive engineers certification and positive train control. From 1976 to 1991, I was an maintenance foreman on Amtrak's northeast corridor. I would first like to state for the record that BMWE supports the RSAC process as a basis for rulemaking and we congratulate FRA Administrator Molitoris for her vision and foresight in creating RSAC. However, like many processes, the RSAC is not perfect, and the consensus-based recommendations reached under the principals of RSAC are also not always perfect. Therefore, in those cases where the parties to negotiated rulemaking do not reach consensus or where the consensus reached falls short of FRA, DOT or Congressional safety expectations, the host regulatory agencies have an obligation to the American people and the U.S. Congress to correct any safety concerns not adequately addressed through the consensus-based RSAC process.

    With concerns—concerning the pending track safety standards, BMWE supports may of the proposed revisions to the standards and we look forward to their promulgation. We participated in that rulemaking, it was a very difficult and tedious process. However, while the standards have been significantly strengthened, we also believe that there are certain elements in the proposed standards that do not go far enough. And we have submitted testimony to—our written testimony to his committee, as well as to FRA regarding those areas that we think need further consideration.
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    The subject of today's testimony is track maintenance and related hardware. Our written testimony does provide extensive details with regard to the track safety standards. Time constraints will not allow us to discuss that here today and I would respectfully request you to review our written testimony and would like to briefly speak on three issues outside of the scope of the track safety standards where lives are being lost and people are still dying. Those issues are track equipment safety, crane safety and grade crossing safety.

    The track equipment Task Group, an offshoot of the 213 working group, continues to meet on the issue of track equipment safety and we made some progress. However, the issue surrounding the safe transportation of roadway workers on equipment or rolling stock is one of the major obstacles holding up consensus in these negotiations. In June 1997, a 21 year-old rail worker was killed near Fort Worth, Texas when he fell off the deck of a crane and was run over. Just weeks ago, on March 3, 1998, a hauntingly similar incident occurred in Cartersville, Georgia when a 26-year veteran of the BMWE, Brother Fred Allen, was killed from a fall from a crane deck. In each of these instances, the equipment used to transport the fatally injured worker was not equipped with provisions for their safe transportation, i.e., handholds and hand railings or a secured seat or bench. We have attempted time and time again, over the past couple of years to get the carriers to agree to a prohibition against the transportation of personnel on equipment that's not equipped, but that hasn't borne particular fruit. Based on this most recent fatality, we have requested by letter of March 26, 1998, to the Administrator, an emergency order prohibiting the transport of employees on non-equipped equipment or rolling stock. And we appreciate your support for issuance of such an emergency order to prevent further loss of life.

    Another significant area of rail safety that begs for redress is crane safety and operator training. In reviewing accident data in conjunction with the Positive Train Control, the database revealed the startling number of serious injuries and fatalities which occurred when cranes tip over due to shifting loads, exceeded load capacities, defective equipment, supervisor misjudgment or operator error. The most recent crane tipping fatality occurred in December 1997, in Orion Township, Michigan when a 28-year member of the BMWE was fatally injured when the crane he was operating tipped over while hoisting a load under direction of his supervisor. BMWE has respectfully requested FRA, by letter dated March 25, 1998, for a rulemaking under the auspices of RSAC committee to address the numerous issues affecting crane safety on the nation's railroad. And we respectfully request the subcommittee's support for that rulemaking petition again to prevent the further loss of live and to address this issue.
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    The last issue I would like to speak on is the issue of highway/rail grade crossing safety. BMWE supports the many efforts across the board to eliminate grade crossings, and to put in place active devises for grade crossing safety. But we believe there is one area of grade crossing safety that hasn't been given full consideration and that's the visibility of trains and equipment at grade. At grade crossings, especially unprotected crossings, the issue of visibility is often a contributing factor. Far too many pieces of M/W equipment are not outfitted with simple safety devices, like headlights, taillights, rotating beacons, reflective tape or paint, et cetera, making this equipment difficult or impossible to see from a highway grade crossing. The situation becomes much more problematic when dealing with trains because of the tremendous weight and speed associated with train movements. To illustrate this point, we were advised by a letter from a BMWE general chairman, just 2 weeks ago, on March 16, that the college-age daughter of a BMWE member was killed at a grade crossing accident on Saturday night, March 14, 1998. According to the report, Joannie, a freshman in college was one of four passengers killed when the vehicle they were riding in collided with a string of 40 empty cars at a crossing in Wheelock, North Dakota. This tragedy underscores the necessity to make trains and rolling stock more visible to approaching traffic by requiring reflective tape, paint or other type of reflective devices on the sides of all rolling stock and equipment. At an unprotected crossing in the dark of night, low profile cars, such as empty flats and TOFC cars are nearly impossible to detect upon approach of a crossing. Absent any type of headlight reflecting provisions on these empty cars, the four fatally injured students never had a chance to see the train until it was too late. It's unfortunate this scenario is played out time and time again across our nation and the remedy may be as simple as a roll of reflective tape or the application of self-adhesive reflectors. BMWE respectfully implores the subcommittee and the FRA to correct this deficiency by requiring minimum area on the sides of all rolling stock and equipment to be reflective in order to make train movements at grade more visible to highway users.
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    In conclusion, there are many issues, both within and outside the scope of the track safety standards that must be addressed if we are to improve rail safety and save lives. We must improve track inspection by establishing maximum high rail inspection speeds and embracing the concept of one pair of eyes per track. We must not allow automated inspection equipment to replace or reduce the frequency of visual track inspection by qualified and experienced inspectors. We must provide rail employees with safe and secure transportation to and from the work site and prohibit the haphazard practice of riding employees on equipment lacking provisions for their safe transportation. We feel we must absolutely address the issue of crane safety by providing operator training and a comprehensive crane inspection program. We need to address the issues of equipment and rolling stock visibility to protect the lives of rail employees and the public at grade. Let us adopt a Joannie's Law, in memory of Joannie Weyrauch and her three friends who were killed in North Dakota by requiring a minimum reflective area on all sides of rolling stock and equipment. Let's improve the training and the application of roadway worker protection regulations to assure compliance to prevent the loss of life. We also need to analyze the so-called human factor elements in accidents, which in many cases are actually caused by underlying operational deficiencies and operational conditions. BMWE supports the RSAC process and we salute the Administrator for her vision and perseverance in establishing the RSAC. We believe that substantial progress has been made under this Administration's leadership and we support increased funding for the RSAC and increasing the number of FRA inspectors and support personnel. We also support expedited promulgation of rules developed in the RSAC. The Brotherhood of Maintenance of Way appreciates this opportunity to testify before the subcommittee today and we look forward to working with the Congress, the FRA and the industry to improve safety and reach our stated goal of zero tolerance for accidents and injuries. I would be more than happy to answer any questions of the subcommittee. Thank you.
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    Mr. MICA. Thank you. I would like to thank both of our witnesses for their testimony and also Mr. Brunkenhoefer for his willingness to participate in this panel. I would like to first go to a few questions, if I may, some dealing with rulemaking. Mr. Jones, you mentioned that a proposed FRA rule requiring radio equipment on locomotives was issued in I believe 1997. Has there been any further action taken since then?

    Mr. JONES. We—they had an NPRM and we had agreed, labor and management, to address any of the other issues that we may have seen outside the RSAC process. We've turned those back in to FRA and as Administrator Molitoris said that that rule should be out sometime this year.

    Mr. MICA. On Page 2 of your statement, Mr. Jones, you described the already overdue power brake rule discussions as an impasse since 19—I think December 1996. Has any substantive progress occurred since then?

    Mr. JONES. As you know or have been relayed to you, the original NPRM put out by the FRA prior to the RSAC process, in labor's opinion and I think Mr. Brunkenhoefer will agree with that, was one of the best rules that the FRA had proposed. Because of the cost to the industry and the problems that may occur in trying to get that rule through, that's when we put it into the RSAC process. Like we said, we had experienced one of the bones of contention which was a certified employee that traditionally had inspected cars, known as a carman, that had been through apprentice program, that is trained to inspect cars, whether that employee would then again be the person designed to inspect the cars. That was one of the big bones of contention. Mr. Brunkenhoefer would probably like to speak on behalf of the trainmen, because of that, his people have been forced to do that kind of inspection.
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    Mr. MICA. Did you want to comment, sir?

    Mr. BRUNKENHOEFER. Chairman Mica, the—there's been an evolution take place is where the work rules have gotten to be more flexible and more employees are called on to do different things. But in the industry, there's only one person qualified and certified and that's the engineer. So as new responsibilities fall on to the additional personnel, there are no requirements that the people performing the service be qualified. Frequently have justified in opposition to management that says our people feel that they are not qualified to be able to perform the functions that are required by the federal regulations, the RSAC process was held up. And as we moved forward, the carriers brought forth a charge that if we moved forward in the RSAC process, that we would be in violation of the Section 6, Notice Limitations in our national agreement where we had agreed that we would not serve any additional rules dealing with work or pay. We said that the RSAC process of where we're trying to get the rulemaking is something outside of labor/management negotiations and we're trying to get to an agreed to process. And so essentially, we feel like the rug was pulled out from under us as we tried to sit down and deal with what was truly a safety issue and dealing with the federal government with management and with labor where we were hit over the head saying this is—by participating in the process, that we may be violating a contract. And so it essentially then was dropped and now the federal Railroad Adminstration will be able to move through the Administrative Practices Act and go exactly the same thing, which is if they—instead of us sitting in a room, the three of us trying to work something out, they used the threat against us of involving being in violation of our collective bargaining agreements. And so now the FRA will be able to go through Administrative Practice and do the same thing. So the delay on why we didn't get from here to there is mystifying, other than just simply buying time and now neither one of us are involved in the process and it falls on the federal government. We were real disappointed, we hope it doesn't happen again.
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    Mr. MICA. Well, let me ask one more question of Mr. Jones. On Page 3 of your statement, you pointed out that the statutory requirement for two-way end of train devices resulted from a quote from you, ''inaction by the FRA in the 1980s,'' and that that rule was issued in February 1996, effective July 1997. My question is you left something out in the sequence, the fact that the FRA under the present Administration was some 3 1/2 years behind the statutory deadline during which time the fatal accidents at Cajon Pass occurred in part because there was no requirement in place for working in training devices. As I recall those accidents, the current FRA paid catch-up by issuing emergency orders on devices that had already—that should have already been required. Do you think you left something out here as far as their inaction during this period?

    Mr. JONES. Well, I think, Mr. Chairman, that we actually—if we're going to talk about that process, in 1984 I testified before the FRA and that's in the mid to early 1980s, about the use of two-way end of train devices. Basically what it turned out to be was an ability—for the industry to justify taking off the caboose off the rear of the train, instead of giving us the two-way EOT's, they gave us a one-way EOT where all I could see as an engineer running down the track is how much air was back there. Not be able to do anything like the two-way EOT allows me to throw a switch and start to brake from the rear forward in case, as in Cajon Pass and some other places, where the air line had been kinked or broken or angle cocks, the valves between cars, turned. That did not allow me to throw that train in an emergency. So the railroads were able to do away with the cabooses, were able to use a one-way EOT and also, I might add, in 1987, the Canadian government required those on all trains in Canada. Since that time, there has been no accidents that I know of, where this type of device could have prevented. And then from that time on, yes, we went to Congress and asked Congress to pass such a law and Congress was good enough to give us the two-way EOT. And I think it's possible, some of the problems they had in the administration is they had about 15 rulemakings on the table at the same time. We did ask for emergency order, we're the ones that petitioned the FRA. We know that they had some problems internally, there was a lot of pressure by the industry not to require these on the end of trains as it was in 1984. I think all of these contributing factors, plus we lost 15 members during that period of time when we were unable to get the two-way EOT.
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    Mr. MICA. Well, thank you. I'll yield to Mr. Wise.

    Mr. WISE. Mr. Jones, I note and I would be interested in your reaction when you have — if you haven't had a chance, when you have a chance to look at the safety bill that was submitted today by FRA. I believe that it does provide some of the protection for the engineer who feels that they should be moving an unsafe piece of equipment, which I think is very, very important. Mr. Inclima, the reflective tape only makes common sense to me. You talked about this very eloquently. Are you familiar with the work that the Volpe Center is doing on this issue and do you think they're on the right track?

    Mr. INCLIMA. I heard of it today, I wasn't genuinely aware that they were working on that issue specifically. But it sounds like they're on the right track. You know, it's just simply a matter of visibility and, you know, I looked at my kid's bicycles and the fact that, you know, they've got reflectors on those things and they're dirty and they're muddy but they still work and they catch the headlight. And this is—there's a collilary to the same way that we can outfit these cars. So if Volpe has a superior, you know, device or system for reflective, you know, to make the reflection work, that's great. But I think probably certain items that come right off the shelf would be, you know, would be equally effective and probably should have been done a long time ago.

    Mr. WISE. Mr. Jones, or Mr. Inclima, or Mr. Brunkenhoefer, I just want to say—I just want to offer this is uncharacteristically quiet I've seen you. I'm glad the Chairman gave you a chance to speak here. I just couldn't handle this. But I addressed the question of resources with the FRA Administrator. She, of course, cannot say anything beyond what they tell her to say. But would you all care to, I mean, is there a problem in getting rules out because of lack of resources at FRA?
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    Mr. JONES. My opinion, there's a real problem with resources at the FRA. One of the things that occurs is we have all these major rulemakings going on. The experts on the FRA side are the people actually go out and inspect or have jurisdiction over the inspectors that do the inspecting. So it has to take resources and people out from the field that normally do inspections. Then you have multi rulemakings going on at the same time. You don't have enough support staff, attorneys, economists, everything else. And then on top of that, I think there as a report in the late '70s like '79 that said they needed 400 additional inspectors at the FRA just to maintain the safety integrity of the industry. That's when they had 400 inspectors, they needed an additional 400. Today they have the same amount of inspectors and I said one percent inspections, I think it's like three-tens of one percent. I would have to find that out for sure, of what they actually inspect a year. But there's no deterrent there.

    Mr. WISE. That's been my feeling as well. Is—there are going to be several other hearings and if there's other information you would like to submit on that, that would be helpful because I've got—if you talk about rail safety, that becomes very important. I note we only have 4 minutes on a vote, Mr. Chairman, so I defer to you.

    Mr. MICA. Thank you. I think each of our panelists — we do have additional questions, I believe, from both sides that we would like to submit rather than hold you here because there is a pending vote. However, before we conclude, I would like to ask unanimous consent that the hearing record be open for 30 days to allow members to submit written questions to the witnesses and to receive written answers for inclusion into the record. Without objection, so ordered. I would also ask unanimous consent that the opening statement of Mr. Shuster, the Chairman of the Transportation and Infrastructure Committee be included in the hearing record at the appropriate point. Without objection, so ordered.
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    [The prepared statement of the Mr. Shuster follows:]

    [Insert here.]

    Mr. MICA. There being no further business before the railroad subcommittee, this meeting is adjourned. Thank you.

    [Whereupon, at 1:25 p.m., the subcommittee was adjourned.]

    [Insert here.]




U.S. House of Representatives,

Subcommittee on Railroads,

Committee on Transportation and Infrastructure,

Washington, DC.
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    The subcommittee met, pursuant to recess, at 10:35 a.m. in room 2318, Rayburn House Office Building, Hon. Bob Franks (chairman of the subcommittee) presiding.

    Mr. FRANKS. Good morning. This is our subcommittee's third in a series of hearings on rail safety issues. Our first hearing dealt with FRA's budget and resource requirements, and the second addressed equipment-related rail safety issues. A later hearing will focus on FRA's regulatory process. But our hearing today will focus on human factors issues. Human factors are a critical component of ensuring a safe railroad network.

    It's no secret that rail travel is becoming increasingly complex as traffic on the mainlines continues to grow. The increased mix of freight, inter-city, and commuter traffic on the same corridors poses challenges for ensuring safety. It means that our railroad employees are often operating in an environment of heavy traffic, where life and death decisions are made on a routine basis. Anyone who drives a car knows that the level of alertness required on a busy four-lane freeway is far greater than on a deserted country road.

    One of the major issues we'll be hearing about today is fatigue. The maximum limits on duty shifts of railroad crews were first established by the Hours of Service Act in 1907. This was long before the advances that medical researchers have made in the area of wake/sleep cycles. I'm eager to hear from the panel of fatigue experts today on some of these advances and on how this knowledge can be applied to modernize current Hours of Service rules. In addition, some of the carriers and their employees have begun to experiment on a voluntary basis with different types of work/rest cycles to improve alertness, and I hope to learn more about those efforts today as well.
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    Two of the most critical areas in railroad safety today are grade crossing safety and trespassing. According to the Federal Railroad Administration's most recent statistics, 93 percent of fatalities attributable to railroad operations are either at grade crossings or involve trespassing. Clearly, these are areas where significant improvement is possible. It is simply a matter of changing behavior. Today we will hear from Gerri Hall of Operation Lifesaver on some of the innovative programs they have developed to reduce accidents at grade crossings.

    I'm also interested in learning more about the Federal Railroad Administration's medical standards for locomotive engineers. In 1996, a fatal accident in Secaucus, New Jersey, was found to have been caused by a New Jersey Transit locomotive engineer who, due to poor vision and color-blindness, ran a red signal. Unfortunately, the medical examiner who administered the engineer's last physical exam overlooked the clear evidence from the color discrimination test that the engineer was unfit for work and certified him anyway based on the results of a second test which is not supposed to be used to evaluate color discrimination. As I understand it, this is permitted under existing FRA regulations, which allow a medical examiner to certify engineers who do not meet the vision thresholds that FRA has established if the examiner believes the engineer has the ability to safely operate the locomotive. My concern is that this blanket authority given to the medical examiners by FRA can lead to non-uniform application of safety criteria which can produce disastrous results, at least in the case of this particular engineer.

    I'm eager to hear today from the FRA concerning the actions it has taken since the Secaucus accident to standardize the application of its medical requirements. While I understand that New Jersey Transit has made adjustments in its standards, it's also critical that the FRA review the Federal regulations and make necessary changes so that this type of accident does not occur on another railroad.
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    In closing, I'd like to urge our witnesses today to be mindful of the topic of today's hearing—human factors issues. Since we have a large number of witnesses testifying today, on some six different panels, I might add, I would request that if witnesses have comments to make on other types of safety issues they submit testimony for the record but confine their oral testimony this morning to human factors issues.

    At this time, I would like to recognize my distinguished colleague, the ranking member of the subcommittee, Mr. Wise.

    Mr. WISE. Thank you, Mr. Chairman. I would just note that six panels, I question what our human factors will be like by the end of the day.

    Let me say, Mr. Chairman, I applaud you very much for holding this hearing and the series of hearings you've been conducting on rail safety. I think this is a very, very important area; it's an area that we all have a direct interest and stake in. I thought you spoke well and eloquently on human factors. Human factors though often merge with equipment factors and other factors, and sometimes if somebody is fatigued they are not as able to recognize a problem that is arising or confront one when it is in front of them. I note, for instance, the 1996 tragedy in Silver Spring, Maryland, in which 11 people were killed, possibly because of the rearrangement of signals 3 years earlier which contributed to the distractions of the engineer and apparently causing him to forget a signal he had just seen. There, perhaps, there may be human factors joined with whether or not there should have been redundancy.

    Indeed, the same situation in June of 1997, the accident in Scary, West Virginia, when one train ran into the rear end of another train, killing the engineer and causing a small town to be evacuated due to the toxic waste fire that ensued. Apparently, there was a human factors problem there, but, at the same time, the signals in this case had also been changed before the accident which may have contributed to a lessened margin of safety. So, human factors I believe tend to merge with other factors as well.
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    I do think that this hearing is very timely, and I respect what you're saying when you say you want it kept to human factors. I think that's appropriate.

    I also note, as you have noted, that a number of the railroads are making voluntary efforts at this point working with fatigue management plans or ways to address that concern, and I'm delighted that that's taking place. That's why I have some hope that we may be able to get some legislation this year. It seems to me there are some people now stepping up to the plate where just a few years ago I was hearing about how this is impossible, and this is no place for the Congress to be, and things are running just fine. So I'm glad to be seeing some people stepping up to the plate now and actually taking on within themselves and within their companies these issues, because we all recognize the need for safety. And so I would hope that we would be able to reach agreement.

    Also as you point out, grade crossing fatalities are something certainly that need to be looked at as well. That's an area where we're stubbornly still way too high in the number of fatalities despite warnings, despite toll-free numbers that are now being installed. So that's an area I think we can get into as well.

    Since we do have a large number of witnesses, I will yield back the balance of my time and look forward to the testimony.

    Mr. FRANKS. Thank you, Mr. Wise.

    For opening statements, Mr. Pitts?
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    Mr. PITTS. No statement at this time.

    Mr. FRANKS. Thank you.

    Mr. Blumenauer?

    Mr. BLUMENAUER. Thank you, Mr. Chairman. I, too, appreciate what you're doing. One of the things that I feel very strongly about is that the inherent advantages in efficiency and safety that the rail system has is something that we ought not to lose sight of. This hearing enables us to further improve on that. I'm looking forward to the conversation today and the steps that make sense for us to pursue.

    Mr. FRANKS. Thank you, Mr. Blumenauer.

    Mr. Lipinski?

    Mr. LIPINSKI. I have no opening statement. Thank you.

    Mr. FRANKS. Thank you, Mr. Lipinski.

    Mr. Boehlert?

    Mr. BOEHLERT. No opening statement, Mr. Chairman.

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    Mr. FRANKS. In that case, we'll move right to our first panel. Let me introduce our two witnesses very briefly. Dr. Martin Moore-Ede, who is the president of Circadian Technologies, will be with us, as well as Dr. Mark Rosekind, president and chief scientist of Alertness Solutions. Two renowned experts in the area of fatigue which undoubtedly will be a cornerstone of today's hearings.

    Gentlemen, let me apologize for the fact that in our committee hearing room we have a light system which gives you indication as to when your 5-minute opening statement period has been consumed by way of a series of green and red lights, and it also serves as an effective notice to the members as to general timelines that we try to guide our member's questions by. But this is the Science room. Apparently, they are far more I won't say deliberative, but they certainly are not guided by the same kinds of technology that our committee is.

    Mr. BOEHLERT. Mr. Chairman, I should warn our witnesses that we have an automatic ejection system here.


    Mr. FRANKS. Far more subtle system of reminders.

    I'm going to ask Glenn, our chief counsel, to hold up just a piece of paper when 4 minutes has gone by. And as I think members on both sides know, I don't enforce rigorously our 5-minute rule, but just to give people some sense of guidance as to how much time is being consumed.
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    Let me also ask the members to be mindful of the fact that we have six panels, that this hearing is likely to go to at least 4:00. And if we are to be faced with the prospect of a real bonus and get out of here earlier, I would ask all of us, members and witnesses alike, to certainly feel free to ask important questions because this is a vitally important hearing, but to do it in as time effective manner as possible.

    On that note, Dr. Moore-Ede, would you like to lead off with your testimony?
    Dr. MOORE-EDE. I've requested an overhead projector and I believe that is being obtained; is that correct? If so, Dr. Rosekind might want to start while that arrangement is being made.

    Mr. FRANKS. I think that's a fine idea. I know they're searching out that overhead projector right now.


    Mr. FRANKS. Dr. Rosekind, welcome. Thank you for coming.

    Dr. ROSEKIND. Thank you. Mr. Chairman, I appreciate this opportunity to address the committee. I will just essentially read some overview comments.

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    Secretary Slater, Administrator Molitoris, and the Federal Railroad Administration are to be highly commended for their vision and actions to address human fatigue as a critical transportation safety issue. The scientific data are clear that fatigue is an important safety concern that affects all modes of transportation.

    There are many challenges to managing fatigue, including diverse operational demands, individual differences among the personnel, and the complexity of the relevant human physiology, especially sleep and circadian factors. The challenges preclude a single or simple solution, and have demonstrated the difficulties that are associated with ''one-size-fits-all'' approaches. Given a 24-hour global demand of the transportation industry, it may be unrealistic to expect that human fatigue can be completely eliminated. However, scientific knowledge and practical strategies are available to more effectively manage fatigue and reduce the associated risks and increase the overall safety margin.

    The rail industry, as a whole, is emerging as a modal leader in acknowledging fatigue as a safety issue, in developing proactive programs to address fatigue, and establishing partnerships to leverage resources and activities. And just to cite a few examples, the American Association of Railroads and several U.S. railroads, including Burlington Northern Santa Fe, Conrail, and the Union Pacific, have all voluntarily initiated alertness management programs. The FRA has coordinated the establishment of a North American Railroad Alertness Partnership, or NARAP. This is an innovative activity that's not represented in any other mode of transportation, and their level of discussion and range of proposed activities that are currently encompassed by this partnership is quite impressive.

    It really is from these perspectives that the FRA reauthorization regarding fatigue should be considered. What they propose is bold and an innovative conceptual approach to managing this issue. And it really for all of these reasons that the fatigue components should be more carefully determined and care taken to establish greater specificity prior to specific legislative action.
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    My comments really are intended to just to be examples of where further discussion activity need to be undertaken. For example, the most important requirement is the establishment of standards, clarifying best and accepted practices, and specifying criteria for acceptance and success. One illustration is that the plan would ''describe how every condition on the railroad carrier's property that is likely to be affected by fatigue is addressed in the plan.'' Given the challenges and complexities outlined previously, it may be impossible to meet this requirement.

    The Fatigue Management Plans are to be ''designed to reduce the fatigue experienced by railroad employees covered by the hours of service laws and to reduce the likelihood of accidents and injuries caused by fatigue.'' Again, specific criteria and standards would be needed to determine whether this requirement was met. And considering that enforcement action is possible for noncompliance, then specific performance standards are necessary to clarify expectations and success in meeting stated requirements.

    In many areas, a significant amount of effort would be required to actually establish rational and effective approaches to the issues that are identified. For example, the identification, diagnosis, and treatment of sleep disorders is a very important component to any overall effort to address fatigue. However, this specific activity raises many significant medical, legal, policy, operational, and practical issues that have to be addressed before there be any successful implementation.

    This is an excellent example of where this reauthorization provides a bold conceptual approach just to include this important element of managing fatigue. However, it's also an excellent example of where a significant amount of work would be needed to establish an appropriate foundation for successful application. This can be done, and it should be done, but legislative action in its current form is likely to create more difficulties than successes.
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    There are other areas where too much specificity may actually impede innovation. While in its current form, the reauthorization requires more clarity for expectations, standards, accepted practice, and these comments should in no way be construed to support over-legislating the issue. In fact, it should be obvious that it's possible to create requirements that would be so specific and demanding that they become operationally, and in practice, unreasonable. It is also unclear whether such an approach would actually reduce fatigue-related risks or affect safety.

    Included in the reauthorization is the opportunity to request waivers to support fatigue management activities. Waivers should be available to address current hours of service, they should be available in a timely manner, and be non-punitive. With the continued evolution of operational practices and requirements and scientific advancements, it is going to be very important that there's a mechanism to introduce innovative new strategies and approaches in the future.

    Again, the innovative conceptual direction proposed by the FRA in this reauthorization is to be commended. An important issue really is how to move these concepts and proposed approaches to the next level. Just one possibility would be to capitalize on the resources and efforts already established by NARAP and the Safety Assurance and Compliance Programs that are currently underway. For example, NARAP could be tasked with the development of the elements, expectations, standards, accepted practices, et cetera, of fatigue management plans that would become the industry standards. Specifying this objective would challenge NARAP, and all the other railroad constituents, to address the breadth of issues related to fatigue, but also to focus efforts to produce concrete results.
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    Given the complexities, it should also be apparent that resolution and clarity will not come quickly. The rail industry has evolved to its current operational practices over a 130-plus year time period. It is unrealistic to expect that definitive resolutions or comprehensive programs can be enacted immediately. Rather, all constituents and interested parties should be encouraged to take available and appropriate action now, while maintaining long-term efforts.

    Every effort should be made to strengthen the proposed concepts and to support continued action to translate these approaches into practical and effective safety outcomes. Thank you.

    Mr. FRANKS. Dr. Rosekind, thank you for your testimony.

    Dr. Moore-Ede, are we technical yet?

    Dr. MOORE-EDE. I appreciate your allowing me to push the technology boundaries here.

    Mr. FRANKS. Welcome, Dr. Moore-Ede.

    Dr. MOORE-EDE. Thank you. I have provided to the committee some written comments and I won't read them, I will just add some points of emphasis on this issue.

    First of all, I think it is important to stress that there's been enormous innovation in the industry over the last 3 to 4 years and this has been a participatory effort by a number of railroads both North and South of our border here, the Canadian railroads as well as BNSF, Conrail, as well as Union Pacific. And the number of railroads are increasingly getting into developing innovative new solutions. It has also been supported by the Brotherhood of Locomotive Engineers and the UTU. And so really it is a joint industry effort.
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    The challenge is this: The proposed Administration bill runs a significant risk. It has excellent intent. The fatigue management plan concept is absolutely right on the spot. I think it's important that every railroad think creatively about how it's going to apply the latest science and physiology in a performance-based approach. But the problem is that it sets up a series inside the detailed wording of a set of somewhat restrictive and prescriptive requirements. One of the problems is if we lean too much towards ''the plan shall include the following factors,'' and I'll talk about one or two of them, that, based on unproven science, we end up sort of enforcing more of a compliance of a set of rules rather than pushing the boundaries of innovation further.

    Furthermore, because there is a waiver provision in the bill which requires both railroads and their unions to agree and to come forward requesting alternative approaches or waivers, this is in reality quite a barrier. In fact, few of those such waivers have actually happened. The problem is that if you put any innovative science-based solutions, including some of the ones that are currently ongoing, I think we would not be able to make the considerable advances we've been making in this industry.

    Now I'm going to be focused on just one narrow issue. There are many points I could comment on in the detailed proscriptions. First of all, I think the most significant challenge in this industry is that because of the nature of the business there is enormous irregularity to train flow. This in the current practice of the railroads means that people are called at almost random hours. As a result, the patterns of sleep and wake, as shown in this chart where we see 2 days, left to right, midnight to midnight, and then on to midnight again, plotted over 30 consecutive days of the month, what we see is a pattern where black bars represent sleep where sleep is occurring at all hours around the clock, and where work is occurring at all hours around the clock on an almost random basis. Admittedly, this is one of the extreme examples, but there are a range of intermediate examples.
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    The problem is human physiology means that we do not sleep with high quality recuperative sleep unless we're sleeping in the same time slot every day. That's a fundamental bit of human physiology. So if you're now jumping around the hours of rest, even though you may be allowing more hours of rest as per the proscription here, what happens is the quality of sleep goes right down.

    One of the things that has the largest single result in terms of improving alertness and safety, as is demonstrated by a number of studies that we and others have performed, is while we can't fix the irregular train flows, we can get much more regular the patterns of sleep, so the hours of sleep occur at more or less the same window, day after day, across the month. This is an engineer that's running a lot of night trains here and a crew that's running a lot of night trains in this particular pattern.

    When we go and make such changes, what we have been able to achieve now is that we've been able to systematically work across many subdivisions of railroads such as Conrail, and we've done some in BNSF, working across the Canadian railways, the whole of Western Canada, considerable amount of geographic territory, whereby we have solved the problems of alertness and measured the improved safety and alertness in these situations, but done so by different solutions, applying basic physiology but in different ways. Many of these solutions would actually trip over the literal wording of the bill as it is. So I would really urge there be some very careful thought as to the prescriptive wording that are in the Fatigue Management Plans right now.

    When we do address these issues, what we can do is systematically shift the amount of sleep to considerably more and better quality sleep. The striped bars are the sleep patterns of people before putting fatigue countermeasures and scheduling solutions in place. The black bars are showing much more sleep on average occurring after we put them in place. We can show by brainwave recording in locomotive engineers, a study of over 500 locomotive engineers, the number of micro sleeps that occur. Those are the blackout periods where the person has this brief lapse, a lapse that would leave you to drive your car off the road if the road took a bend, in the same way the locomotive engineer, the crew would go through a red signal. We can actually measure those in seconds of risk per hour.
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    And you can see the bottom chart is someone who did not prepare for duty and this is what happens when someone goes on duty and will microsleep during a night run. The top one is someone knew precisely when they were going on duty and took a prescriptive route to tackle it. They took a nap, in other words, to address the issue. They knew when they were going on duty and they can plan. But you can suppress. That is the risk, that is the thing that literally we have been able to show, my colleagues and I, in scientific studies is directly linked going through red signals. In fact, there are actually proven examples in the literature of that.

    In addition, these systems actually work better in many ways. In fact, accidents, as you know, fortunately, although there are far too many of them, obviously, near-miss accidents are a much more reliable measure because there are many more of those to look at. We can systematically show the reduction of those as a result of installing these programs.

    And at the same time, the number of sick days or people laying off sick dramatically reduces the left-hand bar when we put people on these regular patterns where they go to predictable hours of work, they're sleeping at regular times, they're healthier. In fact, that solves many of the shortage of staffing problems, absenteeism dropping by 60 percent.

    And so what we're saying, basically, is there is a very well established scientific research base on alertness, sleep, and biological clocks. The implementation of this is the key. And in implementing that, we really have to think very carefully what the strategy is. My concern is if we're overly prescriptive of what has to be in the Fatigue Management Plan. In other words, saying specifically that, for example, the policy shall require a greater number of minimum consecutive days off, what actually happens, and I use as one example—if you have the second chart in my graph, if you could find that one with a very irregular pattern to it—what actually happens is if you require a guaranteed consecutive number of minimum days off, and what is being implemented now in the test situation is people having 3 days off after every 8 or 4 days off after every 10, they then compress all the work on an irregular pattern to even a shorter space of time, the pattern gets even more irregular, and although you've given them some days off, 10 days off in the future, in reality you've increased the fatigue risk. Because they are paid by the mile, the natural behavior will be to respond by adopting more irregular and more fatiguing schedules in order to fulfill that requirement. So that's just one specific example. Obviously, if I had longer than 5 minutes, I could go through example by example where these specific requirements can be too narrow.
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    I'd like to end by saying that we would certainly volunteer our time to committee staff members, the FRA to provide briefings on the state-of-the-art in crew scheduling and other issues so that, in fact, there is full information on the implications of these things. We would certainly all like to work together, as would the industry and the unions, in achieving better rail safety. And fatigue is recognized as one of the key problems and one that is very much resolvable by applying some very exciting scientific advances that really work in the real world. Thank you, Mr. Chairman.

    Mr. FRANKS. Gentlemen, thank you very much for your testimony.

    Briefly, Dr. Rosekind, I see from your biography that you've had extensive involvement in dealing with fatigue issues both for NASA and for the aviation industry. From your experience dealing with fatigue countermeasures, what approaches have you found to be the most effective, generally speaking.

    Dr. ROSEKIND. I think what is actually outlined, that is plans that deal with the complexity of the situation, is the only way to go. Just to give you an example, I sat on an FAA working group for 18 months trying to develop the new hours of service for aviation. At the end of that time, two proposals went forward and the FAA took another year-plus to come up with what came out. That was 3 years ago and, after 1,300 comments, things still haven't moved forward. And trying to do that ''one-size-fits-all'' is extremely difficult.

