Federal Railroad Safety Program and Reauthorization Issues

Order Code IB10030

CRS Issue Brief for Congress

Received through the CRS Web

Federal Railroad Safety Program

and Reauthorization Issues

Updated September 24, 2003

Paul F. Rothberg

Resources, Science, and Industry Division

John Williamson

Resources, Science, and Industry Division

Congressional Research Service ˜ The Library of Congress

CONTENTS

SUMMARY

MOST RECENT DEVELOPMENTS

BACKGROUND AND ANALYSIS

Overview of the Scope and Nature of FRA’s Safety Program

Regulatory Development and the Railroad Safety Advisory Committee

Compliance and Enforcement

Railroad Safety Statistics

Key Reauthorization Issues and Other Current Topics

Fatigue and Hours of Service

Alleged Harassment and Intimidation

Highway-Rail Grade Crossing Safety

Track Safety Standards

Maintain the Status Quo

LEGISLATION

CONGRESSIONAL HEARINGS, REPORTS, AND DOCUMENTS

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Federal Railroad Safety Program and Reauthorization Issues

SUMMARY

The Federal Railroad Administration

(FRA) of the U.S. Department of Transportation (DOT) is the primary federal agency that

promotes and regulates railroad safety. To

implement its safety responsibilities, FRA

uses numerous strategies including the Safety

Assurance and Compliance Program (SACP),

field inspections; and to help improve its

regulations, FRA uses the Railroad Safety

Advisory Committee (RSAC). SACP involves numerous partnerships forged by railroad management, FRA personnel, and labor

to improve safety and compliance with federal

railroad safety regulations. About 422 FRA

personnel and 150 state inspectors oversee the

operations of the railroad industry in the field.

RSAC uses a consensus-based process involving hundreds of experts who work together to

formulate recommendations on new or revised

safety regulations for FRA’s consideration.

The combined impacts of SACP, RSAC,

and billions of dollars of investment in railroad infrastructure, as well as other industry,

labor, and government initiatives, have

yielded improvements in railroad safety,

especially during the last 20 years. Despite

those advances, further improvements in both

the safety record and FRA’s regulations and

programs are possible, but each approach has

its own potential benefits and costs.

The last railroad safety reauthorization

statute (P.L. 103-440) was enacted in 1994

and funding authority for that program expired

at the end of FY1998. FRA safety programs

continue using the authorities of existing laws

and funds appropriated annually.

The

reauthorization process provides an opportunity to review federal policies and programs,

to consider the current state of railroad safety,

and to explore various options intended to

Congressional Research Service

further improve safety. Enacting a new statute

affecting railroad safety is difficult, especially

when a balance is sought among the interests

of public safety, railroad labor, and management. The costs and benefits of new regulations and revised federal programs affecting

railroad operations also are major considerations.

Several hearings on railroad safety were

held during the 105th, 106th, and 107th Congresses, but no consensus has yet been reached

on a railroad safety reauthorization bill. For

FY2001, P.L. 106-346 appropriated $101.7

million for FRA’s railroad safety program and

related expenses. In P.L. 107-87 Congress

appropriated $110.9 million for these expenses for FY2002. And for FY 2003, the

Administration requested $122.9 million and

P.L. 108-7 appropriates $117.4 million. In

July 2002, the Administration submitted to

Congress proposed legislation to amend railroad safety law and to authorize funds for

specified FRA activities for FYs 2003 through

2006.

This issue brief discusses various rail

safety issues that either were considered or

discussed during the 106th, 107th, or 108th

Congress. Those include: whether the railroads should be required to develop fatigue

management plans, whether changes in the hours of service requirements for railroad

workers should be instituted, whether

increased protection for railroad workers from

alleged harassment and intimidation is needed,

and whether federal efforts and FRA funding

levels to improve grade crossing safety are

adequate.

Also, the option of simply

reauthorizing current federal railroad safety

law without any new requirements or authorities for FRA to implement is analyzed.