    So, again, I think if you want to deal with the complexity, with the individual differences, and the physiology, it's going to be very difficult, if not impossible, to come up with just one. That's why the plan approach that is suggested in the bill is so critical and the elements that are outlined I think are really some of the core pieces.
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    Mr. FRANKS. Jim Hall of the NTSB will be testifying later today. He states in his testimony that the current Hours of Service Act, which governs maximum duty limits in the railroad industry, is flawed in that it permits ''the most burdensome fatigue-inducing work schedule of any federally regulated transportation mode in this country.'' Specifically, Mr. Hall demonstrates that in any given 30-day period an airline pilot could fly up to 100 hours, a truck driver could be on duty up to 260 hours, shipboard personnel at sea could operate not more than 360 hours and 270 if at port, whereas locomotive engineers could operate a train for up to 432 hours, which equates to more than 14 hours a day for 30 consecutive days. Could you comment on the effect of that type of service over that protracted period of time?

    Dr. ROSEKIND. Fatigue is going to be an issue. We have enough data to show that that's true. One of the points I think Chairman Hall is making is it's the same human in all those operations. In fact, to Administrator Molitoris' credit, as chair of the DOT Safety Council, she has tried to raise fatigue and hours of service issues as a multimodal issue. What's kind of interesting, what you've just described is it's the same human being in every one of those situations. And why the huge range in differences in hours that are available when it's the same physiology that you're trying to deal with?

    Mr. FRANKS. Dr. Moore-Ede, you point out in your statement, and I think amplified it very nicely verbally, that simply in drafting additional notice requirements or a guaranteed minimum number of days off on top of the existing Hours of Service Act doesn't solve the fatigue problem because a crew member could then cram the same number of revenue-earning miles into eight or ten consecutive working days. On that same point, the NTSB's testimony points out that an employee, as we indicated, could work 30 14-hour days per month and still be in compliance with the Hours of Service Act.
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    Do you see addressing a mileage-based compensation system as an inherent part of an overall anti-fatigue strategy?

    Dr. MOORE-EDE. Certainly, in the long-term. There are some pilots we've been working on with Conrail that are looking at innovative new approaches to this, and I would say pilots strongly supported by both unions and also the railroad itself. So I think there's a general recognition in the industry. We all recognize there are in this system ability for certain individuals, really actually a small handful, to really push the limits and there are some problems there. But I think the approach of a Fatigue Management Plan showing how systematically the railroad is going to bring those under control is the way forward. And, certainly, I think one of the ways that would be appropriate as part of the plan would be testing innovative approaches.

    My main concern about the waiver approach is you can't get this stuff going without sort of some period of time and without some chance to not have everyone on board at once. The mandatory parts of the waiver are very worrying to me. The moment you propose a waiver that's a mandatory across your system, it's a major concern. I think it's a wording problem. I think there's something right about the general direction. It is the actual application that's the problem.

    Dr. ROSEKIND. Can I make a comment about that?

    Mr. FRANKS. Sure.

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    Dr. ROSEKIND. There are three things dealing with this issue that have to be identified and addressed. And these always get in the way when you talk about fatigue. One is the history—we always did it that way, we're not going to change; the economics—the incentives are there to have to deal with this; and quality of life. That's why they jam all the hours is to be with families and do other things. And if realistically and practically you don't address those issues, like the miles as the incentive, then you're never going to be able to approach any kind of successful resolution of this issue.

    Mr. FRANKS. Dr. Moore-Ede, as I understand your summary from your written testimony, the experiments so far involving the circadian bid packs, there was a 60 percent reduction in absenteeism, no adverse traffic impact, and on average no loss of pay. You did acknowledge that a few senior employees who had been working as many days as possible to maximize earnings might lose some pay.

    My question is, couldn't that adverse pay effect be avoided if a new anti-fatigue system were adopted only after sufficient lead time was given to allow the negotiation of a new labor contract containing a new compensation system?

    Dr. MOORE-EDE. Well, I think it happens anyway, by the way, without requiring elaborate labor contracts to achieve it. What's very interesting in those circumstances, the high earners in fact complained bitterly initially, they were a minority, but came on board. The group saw the value of this and they finally saw the value of a quality of home life. And so when they came on board, it did move in that general direction.

    So I think we can, quite frankly, to use a more psychological term, shape human behavior here by providing the opportunities to do it and people will adjust to it. In fact, one of the biggest problems is fear of the unknown and this is why it's very, very hard to get these initiatives started. But once you get it working, people come and visit from other railroads, from other subdivisions of the railroad, they see it happening, word of mouth spreads, and the ball starts rolling. So I think the strongest role the Administration and Congress could play is in enhancing those desirable behaviors towards innovative change and making sure it's not putting pitfalls or trip wires in the way of the specific innovations that are going forward.
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    There is no industry that is putting this much effort, its own capital, it's own money in solving this problem than the railroad industry now. It really is becoming a leader in the whole area of fatigue. And much, much more is being accomplished. I don't mean just in basic research studies, but I mean real operational studies that are really putting full-scale normal revenue earning operations under this sort of innovative scientific approach. We want to encourage that. And I think it would be really a loss to the safety of this country if we didn't really encourage a leading industry like this to keep going in the ways it's going. And, as I say, I think we need to encourage all railroads to do this. But there are an increasing number doing this as they see the benefits are really there for everybody.

    Mr. FRANKS. My time has expired. Mr. Wise?

    Mr. WISE. Thank you, Mr. Chairman. I apologize for being out for a few minutes but I needed to take a conference call.

    Dr. Rosekind, I would be interested in your reaction specifically to the Administration's proposal for Fatigue Management Plans.

    Dr. ROSEKIND. I think it's bold, innovative, it is really state-of-the-art, and I believe at this point more specificity is required so people know what to expect and what accepted criteria would be. Again, I don't think that unless you come up with something like these plans that cover a range of areas that you're going to handle the fatigue issue. It's just too complex.

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    Mr. WISE. What strikes me about the Administration plan is that it provides some flexibility at least and also seems to provide some time for the railroads to put these together. Is that a fair statement?

    Dr. ROSEKIND. Absolutely. Again, I think a point that is critical is all the transportation industries have worked in their current operational practices over many, many years, and the idea that you could even legislate, if you will, cultural changes in these industries by doing this even in a year or two is going to be very difficult. It's going to take some time.

    Mr. WISE. Dr. Moore-Ede, do you have a response?

    Dr. MOORE-EDE. Yes, I heartily endorse the general approach, and I think Secretary Molitoris and the Administration in coming forward and making an initiative here is taking a very strong and positive and bold step. I heartily endorse that. I don't want to lose in my critiquing of individual wording problems the general direction. The general direction is good.

    But the Fatigue Management Plan, in other words, asking each railroad to really find out for itself and learn about what are the scientific approaches that are now available and having them systematically work on innovation and finding what's suited to their own individual patterns is very important. There's huge differences in industry. There are 90-mile ''turn and burn'' operations which are just shuttling in and out in Chicago yards, for example, as opposed to 350-mile extended runs which are just going straight out on double track at speed. Those are radically different type of operations. How you staff them and so forth are radically different.
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    So the key is the Fatigue Management Plan develops a strategy of how to go forward. And I heartily endorse that section 106. I think we're very much in agreement that that's a very positive part of the plan.

    Mr. WISE. Thank you. This question is for both of you as well. Some have suggested technological approaches to determining what a person's level of alertness is in the same way that we use breathalyzer tests for alcohol. Is there any practicality to this? Whoever wants to jump in first.

    Dr. ROSEKIND. I take a very strong stand about this, which is I think it's a great future vision. Right now, there is not a fatiguealyzer, though a colleague of mine, Dr. Dave Dingis, at the University of Pennsylvania, under funding from the Federal Highways, put a list together and there are some 40 devices either in development or on the market that say they can do this for all of us. He has the first laboratory study, also funded by Federal Highway, looking at six devices. Only one actually had any relationship to laboratory-based measures of performance.

    So I think really I see the technology as a future tool that would help operators know what level that is. I think what's important is the technology is not there yet. And, unfortunately, there's a rush in some areas to say that's going to be the answer when the technology isn't quite there yet. I think that's an area where there needs to be more research.

    For me, I think a critical issue is going to be the policy and implementation issues. If you had a device on a train, who gets the information? Does it go to the FRA? Does it go to the operator? Does it go to the company? Do you take action on it? I think rail has a perfect example, the ''dead man switch,'' and it didn't take very long for people to figure out how to overcome that. And you put technology there that's not helpful for the operator, people will figure out a way to circumvent it.
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    Dr. MOORE-EDE. Basically, anyone in the scientific community will agree there's tremendous potential for alertness monitoring but it doesn't exist right now. And it's got to be carefully proven that we really are dealing with something that's going to improve safety and actually be accurate in its detection. It's got to deal with the false-positives, false-negatives problems. Too many false-positives and you end up with people disabling the equipment because it's too much of a nuisance. Too many false negatives, it becomes useless. And I don't think those issues have been addressed. There are a lot of promising technologies, a lot of innovation going on in that area, I think we're going to see it, but this is not something in the short-term.

    The other danger of technology is thinking that there's a techno-fix to this thing; all we have to do is put a gizmo on every cab and then we can let people work all sorts of crazy hours and abuse their bodies and get no sleep. The reality is the technology can only be a last backstop. In other words, the general progress that has been discussed in this bill, in this hearing is that everything should be moving ahead, going in place. So this is to get the last few percent of the risk out of it. But we can get a large amount of the risk out by systematically addressing the other issues first. I believe the technology will come in time and that will give us another breakthrough jump in terms of overall safety.

    Mr. FRANKS. Mr. Boehlert?

    Mr. BOEHLERT. I would suggest that rather than the gizmo in every cab, the solution to the problem would be a cot.

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    Do you have any feeling for the percentage of people that have sleep disorders, number one, and then, number two, the percentage of people who have sleep disorders who are aware of the fact that they have sleep disorders?

    Dr. MOORE-EDE. I can address that from some studies we've actually done. First of all, in the general population, adult males will have a prevalence of somewhere on the order of 2 to 4 percent will have significant sleep apnea, which is one of the most common sleep disorders where multiple cessation of breathing during sleep leads to chronic fatigue. It is also a treatable disorder. There are other less common disorders like narcolepsy and so forth. But we have done a number of studies in the railroad industry, and it's true also for the trucking industries, it seems to be true for industries with irregular patterns, long hours of work, we don't know all the factors that cause it, where we see a higher instance. Our data currently is showing about 10 percent incidence rate of this disorder.

    You are quite right to point out that the recognition of this problem is low, probably only 20 percent, if that, of the people with these disorders actually recognize it, come forward, and get treated. It may not be much higher than that, it may be even less. But, in fact, what we find is that putting a program into place, and we've done this now at a number of railroads, we're now working through screening 8,500 people in Conrail in a systematic program, we've done the pilot studies at BNSF and Conrail, we're showing that these people, provided you provide them with a protection of confidentiality, this is absolutely key, will come forward, will get addressed. And this disorder is highly treatable. These people are actually corrected.

    What we're able to do is address people who have a 2 to 3 times greater risk of having a fatigue-related accident and bring that risk back down to a normal risk.
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    Mr. BOEHLERT. Confidentiality is important. But the reason I mentioned that is I think there's an overwhelming majority of people don't have the first clue that they have a sleeping disorder.

    Dr. MOORE-EDE. Right.

    Mr. BOEHLERT. I have one. I'm sleep apnea. Didn't have the first idea. I just thought I've got a job where I put in long hours, 14, 16 hours a day, I don't get enough sleep, and so naturally I'm tired. Baloney. It wasn't that at all. The fact of the matter is I stopped breathing about 200 times every night. And it is easily correctable, as you point out.

    Has the industry looked at the experience from the military, because I have to believe there's a good deal of information that we have in the military on sleep disorders and the effect of it on decisionmakers.

    Dr. ROSEKIND. Actually, it ends up in a bigger scheme. The data clearly show any given year about a third of the adult population will have a sleep disturbance, from the more severe, being sleep apnea. It ends up the most important thing is to know that most of those people are totally unaware of it. That's critical. Why that's important is it means that people are driving locomotive engines and doing all the rest of their work with this preexisting issue that can affect their performance, and then when you add the shifts and the sleep loss on top of it, it just makes the situation worse.

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    In fact, it's kind of interesting that there's a whole other area in sleep disorders medicine that's trying to educate our entire society about this. Just the end of April was National Sleep Awareness Week. The National Sleep Foundation had a little poll on their Internet site, millions of people flunked it and very few actually even got any of them right. Because we all sleep, we think we're experts. We all think we're healthy and that we just run too busy lives when the reality is there's this very thin layer that separates how severe both the sleep loss and the disorders are, and, again, that's affecting operational safety.

    There's no other mode of transportation that has even raised this as an issue to be addressed even in a plan.

    Dr. MOORE-EDE. I'd like to just endorse that. One of the key things is this is an example of the innovation of this industry. This industry is leading this wide-scale screening. Conrail is taking all its safety critical employees across the entire system and running it out. This is a program that, in fact, is developed in collaboration with these other railroads, their own funding is behind it.

    One key part you're raising though, education is a key to all of this. One element of this thing has to be education, I think everyone can agree. And it's not training, the difference between education and training, education is just bringing people's awareness up to a level of sleep disorders, of fatigue in general.

    Mr. BOEHLERT. But it's even more than that. I would submit that there probably is a certain category of employees where testing should be mandatory to determine whether or not that employee has a sleep disorder.
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    Dr. ROSEKIND. Safety critical.

    Mr. BOEHLERT. I'm being very prescriptive here, because, once again, I was watching an evening television report, my home town TV station, and a good friend of mine who is a doctor was talking about Sleep Awareness Week and then he went through this whole exercise on how he determined that he had sleep apnea. I sort of sat there and said, gee, that's a shame. And the more I watched, the more I said, hey, that's me. And I ended up having a test and the rest is history, as they say. But the point is, there are a very high percentage of people that don't have the first clue that they have a sleep disorder. People with a sleep disorder are people that are at risk and they place a number of others of us at risk.

    Therefore, it would seem to me the logical conclusion to that would be that we have a requirement of testing for a condition like sleep apnea with people in certain sensitive positions.

    Dr. MOORE-EDE. Let me address that, because I actually hold a contrary view to that point, and I'll explain why. I absolutely agree with you about the risk. The problem is it's a hidden condition. There are airline pilots going around getting themselves self-treated for sleep apnea and with no knowledge. The fear is—

    Mr. BOEHLERT. Coffee has no impact.

    Dr. MOORE-EDE. I know. I'm just saying we can't get these program launched in Canada because some of the provinces have reporting requirements that go back that actually inhibit people coming forward. People will hide with this disorder, they'll try to avoid this disorder. So, on the other hand, when you make it safe to come forward, we find a very high compliance rate coming forward.
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    So we have to be very, very careful. I agree absolutely. The question you've got to ask is, how many of the people are coming forward? And we're getting a very large number of people coming forward voluntarily, provided they don't have to report the fact they have it. And then we have compliance programs where we maintain confidentiality in place. So neither employer or fellow employee needs to know but we help maintain the integrity of the program.

    Mr. BOEHLERT. I would say in response to that that people are just inherently good people, people are good and honest and forthcoming. There are a lot of people who would come forward if they thought there was something to come forward about but they don't have the first clue that they have a condition. But that condition puts the system at risk.

    Dr. MOORE-EDE. I think the issue is that the education—we're both absolutely agreed on full-scale education and awareness-building, and also education that involves the family, because the spouse is often the one that complains most about the heavy snoring and some of the other features. But Conrail, for example, put a video together for all safety critical employees across its entire system and they mailed it to the homes without a Conrail label on it so that the spouse would open it up, too. Very successful way of getting the word out. Because, as you know, these sleep apneics have extremely loud snoring patterns. They're the sort of people that one of the Wild West cowboys once shot in the early days of the history of this country we now gather through the wall of a hotel because someone was snoring in the next room and he pulled out his revolver and shot him. That's not a treatment I encourage.

    Mr. BOEHLERT. That's what you get under managed care nowadays.
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    Dr. MOORE-EDE. But it's a hugely significant problem. I think what we have to do is see how far we can go in these programs where we're keeping track of all these people, tracing them, seeing how they get treated, and see what the compliance is in the voluntary program, then let's evaluate whether we need to think about a prescriptive approach.

    So, again, I would argue, in the spirit of my general comment, I'd like to evolve two prescriptive things in this bill. I would like to make the encouragement to move down the path, and the encouragement to document progress made by every railroad on these issues as being the key. That will keep the innovation going and innovation is really the key to solving this thing. I would argue that we would want a free enterprise type way of solving this problem rather than a prescriptive regulatory way of solving the problem.

    Mr. BOEHLERT. Thank you very much, Mr. Chairman. This is something, obviously, that we could pursue ad nauseam. But I really appreciate your indulgence. Thank you.

    Dr. ROSEKIND. Can I make two quick comments. One is sleep disorders medicine can handle this issue. It's a policy issue right now. What do you do with those people when they come forward? Because if there isn't a safety net, people think it's a witch hunt. So that's the discussion that's not going on now. That is a federal issue, how do you handle that.

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    Mr. BOEHLERT. It's the easiest thing in the world to deal with.

    Dr. ROSEKIND. But, again, that discussion is not going on. Unfortunately, what's happening is truck drivers are going out of State to get diagnosed under a different name so they can get treated.

    Very quickly, your comment about the military, NASA and others have done a lot of research in this area. Most of it has been much more on the cycle issue and much less on the sleep disorder side.

    Mr. FRANKS. This is an appropriate time to ask unanimous consent that the hearing record be held open for 30 days to allow members to submit written questions to the witnesses and to receive written answers for inclusion in the record. Without objection, so ordered.

    I ask unanimous consent that the opening statement of Mr. Shuster, the Chairman of the Committee, be included in the hearing record at the appropriate point. Without objection, so ordered.

    [The prepared statement Mr. Shuster follows:]

    [Insert here.]

    Mr. FRANKS. Mr. Lipinski?
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    Mr. LIPINSKI. Thank you, Mr. Chairman. My first question is, circadian, what does that mean?

    Dr. MOORE-EDE. Circadian is from the Latin meaning circa diem, around the clock, essentially. It means around the day. It describes the patterns of physiology cycling which occur, like the sleep-wake cycle, body temperature, hormonal fluctuations, which vary consistently in a pattern that's approximately a day in length. Now why it's approximately a day is because, in fact, we humans actually have a near 25-hour clock in our brains, the biological clock, that will run on its own with a 25-hour period. So it isn't exactly 24 hours.

    It is reset every day, particularly by exposure to light and the environment, particularly at dawn, and resynchronized. It accounts for the fact why it's easier for most people to move westward. Our clocks would tend to drift westward if there were no other impeding matters. If we were in a room like this with no external light and we just camped out here, our clocks would all drift toward Chicago time tomorrow and Denver the day after, at an hour a day.

    Mr. LIPINSKI. Chicago is as far as I want to go.


    Dr. MOORE-EDE. Right.

    Mr. LIPINSKI. Now I understand why I feel much better when I'm flying home to Chicago than when I'm flying out here to Washington.
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    Dr. MOORE-EDE. That's right.

    Mr. LIPINSKI. Thank you very much. Dr. Moore-Ede 90-mile Chicago ''turn and burn.'' Anytime you mention Chicago my interest picks up. What were you referring to there?

    Dr. MOORE-EDE. Referring to a subdivision at Conrail where we did some of the initial pilot work developing this, Elkhart to Chicago. It feeds the Conrail traffic into the Chicago yards, typically what's called foreign yards, in other words, yards of other railroads, and where there are some considerable delays in transporting traffic. And so what people are doing on a very short run, it doesn't take long to take the trains down that run, so they cycle back in again and do it again and again. So the tendency in those very short runs, since they're paid on the basis of miles or a major part of their pay is miles, there's a tendency to have an incentive to keep on going back again and work as many shifts as you can in a week in order to make your miles.

    That was the specific situation. That's just one example of many different types of examples of operations in the railroads requiring a very different set of solutions from others.

    Mr. LIPINSKI. You say this can be a very slow process even though they're coming from Elkhart, Indiana, I assume it is, to Chicago. Why is it a slow process? Because of all the streets that they have to cross over and all the intersections?
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    Dr. MOORE-EDE. No. It's really the fact that when you're exchanging goods between one railroad and another, and the yards, and you're moving into lines that are controlled by different railroads and there are competing demands on traffic, that, in fact, can take a very long time to go a very short distance. It's rather like when I arrived in Dulles this morning I had to sit and wait before I could get to my gate, the airplane. It's the same sort of problem in terms of moving these long trains. These are mile long trains, some of them, sometimes longer, in and out of existing space.

    So where it becomes a hand-over in a yard there can be quite significant delays. Days can long. You can be out there for 10, 12 hours sometimes to run that 92 miles in certain circumstances.

    Mr. LIPINSKI. Thank you. I assume by what the two of you gentlemen have had to say that you're very happy that the Burlington Northern Santa Fe and other railroads are doing all this work in regards to fatigue, and you're very happy that the Federal Railroad Administration is encouraging everyone and motivating everyone, but you don't want to see in legislation anything that would be mandatory because you feel that somehow it would stifle the initiative or stifle the creativity of these programs. Is that a correct summation of your positions?

    Dr. MOORE-EDE. What I'm certainly saying is that being too focused or too narrow or too prescriptive in the wording of what's required here, unless you understand enormous detail about not only the science but railroad operations, there can actually be quite unintended consequences. In other words, there are some things that are counterintuitive.
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    The actual Hours of Service Act, as it now exists, was based on intuition. In other words, when people started regulating hours of service, they thought that the main thing they had to regulate was the number of hours on duty and that would solve the fatigue problem. In reality, you can be more fatigued after 3 hours on duty if you started at midnight with no prior sleep than being on duty for 12 or even 14 hours of duty if you started at 8:00 in the morning. In fact, within a timeframe, there's very little relationship between the number of hours on duty. It's much more a function of the time of day, the irregularity of the pattern, other factors.

    So that intuitive approach was the first stab at this problem. But the reality is we don't want to replace one intuitive approach with another one. My concern is if we get too specific in certain areas, and I pointed out one or two of them, and I had rather short notice of this hearing so I was not able to prepare a complete detailed critique of all aspects, but essentially by getting too specific on certain wordings, what we're going to do is tie the hands of people and allow people to put in very routine, unthinking responses—I've fulfilled the letter of the law and now I can forget about fatigue and go on to running a railroad. That is not something we want to encourage. It's not what's happening now in many of the pioneering railroads. We want to encourage their innovation and not shut it off by being too prescriptive in some of the details.

    But I think everyone has to come together with a fatigue management plan. That, in my view, is the right way, showing that they've thought out this issue and they have a way and a plan to move forward in terms of applying this science and getting the results.

    Dr. ROSEKIND. And a critical aspect of that, because this issue is so complex, there's so many different people, so many different demands operationally, and the physiology is so complex, you can't handle it with a single approach. And so the plan approach that includes scientifically demonstrated areas that can help manage fatigue is really the way to go.
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    Mr. LIPINSKI. Thank you very much, gentlemen. My intuition tells me my time is up. Thank you, Mr. Chairman.

    Mr. FRANKS. Thank you, Mr. Lipinski.

    Mr. Blumenauer?

    Mr. BLUMENAUER. No questions, Mr. Chairman.

    Mr. FRANKS. Gentlemen, my great appreciation for your testimony. It's been revealing and very thoughtful and has formed the very effective foundation for what we're going to hear for the rest of the day. Thank you very, very much.

    Our next panel will feature Federal Railroad Administrator, the Honorable Jolene Molitoris. Administrator, welcome back.


    Ms. MOLITORIS. Thank you, Mr. Chairman. It's a pleasure to be here. I, too, enjoyed listening to our experts. I would like to introduce Mr. George Gavalla, who is our Acting Associate Administrator for Safety, and Mr. Dan Smith, who is our Assistant Chief Counsel for Safety.
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    A few comments, Mr. Chairman, before we go to your questions. First of all, we are, as others have mentioned, very appreciative of the fact that you've chosen this series of hearings to give us an opportunity to talk about the complex issues that affect safety. Not only is fatigue a complex issue, but safety itself is a complex issue. And it is a good opportunity to talk about the Administration's bill because two of its main components, fatigue and discrimination against employees (the safety culture issues), are very strong elements of the bill and of human factors issues.

    I think the two of us yesterday talked about the New York Times article, ''Weary Hands at the Throttle.'' I think it was a very timely piece, talking about a real conductor on the Union Pacific during the week of Christmas, clearly facing very fatiguing schedules, a lot time in a van as well as on the train. I think it was somewhat of a very homespun portrayal of the scientific information you just heard. Because at the end of the day, we're really talking about human beings, what their life is like, and not only about whether they will fall asleep, but whether, when they are apparently awake, they are alert enough to perform the demanding professional skills that they are called upon to perform.

    As you know, Mr. Chairman, over the past 5 years FRA has worked hard to develop a new kind of working partnership with railroad labor, railroad management, and our own employees, as well as suppliers and experts like you've heard from today. We are very proud of an industry which really is stepping forward. I think these gentlemen were accurate in saying we have a great story to tell about those in the railroad industry who are being creative, who are investing their dollars in this crucial safety implementation of science.

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    However, what we are doing in our bill on the fatigue issue is recommending an opportunity to build on this success and identifying a time certain when all railroads, in a comprehensive fashion, will have a fatigue management plans. Clearly, the experts who spoke with you today did not mention every railroad because not every railroad is deeply involved. What we are recommending with our plan is that there be a comprehensive nature to the quality of the planning and work that goes on in every railroad. Because, just as Mr. Boehlert mentioned, while many are operating safely, there are some who haven't planned for comprehensive fatigue mitigation; then there can be safety hazards that affect communities, can affect employees, can affect other railroads.

    So our point is that we salute and are proud of the kind of working partnership that has developed over the last 5 years in a new way among those in the railroad industry. We believe that the two issues in our bill are areas where we need to move forward to encourage the full flowering of a sound safety culture on all railroads.

    I was interested in the issue of prescriptive nature that was mentioned by the two experts. I certainly wouldn't tell you that every word in our bill is perfect. We are certainly willing to discuss and welcome the kind of expert advice and cooperation that we can get from these two gentlemen. In fact, we have worked with them. Both of these gentlemen have been involved in our fatigue workshops, in our fatigue roundtable, and in many of our SACP and railroad activities.

    But I think that despite the two elements that you will see that they mentioned, there are many others that are not prescriptive, and I can go over those in response to questions if you want. Our goal and our intent were to give railroads a flexible opportunity to design something that worked for them and to simply encourage that in the spirit of the labor-management safety partnerships that have developed, and to establish a time certain when such a plan would be put forward.
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    As you know, in all the testimony, the Hours of Service Act, which has been in place since 1907 and has not been touched since 1969, does permit, technically, the use of those proscriptions to really produce a very fatiguing schedule. What we are saying to you, however—and I, too, have read Mr. Hall's testimony and I believe that NTSB and FRA are really consistent in the message that fatigue is a very, very important issue—what we're trying to do is to address it comprehensively.

    What we have seen in the past year, Mr. Chairman, with regard to the merger, I can give this as an analogy: we asked the STB to consider safety integration plans for each of the railroads who are proposing to acquire Conrail. The reason we did that, for the first time in history, is that we found out, from our challenges and the UP's challenges, all of the safety issues that were not addressed. What we have found is a wonderful working partnership developed excellent safety implementation plans.

    With regard to the whole issue of waivers, it would be my sense that any fatigue mitigation plan would go forward just like the safety integration plans. FRA and the railroads would be working together. We would, when it arrived, know what was already going to be there because we had worked together on that.

    The idea that the waiver process would be overly burdensome, I believe, is not warranted. It has not been a problem in the safety integration plans. And, in addition, the one item concerning the Southern Pacific, that actually was not one that required a waiver, and we met with them three weeks after they first proposed this. So the communication would be key. But my goal would be to have a team in place that is focused on doing this, just as the safety integration plans are.
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    We salute the NARAP program. My staff deserves a lot of credit. They were working with so many railroads; they really did bring people together. This is a forum for working out new creative solutions, sharing best practices. It's a very important forum that I think would always be important because, just as these people mentioned, new science will be coming down the road. We want a flexible opportunity for railroads to continue to upgrade their fatigue management plans.

    With regard to the other parts of the bill, Mr. Chairman, Mr. Boehlert had asked about the armed services and their work. Another gentleman who is not here today is Colonel Greg Balanky, he's from the Army, Walter Reed, a medical doctor; his purview for the whole Army is alertness and harassment/intimidation. He spoke with the Safety Council at the Department last Friday along with Dr. Rosekind. One of the things that he offered was his expert help in sharing the best practices that the armed forces over years have developed with regard to harassment/intimidation.

    I want to say to all members of this body that our bill in no way intends to presume that all railroads and all managers use inappropriate methods to manage. But for anyone to say that this is a nonexistent problem, I think, has to be somebody who is not out there talking to the people. I've been here 5 years; it's been a strong theme in mail and at the ballast line, where I try to go as often as I can to talk to the people who are working. We are excited about some of the innovation at Burlington Northern Santa Fe, for example, really moving toward a culture that will be eliminating fear and harassment. Union Pacific is working on it. CSX is working on it. We think these are all good initiatives.

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    What we are suggesting is a small addition to opportunities for employees to resolve safety dispute under the Railway Labor Act. For example, just like someone working on airplanes, if there's a mechanic in aviation who says this plane is not ready to go, it doesn't go, and that person does not have fear of reprisal. I think the same thing should apply to the railroad employees. In fact, through the Volpe Center in 1996, there was work done with railroad managers and the outcome of that was they, indeed, were forthcoming in saying there often is a tension between getting out the trains and living by the regulations. This is perhaps unintended, but I believe that it's certainly a real thing. We think these small developments would encourage railroads, especially the progressive ones, and give them a stronger stand for any recalcitrant employees who continue to behave in ways that are inappropriate for a successful railroad.

    Lastly, just to mention, there is a wide scope of initiatives that FRA has been pursing through research and development on human factors. They are all contained in my written testimony, which I would very much appreciate be submitted for the record, attacking things like drug and alcohol abuse, locomotive engineer certification, compliance with operating rules, safety advisories on critical safety concerns, and all sorts of research and development in human factors. We would be happy to discuss those. They are identified in our written testimony.

    We appreciate our time and the time to take questions from you. Thank you.

    Mr. FRANKS. Thank you, Madam Administrator. Let me first say that a reading of your bill indicates to me that there are areas of significant agreement in terms of how we should approach a variety of the challenges that we've already touched upon in this hearing. I don't know if we can agree with every element of it, but I believe there is sufficient common ground for us to move forward. I congratulate you and thank you for the good work and that of all your staff in helping to bring that bill forward.
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    Ms. MOLITORIS. Thank you, Mr. Chairman.

    Mr. FRANKS. Let me, if I can, have you share with me your view of the relationship between the Hours of Service Act and a number of the issues that we have discussed here today. You assert in your statement on page 10 that the ''basic protection of these must be supplemented by a broader, more comprehensive approach to fatigue mitigation.'' Let me contrast that with a statement that's being put forward by Mr. Hall of the NTSB, which is, specifically, that every fatigue-caused accident they have investigated was in compliance with the Hours of Service Act, and that the Act is not a protection against fatigue but a contributing cause of it.

    Has FRA conducted any kind of review to determine whether or not the Hours of Service Act itself may be contributing to or may be undermining rail safety in this regard?

    Ms. MOLITORIS. Mr. Chairman, our research and development and our work underscores the comprehensive nature of the elements that contribute to fatigue. It also identifies the differences—the operational differences, geographic differences—many elements that have been brought to your attention by the experts. I think what we're saying in our testimony is that the Hours of Service Act alone cannot guarantee, and has not guaranteed, a fatigue mitigation environment that contributes to safety.

    I have spoken with Chairman Hall, and he'll be discussing this with you. I think that the elements of the Hours of Service Act simply must be viewed in a larger context. Nineteen sixty-nine was the last time that it was addressed. And most of what you heard in terms of the expert testimony today, the work of the railroads, the things they've learned were not available at that time. So our goal with the fatigue mitigation plan is to carry science into the marketplace, to bring it to those people who are exhausted, to help get it to the people on the front line as soon as possible. We think this is a way to do it.
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    Mr. FRANKS. Madam Administrator, I appreciate that answer, but let me ask it again. Has the FRA conducted any kind of review to determine whether or not the Hours of Service Act itself may be contributing to or undermining rail safety in the human factors area?

    Ms. MOLITORIS. No, we have not specifically addressed that very specific research goal.
    [The information follows:]

    [Insert here.]

    Mr. FRANKS. Okay. You pointed out on page 11 of your statement that people over 40 years of age are more vulnerable to not adjusting to irregular work schedules. I think all of us over 40 begin to recognize the reality of that statement. Yet, as I understand it, the combination of the Hours of Service Act and the railroad's pay, seniority systems actually favors older, more senior personnel getting more work and longer hours with resulting higher pay. Has FRA looked into the interaction of those factors and how it might be adversely impacting rail safety?

    Ms. MOLITORIS. In fact, Mr. Chairman, that very issue was one of the elements that we studied with regard to the BNSF Cajon tragedy on February 1, 1996. We found that Barstow had a paucity of very senior people because it really wasn't the most attractive trip to be on. But we worked with the railroad management, the leaders and the general chairman, and the members of the unions, and that was addressed to assure that the kind of leadership that was necessary and the kind of mix with senior and more junior people would appear at Barstow to assure the kind of quality coming out of there that was necessary.
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    So we do see that. I believe there's a great deal of importance that we ought to lay on the cooperative discussions with our labor unions and management about this kind of thing. Because, at the end of the day, the people who are most at risk are the people at the ballast line, the people in the locomotive. These are life-and-death issues for them.

    Mr. FRANKS. My time has elapsed.

    Mr. Wise?

    Mr. WISE. Thank you. Madam Administrator, the AAR has raised concerns in its testimony to come that under your fatigue management proposal the FRA would have ''virtually unfettered discretion,'' and that you would impose your own preferences without considering costs or benefits or scientific findings. I understand that the way the engineer certification program works now is sort of a model of how you would expect the fatigue management plan process to work. Could you tell us a little bit about how the engineer certification process works and how similar the fatigue management plan process would be to that.

    Ms. MOLITORIS. Mr. Wise, may I invite George Gavalla to discuss the certification process.

    Mr. WISE. Certainly.

    Mr. GAVALLA. Mr. Wise, under our locomotive engineer certification program, we developed the regulations which establish guidelines of the issues that have to be addressed to determine sufficient standards for locomotive engineers and specific areas and specific programs that need to be in place on each railroad. The railroads then have flexibility to determine and to devise their own program which meets those guidelines and addresses those specific areas of requirement.
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    We then review each railroad's plan for sufficiency. If we find a problem with a particular area, we go back to that railroad and address that one particular area. We do not specify which program, or the details of a program, that each railroad must have.

    Mr. WISE. Is your assumption though that you would be approaching the fatigue management plan in the similar vein as you do the certification program?

    Mr. GAVALLA. Yes, that's correct.

    Ms. MOLITORIS. And may I add to this, Mr. Wise, that I think the work on the safety integration plans that has gone on with Norfolk Southern and CSX is really a good example. I certainly can understand if someone takes somewhat of a draconian view, but I don't think the last 5 years of interaction with this agency really supports that that's been our method of behavior. I think our goal is that which President Clinton has laid upon us—achieve results, recognize that these are our customers and that our role is to help gain more safety.

    I believe that our record over the last 5 years has been one of almost double-digit safety improvement. I give great credit to the railroads, to the labor unions, and I think the working partnership has been reasonable, has been results-oriented. It would be exactly the same thing here.

    Mr. WISE. You touched on this somewhat but I'm going to come back to it. Several people, some whom are testifying today or have testified, have read your bill as requiring certain provisions be included in each fatigue management plan. That the railroad not simply consider different elements, but that it must actually include—and I stress ''include''—certain provisions in the plan. For example, that each railroad guarantee employees a minimum number of days off each week or every two weeks, or that each railroad provide a longer advance notice of report for duty times than are currently provided. Is this the way you read these provisions?
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    Ms. MOLITORIS. It says on page 13, number 2, ''With respect to all employees, whether working in scheduled or nonscheduled service, the plan shall address the following issues:—''And it goes through general categories:—''Education and training;'' ''identification—and treatment of sleep disorders;'' ''[e]ffects on employee fatigue of emergency response— short-term—and long-term;''''[s]cheduling practices.'' I think these are very general areas. ''Minimizing the scheduling of a nighttime split shift''—I think New Jersey Transit found out very clearly that that was a very important thing.

    Truthfully, Mr. Wise and members of the committee, often there's a lot of tension between being prescriptive and offering flexibility. We have tried to offer flexibility in this bill, but when something happens, say, for example, the issue with the color blindness and the testing of the engineer in the Secaucus railroad incident, then we should have been more prescriptive. So we are sometimes whipsawed quite effectively between these two things. And I'm certain that there's wording here that could be adjusted to better reflect and give a comfort level perhaps to all of our collaborators in this safety initiative. But I can certainly tell you we're willing to work with the committee on that.

    We think that it is important that we comprehensively address this. And we think it's important that there be a time when every railroad is required to have a comprehensive plan. I don't think that is such an elaborate request. I think it's reasonable. And, for example, the work rest cycles that guarantee a greater minimum number of consecutive days off, that was one that was mentioned by Dr. Moore-Ede; we certainly would be happy to talk about a different kind of wording. But I think the general tenor of working together, having a plan, and addressing general areas, if we said nothing about general areas, somebody could write us and say, ''we have a plan, we think it works well, it addresses A, B, and C,'' and that would be it. These give people, as we did with the safety implementation plan, some guidance. We think that's appropriate.
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    Mr. WISE. Thank you.

    Mr. FRANKS. Mr. Lipinski?

    Mr. LIPINSKI. It's always a pleasure to see the Administrator. When I was fortunate enough to serve as the ranking member of this subcommittee, she and I worked together on a number of programs. In fact, I even enticed her to come out to the 3rd Congressional District in Illinois to hold a town hall meeting with me pertaining to whistle-blowing. Fortunately, I brought her out to the most prosperous section of my entire district, Western Springs, Illinois. But, as I say, we worked very closely together, not only on that issue but on many other issues, and I've always found her to be extremely cooperative, outgoing, helpful. I know that she has done a superb job in the 5 years that she has been working in behalf of railroads in this Nation, not only from the perspective of the Administration, but also from the perspective of the railroad management and the labor unions also.

    And since she and I are very good friends, I don't really have any hard ball questions for her.

    Ms. MOLITORIS. You could send a soft ball, Mr. Lipinski.

    Mr. LIPINSKI. I really just have words of praise. I would like to say that in regards to the bill that has been put forth here—she continually refers to it as the Administration bill, since I'm much closer to her than I am to the Administration, I'd prefer to refer to it as her bill—I find it to be a very good bill. I hope that we can pass it into law with very few changes. Although, based upon some of the testimony I've heard and some of the testimony I have read, there seems to be certain elements that at this particular time are not strongly for making the fatigue situation as chiseled in granite as it is in the bill. But I hope that we will be able to overcome those objections.
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    I really believe that the railroad industry should be congratulated for working as diligently as they have been and for putting as much money into this particular program, and all safety programs, really. Until you get involved in railroading and see it up close first-hand, I think most people don't realize what a dangerous business it really is. And I think, considering how dangerous it is, the railroad industry really has done a very good job in keeping accidents down to a minimum.

    That's really all I have to say. Administrator, if you want to say something, you go right ahead and say it on my time. Otherwise, Mr. Chairman, when she finishes, I'm finished.

    Ms. MOLITORIS. Well, Mr. Lipinski, you are very kind and I thank you for your words. I was glad that after the whistle-blowing session we got out with smiles. That was a good thing.

    I just want to mention, in terms of the railroad industry, Secretary Slater, as I think you know, Mr. Chairman, has made safety his North Star for the Department. And zero tolerance for any safety hazard is really our goal. I am proud of the fact that everyone working together has moved in that direction in the last 5 years significantly, and it's in the railroad lexicon, and I believe it's an achievable goal, and I think many of the railroads believe it is, too. That is a very exciting thing for those of us who hold safety as number one. Thank you, sir.

    Mr. FRANKS. Madam Administrator, one last question. In your statement on page 14, you mentioned Burlington Northern Santa Fe's very advanced fatigue countermeasure program. One element of that program is permissive napping by one crew member under certain clearly defined conditions. I gather that that requires the relaxation of an internal railroad rule not an FRA requirement, since the Hours of Service Act doesn't address napping one way or the other. Yet, I remember that the FAA recently amended its administrative rules on flight crew napping during long transoceanic flights because it had the authority to do that on its own.
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    My question is conceptual but I think important to today's discussion. Why shouldn't the FRA have an equally flexible and adaptable system for railroads?

    Ms. MOLITORIS. Mr. Chairman, I believe that the fatigue mitigation plan is really a proposal for just that. What we are offering is an opportunity for a comprehensive planning effort on the railroads—suitable, flexible to their situation. And I believe the napping element would be a very important one. First of all, it's a low-cost tool. It's proven in science. It is being used across transportation modes. We know it can help. So I would expect that that element would certainly be included.

    What we just continue to stress is that these issues are complex, and hours of service alone, napping alone, there's not a silver bullet. This is a complex problem, but it is a problem that we can address. We have enough science today to take good steps toward increasing safety with regard to fatigue-related incidents. And as science goes, these plans can be flexible enough to be amended. I would commit to you that our team on this will stand ready to work with this committee and the members that we've worked with over the past 5 years to really make this work and be a win-win for everybody.

    Mr. FRANKS. Madam Administrator, thank you again for your very cogent and thoughtful testimony. We appreciate it.

    Ms. MOLITORIS. Thank you, Mr. Chairman.

    Mr. FRANKS. Panel III. Would the following witnesses for Panel III please come forward. Ms. Gerri L. Hall, president, Operation Lifesaver; Mr. Robert Matthews, president, Railway Progress Institute; and Mr. Richard Volkmann, president, Volkmann Railroad Builders, Incorporated, on behalf of the National Railroad Contractors Association. Panelists, welcome and thank you very much for graciously agreeing to come forward today on this important hearing.
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    Ms. Hall, from Operation Lifesaver, would you please begin.

    Ms. HALL. I'd be pleased to.


    Ms. HALL. Thank you very much for inviting me to testify today. Operation Lifesaver has been working on the human factors issue as long as anyone here. We've been in existence for the last 26 years and are dedicated to eliminating deaths and injuries at America's grade crossings, highway-rail grade crossings, and along the railroad rights-of-way.

    As noted earlier, fatalities at highway-rail grade crossings and involving trespass incidents account for 93 percent of the deaths in the railroad industry annually, and that's what we're all about. I want to briefly talk about the genesis of Operation Lifesaver and how we've been able to achieve the successes that we have in highway-rail grade crossing safety, and then talk a little bit about a new disturbing trend in trespass related incidents.

    Operation Lifesaver is an all American story. There was an effort with then governor Cecil Andrus in Idaho and their State Highway Patrol and the railroads to try to tackle a very tough problem they were having at highway-rail grade crossings in 1972. Idaho decided to try a six-week campaign to educate driver's education students, professional truck and bus drivers, young children in schools, civic groups. It was a public awareness program and an education program. And the first year in Idaho they enjoyed a 43 percent reduction in fatalities.
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    A few other States decided to try it. Nebraska, Georgia, and Kansas were in the top four, the first four States that tried the program and they saw their railroad crossing collisions reduced between 26 percent and 75 percent in the first year. So something was going on there. Kay Bailey Hutchinson, now Senator Kay Bailey Hutchinson, was then the vice chairman of NTSB and recommended that other Atates take that show on the road. We now have 49 State programs which work with nearly 2,500 volunteer presenters, the folks that give the safety message about ''Stop, Look, and Listen'' at the highway-rail grade crossings, which is now ''Look, Listen, and Live'', because we found out that in not all States is a stop required.Operation Lifesaver is assisted by more than 100 national transportation and safety organizations.

    The U.S. Department of Transportation credits Operation Lifesaver with helping to prevent 10,000 deaths and 40,000 injuries nationwide since 1972. And it's interesting to put this into context. In 1972, there were 12,000 collisions between motor vehicles and trains at highway-rail grade crossings. Last year, 1997, according to preliminary statistics, that number had been reduced to 3,700. So that's a 68 percent drop in the number of collisions at highway-rail crossings. In the past decade alone, in spite of a 20 percent increase in highway traffic, and a 20 percent increase in traffic on the railroads, and 20 million additional licensed drivers, there has been a 42 percent reduction in collisions at highway-rail intersections.

    So we feel that we are a good news story with regard to highway-rail grade crossings and we're very pleased about that. I will talk a little bit about why we think that is possible.

    Unfortunately, this encouraging safety trend is not true in the area of trespass incidents on America's railroads. What we consider to be trespassing involves situations where someone is killed or injured while walking, hiking, or playing on railroad tracks, equipment, trestles, bridges, rights-of-way. A lot of people don't think that's illegal or dangerous. It is both. In fact, a study was done in California a couple of years ago which found that 60 percent of the people surveyed thought that the property along the railroad tracks was public property, just another parkland. Anecdotally, we know that an awful lot of Californians go out with their Walkman and their jogging shoes and they're running through railroad tunnels and across railroad trestles and we're losing a lot of those people every year because they really don't recognize the dangers.
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    There was a 12 percent increase in railroad trespass fatalities between 1996 and 1997. And our frustration, and what I want to talk to you about, very briefly, is that we need help in figuring out how to attack that trend. We believe that we have the tools. We're basing our tools on the very successful presentations and community approach that we've used with Operation Lifesaver in grade crossing fatality mitigation, but we find that we are missing some of the tools that we need in the trespass area.

    For a long time we have talked about the importance of not being on the tracks, especially with young children. Of course, we're not talking to elementary school kids about not driving dangerously, we're talking to them about not playing on the railroad tracks. We have realized in recent years we need a more aggressive approach. As Congressman Blumenauer may know, we are modelling a new railroad trepass prevention program in Oregon. They have double digit trespass statistics in some of his communities. We now have a community trespass prevention guide, we have a new presentation for trespass prevention, we have model laws that have been created by the Federal Railroad Administration, and a new video for reaching these folks. But we don't know the demographics on trespassers.

    We have lots of statistics for grade crossing collisions. We understand who those people are, what time of day it is, what month of the year it is. Alabama has some of the best statistics. They work with their police, their State Highway Patrol. We know that the likelihood of a collision in Alabama is on a Friday, in February, between the hours of 1:00 and 5:00 in the afternoon, involving a young man between the ages of 25 and 35, an Alabama resident within 25 miles of home, all by himself, clear daylight, no alcohol use. And when the train strikes that vehicle, it's running at about 10 miles an hour or less. That tells us that's a risk-taker, that's a young man who believes that he could beat the train.
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    With regard to trespassing statistics, we are very short on that kind of demographics. Currently, the railroads and FRA are providing a very basic level of information. In my written testimony, I include recommendations for how you can help us improve these demographics. Right now, we know maybe 55-60 percent of the ages of those peoples. We do not know the gender or race of the folks that are being hurt in trespass incidents or killed. We don't know anything about the time of day, et cetera, et cetera. We need better demographics in order to apply our tools, and we're asking for some help to do that.

    We appreciate all the help that Congress has given us over the last years for Operation Lifesaver. We've had good Federal support and we've had great partnerships with the Federal Highway Administration and the Federal Railroad Administration. We would hope this continues. We also are hopeful that Congress will encourage the States to adopt the model trespass prevention laws that have been suggested by FRA.

    We need to somehow figure out how to discourage the romanticization of dangerous railroad trespassing activities. Lionel Trains has on the cover of its Spring catalogue a little boy standing in the middle of active railroad tracks with a signal light in the background. Some 250,000 people received that catalogue, and then it went up on their web site. This is the kind of negative imagery that we're trying to overcome in order to reduce trespass incidents. We are fighting that imagery. Hopefully, we are going to get Lionel Trains to take some positive action. But this happens on a daily basis with major companies and advertisers all over the United States.

    Web sites are another concern. There are 28 web sites currently on the Internet which advertise hoboing and train-hopping. This is a very disturbing trend. Some of those are run by educators and people at the Department of Transportation, those web sites encouraging train-hopping. If there is legislation that comes up which deals with the kind of activities that are promoted on the web, we hope that you'll think about railroad safety and highway-rail grade crossing and trespass incidents, too.
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    Finally, we hope that you will assist us in helping the Federal Railroad Administration and NHTSA collect the kind of demographic information that we need for trespass prevention that we have already for grade crossing incidents. We would recommend an authorization for a one time study to be done cooperatively by the Operation Lifesaver participants, the railroads, the Federal Railroad Administration, and NHTSA to try to get a handle on the demographics of those folks who are getting hurt or killed on the tracks. We need to know how to tackle that problem and who is getting into trouble in railroad trespass situations.

    In closing, I would just say that Operation Lifesaver has been enjoying an improvement of about 10 percent each year with regard to grade crossing collisions. We hope to be one of the first safety organizations in the United States to put itself out of business. We would like to reach zero some day. And at the rate of 10 percent, we would hope we might do that within 10 years. With some help, we think we can also tackle the trespass prevention task that is ahead of us.

    I thank you again for inviting me to testify today, Mr. Chairman.

    Mr. FRANKS. Thank you.

    Mr. Matthews, welcome.

    Mr. MATTHEWS. Thank you, Mr. Chairman. I'm pleased to have this opportunity to present the views of the railway supply industry on rail safety legislation. RPI is the international trade association of the railway and rail rapid transit equipment and supply industry. Our industry is significant to the Nation's economy, with $12 to $14 billion a year in revenues and employing approximately 150,000 people in 44 States.
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    I offer these comments on the Federal Railroad Safety Authorization Act of 1998, submitted to Congress by DOT on April 1. At the very outset, let me say that the railway supply industry has long been a strong advocate of increased rail safety. We claim some of the credit for the excellent safety record of the railroad industry through the cutting-edge technology our industry provides to the railroads.

    The railway supply industry opposes any effort to expand the Hours of Service Act to independent contractors to a railroad carrier or to their subcontractors. For those railway supply companies whose businesses provide routine maintenance and warranty work for signal systems and grade crossing warning devices, as well as the maintenance of the track structure and roadbed, this is an unneeded and unwarranted intrusion into the business relationship they have with the railroad industry and the working relationship they have with their own employees.

    Section 101 of the proposed legislation as written means any employee of a railway signal company could be subject to the Hours of Service Act. RPI member company employees routinely find themselves, at the invitation of the railroad, on railroad property providing technical expertise when signal systems or grade crossing warning devices are installed or during accident investigations. Employees also repair signalling devices in company shops. By literal reading of DOT's expanded definition, these employees would be subject to the Hours of Service Act.

    Similarly, RPI member companies provide crews and equipment to perform routine maintenance-of-way work for railroads. In providing this service, our member company employees may operate maintenance-of-way equipment such as tampers, rail grinding machines, track geometry cars, and ballast cleaning systems. If the movement of this equipment is defined by FRA as a train movement, then these operators would also be covered by the Hours of Service Act. This, despite the fact that RSAC rejected the notion that these employees should be considered train engineers, and thus subject to locomotive engineer certification regulations.
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    Furthermore, if one of these employees has reason to report train movements by radio or some other device, this reporting could be considered part of the dispatching system and that employee would be covered by this expansion of the Act as well.

    For efficiency reasons, RPI member companies must have the flexibility to schedule their work crews as needed. Having to adhere to the Hours of Service Act would severely hamper crew scheduling and job completion, but not necessarily improve safety.

    We are, like everyone else, concerned about the issue of worker fatigue. You've heard this morning about the fatigue management plans currently being developed by rail management and labor. This volunteer approach applying scientific work-rest approaches to fatigue issues is much preferred over the Hours of Service Act approach.

    I'm not aware of any statistics that show fatigue in the railway supply industry as a safety problem, nor has it been demonstrated that inclusion of railway supply industry employees under the Hours of Service Act will improve employee safety. In fact, I can imagine a scenario where an employee is running out of time and hurries to complete a job, with the act of hurrying causing him to make a mistake or have an accident.

    The proposed expansion of the Act could cost the supply industry jobs and, in fact, adversely impact safety. For example, some RPI member companies have entered into agreements with short line railroads to provide routine maintenance of grade crossing devices. This arrangement benefits both carrier and supplier as the carrier is able to maintain an expensive and highly technical product at a reasonable price and the supplier has been able to expand his business and increase his revenues. Hours of Service Act expansion to this aspect of the industry would not enhance, but would adversely impact, safety as small railroads might simply disconnect these devices and cease to maintain them.
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    Railroad safety is a serious issue. FRA is certainly to be congratulated for the leadership they've taken over the years in bringing this to the forefront. But we ask you to reject this unneeded expansion of Hours of Service Act to the railway supply industry.

    Thank you again, Mr. Chairman.

    Mr. FRANKS. Thank you.

    Next, Mr. Volkmann.

    Mr. VOLKMANN. Mr. Chairman, the National Railroad Construction and Maintenance Association and its 200 contractor and supplier members appreciate this opportunity to present our views on safety issues relating to our employees. As explained in our written testimony, we are participating in this hearing because we are disappointed with several provisions of the Administration's proposed Federal Railroad Safety Act of 1998 and would like to briefly explain our opposition to those provisions.

    Over the course of the last 3 years, NRC has been part of the FRA's partnership approach to dealing with rail safety issues. We're a member of the Rail Safety Advisory Committee and have been impressed with Administrator Molitoris' efforts to get rail management, rail labor, and other affected parties to discuss and solve rail safety issues outside the rulemaking and legislative process. Those efforts, in our opinion, have yielded safety regulations that protect employees and the public while recognizing that the railroad industry is a business which must operate efficiently and at a profit.
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    With that background, we were disappointed that the Administration proposed to extend its regulatory authority through amendments to the Hours of Service Act to our contractors without first discussing with us whether this extension would enhance safety. If asked, we would have informed the Administration that the effect of this proposal would increase costs for railroads and contractors and limit the flexibility of our workforce, all without any evidence that doing so would address a safety problem, much less solve it.

    For instance, the Administration is proposing to extend hours of service limitations to any employee of an independent contractor to a railroad carrier who dispatches reports, transmits, receives, or delivers orders relating to or affecting train movements. In the course of our work, we often have to contact a railroad about a particular train movement. Under the Administration's proposal, that simple inquiry would subject the contractor's employee to the increased regulatory requirements of the Hours of Service Act.

    Another example of the problems posed by this regulation is the request to extend the Hours of Service Act to independent railroad signal contractors. Railroad contractors are in a rather unique position when it comes to rail safety regulation, because many of our members work for private industries, either exclusively or in addition to the railroads. Our signal contractors install railroad and track signals, not just for railroads, but for industrial plant facilities as well. When we work on the track of those private industrial customers where the FRA rules may not all be applicable, we are subject to the safety rules and regulations of OSHA, and, as you might expect, OSHA and FRA rules are not identical. And adding to this overlapping regulation increases the amount of regulatory reporting we must already perform, without any predictable safety enhancement.
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    Labor and management representatives in the past have agreed that the Hours of Service Act regulations are not an effective form of safety regulation and are seeking ways to modify these rules to address safety issues in today's operating environment. When the rail industry itself is questioning the validity of the statutory safety scheme, it does not seem wise to us at this time to expand the scope of this regulation to other parties.

    Furthermore, we are unaware of any evidence that there is a correlation between imposing hours of service requirements on contractors and increasing safety. We do not believe that this proposal, in its present form, would enhance safety in our industry to any measurable degree. We recommend the rejection of this regulation as proposed, but we would be happy to participate in a cooperative and constructive review of the rail safety issues as they may apply to our members.

    Thank you for the opportunity to express our views.

    Ms. GRANGER [assumes chair]. Thank you very much. We appreciate that. I'm sorry to come in late.

    I have a couple of questions. First of all, Ms. Hall. The FRA is under a Federal mandate to issue regulations requiring the railroads to sound their horns at all grade crossings, and these regulations were due in November of 1996. My understanding is that, absent these new rules, some railroads are sounding the horns in spite of local ordinances which prevent them, and then others are not. In addition, local communities have no guidance on what type of equipment to install to secure a Federal waiver from the whistle requirement until the FRA issues its rules.
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    Is this delay just adding confusion and isn't it causing a problem with grade crossing safety?

    Ms. HALL. This is a rather ironic issue. Operation Lifesaver, as an educational organization, sort of stays back from getting into the whistle ban debate because we want to have access to all communities to be able to talk to people about safe behavior around the railroad tracks, whether they be motorists or pedestrians.

    I think the research has shown that the availability of whistles and blowing a whistle at the crossing makes a huge difference with regard to safety. In communities where they have reinstituted whistle blowing the improvement in safety at grade crossings has been as much as 84 percent.

    In the absence of a rulemaking which gives you alternative devices, the very safest approach is the blowing of that whistle. And that's the irony. It's a frustrating thing for communities but it is the most safe thing for communities in the absence of that rulemaking. We're hopeful that some of that heat will go away when the rulemaking comes out. And we do understand that that could be as early as this summer. So I hope that's true.

    Ms. GRANGER. Good. I hope so, too. One other thing. On page 3 of your written testimony, you said in some States the penalties for trespassing on railroad property are as low as $5. Do you have any more specific information on this that could be submitted?

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    Ms. HALL. I can give you a rough summary based on what our State coordinators have told us, and also the Federal Railroad Administration did a survey of the States. The fact of the matter is that in some States trespassing on railroad property is simply common trespassing and there is no specific provision for it being railroad property. And local police authorities that see people on the tracks may need permission from the railroad to arrest the people that they see. That's one of our frustrations, that you may have to go to extraordinary methods or beyond the normal circumstance to get these people removed from the tracks when they are in harm's way. Our hope is that we could prevail and have the State laws be more encouraging of law enforcement to help us in this endeavor to lower the numbers of people who are being killed on the railroad tracks as pedestrians.

    [The information received follows:]

    [Insert here.]

    Ms. GRANGER. Thank you very much.

    Mr. Volkmann, you mentioned in your testimony that signal contractors install railroad and track signals not just for railroads, but also for industrial plant facilities. But that when the contractors work for the industrial plant facilities they are covered by OSHA regulations, and when they work for the railroad they are covered by the FRA rules. Is the work that the contractors do at the industrial facilities substantially the same as they do for the railroads? If so, wouldn't the Administration's proposal to cover the contractors under the Hours of Service Act result in an irrational situation where the workers are performing the same type of work but could be covered by different sets of Federal regulations, depending on the type of facility they're working at?
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    Mr. VOLKMANN. Many of the larger industrial plants have quite a bit of trackage, quite a bit of private roadways that cross those tracks, truck traffic internally in the plant, and they have requested signal installations to be put in not for the public, but basically for their own traffic control. Under this definition of signal contractor, it could be an electrical contractor who does some signal work on these railroad signals and there would be an overlapping, and we feel unwarranted, restriction on their hours of work. Did that answer your question?

    Ms. GRANGER. Not exactly, no. Let me ask you one other thing. You have also mentioned in your testimony the Federal Railroad Administration has proposed extending current hours of service rules to independent railroad signal contractors. Do you have evidence that this would result in an increase in safety?

    Mr. VOLKMANN. Do we have evidence?

    Ms. GRANGER. Do you have evidence. You said that proposing to extend current hours of service rules to independent railroad signal contractors, is it supported by empirical evidence that this would result in an increase in safety?

    Mr. VOLKMANN. We don't see that extending the Hours of Service Act to independent contractors would in any way enhance safety and, in fact, could be detrimental to safety. The signal contractors often are a one man signal crew, and if he runs out of time, he's going to hurry up to get those signals operational and may not be able to do a proper job in actually making them safe for a period of time.
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    Ms. GRANGER. Do others have questions?

    Mr. WISE. Let's follow up on that. I'm trying to get a handle, and I have to say that I don't completely understand the role that your employees perform all the time, because it does seem like it's a variety of settings that they work in. But, for instance, your employees, do you know whether they're working more than 12 hours at a time, which is what the Hours of Service Act deals with.

    Mr. VOLKMANN. Right. I'm certain there are times when they do work more than 12 hours.

    Mr. WISE. And that would be in a railroad area?

    Mr. VOLKMANN. It could be in an industrial plant. Generally, one installation isn't going to take them 12 hours just to check service signals. But in a new installation, it could take them that length of time, it could take several days to install a new installation.

    Mr. WISE. When they're in that industrial plant, and I assume what we're talking about is a track running into the plant with signals on it, am I correct?

    Mr. VOLKMANN. Correct.

    Mr. WISE. Okay. When they're in that industrial plant, are they under OSHA?
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    Mr. VOLKMANN. They're under OSHA, yes.

    Mr. WISE. But not under the Hours of Service Act?

    Mr. VOLKMANN. Correct.

    Mr. WISE. Okay. Is it possible that they're in a more railroad environment where they may be working more than 12 hours?

    Mr. VOLKMANN. I'm sure there are cases of that, yes.

    Mr. WISE. At some point, don't you have concern about the number of hours that they're working in an area where you need to be mentally sharp and where fatigue can be a real factor in safety?

    Mr. VOLKMANN. Safety is always a concern of ours. But we have not been able to identify any cases where fatigue or the issue itself of working more than 12 hours was any safety factor at all. I think we heard other testimony today to that effect, that not necessarily working more than 12 hours was a safety hazard.

    Mr. WISE. Over how long a period? I guess I'm kind of astounded, to be honest with you. I'm just thinking of situations in my district where your employees are likely to be working and putting somebody in for 12 hours at a pop is a pretty long period of time in that kind of situation. For instance, are your people likely to be working in situations where you're moving cars back and forth?
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    Mr. VOLKMANN. At a grade crossing installation, they could be, yes. We've found that a bigger concern was when a signalman gets called out at 2:00 in the morning because of a malfunctioning signal and it has disrupted his normal sleep cycle, that he's less alert at that point in time for working maybe 2 hours than he would be on his regular—

    Mr. WISE. Sure, because you interrupted his normal sleep cycle. I understand that. What I would look forward to as this legislation moves forward is I think we need to have a lot more discussions, because, on the fact of it, there just seems to me to be certain situations in the work that your people are doing where they are, in effect, in the same surroundings as regular railroad employees. I just have trouble.

    Mr. VOLKMANN. Well, one of the things that this applies to is some of our members would supply rebuilt components for signal systems and perhaps just drop them off at the signal box along the railroad right-to-way for someone to install later. According to the literal definition of this, that employee who spends 5 minutes on the railroad right-of-way now falls under the Hours of Service Act. Those are some of the things we need to discuss and get resolved.

    Mr. WISE. Sure. I think that's important. I appreciate that.

    Ms. Hall, you mentioned in your testimony the weakness of the data available on trespasser accidents. My understanding is that FRA began to collect additional information on trespasser accidents at the beginning of last year. Are there some weaknesses in the data that they're collecting?
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    Ms. HALL. Yes. There are data points that are not really available from railroads. And that's what we need, to go beyond the scope of what we typically collect for at least a one time opportunity to get some good demographic information. The railroads collect a certain amount of information. We are missing such things as age gender and race, unfortunately. I think that is something that would be helpful to us.

    We had a big meeting, 30 participants, including different folks from different railroads and safety organizations, who met last week with the Federal Railroad Administration. Together we have decided that there are ways that we can have some demographic studies done that will include a broad range of information, similar to what was done by NHTSA for the grade crossing information that was lacking. With grade crossing statistics, we actually know that most people who are involved in grade crossing collisions listen to country music, at least their home demographics would indicate that, and have a copy of Field and Stream coming into their house. You can get some pretty good demographic information if you have the right kind of research.

    Mr. WISE. By that criteria, I better not be crossing any grade crossings any time soon. So what do we get from that though?

    Ms. HALL. We get an understanding of what kind of people are needing to be reached, what kinds of people need to be convinced that railroad property is unsafe. The FRA can tell you of a circumstance where a father called up to obtain information so his daughter could do her train-hopping for her senior trip. They couldn't figure out from the railroad maps how they could get between Chicago and Indianapolis, or some such thing, and they actually called the Federal Railroad Administration assuming that that information would be widely available because, of course, there are train-hopping sites on the Internet. This is a problem. We need to reach those high risk groups that are most involved in this sort of circumstance and figure out a way to convince them that's unsafe activity. That's our goal and that's our aim.
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    In this day of limited resources and limited personnel, we really want to do our job to the very best of our ability as effectively and efficiently as we can. We could continue the broad scope that we have sought in the past, but I think we can be far more effective if we can really target our efforts and activities. And you have 49 great State coordinators. In West Virginia, John Perry and Ira Baldwin are doing a great job. They're very enthusiastic and we're really pleased with their work. Also, Bebe Allen in Texas is doing a great job. Texas is kicking off the third round of ''Highways or Dieways'' next week, the Operation Lifesaver public service announcement campaign. So, any time that you have an opportunity to go out and see them in action and how they do their work, you'd really be impressed.

    Mr. WISE. Thank you very much.

    Ms. GRANGER. Thank you very much.

    Our next panel, Panel IV, will be the Honorable James E. Hall, Chairman of the National Transportation Safety Board. He will be accompanied at the witness table by Mr. Robert Lauby, Director, Office of Railroad Safety, National Transportation Safety Board, and Mr. Barry Sweedler, Director, Office of Safety Recommendations and Accomplishments, the National Transportation Safety Board.

    Mr. Hall, welcome.

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    Mr. HALL. Good morning, Chairman Granger and members of the subcommittee. I appreciate the opportunity to represent the NTSB before your subcommittee to discuss the important matter of railroad safety, particularly human factors.

    Before I begin my testimony, I will introduce Mr. Lauby and Mr. Sweedler, who are with me today.

    Human factors is a wide-ranging issue. Today, I would like to focus my testimony on human fatigue. Human fatigue in transportation operations is probably the most widespread safety issue in the transportation industry, and it has been an item on the Safety Board's ''Most Wanted'' list of transportation safety issues since its inception in 1990. There's a sentence in the 1991 report issued by the Safety Board that states, ''The Safety Board is hopeful that the FRA will soon provide guidelines to help the railroad industry reduce or eliminate accidents caused by fatigue.''

    Madam Chairman, we are aware that the FRA in 1992 submitted a legislative proposal that would have amended the Hours of Service Act. However, that proposal was rejected by Congress. Although we have been discouraged at the length of time it has taken to take action, we are pleased that the Administration's recently submitted railroad reauthorization bill includes a section on fatigue management plans and that FRA has incorporated a number of the issues that were the subject of the Safety Board's recommendations, including education and training, irregular and unpredictable schedules, and abrupt changes in rest cycles.

    As I mentioned, we are pleased that the FRA is addressing issues the Safety Board has been concerned about for many years. However, it is the Safety Board's position that the FRA's proposal fails to confront the root cause of fatigue—the provisions of the current Hours of Service Act. While fatigue remains one of the most perplexing problems to substantiate in accident investigations, the body of scientific evidence collected over the past decade clearly reflect a critical need for adequate rest for those operating the transportation system.
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    The Department of Transportation has spent over $20 million Federal dollars researching the human condition in most of the modes of transportation. I brought a great deal of that research for the committee to see. It has even embarked upon rulemaking efforts to remedy it. But little meaningful progress has been made, we believe, because the solution requires a fundamental change in habits and culture, and neither is easy to change.

    Madam Chairman, in November of 1995, the Safety Board convened the first International Multimodal Symposium on the effects of fatigue on transportation safety. Dr. Rosekind was a presenter at that symposium. The railroad group concluded that the lack of schedule predictability and regularity were the number one problems for both train crews and management. While we are aware and applaud the work being done at some individual railroad companies regarding this issue, the problem is not unique to any one railroad. It is a national problem deserving of national attention. Reducing the hours of service parameters would prevent gross abuses of work hours and would provide a level playing field upon which all workers can be provided a healthier work and home environment.

    Madam Chairman, a comparison of the transportation modes is revealing, and I've brought a chart to demonstrate. Under current regulations or rules, a commercial airline pilot can fly up to 100 hours per month. Shipboard personnel on large ships over 100 tons cannot operate more than 240 hours per month. A truck driver can be on duty about 260 hours per month. Locomotive engineers, however, can operate a train up to 432 hours per month, which equates to more than 14 hours a day, each of those 30 days.

    We fail to understand why a locomotive engineer or other train crew member is permitted to work more than four times longer than an airline pilot, and one and-a-half times longer than a truck driver. Allowing any transportation worker in a safety sensitive position, operating powerful equipment through our Nation's cities, to work over 400 hours per month is excessive, if not unconscionable, and it is time this Act was changed.
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    The FRA's own study issued last year on the effects of work schedules on train operations stated, and I quote from the FRA study, ''Current Federal regulations governing hours of service have the potential to allow work schedules which degrade the job performance of locomotive engineers and reduce the safety of railroad operations.''

    Madam Chairman, we must also never lose sight of the issue of hazardous materials or dangerous goods being transported by the Nation's railroads. While the number of accidents involving the release of hazardous materials has remained fairly constant, averaging 33 accidents per year between 1990 and 1996, the most recent AAR Bureau of Explosives Annual Report on Hazardous Materials Transported by Rail, the number of railroad cars carrying hazardous materials in the United States and Canada increased by 43 percent during that period. And in the 7-year period study, the number of train accidents in which a hazardous material car was damaged or derailed rose almost 20 percent.

    On a final note, may I say that I personally favor the portion of the Administration's legislation, strongly supported by Administrator Molitoris, that would expand existing protections against harassment or intimidation for railroad employees who engage in certain safety related activities, such as cooperating on accident investigations or refusing to use unsafe equipment.

    Madam Chairman, that concludes my testimony. We'll be glad to respond to any questions the committee might have.

    Ms. GRANGER. Thank you very much. I have a few questions, Mr. Hall. In your statement, you state that an individual who has been awake for 18 hours performs at a cognitive and motor skill level equivalent to a .05 percent blood alcohol concentration. And then you say this equivalent level rises to .096 percent after 24 hours being awake. We have had a considerable discussion recently about blood alcohol levels for automobile drivers. Of course, that, in most instances, can cause either human or property damage, and certainly a train wreck can.
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    Do you think these appalling effects of sleep depravation on safety are fully appreciated by the railroads and their employees?

    Mr. HALL. First, Madam Chairman, if I might just make a comment that the information that is in our testimony is quoting research that was done by Dr. Drew Dawson of the Center for Research at the University of South Australia. However, I do not believe the problem has been adequately addressed by the railroads in the United States.

    Ms. GRANGER. Let me follow up on that. On page 10 of your statement, you mention that the FRA regulatory standard at which an employee is considered unsafe to perform his duties is a .04 percent blood alcohol concentration. My question is, wasn't this standard set administratively by the FRA because Congress granted the FRA administrative flexibility to set safety standards based on existing medical knowledge?

    Mr. HALL. That's correct.

    Ms. GRANGER. One more question. We hear a lot of discussion about corporate culture and safety culture. I want to focus on your statement, page 11, that to truly reform fatigue management in the railroad industry requires ''a fundamental change in habits and culture.'' Specifically, you say that both labor and management have bought into the current flawed system because labor has grown accustomed to the extra money earned, and the companies save money by employing fewer operators.

    Do you think that if the Congress were to opt for a system of comprehensive anti-fatigue plans that were customized for various types of rail operations, with these plans eventually superseding the current statute, and, perhaps most importantly, Congress allowed both labor and management enough lead time to deal with the compensation and crew requirement issues in their next bargaining round, would that help break the deadlock that has prevailed so long?
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    Also, let me ask you a related question. Would breaking the existing cultural attachment to the Hours of Service Act be easier if the American public were educated to the fact that we now allow trains to be operated by people with a fatigue equivalent of .05 or .096 percent blood alcohol concentration?

    Mr. HALL. Well, I would say yes on both of those, Madam Chairman. I just might elaborate. As I stated, the Board in 1989 made a recommendation to the then Secretary of Transportation that all of the modes of the transportation individually look at how fatigue can be addressed in all their modes. To date, in excess of $20 million have been spent on safety studies in that particular area. So this is a problem that clearly needs to be addressed, in our opinion, and one that the public needs to be made more aware of.

    Ms. GRANGER. One last question from me. In your summary on page 13 of the maximum allowable monthly work schedules for employees in safety sensitive positions in the different modes of transportation, under existing Federal requirements, locomotive engineers can operate trains legally for up to 432 hours per month, the equivalent of 30 straight workdays at 14 hours per day. By our calculation, that's 20 percent higher than any other mode of transportation, with the next closest being the standard for operating vessels while at sea. Isn't this conclusive evidence that either retaining the current standard or trying to overlay alleged reforms on top of the current standard is not an acceptable strategy for a safe rail system?

    Mr. HALL. Yes, ma'am.

    Ms. GRANGER. Mr. Wise?
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    Mr. WISE. Thank you, Madam Chair.

    Mr. Hall, you've described in your testimony that the railroad hours of service law allows hours of service that are ''excessive, if not downright unconscionable.'' Do you feel that the best approach to this is simply reducing the number of hours that employees may work, or do you favor the approach embodied in the Administration's bill which is to require fatigue management plans?

    Mr. HALL. Well, let me just say, Mr. Wise, that the FRA has proposed a fatigue management plan, and I want to compliment the Administrator on her leadership in that area, but the Safety Board would prefer a fatigue prevention plan, one that is not designed to manage fatigue, but a plan that provides well-rested employees to operate safety sensitive equipment, particularly equipment that may be carrying dangerous goods through the neighborhoods of America.

    Mr. WISE. Fair enough. But do you do that by simply reducing the hours under the Hours of Service Act? Or do you go into this process that the Administration seems to want to do, which is to require a plan, whether you call it prevention or management?

    Mr. HALL. I would suggest that in this situation you would need to do both. Again, the Board's basic recommendation was that this matter be looked and addressed mode-by-mode, because each mode is different. What has concerned me is that we've spent about $20 million looking at the fatigue area.

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    There are a lot of difficult economic issues to be addressed, but I think now it is time to move forward, particularly in the railroad mode. In all of the modes of transportation we have recommendations to address the fatigue problem. It is unique to each particular mode of transportation. But we would certainly have to say, or at least I would have to say from my personal experience in chairing the Board in the period of time I have, and visiting railroad operations, that it is probably a much more difficult problem in the rail industry than it is in any other industry, but it is certainly common to all.

    Mr. WISE. Switching gears for a second. In the accident 2 years ago in Secaucus, New Jersey, in which three people were killed, the NTSB found that the probable cause of the accident was that the engineer was color blind. At the time, you recommended to FRA that they revise their rules for testing color vision. Are you satisfied with their response so far to those recommendations?

    Mr. HALL. The accident occurred on February 9, 1996. We gave our recommendations on April 4th to the FRA, which they responded to on August 15 of last year. Dr. Garber, who is a medical officer on the Safety Board staff, attended working group meetings on the rulemaking. My understanding is there was a draft rule that has been prepared but has not been issued. I believe the last time the Administrator was before this committee, she discussed the possibility, if the rulemaking went too long, to look at an emergency order in this area, and I think that would be appropriate.

    Mr. WISE. Thank you, Madam Chair.

    Ms. GRANGER. Thank you.
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    One other thing, Chairman Hall. One thing that hasn't received a lot of attention is noise. I know there are some experiments in individual railroads to try to address the factor of noise as a source of fatigue. There have been some Federal laws dealing with the location of crew sleeping quarters, for instance. Has the NTSB had occasion to focus on the noise component?

    Mr. HALL. I'll give Mr. Lauby an opportunity to comment on this. Let me say, Madam Chair, and knowing the State you're from which is similar to the State I'm from with a lot of grade crossing areas, noise is important not only in the locomotive and the stress level, but also we have been having a number of school bus accidents where the noise on the school buses have been a problem.

    I'll let Mr. Lauby, if I could, comment further on this area because some work has been done, particularly in Canada.

    Mr. LAUBY. Thank you. Noise is a stressor. It's a source of stress for engineers and other crew members that travel in a locomotive. There needs to be more work done to better understand the total effect that it has. But being a stressor, it is also, therefore, connected with the fatigue problem, so that fatigue is going to be more prevalent when individuals are asked to work in areas that have high noise levels. Certainly, that's something that has been addressed by some unions in their individual negotiations with the railroads as far as sound-proofing locomotives or coming up with cabs that are a better environment. There is a lot of work going on in this area, but there's a lot of work left to do.

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    Ms. GRANGER. Thank you. One other question. A few years ago, when we were talking about rail safety, the hot topic was drug and alcohol impairment. It is my understanding that since the adoption of Federal requirements for mandatory and random testing the railroad industry has seen a great improvement in that area. Has that also been the Board's experience?

    Mr. HALL. If I might briefly comment and then ask Mr. Sweedler to elaborate. These changes all came out of the Chase, Maryland railroad accident and recommendations the NTSB made at that time. Mr. Sweedler was with the Board at that time and I would let him comment.

    Mr. SWEEDLER. Thank you. Madam Chairman, that is absolutely correct. The rail industry was the pioneer in drug and alcohol testing based on recommendations that the Safety Board had made following a series of catastrophic accidents. I think the railroad industry still has the best testing program and it has been used as a model for the other modes. They have shown dramatic results, both in their random testing, they've dropped from 5 percent down to 1 percent, and post-accident testing. The positive rate has been cut in half for drugs and alcohol, from something like 2 percent down to 1 percent. They've done a very good job and we're very pleased with that result.

    Mr. HALL. I think the FRA and the industry deserve compliments in that area. We have some modes of transportation, such as marine, that the record is not impressive and we still have difficulty with an effective alcohol and drug testing program.

    Ms. GRANGER. Very good. That's all of my questions. Thank you very much for being with us.
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    Mr. HALL. Thank you. We appreciate the courtesy of the committee.

    Ms. GRANGER. If the next panel would please come forward: Mr. Charles E. Dettmann, executive vice president of safety and operations, the Association of American Railroads; Mr. Gerald R. Hanas, general manager of Northern Indiana Commuter Transportation District, on behalf of the American Public Transit Association; and Mr. William E. Loftus, president, American Short Line and Regional Railroad Association.

    Mr. Dettmann, we'll begin with you.


    Mr. DETTMANN. Thank you, Madam Chairman. The Association of American Railroads appreciates this opportunity to testify on railroad safety, focusing today on human factors.

    The railroad industry, both labor and management, is committed to continuous improvement in safety of operations. That commitment has produced dramatic results. Between 1980 and 1996, the rate of accidents per million train miles attributable to human factors decreased by an impressive 64 percent. But we are not satisfied. As a result, both labor and management have sought to bridge the divide that historically has separated us on other issues and are today engaged in an unprecedented number of joint endeavors to address mutual safety concerns. Our industry, and the public generally, are well-served when rail labor and rail management together tackle the problems facing the railroads.
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    Many of the initiatives launched by rail labor and management address work/rest issues. Over the past 25 years, there has been significant study of the science of fatigue. Nevertheless, much remains to be learned about how to address workplace fatigue in a 24 hour, 7 day industry.

    In 1992, the AAR, the Brotherhood of Locomotive Engineers, and the United Transportation Union formed a Work/Rest Review Task Force to address work/rest issues. That task force has accumulated a database of 5 million railroad engineer work shifts, and developed a system for analyzing the impact of fatigue countermeasures undertaken by rail labor and management. That is the largest single database in the world of transportation of fatigue versus operational characteristics and their impact on safety.

    I would like to submit for the record a Work/Rest Task Force Report which describes the many pilot projects undertaken by railroads to address fatigue. The approaches that railroads and their employees are cooperatively trying include: assigning blocs of starting times well in advance, assigned rest days, expanded rest periods between assignments, napping strategies, screening for sleep disorders, and educational programs on fatigue management for employees and their families.

    The Federal Railroad Administration is sponsoring an effort to address workplace fatigue called ''The North American Rail Alertness Partnership (NARAP).'' In launching NARAP, the FRA observed that work/rest issues are ill-suited to resolution through regulation and are better addressed cooperatively by labor and management. We agree. One reason is the variety of circumstances found on the railroads. Different locals have different operating characteristics and, importantly, different collective bargaining agreements.
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    In addressing fatigue issues, labor and management must consider local collective bargaining agreement requirements regarding seniority, income, and other matters. As a matter of fact, the fatigue management plans that have been talked about today originated as a voluntary effort with the North American Rail Alertness Partnership.

    On April 1, FRA abandoned its policy of addressing work/rest issues cooperatively with rail labor and management and asked this committee for statutory authority to mandate work/rest issues. Under FRA's proposal, the agency would review every aspect of how rail labor and management addressed fatigue and subsequently codify it. FRA's proposal should be rejected.

    Regulations inhibit the flexibility and innovation that labor and management must have to try to new approaches and change existing ones as more knowledge is gained in an extremely complex environment. FRA-mandated measures are plainly unsuitable for an area where there is no one right answer, where there is no scientific consensus on various parts, where different collective bargaining agreements present different challenges, where innovation is necessary, and where issues such as quality of life, which are outside the FRA's purview, are of great importance to the railroad industry and its employees.

    The railroads remain eager to work with FRA and rail labor in devising solutions to safety and fatigue issues. We urge FRA to return to its policy of working with rail labor and rail management outside the regulatory arena. And we urge the committee to adopt a reauthorization bill that includes no new mandates or requirements for additional regulations at this time.
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    Railroads and their employees have made great progress in safety over the last two decades. Initiatives already underway will build upon that foundation to make railroads even safer.

    Thank you for this opportunity to testify. Again, I would like to submit this for the record. I would be pleased to answer any questions at the appropriate time.

    Ms. GRANGER. Thank you, Mr. Dettmann.

    Mr. Loftus?

    Mr. LOFTUS. Thank you, Madam Chair. The Short Line and Regional Railroads appreciate the opportunity today to appear before you in regard to rail safety issues and the reauthorization of funding for the Federal Railroad Administration.

    Frankly, we had hoped that we would be here today telling about what a good job we've done together and that we would get the plaudits of the committee urging us to go on and do more. But as in Mr. Dettmann's statement and others, we really are here, unfortunately, talking about a legislative proposal that we as small railroads believe is unnecessary, punitive in some respects, and a confusing departure from the cooperative efforts that we strongly believe are working for the benefit of all.

    The results of our efforts to date in the RSAC process, which we continue to support and urge the committee to continue to support, track standards, radio communication rules, they're done. A lot of hard work by both labor and management. They're stuck somewhere in the clearance process, but I am sure we'll see them someday. And other measures are near the final vote by RSAC members for moving forward on regulations. So we would sincerely hope that the RSAC process will continue and that we do not fall back into dependence on adversary rulemaking.
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    In addition to FRA's new partnership approach, which we certainly applaud, I also want to acknowledge that congressional oversight in the last 10 years has also contributed significantly to bringing the industry and the FRA to the point where we are today. In my view, the process needs the continued support of the Congress. At the same time, we do not believe any new legislation is needed. The short line and regional railroads strongly support a simple, straightforward reauthorization this year, coupled with a strong message to FRA, to industry, ourselves, to labor to stay the course we're already on and continue the productive partnership for safety.

    I would like to comment on one or two of the issues that have been raised today. Fatigue management and work/rest issues are rightfully a series topic in transportation circles and are the subject of much work and effort involving all segments of the railroad industry. Two RSAC committees, as well as a new group, North American Rail Alertness Partnership, are working actively on this issue at the present time. Fatigue management is a complicated issue, as we heard earlier from our expert witnesses, and scientific understanding is evolving rapidly. This is precisely the type of area that is best handled by a cooperative effort, bringing together railroads, rail labor, and government. Cooperative efforts are underway and are moving forward with the industry, with labor, with FRA, small railroads are participating fully in the process, and progress is being made. We think that imposing a statutory baseline as proposed in the Administration bill could, indeed, have a chilling effect on further progress.

    A word on the Hours of Service Act. The Hours of Service Act in particularly the area of commingled service is a problem for small railroads. Small railroad employees generally perform different jobs during the course of the workday. This commingled service often leads to absolute limits on their service time, if only a very small portion of their workday is actually spent performing covered service. The commingled service for short lines is one that we would like to see addressed fully in the sense of having the whole Hours of Service Act reviewed by the committee as opposed to the bits and pieces that we now see, supposedly for clarification, in the Administration bill.
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    One area that I want to address specifically is the application of the hours of service to independent contractors working on railroad signals. No safety justification is given to support this regulatory expansion. For short lines, signal work almost entirely involves work on highway-rail grade crossing signals by contractors. These are, for the most part, highway traffic signals for the safety of the travelling public, not signals controlling the movement of trains. Most of the contractors providing these services also work on highway traffic signals and at industrial plants.

    Hours of Service Act coverage should not be extended to cover contractors doing such work for short lines. There is no demonstrated safety problem. Also, short lines should not be burdened with the reporting responsibility for employees of independent contractors doing signal work. Also, we are very concerned that these contractors would choose to stop serving our railroads if, indeed, they were subject to Federal regulation.

    In summary, the Association strongly opposes any effort to expand the Hours of Service Act to cover independent contractors, and strongly opposes any additional paperwork requirement being imposed on small railroads. Similarly, the Hours of Service Act coverage should not be expanded in the area of dispatching employees in the guise of clarification. Let's look at the whole Hours of Service Act totally rather than the bits and pieces that are in this bill.

    Finally, let me mention one other issue that is in the Oberstar-Wise bill. This bill proves again the valuable role congressional oversight can play. Many issues which are covered in the Oberstar bill have been addressed as part of the RSAC process. This is a positive process and one which the small railroads fully support.
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    However, there is one topic included in the Oberstar bill which we are strongly opposed to. It would mandate a greatly expanded system of certification of railroad employees by class and craft. This is an unworkable and unnecessary proposal. It would perpetuate the old class and craft distinctions which are simply not applicable to the more flexible and productive work environment found on today's smaller railroads. We are firm believers in training as a component of safety. However, the burdensome process of certification by narrowly defined craft is unworkable, unnecessary, and not supported by any safety justification.

    I've not commented on other provisions of the Administration bill and would like to do so either in other hearings or in additional comments for the record.

    In summary, short line and regional railroads are very supportive of the cooperative rulemaking process. We urge the committee and FRA to continue to support the process and to avoid legislative direction that is contrary or that will have a negative impact on the involvement of labor and management working together on important rail safety matters such as fatigue management and the other areas that we're now addressing. Thank you, Madam Chair.

    Ms. GRANGER. Thank you.

    I believe I mispronounced your name. You pronounce it Hanas, is that not right?

    Mr. HANAS. No, Madam Chairman, you got it right. Hanas.

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    Ms. GRANGER. Oh, good.

    Mr. HANAS. Thank you for having me this afternoon. I actually had ''good morning'' in my remarks, but I'll change those. I think we've gone over the lunch time period. I would like to thank all the committee members for the chance to participate in the hearings this morning. I'm representing the American Public Transit Association and the commuter railroad industry in the United States. On any given day, our industry is carrying approximately 1.2 million passengers. We represent approximately 20 percent of the rail industry's workforce.

    Safety has always been a major priority for us because of our commodity, of course, and will continue to be. A commitment I think that's reflected in our excellent safety record. I might note that in 1997, we achieved zero passenger fatalities. We understand the public trust that's been given to us, and safety will always be a major issue for us.

    Particularly speaking to human safety factors, I might note some actions that we have taken recently that I think are important, and then comment on the Administration's bill proposal.

    We in the industry have a well-established and extensive employee training program that takes into account a number of screening factors, including physical exam, drug and alcohol tests, as you are well aware, and a number of factors that address human issues. We look at written and oral examinations, we continually go through rule examinations of employees on an annual basis. So from a practical point of view, there's an extensive interface between management and labor on appraising what the performance factors are for employees.

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    For the industry perspective, APTA has participated in establishing a system safety plan effort where all commuter railroads have signed up for system safety plans and have submitted them in a coordinated effort to the American Public Transit Association basically at the request of the Federal Railroad Administration in lieu of system safety plan statutes. And with that, not only is the system safety plan not just a document, it's something that's going to be audited by all of the members on an annual basis wherein each property may be subject to review once every 3 years in which peer groups and any invited participants, such as the FRA, can come in and review what's happened and the kind of system safety plan results we have achieved. So that's a very important kind of self-initiative.

    Recently, there's been a heightened interest in fatigue issues because it's been a topic on everyone's agenda. We're also members of the RSAC committee, and would mention that we've testified in prior testimony here before the committee on our equipment standards task force in which the industry is investing a lot of money to determine equipment safety.

    Specifically on the Administration bill, I think we agree that a statutory proscription for fatigue management is premature at this point because there are unknown issues related to fatigue. Do we believe it's merely just a sleep disorder issue, or does it involve issues such as attention deficit disorder, if that's even applicable to adults? But for the most part, day dreaming in a monotonous environment could be just as dangerous as a sleep disorder. Crew interaction and communication are large factors.

    The industry, we believe, needs time to reach consensus on what the scientific principles are and how they can be integrated into the industry. Commuter railroads, as you might well predict, have fairly predictable schedules and we're not moving geographically maybe as much as freight railroads. So we think we have a much different application of fatigue management than a freight railroad would.
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    In that case, if there is a statutory proscription, we think the FRA is going to be swamped with problems and waiver requests. They will be under tremendous pressure for enforcement and they will be taking actions on a program that we think is unclear at this time.

    Congressman wise commented on this earlier, where the last three commuter rail accidents that I have reviewed involved movement of trains beyond critical red signal bloc indications. Fatigue issues really weren't the primary cause. There are technology issues out there that can really supplement and help the fatigue management issues that need to be discussed. They can improve the safety probabilities in the industry. There is a technological issue that the NTSB has on their ''Most Wanted'' list that's not just fatigue, it's also involves signal technology that we think would also be there. Gizmos were referred to earlier this morning, that gizmos may not be the ultimate answer. But, frankly, there are technical gizmos that can play a big factor in fatigue management that have not been addressed in the current Administration bill. Safety is certainly a kind of a culture and it is very hard to proscribe by law.

    I might note, in particular, we're a little bit concerned and don't understand the direction of the NTSB and the FRA with respect to the employee harassment and witness programs that are in the bill. We are certainly unaware of any problems in this area. FRA and NTSB have a significant amount of statutory muscle currently to investigate safety or accident-related issues. From what I have seen on my railroad that I work with, and certainly in the industry, whenever safety issues are brought up to the FRA, they investigate them very clearly with a great deal of seriousness.

    There has to be a chain of command in decisionmaking involving the current day complex equipment that we operate. We don't want to see safety issues being used as a bad faith bargaining issue or lever for bad faith bargaining. Employees I think are currently greatly protected against any form of harassment or arbitrary actions by management through the Railway Labor Act. There's a guarantee in the Railway Labor Act that they receive a fair hearing at no cost to the employee by a federally-appointed arbiter. So from that perspective, we don't really see where the problem is coming from. We think the existing protections are more than adequate.
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    In conclusion, APTA feels that the safety initiatives have been achieved, as Mr. Loftus has indicated, through this proactive environment with the FRA through the RSAC committee. There's a number of other committees available that are working on this. We think that working within the industry right now will achieve some substantial reductions in accident rates and continue on the improvements that we've achieved to date. Thank you.

    Ms. GRANGER. Thank you very much.

    Mr. Dettmann, you say that if the fatigue management plans were required, as the FRA proposes, that FRA would have the power to impose its favored plan requirements without undertaking cost-benefit analysis or providing scientific support. However, don't we have a situation right now where the current Hours of Service Act were imposed without cost-benefit analysis or scientific support, and even if that analysis had been done in 1907, couldn't a strong case be made that that analysis is extremely outdated?

    Mr. DETTMANN. Madam Chair, I think so. It is outdated, but it was the best we knew at the time. We have come a long way together in both science as well as experience. One of the biggest issues, and I think our friends from the scientific community support this, the science is at a level now where it's relatively understood. The issue is how do we implement that in today's operating environment that reflects 130 years of labor agreements, culture issues, and many other things.

    As we talk about why the railroad industry is concerned about it being arbitrarily imposed, when you look at the letter of transmittal of the proposal legislation, it says legislation offers railroad management and labor incentives to get together. We are the ones that initiated this. We are the safest of all transportation industries in the U.S., and we are doing the most in transportation fatigue of any industry in the world. We came into this, as Bill Loftus said, in a cooperative fashion, and now all of a sudden we see legislation staring us in the face to do more. That's the issue that we're concerned about.
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    One other piece. It says that if labor and management cannot reach consensus on a plan, which we have been well doing for the last 5 years, the railroad would submit a plan with separate comments by rail labor representatives. Now, is that putting rail labor and management back in an adversarial position, number one, and, number two, who will be the judge of what standards are right and wrong, what science is applicable or not, and what the cost of these proposals are?

    This is our basic issue, that it is not broken, it is working the best in the world, why do we want to try and fix it again? We don't think it is necessary.

    Ms. GRANGER. Thank you for that response.

    Mr. Loftus, you reviewed in your statement the progress the railroad industry has made in safety since the 1970s. I understand that perhaps you're the only person here today who was actually working at FRA when the railroads hit bottom in the 1970s. Therefore, I think you can offer a historical perspective that perhaps few others can.

    Given that, you pointed out more than 1 out of 10 current railroad jobs comes from the short line and regional railroads. Isn't there a real danger that increased costs to the smaller railroads of putting all signal maintenance activity, even by contractors, under the Hours of Service Act would endanger many of those jobs?

    Mr. LOFTUS. I do have a historic base. Actually, I was there in 1967 when railroad safety really hit bottom and became the basis for the Federal Railroad Safety Act of 1970, which moved the Government away from very specific acts—power broke bills, locomotive inspections, and so forth—and gave very broad authority to the agency. From that authority came the track standards, equipment inspection standards, power broke rules. All that became the basis for how the safety was enforced and on which the railroad system, large and small, more or less built their safety programs till more recent years.
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    The next big glitch in the problem was when we finally grabbed hold of alcohol and drug abuse. Again, the industry and labor moved on that alone, with the help of some research money from the Federal Railroad Administration, to where they really identified how big the problem was. It shocked everybody, including ourselves, ourselves being FRA, labor, and management. But out of that came cooperative efforts. Operation Red Block was one where they had peer review to help solve the problem internally. Once we had the terrific problems up in Chase Maryland, that also drove eventual regulation. But we do have, as someone said earlier, railroad regulation of alcohol and drug testing is almost the standard for the Government, much less just transportation.

    But then we moved under the most recent process with Jolene Molitoris. I think not just Jolene, obviously she's the driving force, but when she opened up the issue of how to deal with these things cooperatively, together and created a process in which we could sit down with Government, because Government is part of the RSAC process—it's just not a facilitator, it agrees to what we do when we put forward these proposals—we start that process and we start opening ourselves up and really negotiating. Labor says everything it wants but also has to come in and agree. We do, too. And Government has to recognize the workability of what we're trying to do. At any rate, all three parties come to a consensus and move forward.

    That's where I think we achieve so much and why we're so confused and somewhat concerned today. We're now at a situation of where we have gone into these open sessions and have more or less exposed ourselves to the extent of having to make agreements with each other, not to face new legislation nor regulation necessarily unless we do it. So, again, I think we're probably in the best situation we've been ever since we started down the road of how to improve from the very poor days of 1960s and 1970s.
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    For the smaller railroads, we have two very large issues. One, one-size-doesn't-fit-all. I think we're being heard in the regulatory process because we have a voice and we're saying that. That's much more difficult in legislation because legislation tends, as in the Hours of Service Act, to treat everybody the same. There is a fairly minor exclusion for very small railroads in Hours of Service. But as you apply more hours of service controls on small railroads, where particularly you have a very flexible workforce, that hits us very hard. We're not as craft related or as class related, nor do we have the same types of contracts.

    More than half of our people have labor agreements, half are covered by labor agreements, but they tend to be our type of agreements—very flexible, generally one or two unions as opposed to all of them. And so we have a good labor relations base. And, again, we have our own particular concerns that heavy legislation and heavy legislative requirements would, indeed, affect us far more seriously than it would the larger railroads.

    On fatigue management, our concerns there are probably less than some of the others. But where you're driving particular proposals and you're applying those to the smaller railroads as you would to the larger railroads, we again argue that all of that should be done in terms of a cooperative effort where we can sit down and decide and develop programs and procedures and policies on the basis of how they fit that particular railroad operation.

    Mr. FRANKS [resumes chair]. Thank you.

    I now recognize Mr. Wise.

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    Mr. WISE. That's right, I've been here at least 30 seconds longer than you have, Mr. Chairman. To the panel, I apologize. I just want it on record because I think the lowest thing is somebody who goes out and gets lunch while you're sitting here. But I have not had lunch. I had another meeting and I ran to it and came back. So we're all in this together.


    Mr. WISE. Mr. Loftus, you noted in your statement the issue of commingled service. In some ways, that may relate to the discussion I had in a previous panel.

    Mr. LOFTUS. It does.

    Mr. WISE. Particularly, that probably becomes an issue with short line railroads and smaller operations in that fact that an employee spends a part of his day performing covered service under the Hours of Service Act which would make the employee covered by the Act and subject to its limitations on working time.

    I'm not saying this argumentatively, I am genuinely trying to figure this out, but my question is, what's wrong with that and why do we want to have anyone working more than 12 hours a day, particularly in the kind of environment that the railroad industry works in?

    Mr. LOFTUS. There are two issues. One, of course, is the degree of the covered service that's involved, because it's also 9 hours if it's a dispatching situation, which quite often occurs. If you have any role that even looks like you're dispatching a train or putting out train orders, you're under a 9 hour proscription as opposed to 12 hours. And you may be doing just very brief things either in the 12 hour or 9 hour limitations, so, therefore, you are covered by that. It's not so much that you're going to work these people 14 or 16 hours a day, but, because of that, they are brought under the recordkeeping process.
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    Frankly, most of the violations that are served or the problems that are filed are recordkeeping. That's where the burden occurs. You have to also restrict how you use people, at the same time you have to keep very close records of where they were involved or not involved in hours of service work. That is what the inspector looks at, number one, and that's where a lot of violations comes from.

    So you apply that to contractors, which, of course, is the focus of the particular bill here, we feel that we'd be keeping those records for contractors and also subject to whatever violations that could occur in that respect. I don't think a contractor is going to come on with us and say, okay, we'll take care of that and report to FRA. Their approach would be you have to keep the records and make it available to FRA because our contractors, again, almost all of them are highway signal type of people and not necessarily directly involved in railroad service only.

    Mr. WISE. Mr. Dettmann, you heard the previous testimony by Mr. Hall and the chart that he had of the different hours that were worked in the other transportation industries. You say in your testimony, ''the subject of work/rest is ill-suited to regulation,'' and admittedly it's a tough thing to do. But it seems to be done in other industries. Why would the railroad industry not be subject to the same requirements to be able to meet those same challenges that you talk about?

    Mr. DETTMANN. Mr. Wise, the whole issue, and we're talking about the existing hours of service, and we're talking about fatigue, I think is the arena that we all have to go forward with in a very cooperative fashion. To take what we know, what science has given us recently, and then the issue is not what the science is, but what implementation strategies there are.
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    I heard Chairman Hall's numbers. Let me just give you my take on it. Number one, is that it's highly theoretical that if a locomotive engineer just worked 12 on, 8 off for a month, that number could come up. They get 8 hours rest. If you look at the next group, and I apologize, I don't have the numbers here, the marine works significantly less total hours, and, again, this is theoretical, but they work 6 on and 6 off, 6 on and 6 off, for 20-30 days at a time. We know this because we have had the Coast Guard at our NARAP meetings talking about what their expertise is, and, believe me, the railroad industry is light years ahead of marine. But current science says you must have 8 hours rest if you are going to be at your utmost peak to work a conventional shift ahead. So I would suggest to you that the total hours of marine on duty is not the answer, because you've got what type of rest are they getting, which is 6 on, 6 off.

    Then let's address air. Air has significantly less captain's hours there. But it does not address the captains that live in Miami and fly out of Tokyo. They fly from Miami to Tokyo, and then get on board their trip to fly back from Tokyo East. Believe me, I have friends who are captains that do that. So it is not a simple issue.

    Am I criticizing aviation or FAA or marine? Of course not. And I'm not criticizing the NTSB. But what I am suggesting to you is this is an extremely complex issue that we cannot solve with a swipe of a pen or an easily conscripted piece called regulation that is not very, very much the result of a lot of work that we all have in front of us.

    Mr. WISE. Mr. Hanas, you criticize the provisions of the Administration's bill concerning harassment and intimidation, particularly in the case of employees who refuse to authorize the use of unsafe equipment. Let me ask you, I've heard Mr. Oberstar talk before about the aviation industry which has a right for an employee to refuse to work on unsafe equipment or to shut it down. I know that in the mining industry, the coal miner underground has the right to halt production or to stop use of a piece of equipment that they feel is unsafe. It seems to me the railroad industry is as sensitive as those two industries are, and why should there not be such a similar right?
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    Mr. HANAS. Mr. Wise, I'm not criticizing their right or the fact that they should not speak up with respect what they feel is unsafe equipment. All we're saying is that the bill, as written, may give someone the unilateral authority to declare something unsafe without the appropriate chain of command to say that's incorrect, this piece of equipment really is safe, what you thought was unsafe really isn't the case. We would like to be able to say that there's an ultimate decision in terms of daily operations in which the chain of command can say something is really safe and we don't get into these arguments as to who is right.

    Mr. WISE. Fair enough. At some point, that decision ultimately has to be made about whether that equipment rolls or not. But it is my observation in other industries that there is the ability of that employee who is working at the site to shut it down until somebody is able to come and look at it and do so without fear of retribution. Is that something that you would oppose?

    Mr. HANAS. No. No. The comments that were made previously were something to the effect that there was after the fact reprisals. All I was saying is that there are sufficient processes to find out through the Railway Labor Act if management was being unfair or arbitrary. In other words, if there was a threatened written reprimand or all the way up to a dismissal, there's adequate procedures to protect the employee that are in place today. We are not saying under any circumstances that we want people to operate unsafe equipment. We're simply saying there has to be some decision at some point in time as to who the final authority is on the complex equipment.

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    Mr. WISE. Okay. Thank you. Thank you, Mr. Chairman.

    Mr. FRANKS. Mr. Hanas, let me ask you one last question, if I can. You recommended in your testimony that Congress reauthorize the Rail Safety Act largely as is without new requirements. As you know, it's been 4 years since Congress has reauthorized a rail safety bill. Are there any areas that APTA believes are in need of change or fine tuning?

    Mr. HANAS. I think the gist of the testimony we had here today indicates, Mr. Chairman, is that, yes, it probably needs to be changed but through industry consensus and through the existing collaborative process that Administrator Molitoris has provided us rather than put it in forms of a statutory proscription that may be premature. There are a lot of these areas that simply aren't developed yet well enough to put them in the statute. We would rather work it with the industry committees that are out there today, and there's a number of them that are out there working.

    Mr. FRANKS. Thank you very much.

    Mr. WISE. Mr. Chairman, could I ask another question?

    Mr. FRANKS. Mr. Wise.

    Mr. WISE. Now, we all know each other. I want everybody here to be honest. You've read the Administration's bill and you've read Oberstar-Wise. I remember the hearings we had last year, maybe the year before, on Oberstar-Wise, and you all really do like the Administration bill a lot better, don't you?
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    Mr. LOFTUS. Well, I actually said nice things about Oberstar-Wise, because it wasn't passed.


    Mr. LOFTUS. But the point was that that was the push and shove that got us to where we are today.

    And in answer to the Chairman's point, we're also asking for a clean bill because what you have done is put us into a cooperative effort with a lot of oversight in this committee. We know that if our cooperative efforts fall short, we have to come back and report there. To me, that's the kind of process that we should be in and not looking at pinpointing legislative directions and so forth, because we do have responsibility back to you to say here, we've done it. A lot of things that are in the Administration's bill we feel they already have the authority to do. Harassment, intimidation, they have plenty of authority. I have yet to see a civil violation filed on one. I may not be aware of some of them, but there's no civil violation on the books at this stage on harassment or intimidation. There could be, but I've not seen one.

    The point is that we're moving in a good direction, and you're behind us and pushing and shoving, and we think that's the way to stay.

    Mr. DETTMANN. Mr. Wise, our position is not what you typically hear from industry of just leave us alone, everything is fine. That is not our message. Our message is that we don't know how to change Hours of Service Act at this point, and we do know that the collaborative effort that we are all into, and we are committed to stay into, has given us progress such that the rail industry is leading the world in transportation fatigue issues. We don't want to be placed back into an adversarial relationship with labor or others, as at least the letter of transmittal portends that it could be. We truly feel that the NARAP, the RSAC, and the things that the Administrator and FRA are doing is leading us to where we can come with something that will truly address the fatigue. It is not a status quo piece, but it is that we are making strong and positive results in what we're doing.
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    Mr. WISE. I appreciate both your remarks on that and, Mr. Loftus, your reference to the legislation Congressman Oberstar and I introduced as being a pushing factor. I think a lot of progress has been made in the last few years and I think it has been made for a lot of different reasons. My hope is that it does continue.

    I do want to say that I appreciate as well the efforts that the industry is making, whether in dealing with fatigue management or dealing with some of these other safety issues. Hopefully, we get out of each one's experience the best of what can then be applied industry-wide. The question we may have though is the extent to which some of that needs to be put into legislation. That's a legitimate policy matter that we'll be discussing a lot, all of us, over the next few months.

    Thank you, Mr. Chairman.

    Mr. FRANKS. Gentlemen, thank you very much for your testimony this afternoon. We're very appreciative.

    Panel VI, our final panel. Mr. James M. Brunkenhoefer, National Legislative Director, United Transportation Union, accompanied by Mr. Richard Marceau, Vice President, United Transportation Union. We also will have Mr. T. George Hucker, Vice President and National Legislative Representative-Canada, Brotherhood of Locomotive Engineers, accompanied by Mr. Leroy Jones, Vice President and National Legislative Representative, Brotherhood of Locomotive Engineers. And Mr. Rick Inclima, Director of Education and Safety, Brotherhood of Maintenance of Way Employees.
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    Gentlemen, welcome. Please proceed in whatever order you would prefer. Thank you for coming this afternoon.


    Mr. INCLIMA. Thank you, Mr. Chairman, members of the committee. My name is Rick Inclima, I'm with the Maintenance of Way Employees, and I'll be representing both the BMWE and the other non-operating craft unions. I would like to touch on the bill's human factors aspects as well as have a little more discussion about human factors issues not addressed in the bill.

    First of all, I would like to state that rail labor supports FRA and the proposed Federal Rail Safety Act of 1998. However, we believe it should be further expanded to close existing loopholes and to extend fatigue management plans to all crafts who may be affected by fatigue regardless of whether those crafts are covered by hours of service. Currently, that's a problem. There's probably 40 percent of rail employees not under hours of service who do have fatigue problems. We would like the fatigue management plans be extended to include all crafts.

    We also support the affirmation of contractor coverage, in particular signal contractors performing covered service. It's our view that Congress intended in their 1992 amendments to include these contractor employees under hours of service. However, there seems to be some concern regarding the clarification of that. We certainly would not be opposed to a technical correction to further clarify Congress' intent with regard to contractor coverage.
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    Under current application of the hours of service, a railroad signal employee would be required to take mandatory off duty rest time after 12 hours. Working on a job side by side with a contractor who is doing the exact same operation, that contractor employee who does not fall under hours of service can basicsally continue to perform that work around the clock virtually, and virtually falling asleep on their feet, with no restriction. That's wrong, and that is a problem and a detriment to safety.

    I would also like to clarify for the committee the duality or the dual jurisdiction of FRA and OSHA jurisdiction in the railroad industry. The contractor group would lead you to believe that OSHA covers them and FRA covers us and there's no middle ground. In reality, we are covered as railroad employees primarily by FRA where they have written and enforceable standards. Where there aren't written and enforceable standards, a lot of safety and health issues, in particular, we are governed by OSHA.

    So there is really no distinction between contractor employees and railroad employees in that regard. We are covered by both OSHA and FRA, and we would be proponents to have the contractors meet us in that arena. They should be covered by hours of service and other Federal Railroad Safety Acts when they are doing railroad work covered service.

    Mr. Chairman, we support what is in the bill. We think there are a lot of good improvements in the bill put forth by the Administration. But, frankly, we do believe that the bill does not go far enough. Again, like I said, the issue of fatigue management plans is a big issue and we think a big omission in the bill at this point.

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    Fatigue management plans will enhance the partnership and cooperation between rail labor and management, not inhibit it, in our opinion. It would provide a forum and a mechanism for addressing railroad and craft specific issues related to fatigue. The way I read the plan, it says we're going to get together, labor, management, and FRA, and help develop those plans. This will allow the parties to move from the study phase, which some indications are it's been studied for the last 15-20 years, we would go from the study phase to implementation stage of fatigue management.

    I would also like to point out for the record that there are tens of thousands railroad employees currently unrepresented by a union. Therefore, these employees, short line employees predominantly, do not have an independent voice or a seat at the table. Again, we think that the fatigue management plans would address employee issues, that's where it should be perhaps because collective bargaining does not extend to a lot of railroad employees.

    We support the expanded protection of employees and witnesses proposed under section 104 of the bill. However, there should be a technical amendment to that bill which specifically grants employees affirmative authority to withhold authorization on the use of defective or unsafe equipment, track, or structures.

    We support the proposal for expedited resolution of claims under the Railway Labor Act. However, this section should be expanded beyond issues affecting pay to include all claims under the section. Under the current provisions of the Railway Labor Act, employees basically can be starved out, setting the example for their peers that when you speak up and raise safety issues you'll be held out of service for a long period of time. Basically, you financially ruin those employees and it sets an example for the rest of the people behind them, that, hey, if I speak up and I am charged with some type of violation or whatever, it could be literally years before justice is served. Even once justice is served, I may have lost everything I own in the meantime. So we would like to see that expanded.
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    We also believe that the definition of dispatching service employees under the Hours of Service Act must be amended to include employees who directly supervise or direct train dispatchers. Right now, the supervisor dispatchers are somewhat surrogate dispatchers. They are sitting behind the dispatcher who is Hours of Service and directing that employee. There is a loophole in the bill about dispatching by means of electronic device or mechanical device which is a loophole. What happens is the orders are conveyed from the dispatcher supervisor to the individual who is actually using the mechanical or electrical device to transmit the orders. That is an omission in the bill and we believe that needs to be corrected to include dispatcher supervisors under the Hours of Service to make sure that people who are effecting the distribution of orders are, in fact, well rested and non-fatigued employees.

    With regard to human factors also, I would like to touch on one other issue, and that is that we believe for the most part human factors are really operational and rule factors and matters of company policy. And that's where the solution to a lot of human factors issues lies. Thus, the so-called human factors can be largely mitigated through modification of railroad rules, safety rules, operational procedures, and regulatory compliance.

    For instance, the wholesale reduction in railroad employment across all crafts has led to many of the undesirable events which are now being attributed to human factors. Reductions in train crew, forced reductions in track, bridge, signal, and locomotive maintenance crews. The effects of operationally-induced cumulative fatigue, improper accidents and incident reporting, employee harassment and intimidation, the use of unqualified personnel to perform safety sensitive functions, and failure to provide adequate on track protection for roadway workers are examples of operational and administrative deficiencies contributing to the frequency and severity of railroad accidents and fatalities.
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    We believe the mitigation of human factors requires a multiplicity of approaches which includes addressing operational and safety rule deficiencies through joint collaborations between labor and management, the elimination of manpower shortages through hiring, and improvements in equipment, machinery, and the quality and availability of safety education, and training throughout all levels of the industry.

    Mr. Chairman and members of the committee, I appreciate this opportunity to testify and appear before you today on behalf of the non-operating crafts. I thank you for your time, and I would be glad to answer any questions you might have at the appropriate time. Thank you.

    Mr. FRANKS. Thank you.

    Mr. Jones.

    Mr. JONES. Good afternoon, Mr. Chairman and Mr. Wise. I really appreciate being here. I'm going to be very brief because the issue of fatigue will be covered by George Hucker. He's really our expert within the Brotherhood on that issue. I do want to point out a couple of issues that we're handling that do affect fatigue.

    One, we still have trouble in the railroad industry with crews being picked up off the train after they die under the Hours of Service Act. That's called ''limbo time.'' So, for example, we are only able to work 12 hours, then we have to stop our train and sometimes wait 4 to 5 hours to get picked up to get us into our home terminal before we can eat and get a place to stay. That issue went all the way to the Supreme Court but we lost that issue, saying that you had to be in transportation at the 12th hour. In Canada, Mr. Hucker can explain to you, you have to be in the terminal, not just off the train in movement, in the terminal, and he can explain more about that.
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    The other issues that affect fatigue are your working environment: (1) cab temperature, (2) noise, (3) vibrations, (4) air quality. Those issues are now being addressed because Congress was so nice to us to pass the 1992 Safety Act that said FRA is going to have to address these issues. We are now sitting down in the RSAC process and we are working with labor and management and with the FRA and the NTSB in some instances to work with these issues.

    The other issue that was talked about a little bit, not today but previously, was call post-accident stress syndrome. As an engineer, as I testified last time, I've had the problem of hitting three automobiles at grade crossings in one week. After you have that, it's the same type of mental attitude as that of the problems we have with a lot of veterans coming back from Vietnam. You relive that time and again. Some of the railroads have come in and addressed that issue, but you take that back to work. So that not only adds in fatigue, it adds into human factors. We have really not discussed that and gone into. I have to commend a couple of the railroads that are doing a very good job of getting our people into counselling after that. I, for one, had nightmares for four or five months after a particular crossing accident back home in Kansas. Every time from then on that I went by that crossing I remembered what happened that day.

    Now, human factors. Scary, West Virginia, for example, that is in Congressman Wise's area, that engineer had asked for retraining. He had gone into management and said ''I do not feel comfortable out here. I'm a new engineer, I need help. Please retrain me.'' They said ''You're certified. You've got to go to work.'' The train crews came in and talked to management and said ''This guy has come to us, we agree he needs more training.'' They said, ''No, we're short of engineers. He's got to go to work.'' What happened? They had a train wreck and several people got killed.
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    We are addressing those kinds of issues. I think we addressed that with management. I don't think those kinds of things will happen again, but we must make sure that they do not ever happen again. If an engineer feels he's not qualified on a territory, feels uncomfortable, we need to have the ability to address those issues. I think management has addressed it in the new engineer certification issue really well.

    New Jersey Transit, Secaucus, New Jersey. Sure, they possibly had a problem with the sugar diabetes and seeing. However, there was also a major fatigue problem that nobody talked about much here in these hearings. But either way, fatigue or with the seeing problem, both would have been prevented if they had train controls on those tracks which would have said that if anything happens, this engine shuts down. A lot of New Jersey Transit has it already but it didn't have it on that particular territory. This would have all been prevented if you had train control on that particular piece of track.

    The last thing that I wanted to talk about is the issue of Silver Spring. Likewise, that had a train control on that system that was taken out, a new system was put in. Even if the engineer would have had a human factor, I'm still not to this day convinced there were not signal problems out there. We had a lot of reported signal problems before and after that. We've looked into that. Of course, we can't ever seem to find anything wrong with the signals after an accident, but we had a lot of reports of it. As you remember, there was a book that was misplaced by the carriers in the crew room and it eventually reappeared but showed all the signal problems that we have had turned in there. So that's another thing.

    The last thing, Mr. Wise brought it up and I brought it up at the last hearing, I, as an engineer, know better than anybody else if that piece of equipment is safe to run, as an airline pilot has a right to refuse to take the plane out. I don't see any difference when we haul passengers and hazardous material. We want to have that right. We understand there has to be a mechanism somehow so trains will not be stopped if there really isn't something. But labor and management need to sit down and deal with that. If we can't deal with that, we need it in legislation.
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    I thank you for your time, and I would be pleased to answer any questions the committee might have.

    Mr. FRANKS. Thank you.

    Mr. Hucker, welcome.

    Mr. HUCKER. Thank you, Mr. Chairman. This is the first time in a long time that I've needed a microphone to talk to anybody in this industry. Mr. Chairman and members of the committee, I am George Hucker, International Vice President and National Legislative Representative for the Brotherhood of Locomotive Engineers in Canada. The International Brotherhood of Locomotive Engineers and its members in North America appreciate the opportunity to testify before you today on rail safety and human factors which impede the safe operations of trains. I am a qualified locomotive engineer with 20 years of experience in that craft. As such, I have experienced the effects of fatigue on an individual who was required to work 24 hours, 7 days a week railway operations.

    Every locomotive engineer understands the need for sleep before they are called for duty, but they do not understand the long lasting and detrimental effects of the lack of proper sleep leading to chronic fatigue. When I began to work as a trainman/yardman in 1966 no one took me aside and said ''George, make sure you get a good night's sleep or a nap before going to work.'' As I survived in this industry, and I'm serious, I survived in this industry, I learned the hard way to overcome the effects of fatigue in the locomotive cab. I, like every other operating employee in this industry, work in a constant state of jet lag. Unfortunately, there was no real understanding of the fatigue back in 1966. The state of jet lag affected my performance and had an untold effect on my family.
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    Locomotive engineers in unassigned freight service in Alberta who were surveyed in 1993 concerning their alertness while on duty provided us with some startling information: 18 percent of those people had indicated that they had 3 or more near miss automobile accidents in the past year; 26 percent of the accidents or injuries were due to fatigue or lack of alertness; 60 percent frequently used stimulants such as caffeine or nicotine to help stay awake and mentally alert; 85 percent felt the need for increased alertness on the job; 72 percent stated that their schedules were making them overly tired or fatigued; 92 percent reported they had been awakened by the RSC, and that in Canada is another piece of equipment used when they took the ''dead man'' panel off the locomotive, and I'll explain that later if you want to know exactly what that does; 89 percent have thought they had missed an advanced signal but actually had not; 63 percent had booked unfit for duty due to fatigue in the past year; and 50 percent had booked sick due to fatigue in the past year.

    And the list goes on. Clearly, from these results there were some serious problems within the industry.

    The industry over the years has spent huge sums of money to ensure the reliability of their locomotives, rolling stock, equipment, and their systems, but have spent little, or nothing, on the people who were required to operate the equipment and locomotives. While this investment in reliability of equipment and plan has seen an overall decline in the accident record of the industry, for accidents associated with equipment failure, the Brotherhood feels that the accidents associated with human factors have increased within this declining record. From the operating point of view, the locomotives have become more and more sophisticated and reliable, while the conditions that the crews work under on these locomotives have been an after thought.
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    In 1992, the AAR, along with the United Transportation Union and the Brotherhood of Locomotive Engineers, formed a Work/Rest Task Force to look at the factors involved with human factors accidents and what could be done about these accidents. Through this task force, rail labor and management began to exchange information and try to address the impact of fatigue.

    In 1993, after two incidents involving crews working excessive hours, Transport Canada imposed Hours of Service Regulations on the railways and their operating employees, the same type of hours of service present in the U.S. operations. These regulations limited the hours locomotive engineers and conductors could work in freight and passenger service in any given 24-hour period. This regulation was laid over the existing regulation of mandatory off duty time, which regulated the locomotive engineers and conductors to 8 hours rest after 10 hours on duty. Canadian operating crews' collective bargaining agreements also provide for a maximum of 24 hours rest at the home terminal and a maximum of 8 hours rest at the away from home terminal. Under the collective bargaining agreement rest provisions, the employee is the judge of his/her own condition and there is no requirement for an individual to book rest at the completion of his or her tour of duty.

    When Transport Canada imposed the Hours of Service Regulation, they proposed to the railways and their operating unions that if they could come up with something better than hours of service, we had 18 months to do so. The 18 months became 3 years, and in May 1996 Canadian National Railway, Canadian Pacific Railway, Via Rail Canada Ltd., and the Brotherhood of Locomotive Engineers completed the CANALERT Report. This 3-year project was conceived and completed in a cooperative approach between the railway companies and the Brotherhood of Locomotive Engineers without the involvement of the regulator. The involvement by the regulator was simply that we reported to them the progress in the process.
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    This report laid out the effects of fatigue on locomotive engineer and the countermeasures needed to combat the fatigue. These countermeasures included: regular and predictable duty periods; required circadian rest on particular runs at the time of day; a system-wide napping strategy; napping of train crews while in sidings awaiting other trains; installation of proper seating in locomotive cabs for proper napping; modification of resthouses, hotels, and motels to ensure improved daytime sleep; installation of locomotive cab audio systems; conduct life style training; training of train dispatchers and crew callers for the importance of fatigue countermeasures; locomotive cab and work environment improvements; explore alternatives to the mileage-pay systems; provisions for two qualified employees to run trains; and to explore alternatives to hours of service and rest regulations.

    The report concluded that railway fatigue was a complex issue and there was no silver bullet to solve the problems of fatigue.

    This report, combined with the ongoing efforts of the AAR Work/Rest Task Force, has given the railway industry a leading position in fatigue countermeasures in all transportation modes. Once this completed information became available, Burlington Northern Santa Fe, Canadian National Railway, Canadian Pacific Railway, and Conrail began to put together fatigue countermeasure projects which would fit into their particular operations.

    Burlington Northern has put in place a system-wide napping policy for all of its employees. They have had their operating employees put in place a procedure to allow one crew member to have a nap while in a siding awaiting other trains. At test locations, we have installed pre-departure and post-trip napping facilities for crews to get a nap at the home terminal while awaiting delayed trains. We presently have a number of locations where we have introduced time windows for crew scheduling which provides the operating employees with predictable work cycles. Within these time windows, there are scheduled days off to allow the locomotive engineer to have a life outside of the rail industry.
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    To introduce proper daytime sleep, their lodging facilities must now conform with the recognized standards of a sleep location which will provide the employees with anchor sleep. The outside providers of rooms are required to have rooms in a quite location of the hotel/motel with blackout curtains and white noise generators. New locomotives will be provided with intercom systems for better communications and the older locomotives will be retrofitted with new communications equipment. Headsets will provide noise attenuation to the locomotive engineer and the conductors.

    Conrail has in place at selected locations test projects to introduce crew scheduling. They are also providing the same types of countermeasures that Burlington Northern Santa Fe is providing to their operating crews.

    The Canadian railways are also providing their Canadian and U.S. employees with the same countermeasure projects.

    Along with these railways, CSX and Union Pacific are beginning to develop fatigue countermeasures projects. Union Pacific, while starting late in the process, will by their commitment soon catch up with the other Class I railways noted above in the implementation of fatigue countermeasures. All railways, to their credit, have gone out and hired the leading experts in the field of fatigue countermeasures and their implementation into an operation setting. Both Dr. Martin Moore-Ede of Circadian Technologies and Dr. Mark Rosekind of Alertness Solutions have been retained by the individual railways to work the different projects. They bring the scientific side to these projects.

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    The CANALERT Report and the data from the AAR Work/Rest Task Force have shown that the cookie cutter approach or the one-size-fits-all approach does not work. Countermeasure implementation projects have to be done on a subdivisions by subdivision basis. Fatigue or cultural education programs, napping strategies, napping facilities, resthouse/hotel/motel improvements, and cab work environment can be done on a system-wide basis. However, time windows/crew scheduling, 8-3 extra board, and other crew utilization countermeasures have to be designed around the traffic patterns on a particular subdivision so the railway operations are not affected.

    Last year the FRA approached the AAR Work/Rest Test Force to form a working group, the North American Rail Alertness Partnership (NARAP), which included all rail labor and the industry along with different regulatory bodies in North America, to review the best practices of the fatigue countermeasures within the industry and to determine where the industry should be headed on this subject. The FRA proposal of the working group would be outside the regulatory framework and were to be handled in a cooperative approach. Through the NARAP process, all views and positions on the proposed countermeasures could be discussed and differing concerns identified and dealt with by the parties. We've included a copy of what we proposed to have towards that proposal.

    We believe that the FRA should be a part of the process, not necessarily driving the process, and that they should be there to keep the companies' feet to the fire to ensure success. We believe that the new Federal Railroad Safety Reauthorization Act is a good first step in that approach. I think that we have to get rid of the ''iron man syndrome'' we have in this industry to ensure a safer place for our members to work and a safer and a more preferred method of shipping for the railways' customers to move their products across the continent.
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    One cannot negotiate or legislate safety, one cannot regulate cooperation. Through the CANALERT, the AAR Work/Rest Task Force, the NARAP, the industry has moved further and faster than any other mode of transportation without Government funding.

    The Brotherhood of Locomotive Engineers is prepared to continue to work with the other railway labor unions, the railway companies, the AAR, and the FRA in a cooperative approach to ensure that this most pressing issue to provide our membership with the relief they need. Thank you.

    Mr. FRANKS. Thank you.

    Mr. Brunkenhoefer?

    Mr. BRUNKENHOEFER. Thank you. With me today is Mr. Marceau and he will answer any questions that you may have about our position on fatigue.

    I'm married. Fifty years, I've been married to Judy Senkin. She is a partner with a law firm called Holland and Knight. Her office is three blocks from Dr. Bryan Arling's office. He's at the corner of 24th and M. A few years ago our labor organization signed an agreement that has to do with health care. We were given a choice of being in an HMO or not, being in an HMO or a PPO. We talked about it, and because the doctor is close to her office, we chose a doctor that is outside the health care network and pay more money for it because we believe that this doctor helps us.

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    Now, what's that got to do with what I want to talk about? So if I get sick, and I got a bad cold and went to see Dr. Arling the other day, and I'm not well yet but that's not his fault. If I work for a railroad and I get injured out here, I can't go see Dr. Arling. I'm told I'm going to the hospital and the doctor that they choose for me. Now, if I sprain an ankle or hurt myself, I'd be loaded on one of those vans I'm going to talk about in a minute and I'm going to be hauled 15 minutes, 30 minutes, or an hour away. We have an expression over in Newark, I don't know if you've got it in your district, ''you can beat the rap but you can't beat the ride.'' I'm going to be told I'm going to get in that van, and I'm going to that hospital, and I'm going to be treated at that hospital by a doctor I have never met and may not have any faith in, and if I don't like it, I can face discipline. In six months or 2 or 3 years, after I've lost my house, after I've lost my car, and after I've lost everything I own, I can get a hearing that I might win that says I had every right to refuse. The odds are 87 percent of the time I'm going to lose. So that's my risk.

    So when I'm injured and I work for a railroad, I'm going to go to their doctor, I'm going to go to their hospital, I'm going to be treated by their process. If I tell them I don't want to go, that's a tremendous price. When I get to that hospital, my supervisor probably transported me, if not, he's going to meet me there. He's going to tell me that if I take a prescription medicine then that becomes a reportable injury. And if I take that prescription medicine and it becomes a reportable injury, then I will be cited for an investigation. Most of the time that investigation is going to result in me being removed from service. But if I will not take the medicine the doctor prescribed for me, I can keep my job.

    What's my odds of filing out a report and reporting to the Federal Railroad Administration that I have been hurt, injured, or sick? What are the chances that case is going to be caught in the data process? And as you make the decision here about what rail safety laws, rules, or regulations are needed, that you're ever going to know that that took place? I am going to, in order to support and my family and keep from losing everything I own, I'm going to do everything in my power to make sure that there is no paperwork initiated that is going to require that accident or injury or incident to create a file.
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    You asked a while ago to tell the truth. Let's tell the truth. Let's tell how it really is. That when you create a report, one is you don't get to go to the doctor you want to go to, you're advised that if you take the medicine that makes it reportable, you're sometimes hauled by doctors and hospitals to get you to where they want you to go, and then if you'll agree that, gee, you won't be off, if you won't report, if you'll take leave time or if you'll take vacation time, then no report will have to be filed and then you don't have to worry about beating the rap because no paperwork will be initiated.

    Now that allows a lot of people to get awards, look good, and get pats on the back because numerically the safety records look very good. But do we really care about the injured worker and giving him the medical care that will probably get him well? No. We're looking at creating a record.

    So, yes, there is harassment. Yes, there is intimidation. And simply sitting at this table and looking at you and denying, denying that there's a problem doesn't mean it doesn't exist. There is a real problem. It goes on. And it is going on now as we speak. I've got cases on my desk where the people reported it, got injured by it two weeks later, so they got fired for being injured because they should have known better because they reported it. Well, boy, did that encourage reporting.

    Now, one of the things that was brought up here was commingled service. You need a ride to the airport? I've only been up 3 days, one of Mr. Inclima's people working on a derailment, but I'll now give you a ride to the airport or a ride over to Manhattan or whatever. I'm only going to be driving an hour or 2, that ought to be okay. Commingled service means one of Rick's good people that works real hard and has to work hard and clean up an accident could then run the locomotive, but only for 2 hours. By not preventing commingled service, then you have a circumstance of where you're ensured that at least the person operating the train is rested. If you take away the wall that allows for commingling of service, then you lose that.
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    Now, vans. There was nice New York Times article, maybe it should have been in the Clarion or should have been in the Star Ledger, where it talks about vans. The railroads have moved to their contract service. The driver of the van is more fatigued than the person they are hauling. So we have crew members up 10, 12, 16 hours, 24 hours, and then the crew has to get together and say, oh, gee, we're in better shape than the driver of the van that was dispatched to take us 200 or 300 miles down the highway. So they choose up among themselves. That shouldn't happen but that's what is going on.

    I know it's not the jurisdiction of this subcommittee. We have appealed to put them under the Hours of Service Act, but under the full committee. There is a loophole in the law that allows for hauling people of 15 or less to be loopholed out. What we think, if you're going to be moving people in interstate, they ought to have the same requirements at least that we have if they're going to go down the highway hauling people.

    I understand you have a great problem with a waiver because of the New Jersey Transit accident. It is something that needs to be done. It needs to be taken a look at. But please don't make it so wide that we end up putting people on a disability and out of the industry so they can't feed their families. We have backgrounds, I think both Leroy and I, of where we find places for people that they can maybe work yard engines, or work locals, or work road switchers, or work in a service where whatever their impediment is, whether it be diabetes, whether it be heart, whether it be vision, whatever. Allow us to sit down and try to work out to find a place for them in the industry rather than saying if you have this list of problems you're out. We have done it before. I'm sorry they didn't do it on New Jersey Transit. But please allow the flexibility to the parties so we can get there.
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    I want to conclude by saying the FRA has been a real catalyst in the industry. I wish they had greater resources to do a lot of the things that they need to do. We can't say enough good things about RSAC and SACP. Without the push from Jolene, I'm not sure that we would be working so hard together. I think you, Mr. Wise, talked about your Oberstar-Wise bill, and they said, yes, it was a wonderful catalyst. Well, Ms. Molitoris and her staff have been a real catalyst to solving some of our problems.

    Thank you for the opportunity of being here. All of us will be glad to answer any questions you all have.

    Mr. FRANKS. Gentlemen, I want to thank you for your testimony. That was very enlightening, for me at least. Let me ask, Mr. Brunkenhoefer, you pointed out in your testimony that some sleeping quarters are still grandfathered under current law and don't have to meet current FRA standards. That grandfathering took place I guess back in the 1970s. What kind of problem does that present today? One would think that that equipment would have outlived its useful life by now. Enlighten me here.

    Mr. MARCEAU. If I may, Mr. Chairman. What we have in several areas of the country are bunkhouses or lodging facilities that were constructed either by or for the carriers that are essentially right along side main lines or in the middle of rail yards. Some of those facilities probably were quite new when the law was enacted, but they are still in use today and our members report they're having difficulty sleeping because of the location of their lodging facility. Laurel, Montana is one good example.

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    Mr. FRANKS. Let me ask you to comment on noise as a fatigue related issue. People have alluded to it all day, but I'd like to get all of you on the record on this. If everybody could be brief, I would appreciate it.

    Mr. MARCEAU. I think there are two types of noise that we're dealing with on this issue. When you're trying to get a nap in the middle of a rail yard, you've got the heavy noise that goes on around an industrial operation. I think there are other types.

    I know there is some scientific literature that would indicate that fatigue begins to onset with a decibel level over 80, and around 90 the deterioration becomes much more prevalent. I don't claim to be a scientist like Martin and Mark are, but definitely in the aviation industry noise in the cockpit has been identified as a contributing factor in fatigue. It's around 80 decibels where it begins. I believe locomotives currently are designed around 90, aren't they Jim?

    Mr. BRUNKENHOEFER. I think so.

    Mr. FRANKS. Anybody else?

    Mr. INCLIMA. Just on the issue of noise, in this world of maintenance away, currently, although we are working on some standards trying to address the issue of noise and other ergonomic issues and safety issues regarding maintenance away equipment, they just don't exist. So you have an operator of a piece of equipment who basically has this gigantic motor very close to his head and he just hears this thing roar all day. We have a lot of hearing loss and obviously stress that goes with that.
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    With regard to the sleep cycles and rest cycles, one of the major issues with maintenance away, in particular, is our travelling crews, regional and system production gangs, they are housed in corporate housing or camp cars. The corporate housing is usually just a hotel, usually the cheapest hotel in the area in a lot of cases, and there are no standards for putting those people up. So we have guys that come off the track after spending 8 or 10 hours in the hot sun or in the cold of winter, they're brought into what could be termed no less than substandard housing situations, put two to a room, and are expected to be well rested the next day. But the thing might be right next to the highway, right next to a railroad, you've got the maids banging into the doors, no room darkening shades, et cetera. And that is a real concern cumulatively.

    Again, it's noise and sleep. It's something that we need to address. It certainly affects people. And, again, I can't emphasize enough that all these issues of fatigue and noise and related issues are not confined to those employees covered by Hours of Service Act. You have a vast group of employees who if you chose to cover them under Hours of Service, it would not mitigate these fatigue issues. They are outside the sphere of hours worked but they are legitimate, they are real, and they do affect safety.

    Mr. JONES. Real quickly, we are addressing noise, as I said in my remarks, through the RSAC process of cab working conditions. Brother Hucker here explained to me that the Canadian regulations is 82 decibels. Basically, you can't get a FRA violation on a noise level now. It is just basically impossible to do.

    We are addressing that. Our union has hired a noise expert and the carriers have hired experts. Even communication of noise between crew members is a safety problem. But noise definitely is a fatigue factor; we know that, we're addressing that. I do hand that to the carriers and to Jolene for getting us together on it. We just have to come to a conclusion on it.
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    Mr. FRANKS. Mr. Hucker, you stated in your testimony that 92 percent of locomotive engineers in Alberta who were surveyed back in 1993 reported that they had been awakened by the RSC device. You said in your verbal testimony that you would explain to us what that meant. What does that mean?

    Mr. HUCKER. Yes, sir. Out of the Hinton accident where we killed 23 passengers, just before Chase Maryland accident , it was found that the ''dead man'' had been tied down. And Transport Canada had come up with a system where whatever speed you're going at the RSC,—it's a little box that sits next to the front window in cab of the locomotive and every 10 seconds when you're at, say, about 60 miles an hour this thing will start to have an audible beep, lights will come on, and the locomotive engineer has to do something or a service brake application will be made and the train is stopped. Simply just pushing the independent brake handle down to let the bail to come up or throttle modulation will reset it and the operation will continue. So if something does happen and the person is incapacitated in some manner, then the train will come to a stop.

    Mr. FRANKS. Thank you.

    Mr. Wise?

    Mr. WISE. Thank you, Mr. Chairman. I think your questions have dealt with a lot of what I would like to have asked.

    Let me just say in a manner of closing, because I believe this is the last panel, that I greatly appreciate your testimony and how thorough it is. Mr. Brunkenhoefer, I have no illusions as to what is driving the improvement in relations. Legislation that has trouble getting a hearing usually isn't what brings folks to the table. Ms. Molitoris and FRA I think has done an excellent job in bringing people to the table.
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    Having said that, Mr. Chairman, I appreciate greatly the fact that we're having these hearings. I do think that there is a spirit that we can reach agreement and reach consensus on something that will truly improve rail safety. There are a number of issues in the human factor area that are out there. I think it is going to be necessary for all of us that are in the room and some that have left the room—I wonder if they got lunch?—to continue discussions. I do believe that harassment is a very real problem. I don't come out of the railroad industry, my first experience was in the mining industry, but the concerns that are being expressed to me very vividly deal with harassment and intimidation.

    Mr. BRUNKENHOEFER. Can I make a comment, Mr. Wise?

    Mr. WISE. Yes, please.

    Mr. BRUNKENHOEFER. A railroad in your State which will remain nameless actually prepares a guide that the supervisor hands to the doctor so the doctor knows how to treat you, the doctor is being paid by the company, to treat you to avoid creating a report. I find that astounding that the carrier already has a nice little guideline that they hand to the doctors.

    Mr. WISE. That is clearly an area. The issue of the fatigue management plans or prevention plans, I kind of like that, is certainly an area. And while I look forward to working with industry and labor on this and also the FRA, my sense is that the FRA is saying that they think there are some areas where their wording is not necessarily perfect and that we can reach agreement, and I think we ought to strive to do that. So as we complete this hearing, which I think has been a very, very important hearing, I would just urge all of us to get about the business of doing that. The legislative session isn't going to be very long around here, and we do have a chance I think to get something significant done. Thank you.
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    Mr. FRANKS. Mr. Wise, thank you for your comments.

    Members of the panel, thank you. Another excellent contribution. Thank you very much for the help you're providing our subcommittee in working through this measure. Thank you.

    The hearing stands adjourned.

    [Whereupon, at 2:25 p.m., the subcommittee was adjourned, to reconvene at the call of the Chair.]

    [Insert here.]




U.S. House of Representatives,

Subcommittee on Railroads,

Committee on Transportation and Infrastructure,
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Washington, DC.

    The subcommittee met, pursuant to notice, at 9:39 a.m., in Room 2167, Rayburn House Office Building, Honorable Bob Franks (chairman of the subcommittee) presiding.

    Mr. FRANKS. Good morning. I'd like to call the hearing to order.

    Today we're holding the fourth and final hearing in this scheduled series on the reauthorization of the Federal Rail Safety Programs. We've already held hearings on FRA's budget and resource needs, on equipment-related safety issues, and on human factors issues. Today we will focus on the FRA's regulatory process.

    Since the last rail safety legislation was enacted in 1994, several significant issues have arisen concerning the FRA's regulatory process. In addition, during the last several years, the FRA administrator, Ms. Jolene Molitoris, has initiated new approaches toward rulemaking and regulatory enforcement; a major and long-standing issue with the FRA regulatory process concerns, FRA's lack of timeliness in issuing regulations by their congressionally mandated deadline.

    The most glaring recent example of this problem concerns the 2-way end-of-train device. In 1992, Congress required FRA to issue a rulemaking mandating the 2-way end-of-train device by December 31, 1993. In early 1996, more than 2 years after the statutory deadline for completing the rulemaking had lapsed, during which FRA still had not issued the required rulemaking, a Burlington Northern Santa Fe train derailed at Cajon Pass in California. The NTSB found that a functioning 2-way end-of-train device could have prevented the accident. In the wake of the BNSF accident, the FRA issued an emergency order to require 2-way end-of-train devices on steep grades. That emergency order would have been totally unnecessary had the FRA rulemaking been completed under the statutory deadline. That's why it was particularly troubling to see the FRA site—on page 6 of their written testimony for today's hearing—the 2-way end-of-train device as an example of the successful regulatory effort.
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    I hope to hear from the FRA today on what actions have been taken since then to improve the timeliness of rulemaking, and would also welcome any suggestions for legislative changes that could assist FRA in this area. As I mentioned, the FRA has recently initiated new regulatory processes.

    The Railroad Safety Advisory Committee represents a departure from the traditional process of conducting rulemaking. Interested parties have an opportunity to participate in the process up front before a rulemaking is published for public comment. In addition, the FRA has initiated the Safety Assurance and Compliance Program, which evaluates a railroad safety culture and attempts to address the stem safety defect. The GAO has conducted a study of these new processes and is here to testify today on the results of that study.

    Various groups have proposals to alter FRA's current regulatory process. Today, we will likely hear from the carriers regarding their desire to see FRA conduct more performance-based rulemakings rather than prescriptive command and control formula that has been used in the past.

    In addition, we'll be hearing from rail labor concerning their proposal to strengthen an existing law that protects employees who report or refuse to operate safety-defective equipment or procedures. I'm confident that there will be other issues raised this morning concerning this critical topic.

    I want to thank our witness for appearing today, and now I would like to recognize the distinguished ranking member of the subcommittee, Mr. Wise.
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    Mr. WISE. Thank you, Mr. Chairman.

    I think this is a very important hearing—I believe fifth or sixth in the series—and Glen and I were talking earlier and it's my understanding that you're only going to require a term paper and a final exam before Congress goes our for July 4th.


    What I appreciate about this series of hearings is that they have been very complete; they have been rigorous; and I believe it has put this subcommittee in good position to look at safety legislation.

    You quite properly bring up the issue of deadlines. The FRA has not always met the deadlines, and some cases there has been some good reasons for this—complex issues; conflicts between views of rail management and rail labor are often sharp; but it is important to look at why they've not always been met. Some of the problems may also be resource problems; there may not be enough people to get the work done. And this is a question I have been repeatedly trying to bring up during the course of hearings as to whether or not there are the resources there to do the deadlines, do the different consulting process which FRA is going through, and also to do the inspections and any other kind of technical analysis that may need to be done.

    We also need to look at the process of enforcing the rules, and to make sure that a citation actually means something, and that there is true enforcement behind inspections and other processes.
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    The new system—the SACP, Safety Assurance and Compliance Program—seems to represent a more aggressive effort to go after railroads that are really having safety problems. Under SACP, the FRA analyzes all of the railroad's problems—I call it a wall-to-wall safety audit—and identifies the most important action the railroad needs to take to improve its safety record. This seems to be a sensible process and a sensible approach to safety enforcement. But I am concerned—as GAO apparently is—that the SACP process does take critical staff resources away from the work of going out in the field and inspecting the railroad's track equipment and operating procedures.

    The administration has proposed that at least partially remedying this situation by bringing on 32 additional field inspectors—32 probably makes sense—and we need to take a closer look at all of FRA's resource needs to see whether they have the staffing that is necessary for rulemaking and for enforcements.

    We also need to look at how we can increase the safety impact of the skills held by railway labor. The skills that track inspectors and Carmen and Singleman have are crucial to maintaining and improving the safety of the Nation's railroad system. I think we need to recognize these skills in a formal way; perhaps through a certification process and then give the people having these skills a record of authority to make decisions that will ensure a safer railroad.

    One questions I would appreciate everyone addressing today—because if you don't, I'm going to ask you about it—and that's harassment intimidation. Because rail safety and rail enforcement mean nothing if there's a fear of harassment intimidation. And I hear in my gettings-around that there is still that very real concern; whether if it's only a perceived harassment or intimidation, it's still real within the industry. And so how that gets addressed and making sure that all people who work on the railroad feel that they've got a hand in the safety process without harassment intimidation lurking in the background. I think it's crucial, so I look forward to these hearings.
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    Thank you.

    Mr. FRANKS. Thank you, Mr. Wise. Mr. Blumenauer.

    Mr. BLUMENAUER. Thank you, Mr. Chairman.

    I just look forward to continuing our effort in building constructive record to guide the subcommittee, and appreciate you having me.

    Mr. FRANKS. I ask unanimous consent that the hearing record be held open for 30 days to allow members to submit written questions to the witnesses and to receive written answers for inclusion in the record. Without objection so ordered, I ask unanimous consent that the opening statement of Mr. Shuster, the chairman of the Transportation Infrastructure Committee be included in the hearing record at the appropriate point. Without objection, so ordered.

    [The prepared statement of Mr. Shuster follows:]

    [Insert here.]

    Mr. FRANKS. For our first panel, we have the Honorable Donald M. Itzkoff, Deputy Administrator, Federal Railroad Administration. I know that you're joined by one of your colleagues today, Mr. Itzkoff. We welcome you. Thank you for appearing this morning. We appreciate the input we received from FRA and through your office thus far during this hearing process, and we anxiously await your testimony. Thank you for being here.
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    Mr. ITZKOFF. Thank you, Mr. Chairman. Mr. Chairman, and members of the subcommittee, we appreciate this opportunity to testify on FRA's regulatory program. My written statement highlights FRA's role in enhancing railroad safety over the past decade.

    In the past 5 years, the train accident rate has fallen 11 percent; railroad-related fatalities have dropped 18 percent; and on-the-job casualties have fallen almost by half.

    FRA's regulatory program has supported this safety success. The more than 50 final rules we have published over the past decade anchor our multi-dimensional safety program, which emphasizes collaborative efforts to attack roof causes of safety problems.

    Since 1988, FRA has completed 20 of 24 rulemakings mandated by the Congress. In allocating our resources to address the remaining rulemakings that have been mandated, Administrator Jolene Molitoris and I have focused on the most critical safety elements first.

    For example, in power brake and track safety, we have used a collaborative process with sustained input of labor and management to the Railroad Safety Advisory Committee established 2 years ago. The RSAC process took time, but we believe it was time well spent. The final track rule, which is now in final clearance, reflects substantial consensus by labor and management. Because the RSAC did not achieve consensus on power brakes, FRA withdrew it last year, and we have proposed a new rule based on the input of the working group. That rule is now in clearance as well.
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    In each of these areas, we have focused on the most critical safety requirements because our current power brake and track rules work well. For power brakes, we severed the 2-way end-of-train device issues, addressed them separately, and ultimately issued rules requiring trains to be equipped with these 2-way devices 6 months ahead of the congressional deadline. Similarly, we completed the track worker safety issues first before tackling the track engineering and inspection standards. These roadway worker safety rules respond to the congressional mandate and are in effect right now.

    With regard to emergency preparedness and passenger equipment safety, FRA again successfully used a collaborative process. The emergency preparedness rule was issued last month. We proposed a NPRM on passenger equipment last fall, and anticipate publication of the final rule this summer.

    Finally, on the whistle ban issue, FRA has reached out to more than 200 communities, even as Congress amended the original mandate. We have concluded that a detailed environmental assessment is required, which will begin this summer. If we determine that an EIS is necessary, we will issue it along with a NPRM, which is already in review and clearance in the executive branch.

    Mr. Chairman, these are the remaining railroad safety rules mandated by Congress. We are committed to completing them as quickly and as well as we can.

    As the subcommittee considers FRA's regulatory program, let me underscore the benefits of the collaborative process.
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    The roadway workers safety rules developed consensually have been in effect more than a year and have saved lives, largely because labor and management helped develop them and because they understand them.

    Through the RSAC, which has followed from our success in roadway worker, we have achieved consensus on track, radio communications, steam locomotives, and engineer certification. The RSAC is now addressing positive train control, locomotive cab working conditions, and locomotive crashworthiness. Following publication of the initial passenger equipment rule, we will pursue further consensus-based efforts with the passenger safety working group.

    With collaborative rulemaking, our safety partners now better understand the procedural elements of the rulemaking process; such as Executive Order 12866, which requires the preparation of a cost-benefit analysis and submission of significant rules to OMB.

    Not every rulemaking or regulatory issue lends itself to the consensual process, which is very resource-intensive for the agency. We will continue to develop other regulations through the traditional notice-and-comment process, such as our proposed regulation requiring a safety integration plan for railroads proposing major acquisitions or other transactions.

    New regulatory approaches, such as the RSAC, help us leverage our resources. But, in fact, the very same staff that address the complex rulemaking issues that we have also answer thousands of letters and telephone calls each year and manage safety assurance and compliance. A truly integrated safety approach means that enforcement, partnership, education, training, and open dialogue all must complement effective regulatory standards.
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    Such an integrated approach, for example, has dramatically improved hazardous materials transportation safety. Only three people have died as a result of hazmat releases in the rail mode since 1980. And releases fell to 38 last year—down from 232 in 1978, when 24 people were killed.

    Our success has resulted not only from new rules governing design standards and inspection procedures for tank cars, but from enforcement efforts, including two emergency orders, and training, education, and awareness. In fact, regulations provide the platform for the very best safety practices.

    Our 1991 rule on locomotive engineer visual acuity specified how well engineers had to see, but not how they had to be tested. Following the Secaucus collision, which was attributed to the color blindness of an engineer, FRA and the RSAC engineer certification working group perceived that the standards needed to be fine-tuned. The RSAC group has proposed to change FRA's performance standard to a more prescriptive regulation. We will formally propose this revision, but rather than wait for a conclusion of the notice and comment period, we will submit to the Federal Register a safety advisory advising physicians administering this test Nationwide of the RSAC's initial recommendations.

    The Administration's rail and safety reauthorization bill reflects the collaborative and innovative approach that has driven FRA safety efforts. The fatigue management plan proposal, in particular, is neither prescriptive nor regulatory. Rather the proposal provides railroads and their employees with the flexibility to tailor plans to meet individual railroad circumstances. We believe that enactment of this provision—and the others that we have proposed—should help reduce human-factor caused accidents, which account for 30 percent of all train accidents.
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    Mr. Chairman, we thank you for introducing the railroad safety reauthorization bill proposed by the Administration, along with Mr. Shuster, Mr. Oberstar, and Mr. Wise, by request. Administrator Molitoris and I look forward to working with you to enact our proposed budget for fiscal year 1999 to give us the 32 new inspector positions the agency requires and to develop with you and enact this year the necessary authorization legislation to assure continually improving railroad safety in the Nation into the next century.

    I thank you, and we'll be pleased to respond to any questions.

    Mr. FRANKS. Mr. Itzkoff, thank you very much.

    There's a number of questions I'd like to pursue. The first one concerns page 14 of your statement where you included Executive Order 12866, which requires OMB review and cost benefit analysis. At our earlier hearing, some witnesses from Rail Labor suggested that consensus-based proposed rules that represent labor management agreement should be exempted by the Congress from that OMB requirement. My first question is does FRA support that proposal?; and second, do consider legislations that would exempt specify types of regulations from OMB to be constitutional?

    Mr. ITZKOFF. We do not support that proposal. The various statutes that Congress has enacted, such as the Paperwork Reduction Act and the Regulatory Flexibility Act, along with the Executive Orders that the President has issued—including Executive Order 12866 requiring cost benefit analysis and other Executive Orders addressing regulatory flexibility—all go to the issue of appropriately balancing the benefits of regulations with the proposed cost and impact on the public and regulatory community. This kind of review, with the issues that are needed to be considered as part of this process, is valuable and is in the public interest; and of course the initiatives that are undertaken in consideration of those requirements, we think, are very effective.
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    Mr. FRANKS. In pages 7 and 8 of your statement, you discuss the implementation of the Whistle Bans provisions of 1994 Rail Safety Law. Under Section 20153, FRA was required to issue regulations concerning the most hazardous types of crossings on November 1996, and regulations covering other crossings by November 1998. I realize that Congress made some modifications in 1996, but it did not change the deadlines applicable to FRA which has already been exceeded at that time. This issue is of vital concern. I've learned of many communities because many railroads have already adopted a policy of sounding horns at all crossings, and without the FRA rules affected communities have no guidance whatever on the measures required to avoid the sounding of horns. When can we expect action on that issue?

    Mr. ITZKOFF. Following Congress' enactment of the whistle ban requirement, we undertook substantial outreach to many communities throughout the country. We received a number of comments and concerns about the scope of the legislative requirement which we would have to implement. That outreach led in part to Congress' reconsideration of the statutory mandate. We have implemented the Congress' requirements as revised in 1996, and developed a proposed rule that is now in clearance in the Executive Branch. However, in the review process it became clear that the environmental impact issues would need to be identified and considered in a very significant way.

    So what we will be doing is conducting an environmental assessment this summer which will determine whether or not the preparation of an environmental impact statement is required. Our proposal is that we would release the notice of proposed rulemaking, along with the environmental impact statement if one is required, and do it at the same time rather than doing it sequentially or in a different manner. I think that is the most effective use of our resources. We anticipate the environmental analysis to be completed by this fall, and our proposal will be to release any environmental impact statement and the notice of proposed rulemakings in late fall of this year.
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    Mr. FRANKS. Late fall of this year? Thank you.

    At page 14 of your statement you listed the National Environmental Policy Act, or better known as NEPA, as one of the procedural hurdles FRA must clear in issuing rules. Also, in the environmental area, the administration's rail safety bill proposes to amend the statute to allow FRA to issue emergency orders. Not just to deal with imminent threat of death or injury, but also imminent threat to the environment. I have two questions related to this issue.

    First, since agencies—most notably the EPA—has primary Federal jurisdiction in environmental matters, how does the administration proposal impact EPA? And second, since FRA's general safety authority is not completely preempted, and neither are the Federal environmental laws in many respect; doesn't giving FRA this type of environmental authority clash with existing jurisdiction of state environmental agencies?

    Mr. ITZKOFF. FRA has primary regulatory authority and responsibility for railroad safety throughout the United States. Our emergency order authority, which is extremely broad, is something that we have used only rarely, 20 times in the agency's history. It is rarely used because it overrides the traditional notice-and-comment procedure that is there to allow public comment on proposed agency action. But we've used the emergency order procedure when warranted because of the imminent threat to human health or life that might be posed by continuation of an unsafe railroad practice or condition.

    We believe that extension of this authority to address imminent environmental hazards is one that could be a significant issue that we might need to address in the future. We think that it is warranted; it is a separate authority from what the EPA has; we have the authority over railroad practices; and that is how we are perceiving this issue and that is why we have proposed it.
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    Mr. FRANKS. Just one follow-up. Does that suggest that statutory authority currently granted to EPA is inadequate, or that EPA is not protecting imminent threats to the environment when they occur along the railroad right-of-way?

    Mr. ITZKOFF. Mr. Chairman, I'd be pleased to discuss this with you further and to submit additional comments for the record. What I would like to stress is that the FRA has preeminent authority and expertise with regard to railroad-related issues and proposed potential concerns that we need to address, so that we obviously would be working with the EPA on any such issue that might arise, but the expertise and responsibility reside with us, and that is why we are proposing emergency order authority to reside with the Federal Railroad Administration.
    [The information follows:]

    [Insert here.]

    Mr. FRANKS. Thank you. Mr. Wise.

    Mr. WISE. Thank you. Mr. Itzkoff, I'm going to start with you on the question I said I'd be asking, or trying to ask most of the panels. And that is in your legislation that FRA submitted on rail safety, you expanded FRA's ability to deal with harassment intimidation. My question is whether why the FRA would include that, and whether the FRA feels that this measure in deed in needed?

    Mr. ITZKOFF. I'm sorry, whether FRA would——
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    Mr. WISE. Feels that these measures are needed—the additional——

    Mr. ITZKOFF. We strongly believe that additional measures are needed in this area. Employees must be free to raise safety concerns without fear of retaliation. Otherwise, the free-flow of essential safety information is going to be inhibited. The railroad industry has come very far in just the past several years in enhancing a positive culture that encourages employees and managers to speak freely. However, it is still an issue that is out there, and I will be pleased to submit for the record a sampling of some of the hundreds of letters that we receive each year from railroad employees alleging instances of harassment or intimidation. We have recognized this as a problem; I know that you have recognized it as part of your safety bill that you submitted with Mr. Oberstar and the Chairman. Your bill that you introduced last year also addresses this problem. Our bill proposes to expand the current categories of protections covered by the Railway Labor Act to address it. We believe that is an important element in the ability of employees to work in an environment where they have the ability to talk freely about these kinds of issues.
    [The information follows:]

    [Insert here.]

    Mr. WISE. You note hundreds of letters you receive, these are some that we've received as well. So I think it is an important measure that needs to be dealt with.

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    One of the rail union witnesses later this morning will suggest that outside contractors should be subject not only to hours of service requirements, but to other rail safety requirements as well; such as tampering with safety devices, moving of defective equipment, and restricting access to rolling equipment. You have any response to that suggestion?

    Mr. ITZKOFF. Where there is a safety issue that has arisen, we will be looking to address that. I'd like to respond further for the record, Mr. Wise, on how far we want to go beyond the initial statutory proposal that we have proposed, and whether a regulatory action would be more appropriate.
    [The information follows:]

    [Insert here.]

    Mr. WISE. I think there's going to be a complaint later on in the day that you did not submit your legislative proposal—your FRA Rail Safety Legislation—through any kind of process such as you've been using on rulemaking or proposal making. You have a reaction on that?

    Mr. ITZKOFF. Well, Mr. Wise, we are always of course gratified when our partners want to talk with us, and we try to encourage the free flow of information and engage in that kind of dialogue. The fact is that last year when we offered to the Railroad Safety Advisory Committee the opportunity to explore some of the fatigue issues that might lead to development of the Administration's statutory proposal, some members were uncomfortable with that endeavor and declined to put together and endorse a working group to move forward.

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    We did conduct outreach earlier this year on development of our proposal. But the fact is that now it has been proposed. This is the time for us to engage in that dialogue and to have those conversations, and we look forward to working with you, the Chairman, the Subcommittee, and the railroads, and the representatives of the employees to develop a railroad safety reauthorization that we all can support.

    Mr. WISE. My corrective, when you first submit legislation on behalf of the administration that the last step is to take it to OMB, and do they not sign off on it the same way that they sign off on rulemaking?

    Mr. ITZKOFF. The OMB does need to sign off on legislation, yes.

    Mr. WISE. Am I correct—my experience is that once it's been through OMB, they don't any changes made anyhow?

    Mr. ITZKOFF. There are often changes. Sometimes they're not the ones that we originally proposed. However——

    Mr. WISE. No, I mean as far as consulting others. That once you send it to OMB and OMB puts its hand on it, that's the way that OMB wants it introduced?

    Mr. ITZKOFF. It is difficult to conduct an ongoing update and revision of issues once they are in review inside the Executive Branch with all of the entities, including the Office of the Secretary, that need to address proposed rules, as well as legislative process.
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    Mr. WISE. But now that it's in the legislative process then you're able to engage in discussions about how it could be where compromises can be made; how it can be enhanced. Is that a correct statement?

    Mr. ITZKOFF. That is right. And now that the legislation has been proposed, that is our proposal, and of course at this point we do very much want to work with everyone to develop a positive rail safety legislation that can be successful.

    Mr. WISE. So once its inside the legislative fence, and therefore all parties are able to engage in this discussion?

    Mr. ITZKOFF. Now we can talk about it, now that we're inside that fence. Yes, sir.

    Mr. WISE. Thank you very much.

    Mr. FRANKS. Mr. Blumenauer, Mr. Sandlin. Mr. Itzkoff, that you very much for your appearance this morning. We appreciate it.

    Mr. ITZKOFF. Thank you, Mr. Chairman.

    Mr. FRANKS. Our second panel will incorporate Ms. Phyllis F. Scheinberg, Associate Director, Transportation Issues at the General Accounting Office. Ms. Scheinberg, would you come forward please? Ms. Scheinberg, if you would like to introduce the people accompanying you this morning, that would be great.
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    Ms. SCHEINBERG. Thank you, Mr. Chairman, members of the subcommittee. With me today are my colleagues Bonnie Leer, Joseph Christoff, and Helen Desaulniers.

    We appreciate the opportunity to testify this morning on railroad safety. On July 1997, we reported on operational and safety trends in the railroad industry, and how the Federal Railroad Administration has revised its rail safety program to address these trends.

    The railroad industry has changed significantly in the past 20 years. From 1976 to 1998, mergers and acquisitions significantly reduced the numbers of class 1 freight railroads. These larger railroads have cut costs, increased the tonnage their trains carry, downsized their workforce, and reduced their miles of tracks.

    The level of railroad safety has also changed over the past 20 years. In general, railroad safety has improved. Railroad accidents are down 75 percent and fatalities are down 36 percent from their 1976 level. However, while the number of accidents declined rapidly prior to 1987, progress has continued at a slower rate since then. And more than 1,000 deaths still occur each year on the Nation's rail lines. Nine out of ten of these deaths are the results of either collisions at grade-crossings, or trespassers on railroad property. In addition, each year at least 9,000 railroad employees are injured on the job.
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    In response to these continuing safety problems, FRA instituted an important shift in its safety program beginning in 1993. Rather than continuing to use violations and civil penalties as the primary means to obtain compliance with railroad safety regulations, FRA decided to emphasize cooperative partnerships with other Federal agencies, railroad management, labor unions, and the states.

    Under this new approach, FRA has established three key initiatives to improve rail safety. The first is designed to reduce accidents at highway grade-crossings; the second, the Safety Assurance and Compliance Program, or SACP, focuses on the root causes of safety problems; and the third addresses the most complex and contentious rulemaking issues through the Rail Safety Advisory Committee, or RSAC.

    Rail safety has improved since FRA began its new partnering approach. For example, FRA statistics show that from 1993 through 1996, rail-related fatalities declined by 19 percent. These recent improvements in safety are commendable. However, it is unclear if they are sustainable. Past safety trend show that safety improvements incurring in 1 year are often reversed with a spate of major accidents and fatalities in the following year.

    Accidents and fatalities that occurred last summer with Union Pacific and CSX trains have raised questions about the effectiveness of FRA's SACP process. Despite FRA's intensive safety reviews of both of these railroads during 1995 and 1996, the railroads had 10 accidents last summer that resulted in 8 deaths. FRA responded with additional safety reviews, sending in teams of 75 to 80 inspectors to each railroad to once again document safety problems and ensure that the railroads had addressed problems found in earlier reviews. In addition, even with the input from the Rail Safety Advisory Committee, FRA has made limited progress in issuing congressional mandated regulations.
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    FRA has referred 14 rulemaking tasks to RSAC since it was established 2 years ago. Several of the tasks referred to the committee concerned complex or controversial matters that FRA had been working on for several years. In 2 cases, FRA had already missed the statutory deadlines before referring the rulemaking tasks to the Advisory Committee.

    Further, FRA's new partnering approach has resulted in FRA inspectors completing 23 percent fewer sites-specific inspections between 1994 and 1997. That was 16,000 fewer inspections. These inspections have historically served as FRA's primary means of ensuring compliance with safety regulations. FRA's efforts to increase cooperation with the railroad industry has added new responsibility for its inspectors, since nearly all inspectors participate in SACP and RSAC.

    Finally, we found that FRA's efforts do not systematically address improving workplace safety. Efforts to reduce injuries to workers must rely on the combined efforts of FRA and OSHA. FRA generally oversees workplace safety intrinsic to railroad operations, and maintains a regular presence on railroad property. In contrast, OSHA is responsible for issues that would be associated with any industrial workplace, and visits railroad property only in response to complaints or serious accidents.

    Last year, FRA began collecting more detailed data on workplace injuries. With this information, FRA now has an opportunity to target these workplace safety issues, giving rise to the most serious or recurring injuries.

    Mr. Chairman, that concludes my testimony. We will be happy to respond to any questions you or the members may have.
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    Mr. FRANKS. Ms. Scheinberg, thank you very much. Let be build on some of the inquiries that my colleague, Mr. Wise, was making a few moments ago. We're going to hear from some witnesses later on in this hearing today.

    The carriers through the use of intimidation and harassment are suppressing the actual number of railroad accidents and incidents. What has GAO learned about this issue?

    Ms. SCHEINBERG. Mr. Chairman, we reported on the under reporting of railroad accidents and injury data in 1989, and again in 1994. We recommended that FRA require internal procedures in all railroads that would improve this reporting. FRA accepted our recommendation and last year issued a final rule requiring improved internal controls at the railroads. As a result of this, we should be seeing improved information coming through. It should be very soon that the information should be improved greatly.

    Mr. FRANKS. That means that there should be fewer letters coming to us from employees who suggest that they're being intimidated on the job?

    Ms. SCHEINBERG. Hopefully, because there would be fewer instances of accidents and injuries that are not being reported.

    Mr. FRANKS. You noted in page 8 of your testimony that FRA's shift to a collaborative approach to safety enforcement has resulted, and you said I think in your verbal testimony—in 23 percent decline in the number of inspections conducted between 1994 and 1997. On its face, I find that a bit alarming in candor. In your view, does this reduction in inspections allow the carriers too much leeway in adhering to safety regulations; and in addition, did you in fact find a drop in FRA inspections is due to reassignment of FRA inspectors to the RSAC and SACP activities?
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    Ms. SCHEINBERG. We definitely agree that the reduction has to do with the RSAC and SACP activities. Virtually every inspector is involved in some aspect of those activities, and as a result there have been fewer inspections. These inspections—the site-specific inspections—are very important. They have historically identified the problems that FRA has addressed in its rulemaking and other citations. Also, the site specific inspections are the only means that FRA uses to oversee the over 600 small railroads, as the SACP is really geared toward the large railroads. So we believe that there is a place for both—the SACP and the traditional inspections—and we just think that FRA needs to address the fact that they have had these reductions and needs to figure out the balance between the two.

    Mr. FRANKS. In your judgment, is the reduction of 23 percent too great?

    Ms. SCHEINBERG. Yes.

    Mr. CHRISTOFF. Mr. Chairman, if I can add, FRA recognizes that concern as well. Last year when they saw the same statistics that we saw, they felt that their inspectors might have overreacted to the enthusiasm that FRA has for the SACP process, and sent out a memo to inspectors reminding them of the important place that site specific inspections have.

    Mr. FRANKS. Thank you. Ms. Scheinberg, you mentioned on page 13 of your—on page 11 of your testimony—that FRA relies on voluntary cooperation, rather than regulations, to ensure the structural integrity of the Nation's more than 100,000 railroad bridges. In your view, does this approach provide adequate assurances that the railroads are operating safely? Also, do you believe FRA currently has the statutory authority to issue regulations for bridge safety, or would a legislative change be required to confer that authority?
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    Ms. SCHEINBERG. Mr. Chairman, we don't really know how big a problem this is, and neither does FRA because it isn't out there inspecting those bridges. It's relying on the bridge owners—the railroads—to do the inspections. However, there are over 100,000 bridges—privately owned rail bridges—in the country. So certainly there is a potential to be a big problem here.

    And regarding your second question, FRA has the statutory authority but has decided on its own not to issue regulations on these bridges. So there isn't any need for the Congress to provide them more authority.

    Mr. FRANKS. Thank you. Mr. Wise.

    Mr. WISE. Ms. Scheinberg, in the recommendations that the FRA made—I believe you said 1989 and 1994—did it make specific recommendations about harassment intimidation? I'm sorry, in the recommendations that your agency made, did you make specific recommendations about harassment intimidation?

    Ms. SCHEINBERG. No, we were specifically looking at data reliability. We were requested by the Congress to look into under reporting of injuries and accidents. And that's what we looked at. We went out to 5 railroads and looked through their records to see if their records matched what FRA was receiving from them.

    Mr. WISE. But in terms of being able to determine whether harassment intimidation is going up or going down, particularly in light of FRA's internal changes, you're not really going to make any statement that way are you?
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    Ms. SCHEINBERG. No, we have not looked at harassment. We do know that harassment as an issue comes up in the SACP discussions. When FRA goes out and conducts these discussions with labor and management, this is an issue that has come up. And in the two reports that FRA issued on Union Specific and the CSX as a result of their intensive reviews last fall, harassment was definitely an issue that came up in both of those reports. I would say that this is out there, it's a problem.

    Mr. WISE. Thank you. In terms of the concerns that the chairman expressed on the reduction—reflected in your report—in the reduction in the number of inspections due to the SACP process. Did you make any observations, though, about whether there was an increase in performance—positive safety performance or a decline I guess in accident rate as a result of the SACP process where it's been in play in at least the two major railroads?

    Ms. SCHEINBERG. There has been an increase in the statistics—or a decrease in the indicators—as far as improved safety. Safety has improved since FRA has instituted SACP. Our concern is whether or not that's sustainable because of the trend in the past 10, 15 years where accidents have gone up and down; they fluctuated so that in a year or 2 they would go down, and the following year they would go up. So it's hard to know just based on the couple of years of data that we have whether or not this is a sustainable trend.

    Mr. WISE. And you also made the point I believe, which I just wanted to reinforce to see if my perception is correct, that while SACP is involved—I believe with two major railroads right now—that all the short-line railroads—I think you just said around 600—still using on sight inspections for safety there. Is that correct?
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    M. SCHEINBERG. Yes, that's correct.

    Mr. WISE. Are you able to make any conclusions based upon your analysis of the SACP process and the decline in the number of inspections whether the results of SACP are sufficiently valuable to justify hiring additional inspectors that would be needed to return to their earlier level of field inspections?

    Ms. SCHEINBERG. Well, we definitely believe that there's a place for both, the SACP and the traditional site specific inspectors. And given the decline—because of the demand on the inspector's time—of the number of inspections, we would say yes, that there should be an increase in the number of inspectors. And of course that is in the FRA budget request for this year.

    Mr. WISE. Will 32 inspectors do it?

    Ms. SCHEINBERG. Well 32 is about a 12 percent increase; that's probably a reasonable amount for 1 year. It's an issue of absorption and training.

    Mr. WISE. I think it's important for the record to show—I believe that the SACP process—what FRA is trying to do is very important because they're trying to at systemic reasons for safety problems, as opposed to going out and citing time after time after time. But there is a place for both as well.

    Your report noted last year that from 1990 to 1995, employee on-duty illnesses and injuries had fallen by 49 percent while employee on-duty fatalities had fallen by only 9 percent. Can you offer any explanation why the number of illnesses and injuries would fall so much more sharply than the number of fatalities?
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    Ms. SCHEINBERG. I really don't have an answer for that, except I wonder if it doesn't go back to the issue we discussed earlier on the data itself, and whether or not this is totally accurate data. And hopefully that problem—that's the issue here—that that problem would be addressed by the rulemaking that FRA just issued last year, and the data should improve.

    Mr. WISE. Thank you.

    Mr. FRANKS.

    Mr. WISE. Mr. Chairman, if I could just add something. I just want to thank Ms. Scheinberg and her associates. They have always provided the subcommittee with excellent information and data and analysis. It's not always what I want to hear. There's always been a lot of frustration with this outfit, but they do it in a very professional way and I greatly appreciate the way you do it. Thank you.

    Ms. SCHEINBERG. Thank you.

    Mr. FRANKS. Ms. Scheinberg, thank you, and thank your colleagues for their great work and their fine testimony today. I appreciate it.

    Ms. SCHEINBERG. Thank you, Mr. Chairman.

    Mr. FRANKS. Panel No. 3, please come forward. Mr. Charles E. Dettmann, executive vice president, Safety and Operations of the Association of American Railroads; Mr. William E. Loftus, president, American Short Line and Regional Railroad Association; Mr. Thomas F. Prendergast, president, Long Island Railroad on behalf of the American Public Transit Association; and Mr. Matthew Rose, senior vice president, Burlington Northern Santa Fe Railroad.
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    Mr. WISE. Mr. Chairman, I think that Mr. Loftus and Mr. Dettmann have made just about every hearing.


    I don't know whether there's a certificate or some kind of ribbon that will be presented——

    Mr. DETTMANN. We drew straws and lost.


    Mr. WISE. I don't know what that says about us up here, Mr. Dettmann.


    Mr. FRANKS. Mr. Dettmann, as a veteran of this hearing process, could we ask you to lead on?

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    MrDettmann. Thank you, Mr. Chairman.

    Mr. Chairman, and members of the subcommittee, the Association of American Railroads appreciates this opportunity to present the views of its members on railroad safety; and specifically regulatory issues.

    A new cooperative spirit in pursuit of rail safety has emerged among rail labor, and management, and the Federal Railroad Administration. Illustrative of that is that through FRA's Rail Safety Advisory Committee, FRA has asked the parties involved to craft potential regulations before launching into formal rulemaking proceedings. Such an approach results in better regulations.

    FRA is also working with individual major carriers on Safety Assurance and Compliance Programs. The FRA stated goal in developing these programs is a data-driven approach focusing on objective measures of each railroad success.

    Consistent with FRA's data-driven approach, the railroad industry has been seeking to replace today's command and control regulatory regime with performance standards that base enforcement on objective measures of safety.

    Performance standards have been encouraged elsewhere in Government. The Accountable Pipeline Safety and Partnership Act, which became law in 1996, promotes the use of risk management plans that are essentially a performance standard approach. President Clinton, in 1993, also directed Federal agencies to specify performance objectives rather than specifying the manner of compliance.
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    Performance standards are enforceable and give the public assurances that railroads are, in fact, achieving a specific level of safety while command and control gives no such assurances. Command and control regulations are inefficient and stifle safety initiatives.

    Turning to the administration's proposed safety legislation, FRA's proposal is totally at odds with the cooperative approach it has recently embraced for resolving safety issues. This is particularly true with respect to the provisions regarding employee protection. There has been no showing that current statutory and regulatory provisions are inadequate. Congress already prohibits railroads from discharging or discriminating against an employee who either refuses to work because of a hazardous condition, or complains about a matter covered by Federal safety regulations.

    Last year, FRA ordered railroads to adopt internal control plans that contain policies and procedures that guard against harassment and intimidation, ensure accurate accident and injury reporting, provide whistle-blower protection, and establish a process for resolution of complaints. Proof that intimidation and harassment have not been used to keep accident and injury rates artificially low is that in 1997, with the new internal control plans in place, railroad accident and injury rates continue to decline. 1997 was the safest year ever.

    AAR's member railroads do not claim that isolated incidences of harassment by railroad supervisors never take place. Railroads are no different from other industries or organizations in this regard. However, railroads are taking responsibility themselves by hiring a ombudsmen; providing toll-free telephone numbers for filing complaints; and providing management training to address the issues of harassment and intimidation.
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    The administration's proposals would single out railroads for harsh civil, and criminal penalty provisions that could prove counter-productive. For example, the proposal could hamper efforts to correct unsafe practices that could result in accidents or injuries, or to discover false injury claims. Furthermore, the very breadth of the FRA's proposed criminal penalties carries with it the potential for abuse by FRA officials.

    The FRA was on the right track when it set out to work cooperatively with rail labor and management on safety issues. Unfortunately, the administration's proposed safety legislation would undermine the spirit of cooperation and create new controversy between labor and management. Congress should reject the administration's proposal and, instead, urge labor management and the FRA to continue to work together to make this already safe industry even safer.

    I appreciate the opportunity to testify today, and would be very willing to answer any questions. Thank you.

    Mr. FRANKS. Thank you. Mr. Loftus, we ask you to—you're next?

    Mr. LOFTUS. Thank you, Mr. Chairman. The ever present Mr. Loftus and Mr. Dettmann.

    I too want to comment about Section 401 particularly, and it's impact on small railroads.
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    The Section would increase the penalties for railroads who discriminate against the standard discharged employees for protected acts by eliminating the current $20,000 ceiling and authorizing punitive damages, in addition to compensatory damages in all cases.

    Elimination of any ceiling on penalties and authorization and punitive damages across the board is a draconian measure which sends the potential exposure sky high. This sends the wrong message. There is no evidence that we're aware of that a major problem exists. So I cannot understand the need for a major increase in level of penalties as proposed in the administration bill. Especially one that in a worse case situation would actually threaten the solvencey of a small railroad.

    We are aware of allegations and anecdotes that are presented from time-to-time about the problem, but facts of situations of serious intimidation or real harassment that have been established on the record, and subject to examination and scrutiny, are not there.

    Indeed, FRA has not used the authority it already has. No civil violations have been issued regarding perceived or harassment charges for not reporting accidents. I think there's a message there. The point being that FRA also is proceeding on the basis of bringing the parties closer together in the SACP process, as well of their work initially with the larger railroads through a consultant to deal with the cultural change on this issue.

    I would ask the committee to actually consider the heavy-handed approach of Title IV's provisions in light of what really is going on at the railroad level. Events which FRA itself will document, and which FRA is part of. You already understand the RSAC process.
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    In addition, FRA has initiated Safety Assurance and Compliance Programs on most, if not all, the major railroads. By design, these programs include the employees and their organizations at all levels. On the small railroads, we are designing a model safety management program, which follows FRA's approach on the larger railroads. Our program will also provide employees with the direct roll in examining the safety programs and performance of our carriers, and a voice in developing and maintaining safety initiatives.

    I think you also have to understand that at times we do indeed terminate employees for major safety infractions, or a history of unsafe actions; and that includes managerial employees. Our companies have a responsibility to take such actions if they are to protect other employees, the public and the shippers they serve. If there are claims of unfair actions, both internal and Railway Labor Act procedures are in place that provide adequate means for an employee to argue his or her case.

    These provisions of the administration bill which would greatly increase exposure to penalties and criminal sanctions for intimidation and harassment are overkill, not justified by any record that there is such a critical problem that needs such a punitive remedy. Such provisions would be counter-productive to the regulatory process, and I believe strongly would poison the atmosphere of cooperation and partnership which FRA, the railroads, and rail labor have now worked so hard to establish. The provisions should be rejected.

    Again, this is our last hearing on the Safety bill. I'd like to reiterate the fact that we have serious concerns in terms of the contractor exposure to hours of service limitations, particularly on grade-crossing work on small railroads where our concern would be that so many of those contractors are essentially highway traffic signal contractors, and they would choose to leave our part of the industry because they would not want to subject themselves to the Federal Hour of Service Limitations.
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    That concludes my comments.

    Mr. FRANKS. Mr. Loftus, thank you. Mr. Prendergast, welcome.

    Mr. PRENDERGAST. Good morning, Chairman Franks, and members of the subcommittee.

    My name is Tom Prendergast, and I serve as President of the Long Island Railroad, the Nation's oldest and largest commuter railroad. I'm also vice chair of the American Public Transit Association's Commuter Rail Committee, and I'm hereby testifying today on behalf of APTA.

    Safe operation of the Nation's Public Transit Systems is of particular concern to me. One of my first jobs in the transit industry, I worked at APTA—or FTA as we now know it—as a systems safety specialist. In that capacity, I was involved in the development of safety policies and programs for the Nation's rail transit systems. I've continued to have a strong personal interest in rail safety issues, and have served as chair of the APTA Commuter Rail Safety Committee for the past 2 years. I also represent APTA on the Rail Safety Advisory Committee.

    The entire house railroad subcommittee, Chairman Franks, ranking member Wise, and the subcommittee staff have gone to great links to gather a wealth of information regarding railroad safety. You ought to be commended. Hearing from such a broad spectrum of the use will serve the subcommittee well, and it's consideration of the Federal roll and railroad safety.
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    In my testimony today, I will focus on the topic of today's hearing, the FRA regulatory process, and the experience that the Nation's commuter railroads have had in working with the FRA in that rulemaking process.

    APTA and its commuter rail members appreciate the new open manner in which the FRA is now doing business, and we support the continuation of the FRA's consensus-based rulemaking efforts. This is in contrast to the prior regulatory environment which was adversarial, and not necessarily helpful. FRA Administrator Molitoris has successfully put constructive reinventing government concepts into practice through a cooperative RSAC process, emphasizing face-to-face discussions among the affected parties.

    We support this approach because it results in better regulations that are well thought out; can be implemented effectively and efficiently; and will truly result in safer railroad operations. Of course the consensus approach takes time and resources, and it is unrealistic to expect the FRA to deliver completed rulemaking efforts over night. Merely getting all the affected parties together—Rail Labor, Rail Management, and the Supply Industry—together and participating in the process takes considerable time and resources. In finding ways to get these parties to agree is even a larger challenge.

    The focus of these rulemaking efforts are generally complex technical issues requiring considerable research and analysis. The current efforts of our RSAC working groups provide clear examples of some of the time and effort required. In the locomotive crash worthiness group, considerable amount of time has been spent in determining ways to strengthen railroad equipment to withstand the effects of a collision, and to design interiors to minimize effects of personal injury. Development of these standards depends upon modeling, and in many cases, how vehicles will respond in crash scenarios.
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    Similarly, the positive train control working group is developing standards and a rule for technology that is still evolving. It would be very shortsighted to quickly complete a rulemaking effort just so that we have something on the books. Since this technology involves a significant investment of funds, and will require a culture change on the part of the employees, it is important that these rail safety enhancements will be in use for decades to come; that we learn from current demonstration projects where positive train control systems are being tried out and implemented.

    In terms of constructive criticism of the consensus-based process, it is our view that the FRA's resources are stretched too thin to support the extensive rulemaking process that is currently underway. We have frequently found out that additional data and testing are needed to support the rulemaking decisions; data that can only be derived from a research program that is already under funded.

    Further, the staffing resources available to FRA are more appropriate to support 2 to 3 major rulemakings at one time; not the 8 to 10 major rules that are currently undergoing effect right now.

    APTA and its members have supported the RSAC process and will continue to do so with time energy and dollars. However, we are frankly concerned and confused when the FRA is inconsistent in terms of how it approaches some of its rulemaking efforts, and does not use the RSAC process.

    Two examples come to mind. Last November the FRA issued a notice of proposed order regarding signal system improvements on the north end of the Northeast Corridor. The technology that they proposed is a positive train control technology, and rather than bring this issue forward through the RSAC process, and work out all the appropriate details, they decided simply to publish a notice in the Federal Register.
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    The second example is the FRA's proposal for the development of Fatigue Management plan by the railroads. While APTA's commuter railroads recognize the beneficial safety aspects of this proposal, we believe it is an important safety initiative that should come through the RSAC's process.

    It is our position that consensus-based rulemaking should continue to be the way that FRA make regulatory changes that will effect railroad operation. However, if the rail industry fails to come to agreement, and cannot do so through the RSAC process, then we agree that the FRA needs to be able to issue rules on their own that they believe will best address the situation and improve safety.

    As I stated at the outside of my testimony, APTA and its commuter railroads are working hard to anticipate safety problems, and incorporate them in the development of system safety program plans that will be living documents that each of the commuter railroads will adhere to. There are cites specific subject to triennial reviews by APTA, as well as FRA staff, and we believe this is the best way to approach safety.

    At the same time, we are pursuing very aggressively the passenger rail equipment safety standards with the FRA—about 2 years ago in response to request from FRA—we set out a process to update and revise these rather extensive physical standards for the inspection and maintenance practices used for passenger railroad cars and locomotives. We have committed time and resources to complete this effort. We have identified over 60 safety standards and recommended practices pertaining to this equipment. Approximately one-half of these documents have been completed, and the remainder should be completed by the end of 1998. These documents will be adopted and compiled in the first edition of the Manual of Passenger Equipment Safety Standards for Commuter Rail Equipment.
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    The Nation's commuter railroads have demonstrated a strong commitment to enhancing the safety of its passengers, employees, and the American public. That is a commitment that will remain our top priority. We look forward to working with the committee to reauthorize the Rail Safety Act with a bill that reflects the issues that APTA has outlined in its testimony; building on and strengthening the successful consensus-based rulemaking efforts that the FRA has established.

    Mr. Chairman, thank you for the opportunity to testify.

    Mr. FRANKS. Thank you. Mr. Rose.

    Mr. ROSE. Good morning, Mr. Chairman.

    My name is Matthew Rose. I'm Senior Vice President, Chief Operations Officer of Burlington Northern and Santa Fe Railroad. As you are aware, I have submitted testimony—and I will not read that over—but I would like to talk briefly about Burlington Northern Santa Fe, and some of the initiatives that we have seen.

    You've heard a lot of stats this morning already about the safety of the railroad industry, and certainly the GAO report is a wonderful indication about the tremendous progress we've made. On specifically for Burlington Northern Santa Fe, since 1995 we've seen a 50 percent reduction in frequency and injuries. In terms of train-related accidents, we've seen a 40 percent reduction since 1995.

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    As we merged the two companies in the latter 1995, it's important to take a step back to look at the two former railroads. The former Burlington Northern in 1990 had a 12 frequency ratio, or 12 injuries, for 200,000 man-hours worked. We will end this year at about 1.45. So you can see a tremendous decrease in the amount of injuries that our railroad has been sustaining.

    Many times we focus only on the negative of the injuries that we see, while in fact only about 375 people will actually lose work during this year for Burlington Northern Santa Fe; and that's out of 44,000 employees. So less than 1 percent of our employees will have an injury, and over 99 percent will actually work injury-free. So I think it speaks volumes about where we've come from.

    While stats are important, I think it's important that we always point out that our goal is 100 percent injury-free; and we know these interim stats are simply milestones along the path to get to us a 100 percent injury-free environment.

    We believe that there's truly two focuses to get us down that path. The first is for us to provide an environment free of safety hazards; also free of harassment intimidation. The second, requiring our workers to assume accountability to work safely.

    In your opening statement, Mr. Chairman, you mention the Cajon accident out in California where two of our BNSF people lost their life in 1996. I think that that's a wonderful microcosm of some of the issues that the railroad industry faces, and I would like to go through that accident real quickly with you and point out how it relates back to my two issues I just stated around providing an environment free of safety hazards; free of harassment intimidation; and also employees assuming accountability.
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    The first case is that, for the record, there was an end-of-train device on that train. So all the regulations that you hear about as far as end-of-train devices, there was actually a device on the rear of that train. The entire problem was that the device was not properly triggered, or was not properly working. So if you go back to my two major issues around providing a safe environment, we did have the proper hardware but one of two issues happened. Either (1) our employees did not feel that they could properly tell us that the device was not working, or (2) they did not take accountability for their own actions from the safety standpoint. Either case, we'll never really know the answer to Cajon. But since then, 30 days after Cajon, we launched what we call an error of safer operations between BNSF and the FRA.

     Since then we have been focusing a tremendous amount of time on changing the, what I would call the operating culture of our railroad.

    So how do we do this? Well, we've done this through a number of different initiatives. The first being the SACP process by working with the FRA.

    The second is that we have been very public around what our beliefs are on harassment intimidation; from drafting letters to each of our employees to actually creating a video talking about harassment intimidation—what is acceptable and what is not.

    The third, going around and meeting with employees and talking about the type of culture that we want to operate on our railroad.

    We have what we call Town Halls, and we've done over 75 in the last 2 years where our Chairman, CEO Rob Krebs and myself, and a number of the BNSF management team goes around and meets with employees. Thus far, we've met with over 11,000 of our 44,000 members, and the last two Town Halls were this week in Superior, WI and St. Paul, Minneapolis.
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    The third issue of what we have done, we have installed a hotline—which is an 800 number—which someone, anyone on the BNSF property or any members of our community can call in and leave an issue on that hotline. They can either leave their name or they can make it anonymous.

    And fourth, and I believe most important, we have publicly stated what we believe that our operating culture should be, and what we're calling our vision and values, which is basically a step-by-step—what we call our Bill of Rights—for all of our employees, as well as our communities in which we operate in that talks about harassment intimidation, and the rights of each of our employees for liberty and the community that we live in.

    We've got a long ways to go; we've come a long way. By changing this culture, we believe that we will have the right balance. Thank you.

    Mr. FRANKS. Thank you. Mr. Dettmann, let me interview if I can.

    Let me explore this concept of performance standards that you mentioned. Are you proposing that such standards be adopted only with respect to specific areas of FRA regulations, such as equipment and maintenance? Or, are you saying that the overall safety record of a particular carrier should be used essentially to grant a de facto exemption from active regulation by the FRA?

    Mr. DETTMANN. Mr. Chairman, we are not asking for de facto exceptions from existing regulation. When you look at the nuclear power industry and others that have performance-based standards, we and the FRA would get together to scope what these performance standards would be on a global basis. Beneath that would be individual accountability standards that would address signaling and communication, would address mechanical, would address many of the issues that are currently covered by command and control regulation. But, it would be a whole structure that would be accountable to FRA, and accountable to our employees of how we would accomplish safety objectives without—as I noted in my testimony, the delay that we had with discolored wheels. We lost 9 years and many millions of dollars in that command and control regulation. Given performance standards, we could have gone ahead and accomplished what needed to be done.
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    Likewise it applies to train control which was brought up here earlier today. Right now, the regulations prohibit introduction of new technologies into this industry without waivers. We cannot enter into major capital investments based on a waiver. It's got to be finalized in a regulation.

    As you have seen between initiation and finalization of regulation is a considerable amount of time. With the introduction of technology here, we are not able to utilize technology to become a safer railroad industry unless we have something such as performance standards. We are not suggesting abrogating our safety responsibility. We would work at it in a structure that's been done in other industries.

    Mr. FRANKS. Thank you.

    Mr. Loftus, as a veteran of the FRA, could you comment on the administration proposal to expand the FRA's Emergency Order authority to cover environmental hazards? And secondly, whether smaller railroads have encountered jurisdictional disputes or ambiguities regarding the respective authority of FRA and OSHA?

    Mr. LOFTUS. On the first issue on environmental—and going back some—they did discuss this with us. My initial view is that they've got such a huge, full plate of things to do than raising this issue of environmental issues. Apparently if we would spill fructose fluids—or nonhazardous fluids—there's some environmental concern that would go into a stream or something.

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    We feel that we're already under pretty strict ruling by EPA, whatever happens in these areas. We think that it also adds confusion.

    On the small railroads OSHA, FRA,—we don't seem to have as large a problem as larger railroads do. A lot of our people do not have their own repair shops, and nonoperating employees in the sense that the larger railroads do. So we're not quite as much of a FRA OSHA-type of operation.

    Where it is though, they generally are state-related OSHA, and—I for one have not had any problems. But our particular policy approach is that we like clear responsibility of an organization that regulates us, or that enforces regulations. I think the environmental issue is going to confuse that if we went in that direction.

    Mr. FRANKS. Mr Rose, if I might ask you. I gather from your statement that you consider more federal command and control regulation as inimical to bringing about a positive safety culture at the railroad. I know that BNSF began your process by using a safety review by a private outfit—DuPont Safety and Environmental Services—as a consultant. Do you think that was helpful? Would you recommend that as a procedure for other railroads to emulate?

    Mr. ROSE. Well, for us, we engaged DuPont after the Cajon incident. The reason we did it, we felt like we needed an outside view of what was going on on our railroads. Since then, we have not had DuPont back; we have literally been enacting the plan that they drew, and along with us, that we all drew up for our railroads to see.

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    I think certainly sometimes a outsider view is helpful, and quite frankly the FRA is doing that right now. They have hired a consultant to go around and talk with a number of railway workers. They are completing that process right now. In fact, last week I met with this individual and the consulting group reviewed their findings.

    They're quite frankly now where we're at with the hotline and with the series of communications we do; the monthly safety meetings and things like that. The communication flow I think has been much improved from where it was, and we are getting probably as much information as we need to.

    Mr. FRANKS. Thank you. Mr. Wise.

    Mr. WISE. Thank you, Mr. Chairman.

    I'm going to just talk from my personal observations on harassment intimidation, because I've been struck by the two previous panels' think there's a problem. This panel suggest that this cannot be handled within the existing mechanism.

    I worked my early years at a school; I worked for the United Mine Workers, and that was during the 1970's when it was pretty bitter time and labor negations—labor management relations. I thought I worked in a situation that was about as conflict-oriented and as hot as any I've seen. It's been many years since I've done that. But I've always had the memory of how intense and strong the divisions were.

    Until I came to this subcommittee—not between the subcommittee members—
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    but between rail management and rail labor. I have to say that I think some improvements are being made. The SACP process—and I'm glad to see that everyone's now endorsing that. There, I think there's room for agreement. But I have to say to you gentlemen, that the one area that is white-hot in every person I've talked to—not the Washington representatives—I mean the men and women who work for your railroads in the fields—is this issue of harassment intimidation. It's not just letters that come in; it's the people that come up to you in a restaurant, for instance, and say could I talk to you for just a second and then pour their hearts out; it's the people that grab you off the street; it's the people that when you're in a community that you didn't think you were known pull you aside but don't want to be seen.

    So I just say to you that if you don't think the problem's there, there sure is an awful perception. And it's not just anecdotal. If you look at these letters—and I'm sure it's the same in the letters that have gone to the FRA—and it's also the way many people when they come and talk to me about preference their remarks, I'm very grateful for my job. We know that it's one of the best paying jobs in the community. I've worked for this railroad—ex-railroad—for this many years. But I'm afraid. Something's got to be done about this. I just say to you that this is the one area where I think that a lot of the good intentions that I believe that everyone has can come to grief if we don't deal with it.

    Mr. Loftus, you raised a concern about small railroads, and I understand what you're saying because a fine to a small railroad can effect you obviously much differently than it does to one of the Class 1's. Perhaps something can be done on that. This areas of harassment intimidation has to be dealt with.
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    Mr. Rose, you talked about a culture change. I think that—I'm just seeing in my limited experience—actually the last 3 years has been quite a learning experience. I'm seeing though even some fledgling changes taking place not only your railroad, but many of the other railroads as well. Maybe we'll be at a day one day—and I hoped all of you were correct—when we can look at strictly at performance standards.

    You've got to understand, too, that a lot of your membership—and some of us up here at least—have to be shown. It's not just a case of doing videos and holding town meetings—and that's a start; I'm not making light of it. Then there has to be continued effort and continued results. The best way to get performance standards is to show an improvement in performance so we don't have to go to Command and Control. I don't like Command and Control. In previous hearings, I think some of you have heard me talk probably at nauseam, about the fact that technology—whether it's 2-way end-of-train devices or positive train separation or whatever it is, it's difficult for Congress to keep up with technology or try to mandate it. But Congress has to do it when it feels that that's only means available to provide a certain end. If we don't like Command and Control, then what we need to do is to show that through the means that are being developed—RSAC, SACP, culture changes in different railroads—that indeed positive things are happening. Indeed that culture—that very culture we've been talking about—is changing.

    Since my yellow light is on, let me just ask a quick question. You've heard the discussion from the two previous panels about the shifting of resources that's on, the balancing of resources between the inspectors involved in SACP and doing onsite inspections. Would you feel that the FRA request for 32 additional inspectors is valid one? Anyone want to take that on?
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    Mr. ROSE. I'd like to address a couple of you other points first if I could.

    First off, I don't stand before you and tell you that harassment intimidation is not an issue on our railroad. We do believe it is, and that's why we have set forth a path in the direction to change that.

    I really do believe it's somewhat of a 3-legged stool. The first is you have to describe what you want to be like in the end, and we believe we've done that through our value statement.

    The second is you have to train people around differences because most people in the railroad industry have grown up all their life in a Command and Control organization. So you have to give them training by giving them new tools to still be able to still get their job done.

    Then the third piece of that stool is, then you hold them accountable. We believe we are in between the second and third stage.

    In the last 6 months, we have terminated the employment of three of our managers on BNSF are perceived and real issues concerning harassment intimidation with safety-related incidences. So we do believe that we are going to put our actions behind our words and we're going to be very forceful with it.

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    The second issue is that I think that you always get conflict with a Command and Control organization in regard to an industry where you have rule compliance to be a necessity. If you look back at literally all of the accidents that occurred, and the two fatalities that have occurred on our railroad this year, clearly each one of those were a violation of an operating rule, and not a complex rule, but a very basic operating rule. The balance that we have to maintain is to get people to understand that by going away from and Command and Control organization does not mean that we are going to go away from rules compliance. Employees will have to all accept the accountability of 100 percent rules compliance. That is where the risk occurs in a lot of different cases.

    As far as shifting dollars and inspectors from SACP process to inspectors of the field, I would just give you an overview of our railroad. We do what we call operations testing, which is testing on rules compliance. This last month I had our top 150 operating officers into a staff meeting and what I presented to them was that if you look at the number of test that we were going to do the run rate we were on, we were going to complete 1.8 million test, which sounds like an incredibly large number of test. However, the testing we were doing was not directly cause to what we were finding in terms of natural occurrences, accidents, and injuries. So we have relooked at that program and gone down a different path to actually pull back the number of test. Again, we don't believe we were getting there by doing over-inspections. So I think that this is a good analogy here that by doing more inspections, you're not changing the base case, will not be a productive exercise.

    Mr. WISE. The GAO I thought testified that it wasn't a case of doing more inspections. There's a case right now—they're not even able to do the inspections they were doing because they were involved in the SACP process. Is there a point which that can become deleterious?
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    Mr. ROSE. All I can tell you is that there are FRA mandated requirements for operations testing, and we're exceeding that by probably 50 times. My correlation again is that just because we're exceeding that by 50 times, we are not getting where we need to go with that specific part of our safety plan. We're changing all focus and going to go to less testing and creating both SACP partnerships and system safety issues to try and resolve that issue.

    I truly believe this for all operating practice-type issues. I don't think we'll ever get to 100 percent injury-free and accident-free until we have all of our employees—44,000 of them—holding each other accountable. And that's someone holding me accountable and me holding somebody else accountable. A perfect example, in many industries we find that OPS testing and Rules Compliance Testing is completed by actual employees doing test and sharing information with other employees. What I would call a kind of a Thy Brothers Keeper type program. We have very little of that in the railroad industry and quite frankly it's due to the perceived harassment intimidation. But until we get to that level where every employee on the ground is watching out for the next employee, we are not going to get where we want to go. We have offered that to our unions. Earlier this year, we sent a setter out basically telling the unions that we would exchange for punitive discipline on OPS failures, that we would exchange that for training instead of discipline. We got very low level of interest in it. Again, I believe it's due to the issues concerning harassment intimidation. We've offered that again to them; now we're starting to see some people that are interested in taking us up on that.

    Mr. WISE. The inspector issue, anybody else?

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    Mr. LOFTUS. I want to, and I think Mr. Prendergast too. First of all, we're not saying, Mr. Wise, that we do not have a problem with employees. Any industry does as you well know. Perhaps we have less than others, but we still have these problems. In fact, we fired two managers—our railroads I know fired two managers on some, what they considered serious problems in terms how they were managers, which was relationship-type of stuff.

    The issue really here is—and I thought my point was—when you have very punitive legislation for this kind of an action, are we really solving the problem? I think the question we're asking ourselves is how do you solve and get at the harassment problem? FRA started us down the path of talking to each other—introduce the SACP; introduce the special consultant out there working with the larger railroads; introduce us towards using model programs that would bring the employees into the system. Both accountability, responsibility, but also helping design those systems. That's what we're saying gets around the problem; not giving us another thing like FELA that poisons the atmosphere and polarizes us to the point of where, ''I'll see you in court.'' That's a negative—that's a problem that we don't have today, at least in this area. We certainly would not like to see it happen.

    The question of allocation of resources. The small railroads enjoy seeing their inspectors come on the property, and I mean that. We have structured with the FRA, not so much a policeman approach, but really a kind of partnership in the sense that they're there to make sure that we, in an oversight sense, do all the inspections. They oversee what we do. That we're doing it correctly.

    Then they run training programs almost three for every region every year. In that process, we have developed a rapport outside of who is coming online to see how many times you inspect the track. We've moved away from that. I can recognize in the sense that GAO has to look at numbers, but with a 23 percent decline in inspections—at the same time we had this enormous decline in both fatalities, not fatalities because they're flat this year—but seven of them were highway problems, personal injuries, as well as train accidents. We're always moving in the right direction and following the lead that both labor and we accepted from FRA in working toward that process. And not necessarily worrying how many times FRA is going to be on line to take a look at my equipment, or how many times you're going to look at my track. They do that by the way.
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    We have principal inspectors in every region who deal primarily with small railroads, and they're adding to that number. In fact, some of the 32 inspectors being asked for I think will add to that process both at the administrative level at the region, and perhaps put more into the field. We welcome that. I'm not necessarily saying please give them 32 more inspectors, but we're not against having FRA a very vital part of our operation in a partnership way. We disagree; we argue; we fight; but we're here before you saying, we think it's the wrong-headed way to put punitive sanctions on us for something that's better solved through an interrelationship and a team-building process.

    Mr. WISE. If I could say—I appreciate it. As Mr. Chairman will remind me, I've run through my signal and if I could ask Mr. Prendergast and Mr. Dettmann if, perhaps, you have some additional thoughts if you wouldn't mind submitting them in writing to the committee, I'd appreciate it.

    Mr. FRANKS. I'm going to ask Mr. Prendergast if he'd like to comment now only because he has come down on one—I know he's been itching to say something, so please.

    Mr. PRENDERGAST. I would like to speak on two issues. In the railroad industry, especially public transportation side commuter rail, there's a paradigm culture shift with respect to employee injuries. We, like Burlington Northern Sante Fe, did elicit the support of Dupont and it caused me to have a culture shift. I work in an organization the culture where it was assumed injuries and fatalities on a yearly basis. Why? Because people accept it. Because people say, ''Yes, somebody will not go home to their wife or their spouse in the same manner.'' But when you work with an organization like Dupont which deals with as many hazards, if not more than what we have, you want to undergo that culture shift.
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    In the course of the last 7 to 10 years in my organization, we've gone from 24 accidents per 200,000 or 100 person years down to 12. We're nowhere near best in class, which is transit around two or three, but to come from that level, there's been a tremendous amount of pressure within the organization, both labor and management, to find out why accidents happen; lean on people to say that they shouldn't happen; find out why they happen; and I can say that there has been in some cases some levels of harassment, but to a large degree, minor in nature. I get those letters myself at my level.

    With respect to the other issue in terms of what is the appropriate balance between inspection versus consensus-making efforts. I think in the past before there were consensus-making RSAC efforts, there was an overfocus, almost the sole focus, on inspection. Inspection does not, necessarily, identify problems with processes and procedures and I think you need a balance between the two. I cannot dispute the GAO's statistics, but there's no surety that where they were at before in terms of FRA inspections was really the appropriate level in terms of assuring that things were being done according to regulations. You do need inspections up. I mean, I need inspections within my organization, and I don't think anybody here in the panel will say you do away with inspections. You have to have inspections.

    Mr. FRANKS. Thank you. Ms. Fowler.

    Mrs. FOWLER. Thank you, Mr. Chairman. I just want to follow up a little bit on some of Mr. Wise's comments and brief Mr. Loftus.

    Like every corporation in America having to deal with harassment and intimidation, it's not unique to railroads and now even we've been seeing in the past couple of years, U.S. military is having to struggle with this, too. So we're all struggling with it in the best way we can and I think each one of you has made a commitment, and I've read through your testimony, too. You're dealing with it the best you can by trying to continue to take care of these issues and to make sure that you have as safe a railroad as possible, and that's the foremost. Keep them safe and making sure that you've got procedures in place. People are people and you can have every rule on the books and you have to, as you said, let the managers go sometimes when they can't follow the rules. And that's what happens, but you're dealing with human beings in every instance, and I commend the efforts that you're making because I think most people know you're trying to go in the right direction in working to get these numbers down.
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    I just have one question, really, for Mr. Dettmann. In your critique—when I was reading your testimony of the administration's safety bill, you pointed out that in that bill the proposed expansion of criminal penalties is far broader that even in the current Aviation Statute making it a crime to remove a concealed part of an aircraft that's involved in an accident. Do you mean by that that you think Congress would be better advised to simply reproduce the existing Aviation Statute in a rail context? I wasn't quite sure what you were getting at.

    Mr. DETTMANN. Let me answer it in this way. Currently, the Railway Labor Act has got significant penalties already in it, and we feel that that is acceptable. It has not been challenged significantly. It has not been overused. We feel that that legislative protection for our employees is adequate today. Where we see the proposal in the administration's bill going is that it applies much stiffer criminal penalties to railroad employees that anyone else. As it comes down to in the Railway Labor Act where this resides, the Administrative Law Judge would make a decision when it comes to the criminal penalties and the fines and there is no appeal process in the Railway Labor Act such that you could have an exorbitant fine that could be appealed or that you can appeal the Administrative Law Judge's decision on procedural or substantive grounds. That's where our concern is.

    Mrs. FOWLER. I share your concerns. Thank you, and that's the only question.

    Mr. FRANKS. Mr. Blumenauer? Mr. Sandlin?

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    I'd like to thank the panel very much. Appreciate you coming down.

    For our fourth panel, Mr. Leroy Jones, vice president, National Legislative Representative, Brotherhood of Locomotive Engineers; Mr. J.L. Mattingly, vice president, Brotherhood of Railroad Signalmen; Mr. James J. Parry, assistant general president, Brotherhood Railway Carmen Division.

    Gentlemen, welcome. Thank you very much for coming forward today. Mr. Jones, can we begin with you.


    Mr. JONES. Thank you, Mr. Chairman, members of the committee. I am Leroy Jones, vice president for the Brotherhood of Locomotive Engineers, and it's a pleasure to come back before this committee and talk about these issues. I believe this is the most that Congress has looked at one agency, our agency, the FRA, for a number of years.

    I want to start by saying that we do support the RSAC process. It's a good way to get labor and management, and the FRA into a room together and try to discuss the issues. The one issue that did not work through the process that's very important to our industry was, of course, the Power Brake Regulation. After many months of meetings, we could not come to a conclusion. The FRA's, I understand, are going to bring a proposed rule out on its own.
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    As far as the SACP Program, I've been involved in the SACP Program in one major railroad in the west. I think that it's been a saving grace in, especially, the Burlington Northern. We've had a good progress with it, however, I must take exception the attitudes the Burlington Northern management had prior to this getting together on a SACP. We did talk about Cajon Pass which really raised concerns about me by one of the previous members of the panel. The attitude that that railroad had, and where we had members got killed in that wreck, was after the wreck was over. You've got to realize, prior to that wreck everybody knew there was a problem out there. We needed 2-way end of train devices. So the FRA mandated that they place 2-way EOT's on the end of trains.

    After the wreck, after we got these people killed and they found out that the equipment wasn't triggered, the attitude of the carriers at that time was ''all it said we had to have them on the train. It didn't say we had to have them armed and triggered.'' And that was the attitude that was pretty much in the industry period. I believe Burlington Northern learned a lot from that accident. I think the industry, the FRA did. I think the attitude there under the SACP process worked very well. I commend the BN for it's activities, but we want to make sure those activities continue on. That's it not just the reaction of the President's heat that being placed on them as they are on the other major carriers. We're very happy with that.

    The FRA in this process of RSAC does need more funding. As I said in the previous testimony before this committee, that there was a study done in the late 1970's. It showed they needed about twice as many inspectors at that time to make sure the industry was safe. Today they approximately have the same amount of numbers as they did in the late 1970's. We think that not only inspectors, but support. If an inspector does a good job, finds a number of issues and finds some violations, it's the inspector that has to go in and write the claims up and everything else which takes him out of the field where he is actually doing the inspections. I think it would be good for the committee to actually go and talk with the inspectors that are out in the field to find out how they feel how about how process is working.
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    Also under the RSAC process, another flaw in there. When labor and management finally agrees to a particular rule, then it's got to through the entire process like all the other rulemakings and somebody at ONB or somebody along the line could take exceptions to it. You know, we propose in rail labor, and we've talked about, at least the BLE does outwardly, that if the labor and management agrees to a change in the Federal regulation under this process, that regulation should go into affect.

    The other issues that we've talked about before is that I'm a railroad engineer. I experience a lot of things out there over the years. I think I should have the right because I know I'm a professional. I'm federally-certified like an airline pilot, however, if I find something wrong with the locomotive, I do not have the right to refuse that locomotive as an airline pilot does. Sure there's ways of saying yes and I think it's dangerous, and stuff like that, but you really had to put your job on the line and the process is very lengthy. I think because we're certified like airline pilots, we should have that same right.

    We have petitioned the FRA on a couple of issues. We were the ones that petitioned on a positive train control. We actually filed a petition prior to the RSAC and the process is going on. I think we got a good group there. We recently had another accident where a engine was running in the reverse movement from where it was originally designed. It had a long nose forward. It's very dangerous. We had another railroad employee killed because of that. We feel that that is a problem. We petitioned the FRA.

    Bridge displacement. We talked about 100,000 bridges within the industry. We think that after the Mobile accident where we had an AMTRAK train go into the Bayou down there and kill three of our members plus a number of citizens that were travelling that, that there should be some bridge-displacement protection, especially in area where they have barges. Right now, they do not know when an engineers goes down track, he does not know whether the bridge has been displaced if he's gone by the last signal to approach that bridge, which happened down there in the Bayou.
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    Data. We talked about data very quickly. The data the FRA depends on is the data that the railroad carrier gives to the FRA. For example, a few years ago I tried to pass a State law in Kansas requiring toilets. And they brought in one of the major carriers and showed that there was only 23 instances through the entire—this was a big railroad in the west, of toilets being written up for being unsanitary—unsafe, unsanitary conditions. I had documentations from one of my locals, or my divisions, that I had 30 in there alone. Well, the problem is the carrier puts the information into computers and then generate the computer information to the FRA and that's—the same process works. So, it's the ''fox in the henhouse'' situation.

    Harassment. Since you asked that question, Congressman Wise, the problem we have with harassment is sure you have—you can put your ''feet in the mud'' is what we call it in the railroad industry where you're not going to move something. They fire you for insubordination because they want you to move the train and, sure, we have a process in the Railway Labor Act, but sometime during that process it takes you a considerable length of time to get back to work after you're out. You may win the case, but you may lose your family, and your house, and everything else you've got. How would you all like to set out for 2 years and not have any income, waiting for a judge to make a decision whether you were going to get back pay or not or even get your job back. That's the unfair situation. Sure, there's a process, but you have to put everything on the line. And I don't know many people that could set out 2 years without pay and wait around for that.

    With that, I'll close. I'll be happy to answer any questions. Thank you.

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    Mr. FRANKS. Thank you.

    Mr. Mattingly.

    Mr. MATTINGLY. Thank you, Mr. Chairman, and members of the subcommittee. I'm Joseph Mattingly. I am the vice president of the Brotherhood of Railroad Signalmen and I appear to day to testify on behalf of the non-operating crafts of rail labor. Of course, we're here today to address the issue of the Federal Rail Administration's regulatory process.

    The face of our Nation's rail industry is rapidly changing as we all now. When you consider the industry is not comprised of over 300 short-line and regional railroads and a handful of Class I's, a new strategy is needed to ensure consistency in the regulatory rulemaking process. Consistent with the President's initiative on reinventing Government, the FRA chartered a new Rail Safety Advisory Committee, or RSAC for short, for a consensual rulemaking and deliberation on key railroad safety issues. The non-operating rail labor crafts have concluded that the continued use of the ad hoc collaborative procedures for appropriate rulemakings were not the most effective or the most productive means of accomplishing a consensual Regulatory Safety Program.

    Also, the FRA's established a new railroad specific Safety Assurance and Compliance Program, or as they call it SACP. This helps gives our Nation's railroad workers a voice in the carrier's compliance with the Federally-mandated safety regulations.

    Rail labor believes that the establishment of the RSAC Committee and the SACP has helped prevent fragmentation from occurring in the FRA regulatory programs. This committee concept creates a consensual Regulatory Program that better meeters the safety needs of the U.S. citizens and the railroad industry. Therefore, we are here today to urge Congressional support for both the SACP and the RSAC collaborative processes.
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    I think everybody knows that the RSAC has about 14 rulemakings going on since their inception. They've had some good successes, but I'm here to urge the committee to fully fund and support FRA's efforts. We've heard a lot of talk today about the 32 extra inspectors needed. I'd also like to put forward that there's needed some resources to help support the RSAC and the SACP processes.

    Specifically, what I'd like to address is support in such areas as data and research. A lot of the RSAC Committee regulations that we're looking at require a lot of data, a lot of research. We looking at everything from protecting roadway workers all the way up to implementing new technology. And when you do these type of rules like we stated earlier, they have a far-reaching impact in the future and it's important that we be able to make our decisions on these rulemakings in a consensual manner that is supported by data.

    Also, I'd like to propose the use of Federal mediation and reconciliation service. We used them at one point at time in the Railway Worker rulemaking process and having the ability to have a professional mediator there, to have all the parties involved at the table to come to consensus is also a big plus, and, of course, all this takes resources from the FRA. And to support such a collaborative process, I feel it's crucial that the we able to support it and that the committee go for full funding.

    I'd also like to take this opportunity to support the FRA's safety reauthorization bill on behalf of the non-operating crafts. This bill seeks to address solutions to important safety critical issues. We feel the bill is very reasonable and it's crafted in a manner that wold allow all the railroads in the United States to address important safety issues in a comprehensive manner. And simply put, the bill would extend further protection to our Nation's railroad workers.
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    The bill would address such issues as harassment intimidation of employees, which we've heard quite a bit about today. The bill also seeks to expand the Railway Labor Act to protect railroad employees against discharge, retaliation, and discrimination for safety related activities just like Brother Jones outlined for us. And the bill would also seek to address the issue of fatigue in the workplace in that it would require labor and management to submit a jointly prepared plan to address this issue. Furthermore, the bill seeks to close a wide loophole that exists within the current Hours of Service law. Basically, the bill would require all employees who perform safety-sensitive work to fall under the previews of the law regardless of who their employer is when they're performing real sensitive work.

    And finally, we would like to speak in support of the proposed Signalmen Rail Safety Improvement Act of 1998. This is a proposed bill which is much like the FRA's bill. It seeks to close the current loopholes that exist within the Hours of Service Act. Specifically, currently signal employees are required to count up to 1 hour of commuting time as off-duty time when they are returning from a trouble call. This effectively reduces the minimum rest time to 7 hours, rather than the required 8 hours of rest. The bill also limits safety-sensitive duty to no more than 12 hours for signalmen which is the same restriction that the operating crafts presently have. This bill also addresses the issue of harassment and intimidation of employees which result from their reporting accidents or injuries, and the Section also strengthens the penalties imposed on the railroads for harassment and intimidation of employees who furnish information regarding accidents and injuries to the FRA.

    In closing, we'd like to applaud this committee's examination of these issues. We need Congress to take an active role in supporting rail safety in the fast-changing railroad environment. And I'd like to thank this subcommittee for the opportunity to voice our concerns on behalf on the non-operating crafts, and I'd be glad to answer any questions you might have.
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    Thank you.

    Mr. FRANKS. Thank you. Mr. Parry.

    Mr. PARRY. Good morning, Mr. Chairman, members of the subcommittee. My name is James J. Parry. I am the assistant general president of Brotherhood Railway Carmen Division of the Transportation Communications International Union, BRC. I am appearing before you today on behalf of my General President, Richard A. Johnson. I greatly appreciate the opportunity to testify before this subcommittee.

    As we are all aware, the safety of our Nation's rail systems is an issue of national importance as dramatized by the human and monetary damage caused by train derailments, collisions, and other accidents over the last 2 years alone. As a recognized representative of more than 18,000 active railroad carmen in this country, BRC offers these comments on the proposed Federal Railroad Safety Authorization Act of 1998.

    The BRC appreciates the administration's efforts in this bill to plug some of the existing loopholes in our Nation's Rail Safety Laws. Many of these changes are long overdue including the bill's provisions to bring subcontractors under the scope of Hours of Service laws and expanding existing anti-retaliation protections to cover those who inspect and repair passenger and freight cars, and locomotives, but refuse to certify unsafe equipment for use. However, the BRC believes that the following language must be included for this legislation to have any substantial impact on safety. Section 101 of the administration's proposed bill would clear up existing ambiguities and extend the applicability of the Hours of Service laws to contractors and subcontractors to railroad carriers.
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    While the BRC supports this extension with respect to Hours of Service, the BRC believes that contractors and subcontractors need to be covered by regulations issued pursuant to the Federal Rail Safety Statutes governing, among other things, passenger-car safety standards, event recorders, power brake safety, and safety appliances. Further, BRC believes that Federal Railroad Administration, FRA regulations contained in part 215 of CFR Title 49 governing Freight Car Safety Standards should also be applied to contractors and subcontractors to rail carriers. Right now, if a carrier uses a contractor or subcontractor to provide maintenance for its locomotives and rolling stock, not to mention track and signal systems, only the carrier may be fined or otherwise held accountable if that contractor or subcontractor violates Federal law.

    The contractor or subcontractor is, from a FRA enforcement standpoint, untouchable. Federal Rail Safety Laws serve as preventive purposes. Lapses in compliance with Federal law will likely be overlooked by carriers for more immediate economic reasons until a collision or a derailment require the carrier to stand up and take notice. Our proposal will ensure that such accidents need not occur before those contractors and subcontractors are called to account for violations of Federal law.

    The BRC takes exception to the language of section 301 of the administration bill which would require carriers to file accident-incidents reports on a quarterly, rather than monthly, basis. Although BRC is sympathetic to smaller carriers that are seeking to reduce administrative burdens, this report is a single filing for railroads with few or no accidents or incidents to report during a month, in actuality, takes little time to prepare. Further, there is a documented history of carriers underreporting the number of accidents, injuries, and incidents on their property. Although FRA and carriers have made strong advances in correcting this problem, BRC believes the bill's language eliminating the monthly reporting requirement, would give license to turn back the clock on that progress.
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    BRC wholeheartedly supports expanding the coverage of anti-retaliatory provisions of the existing statute. The proposed bill would extend those provisions to protect those inspection and repair employees who refuse to falsely certify the safety of track, locomotives, rolling stock, or signal systems. This is a long overdue change that will help ensure that all safety-sensitive rail employees will feel free to place safety above a fear of discipline or harassment for doing their job. The BRC also recommends, however, that Section 20109-C be amended to allow punitive damages to be awarded in addition to reinstatement, back pay, or other compensatory remedies to those employees who are discharged, suspended, or against whom other action affecting pay as a result of such retaliation. It seems incongruous that under current law a deterrent such as punitive damages is available in only cases of retaliation by a means other than discharge, suspension, or other actions affecting pay. Such an enforcement scheme clearly undermines the deterrent affect of punitive damages and gives the carrier perverse incentive to fire, demote any employees refuses to operates or certify the safety of unsafe equipment.

    Finally, the BRC respectfully submits that this legislation be amended to prohibit management and policy-level employees of FRA from taking employment with a carrier or a related entity regulated by FRA for a period of at least 3 years following their departure from the agency. Such an amendment would prevent the revolving door by which FRA employees responsible for ensuring that carriers don't undermine the safety of the Nation's rail systems are regulating a given carrier one day and working for them the next.

    This revolving door approaches, unfortunately, coming at FRA as it is in other branches of the Federal Government. Notwithstanding this practice seriously undermines the ability of those employees to objectively perform a job that is too critical not to be performed objectively. Although by no means a cure-all, this approach is a far more viable means of solving the problem that preserving the status quo.
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    The BRC greatly appreciates this opportunity to air out our views to the record on rail safety. We believe that in considering this bill the committee needs to look beyond the well intention but lacking language in the administration bill. The safety of our Nation's rail system in the 21st Century is too important not to address the issues we have raised here today.

    Once again, on behalf of our organization, I would like to thank the subcommittee for this opportunity and we will be happy to answer any questions you may have.

    Thank you.

    Mr. FRANKS. Thank you. Mr. Maslanka.

    Mr. MASLANKA. Good morning. My name is Gary Maslanka and I'm a Representative of the Transport Workers Union of America. I also a member of Rail Safety Advisory for the last few years and been deeply involved in quite a few initiatives as far as well safety goes.

    Mr. Chairman, on behalf of the Transport Workers Union of America, we welcome and thank you for this opportunity to appear before this committee today. My appearance here was a little bit last minute notice and I don't have prepared comments, but I'd be pleased to submit to the committee within reasonable time comments.

    However, I do have a few things I would like to make observations on. With regard to the RSAC process, I firmly believe that FRA Administrator Jolene Molitoris should be commended for her vision and perseverance in pursuing the RSAC process. The RSAC process brings to the table people who know most about what the problems are out in the industry and we also urge Congressional support for the RSAC process.
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    However, RSAC falls seriously short of ensuring safety in the railroad industry. A critical element which has been talked about quite a bit here this morning is the lacking of sufficient resources by FRA, or for FRA, to go out there and really enforce the regulations. We believe this is illustrated quite clearly by recent SACP's, and CSX, and UP, and others over the years where in those situations where there's sufficient staffing by FRA people, the results of inspections seem to vary in degree. They seem to show that there's quite serious safety deficiencies out there.

    This is nothing new over the years, although it wasn't under the heading of the SACP. There's been assessments on several railroads and the point being made here is that each time there's an assessment and there's sufficient forces or staffing at FRA, what you find is quite different than the normal procedures. Without belaboring the point, I believe the GAO report nails it down pretty clearly as far as staffing and the RSAC process. Again, we support it, but FRA certainly needs additional resources. RSAC is only one component. The critical element of appropriate effective legislation regulation enforcement must not be overlooked or taken lightly.

    I believe the others here on the panel have covered quite clearly the issues. I would like to say one thing about the harassment and intimidation. I think what the people have to focus on, and the word culture is used quite frequently, it is the culture. It's not a culture that happened over night. This has been going on for years. From an employee who came up through in the ranks and has lived it, I can tell you it's there. Hopefully, we can do something to change it, but it's a deeply-embedded culture that's been there. Just recently this morning, as a matter of fact, I was handed a note about a situation where an employee went 24 years of service, no discipline, injured his wrist and was taken to medical facilities to be examined, and he was warned ''don't taken any prescriptions if offered because that would make it a FRA reportable.'' Now, those are some of the types of approaches that are being implemented out there and, I guess, the resolve of that from what I'm told in the quick note here is the fact that he defied those instructions, took the prescription, and he was suspended for 60 days. That's 2 months pays for going to get medical attention and taking a prescription from a doctor whose telling you you need it. I think we have a serious problem there.
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    One more issue which is very important and it's—you know, you've talked a little bit here this morning about jurisdictional issues. I would just like to state our strong opposition and real concern for provisions in the Senate version of the ISTEA bill which would, effectively, limit jurisdiction over railroad workers in the areas of hazardous materials. I've been told that there is a provision in there, I believe, it's 3203 which would, basically, take us out of the coverage of OSHA, and we've got a real problem with that. If you look at the amount of hazardous materials which are being transported by rail in this country, it's an ever-increasing amount. We're around that stuff all the time and, quite frankly, the FRA in many areas as far as personal-protective equipment like respirators and, even to an extent, emergency-evacuation plans, and medical surveilling and things of that sort don't even have regulations and certainly aren't enforcing them. So, I just wanted to take that opportunity to mention that here this morning that we're greatly concerned with the provision in that bill.

    Thank you.

    Mr. FRANKS. Thank you, gentleman. I appreciate your testimony today.

    I have a number of questions that relate to specific elements of each of your written statements, but I would like to begin with the more open-ended question, if I can, concerning intimidation and harassment. It's been a recurring theme today through a number of panels. People have pointed to it as a cultural issue. Something that is of a longstanding nature within this industry. Your employees, your brothers and sisters in the Labor Movement have to work within an environment where this, obviously, plays too significant a role. I've heard a lot about the problem and the severity of it, but I'm looking for suggestions, whether they be very specific or broadly cast that would allow us on the subcommittee to look to help to provide a remedy to this problem. So, I'm all ears for 5 minutes if you can talk to me not only about the nature of the problem, but steps that you folks think would be constructive in helping to address this very longstanding problem within the culture of this industry.
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    Mr. JONES. One of the problems we have is that people are often scared to come forth for retaliation. I was harassed for a number of months one time because I was turning in safety violations, not only for myself, but the people I represented. That becomes a real problem. Maybe one suggestion might be a hotline or something that could be set up. I know that some of the carriers have set some various safety hotlines and things up, but set something up within the FRA that gives that person some protection to let them know what's going on. It's very simple for us to sit here as labor leaders and Members of Congress to look at the issue, but down right where the people are working on the ground or working on the locomotives, those are the people that makes it very hard for them to take a stand on an issue because of what I said before there whole livelihood, their families, and everything are also on the line.

    I don't know what the answer is. I know that there is a movement there within the industry to try to address that, but we also have pockets in the industry that's just as bad as it ever was. And, I think you heard that in the other hearings where people are being harassed for taking—when they go to the doctors, or numbers of other issues. It's got to stop. I mean, we are a very big industry. We have very professional people on both sides, labor and management. I don't know what the answer is, but it's something we're going to have to come to a conclusion on because if you're harassed and then you go ahead and work on a piece of equipment, or go out into a yard and work on cars, or whatever, in an unsafe situation and people get killed, that's wrong.

    I do not know, but there has to be catalyst. I would suggest maybe—as I know that Congressman Wise did go out into the field and talk to railroad workers that are working out there every day. Maybe that's something that you might want to do as chairman of this committee is to go out in the field and hear from the workers, not the representatives, not the management, but the workers and say, you know, do you have any ideas? What is it really like out there? I think that it might be an eye-opening experience for the committee.
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    Mr. MATTINGLY. Yes, Mr. Franks, if I could.

    I think it was put very well, I believe, it was by Ms. Flowers a while ago about the military was even confronted with the issue of harassment intimidation. And I think it's very well put that in this industry, which is the oldest transportation industry in America, that it is almost the same as the military and it's very militaristic in it's background in the way the railroads were ran, and it's deeply embedded the issue of harassment intimidation.

    One way to address the harassment-intimidation issue was what was in the FRA's bill where it requires labor and management to sit down and address the issue in a cooperative manner. The issue of disciplining employees has far long been used as the ''hammer'', and I would want to stress that as the ''hammer'' to suppress the reporting of accidents and injuries. By simply making—by making an example of one employees, many employees see what happens to one when they report something. And whether you like it or not, in the real railroad industry this is what suppressing, and this is what you're hearing that people are perceiving as harassment intimidation. When they see a fellow worker taken out of service for whatever amount of time made an example of because he reported an injury, the rest of them will, basically, go ahead work to some extent hurt rather than taking a chance of putting their family and their livelihood at stake and going through a lot of hardship.

    So I think a cooperative effort is an answer. Doing away with the disciplinary procedures that the railroads ingrained as putting forth an example to suppress accident and incident reporting is a prime example, in my mind, of what's going on in harassment intimidation.
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    Mr. MASLANKA. Yes, let me just say one more thing quickly. I'm one who firmly believes in partnerships and cooperative efforts, and I'll never give up trying to resolve things from that type of a vantage point. But, quite frankly, the ways things have been going, I'm not sure if this one can be solved that way. I think somebody's got to take a look at the record beyond just reporting of injuries, but maybe the record of, you know, some of the discipline processes which have been invoked against employees and some of the practices which have been taken. I mean, I've been involved in several discipline hearings where an individual with two, or three, or four injuries, some of them may even be at fault for unsafe conditions, is brought up on charges, and the clear message to employees is ''don't get hurt, otherwise we're going to threaten your livelihood.'' You know, I guess you can term it ''economical suicide'' for an employee to be honest about how he got hurt sometimes.

    Thank you.

    Mr. FRANKS. Let me note for everyone that we have a vote. We have about 12 minutes left to cast a vote. So, we're going to—we're not going to be able to get through the questions of everyone. We're going to have to reconvene. I'm going to have to go to an emergency budget meeting because they're marking up the Budget Resolution right now as we speak. So, I'm not going to be able to make it back. Mr. Bachus is going to preside the chair, but I just wanted it to bring to everyone's attention the fact that this is the last public appearance of one of our best staffers which is Alice Turnquist before she takes here imminent maternity leave. And Alice, I just wanted to on behalf of the members of the subcommittee thank you for your great professional work, the help you've given to me in the last couple of months, and getting me up to speed on these issues, and preparing this committee for the very important work that's before it. We all want to thank you and congratulate you. Wish you the very, very best.
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    We'll be back after this vote. Thanks, folks.


    Mr. BACHUS. [presiding] I would like to call the subcommittee back to order.

    I appreciate you gentlemen waiting.

    Let me ask you all just a broad question: What do you consider the most dangerous task on the railroad?

    Mr. MATTINGLY. I'd have to answer by saying there are multiple dangerous tasks on the railroad. With you come to changing out rail, climbing poles, working around heavy equipment as far switching. When you work in an industry that has massive amounts of steel moving at pretty good rates of speed, whether it be at 10-mile-an-hour or up to 79-mile-an-hour, anything you work around with that type of heavy equipment and that type of heavy structure, anything can be a devastating if it gets on type of you or you get caught in between it. So there's multiple things that can really be

    Mr. BACHUS. In other words, the movement of freight at high speeds, just the construction that's done—
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    Mr. MATTINGLY. By changing out switch points, rails, heavy pieces of switch machines—all this type of structure, all the moving stock it's all a tremendous wait. So, I mean, to say there's any one factor that's the most dangerous I think there would be hard to do—

    Mr. BACHUS. Yes, and—maybe I shouldn't have said—what are some of the more dangerous?

    Mr. PARRY. We would consider it the inspection and repair to the equipment.

    Mr. BACHUS. As dangerous?

    Mr. PARRY. Yes.

    Mr. BACHUS. Okay. How would repair of equipment—how would inspection—how is that dangerous? I mean, I'm not disputing that.

    Mr. PARRY. Well, the heavy repairs to the equipment, the periodic maintenance of the equipment, the actual physical ability to repair the equipment, and the preparation in preparing the equipment.

    Mr. MASLANKA. I would have to agree. You know, there's a multitude of very dangerous tasks out there. No matter what craft or whatever segment or department of the railroad it may be, but I think you have to keep in mind a couple of key points.
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    One is without proper regulation and rules to ensure safety, those tasks, whatever they may be, all become much more dangerous. And a key element beyond that is training. Whatever the function is you're doing, you need to be, you know, trained to the best to avoid injury. So, you know, training, and I know I heard something about certification earlier here mentioned. That's key to reducing injuries.

    Mr. BACHUS. Okay.

    Mr. JONES. One of the problems we have in our industry which was addressed at the—at one of the previous hearing was fatigue. And we—I agree with everybody. Everybody's got a very dangerous job out there. It's a very dangerous industry, and people have to know what they do; and do their job properly. Training, of course, is number one, which I brought up at the last hearing.

    The second thing is, dealing with fatigue, we have areas known as dark territory where we have no signals to warn us. We just do it on—human beings taking written or sent information. And with the added fatigue that's in the industry now, and with that, that's a very unsafe situation because when something happens, there people die every time—and very seldom that they do not die if they have an accident in a dark territory situation. So, that's one of the reasons why us in the industry are working very hard on this positive train control situation, because there's a number of contributing elements to any kind of accident, whether it's be working on cars and repairing them, or running a locomotive. There's contributing factors, and we're trying to address those factors now.

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    Mr. BACHUS. What of the different tasks—now some of them are inherently dangerous—in other words, you know, any time you're around electricity, fast moving freight, heavy equipment, that there's some danger. But some tasks shouldn't be dangerous, like operating maybe an engine, unless you're tired. I mean, you can make what should be—any task dangerous if you're fatigued.

    What are some gaps, say, in the FRA enforcement that you think that could be easily remedied? Are there some gaps where there are some activities which should be fairly safe but because of practices maybe of the railroads or lack of regulation by the FRA, they're more dangerous than they should be? Can you think of any instances of that?

    Mr. MATTINGLY. Well, for our craft, signalmen, our chances of being killed as a signalman are 1 in 800 a year. And we recently—I—2 years ago enacted the Railroad Worker Protection Regulations which did address a crucial issue for us which were railway workers working in follow the track being struck by not only trains, but by also moving on track equipment.

    So that has really helped in this craft for signalmen—reduced the amount of deadly accidents that occur by being struck by whether it be passenger trains, commuter trains, or freight.

    Mr. BACHUS. You're actually saying 1 out of 800?

    Mr. MATTINGLY. That was your odds of being killed—1 in 800 a year.
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    Mr. BACHUS. Was that annually or over a——

    Mr. MATTINGLY. A year.

    Mr. BACHUS. That seems awful.

    Mr. MATTINGLY. I'd like to play the Lotto with those kinds of odds.

    Mr. BACHUS. Yes.

    Anyone else?

    Are they doing a good job on enforcing the hours of service?

    Mr. JONES. Well, there's a contingency here on the hours of service. Of course, we had got a State law passed requiring get the train crews off the train and in transportation within the 12th hour, and not even to the objective terminal. You may be 2 hours away from the terminal. In Canada, they are trying to get the train crews into the objective terminal within the 12th hour. That creates more fatigue all the time. We actually become quite apparent that the industry did not want that. It did eventually went to the Supreme Court, and the Supreme Court ruled against us as labor in that situation as what the law really said. It still has problem out there getting train crews off. There's no problem. But there's not a violation unless you're required to perform service after the 12th hour. That's one of the things.
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    The other things, as we stated before, they do not have enough resources or manpower. I think the GAO—the FRA sure testified that less than one percent, or I think it's three-tenths of one percent of the rolling stock were inspected each year by the Federal Railroad Administration. I don't think that's big enough a deterrent to see if there's some unsafe actions out there or in the problem of whether the cars are inspected or locomotives are inspected. That's one of the problems. Resources are a big problem for the FRA. The FRA can't say that themselves. But if you go down and talk to the inspectors and people that's really working on the ground, they'll tell you that they need resources. They need secretarial help to help write up violations and stuff like that be the process.

    Mr. MATTINGLY. I'd like to address the issue that you asked on hours of service also.

    I testified earlier that there was a huge loophole in the hours of service law. And I was kind of miffed by the testimony that was given by Mr. Loftus from the American Short Line Association earlier, when he was addressing the issue of contractors not coming under the hours of service law. This is a huge issue. It's a huge safety issue because the type of work that predicates the hours of service being triggered is performing safety sensitive functions on the railroad. Yet, you can have a contractor, simply because he is employing employees as a contractor and not employing employees as a railroad—in other words, the employee is not working for the railroad, he's working for the contractor—he basically can use those employees as long as he wants to perform safety sensitive work such as the example Mr. Loftus as working on grade crossing devices. And they can very well be fatigued. And as we all know—

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    Mr. BACHUS. Are you talking about using his own employees or are you talking about railroad employees utilized?

    Mr. MATTINGLY. The railroad can contract with a contractor, and then that contractor can use his own employees, being the contractor's employees, to perform safety sensitive work and do not follow under the previews of the hours of service law. They can perform this type of work on grade crossings signals, which are instrumental in warning the public of oncoming trains at grade crossings, and they can use them in a fatigued manner, which, you know, the issue of fatigue, when a person is fatigued, it's much like ingesting alcohols. It impairs your senses. And I just don't think it's right.

    Mr. BACHUS. Let me ask you this, and I think that's an interesting point. I think—I remember reading in your testimony, that you were advocating the FRA have more jurisdiction over the contractors?

    Mr. MATTINGLY. That's correct.

    Mr. BACHUS. I know there's instances where contractors are fined if they put the railroads in non-compliance with the FRA regulations. Does this—or doesn't it or how?

    Mr. MATTINGLY. Basically, the FRA has no jurisdiction when it comes to the hours of service over an employee of a contractors. That's just the way it is. And that's the way it's been interpreted. And that's the way it's been explained to me. And it's a large loophole. And it's not—I don't think it should be a matter of whether it's a contractor or an employee of the railroad. It should be the work the person is performing. If that work that person is performing is safety sensitive work that can impair upon the public or impair upon the safety of the railroad or the safety of the railroad employees, he ought to come under the jurisdiction of the law.
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    Mr. BACHUS. If he does something which creates an unsafe condition on the railroad, the contractor can be fined. Is that right? I'm right about that, aren't I? The FRA can impose fines on the contractor, but you're saying not for—if he got there and he's fatigued, I understand that, you know, that creates a risk. But if that creates a risk which creates a safety hazard, I think the FRA can fine the contractor. And I'm not sure they've been aggressive in doing that.

    Mr. MATTINGLY. Well, I was going to say, let's say after the fact there was a an accident, let's say, at a grade crossing signal like Mr. Loftus used. There was an accident and a fatality or an injury, and the FRA was called out to inspect them, because we do now have some regulations which cover gray crossing warning devices. Yes, then the answer would be if there were to find some type of serious defect there that was left—a relay turned over or some type of tampering with the equipment that it wasn't functioning as intended. And yes, the FRA could impose a fine.

    Mr. BACHUS. Are contractors—this will be my last question—are contractors creating unsafe conditions along the railroads? And if so, is the FRA fining those contractors?

    Mr. MATTINGLY. Well, I think—I don't really—I'm not really armed with that data. I think the potential lies there anytime that you—and I know, and I'm not going to be specific right now—but I can—I know of instances where contractors are doing the same safety sensitive work as members that I represent. And the law requires my members after 12 hours to load up their tool bags and go home and rest. And the contractor stays there and does the same exact type of safety sensitive work as long as his employer tells him to.
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    Mr. BACHUS. And being fatigued, then the work might not have been of good quality or it may be done in a way to endanger the railroad worker?

    Mr. MATTINGLY. That's—that's what brought the Hours of Service Act into being to begin with.

    Mr. BACHUS. Right. I understand that.

    Mr. MASLANKA. As far as the hours of service in the car men's craft we are not covered by the hours of service. We're not looking to be covered by the hours of service. However, with regard to the fatigue management plans, when you consider the downsizing, like referencing the GAO report, they talk about a 60 percent decline in employment in the rail industry since 1976. And you've got all of these mega-mergers going on. From a safety vantage point, what we're looking for is to be considered by those fatigue management plans. Because what you have is a situation where people are becoming much—you know, the expectations are much more. They're working much more overtime, and so on, and so forth.

    Let me just reiterate one more time as far as the issue of where FRA may be lacking. I alluded to some things going on with the ISTEA bill a little bit earlier. FRA does not have specific regulation over several things. I think another one is the issue of like crane safety and things like that. FRA does not have specific regulations, so there are some gaps out there.

    Mr. BACHUS. Okay, thank you.
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    Mr. Wise—and I didn't realize that you were back.

    Mr. WISE. I didn't realize either. I just slipped in on you.

    Mr. BACHUS. Mr. Wise.

    Mr. WISE. Well, thanks.

    The—I'm not sure where to start. We've got several questions. The number of inspectors—the FRA has requested 32. I'm going to ask them for their budget submission to the administration—my belief is that they actually asked for more than that, and this is what OMB, the much maligned OMB told them they could have. Do you all have any—you've heard the discussion going on all day about resource allocation and whether you want inspectors on SACP or in RSAC or whether you want them involved in doing on-site inspections. Where are you all—is there any position you have on this subject, Mr. Mattingly?

    Mr. MATTINGLY. Yes. I'm of the opinion that, you know, you're looking at two levels of safety here. The SACP is a very good cooperative level. But also, you still need to maintain that enforcement out in the field, where you have the inspections. And to say that the 32, I agree with what the GAO study stated. That's a—probably a pretty good start when you're looking at having to train these people. But you definitely need to have the—a dual focus of safety. You need to have the RSAC, the SACP, and you need to have that outside inspection going on also, especially when the FRA sees some targeted areas or some red flags in a specific issue, especially in the environment where you have a lot of mergers going on and short lines being created. I think that's a key issue to keep that
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    Mr. WISE. Is that pretty much a consensus? I've got some other questions. If it's a consensus, I'd like to move on. Okay.

    Mr. Jones, you and I have discussed and in front of the subcommittee have discussed before the lack of any requirement for radios in locomotive cabs. And it's—this has always struck me as an interesting—peculiar gap. I understand that some people are saying that adopting a standard could lock the industry in, and it's time when technology can actually go beyond that level. But would you bring me up to date at least on where that is, and why it's so long getting a rule issued?

    Mr. JONES. Well, as I said in one of my previous testimony, that we started out—actually had a hearing into FRA in 1987 to deal with that issue. We brought testimony at that time where accidents in dark territory, as I was discussing earlier, where there's no signals, that the actual accidents were prevented by these radios, where people heard other people in their territory, and questioning where they were and prevented accidents—one on my seniority district, on my train crew, when I was off at the legislature.

    The—we worked real hard with the FRA and the industry on trying to come to a conclusion on a rule. That rule—I believe we finished it sometime in this last year. We think that that's going to give us coverage. We also think that the—we did take—give some leeway to the short line carriers in that they do not have the resources of major carriers, but they will have communications and be required. The redundancy was an issue that was big in that rule making process, and with that, we think that those issues being addressed.
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    As far as new technology, I think that the industry has room to deal with new technology as it comes in—and certainly if they're not comfortable and if the FRA takes exceptions, there's no reason why we can't set down and try to work out problems with it. But it was amazing to me over all these years that we didn't have radios or required to have radios on locomotives. Now, it's really—it's coming in the industry because you really have to have radios for communication, because that's basically how they run a lot of their trains in the industry. The industry has changed. But we're finally getting that rule. We're finally coming out, and it was an agreed to rule.

    Mr. WISE. Mr. Parry, you have described the administration's proposed funding for FRA as a 9 percent cut, and I'll ask you to elaborate on that, since if they're asking for 32 more inspectors—is that—that would seem to be an increase or are there other areas that will be cut?

    Mr. PARRY. Well, again, I share the sentiments with my brothers here. We encourage the 32 inspectors. However, again, like Brother Joe had stated, we feel that on-site inspections is critical versus the SACP and also the RSAC process. Many of our inspectors in the field are intimidated and harassed when they go out and work trains. First of all, they're pressured to get these trains out in a certain amount of time. And also the fact of when they do find defective equipment, that involves time consuming efforts by the train crews to remove the defective equipment from the trains and a lot of times, our members or inspectors are pressured for not—to mostly not bad order, as we call it in the industry—to bad order this defective equipment. And there's a lot of pressure put out there by management on doing this with our inspectors.
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    Mr. WISE. I understand that.

    Mr. PARRY. That's why we need a more hands-on, so to speak, on-site with the FRA for them to come in and monitor the carriers inspections.

    Mr. WISE. But the actual FRA budget itself, is that a 9 percent reduction? That's what I'm.

    Mr. PARRY. Yes, currently in fiscal year 1998, it's $90 million, and the new bill, of course, proposes for 1999 for $82 million.

    Mr. WISE. And one final question, Mr. Chairman. Is the—I've asked this in previous panels. The GAO report last year on rail safety noted that from 1990 to 1995 that the employee on duty illnesses and injuries had fallen by 9 percent, while employee on duty fatalities had fallen by only 9 percent, and I just wondered if anyone had an explanation why the number of illnesses and injuries would fall so much more sharply than the number of fatalities?

    Mr. MATTINGLY. Well, I'll take a stab at it. I think the GAO gave a good response earlier in that maybe the harassment, intimidation issue, whether we like it or not, still remains out there. And therefore, it might be pushing down some of the accidents and incidents that are reported. But I think more importantly that the changing railroad environment, with your mergers going on—mergers are pushing your railroad operations to more of a core line operation, and you're seeing more of a spinoff on a lot of your branch lines. It's just the environment is different. You've got your employees out there—exposure to higher volumes of freight on more dense lines. And I think they're still exposed to being struck by equipment and freight. And when you look at it in that light, it's possible; that you've downsized employees, you're running more trains, you're exposing what employees you do have out there to more danger. And when they do get struck or hit—about 90 percent of the time when an employee is struck by a piece of equipment in the railroad industry, it ends in a fatality, not just a mere injury due to the massiveness of the freight.
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    Mr. WISE. It also—well, these figures—let's see—are 1990 to 1995. Okay.

    I thank the chairman.

    Mr. BACHUS. One thing I might say as we conclude the hearing. And this is—I think you've raised a good point in that Fiscal Year 1998, there was $89 million authorized. They're requesting $82 million in authorization, you know, this year. That's a drop of 9 percent. However, the appropriating committee only appropriated $78 million in Fiscal Year 1998. So if we authorized $82 million, and if the Appropriations Committee appropriated $82 million, it would be a $4 million increase. Apparently, we're losing something between the authorizing committee and the appropriating committee. And, you know, I would just tell you all to be aware, you know, if in fact they look at all authorizations and drop it, you know, as much as they did last time—from $89 million to $78 million that, you know, is an $11 million drop, and then they come in and ask for $80 million. We authorized $82 million this time, and they drop it that much this year. But it was—the cut came in the Appropriations Committee. And I would say focus on that. If we actually authorize $82 million and that amount is appropriated, it would be a $4 million increase.

    Mr. WISE. Mr. Chairman, are you suggesting that the appropriators don't always follow the directions of the authorizers?

    Mr. BACHUS. Shocking statement. But this committee did authorize a full $89 million—for safety—and the appropriators only appropriated $78 million.
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    Thank you. We appreciate your testimony. So I'm supposed to say that concludes the hearing.

    [Whereupon, at 12:35 p.m., the subcommittee adjourned subject to the call of the Chair.]

    [Insert here.]