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MOST RECENT DEVELOPMENTS

Several bills regarding railroad safety have been introduced in the 108th Congress. For

example, Senator Hollings and cosponsors introduced S. 104, which directs the Secretary of

Transportation to conduct an analysis of the risks to public safety and to the security of rail

transportation that are associated with long delays in the movement of trains that have

stopped on railroad grade crossings. Representative Inslee and cosponsors introduced H.R.

288 to provide additional funding for grade crossing safety. Representative Lipinski et al.

introduced H.R. 1617 to establish a National Rail Infrastructure Program which would,

among other things, provide funding for grade crossing improvements or elimination.

Representative Young and cosponsors introduced H.R. 874 to establish a program,

coordinated by the National Transportation Safety Board, that would assist families of

passengers involved in rail passenger accidents. That bill has been reported out of the House

Committee on Transportation and Infrastructure.

On June 6, 2002, the Subcommittee on Railroads of the House Committee on

Transportation and Infrastructure held a hearing on recent derailments and railroad safety.

The purpose of the hearing was to inquire into the present state of track safety, hours of

service regulations, and the National Transportation Safety Board (NTSB) recommendations

pertaining to railroad safety. On July 11, 2002, the Surface Transportation and Merchant

Marine Subcommittee of the Senate Commerce Committee held a similar hearing on railroad

safety. In July 2002, the Administration submitted to Congress proposed legislation to

amend railroad safety law and to authorize funds for specified FRA activities for FYs 2003

through 2006.

In November 2002, Congress passed and the President signed the Homeland Security

Act of 2002 (P.L. 107-296). In Sec. 1710 Congress explicitly expanded the definition of

railroad safety in federal law to include railroad security. The Act also requires that "When

prescribing a security regulation or issuing a security order that affects the safety of railroad

operations, the Secretary of Homeland Security shall consult with the Secretary (of

Transportation)."

On June 10, 2003, the Subcommittee on Railroads of the House Committee on

Transportation and Infrastructure held a hearing on new technology in railroad safety. On

July 17, 2003, the Senate Committee on Commerce, Science, and Transportation approved

by voice vote S. 1402, The Federal Railroad Safety Improvement Act.

BACKGROUND AND ANALYSIS

The FRA of the U.S. Department of Transportation (DOT) is the primary federal agency

that promotes and regulates railroad safety. The Congress amends or reauthorizes the federal

railroad safety law that governs FRA’s program. The last railroad safety statute (P.L. 103440) was enacted in 1994 and funding authority for that program expired at the end of

FY1998. FRA’s safety programs continue using the authorities of existing laws and funds

appropriated annually. In July 2002, the Bush Administration sent FRA safety

reauthorization proposals to Congress.

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The primary objective of federal law pertaining to railroad safety is to promote the

safety of railroad employees, passengers, and the public. FRA exercises jurisdiction over all

aspects of railroad safety as provided for in the Rail Safety Act of 1970 (P.L. 91-458). More

recent safety laws enacted during the last 25 years, such as P.L. 96-423, P.L. 100-342, P.L.

102-365, and P.L. 103-440, have been designed to accomplish a variety of more specific

objectives. For example, those statutes provided specific authorities to FRA that are

intended to reduce drug and alcohol problems in the railroad industry, reduce the frequency

of highway-rail grade crossing incidents, and strengthen the civil penalty process and

increase penalty amounts authorized to be imposed on those individuals and companies that

violate federal railroad safety regulations. A list of federal railroad safety laws may be found

at [http://www.fra.dot.gov/counsel/regs/cfr_49_jan1998/index.htm]

The reauthorization process provides an opportunity to review FRA’s safety programs

and policies, and evaluate various options intended to further improve railroad safety.

Enacting new law in the railroad safety arena is difficult, especially when a balance is sought

among the sometimes conflicting interests of railroad safety, labor, and management. The

cost and benefits of new regulations and FRA’s programs affecting railroad operations also

are major considerations.

Presented below is an overview of the scope and nature of FRA’s current safety

program, including a discussion of its regulatory development processes and the strategies

used to promote safety. In addition, the safety record of railroad operations is analyzed.

Selected topics that bear on the legislative issues pertaining to reauthorization are discussed

in the last section of the issue brief.

Overview of the Scope and Nature of FRA’s Safety

Program

The national railroad system consists of more than 661 railroads (including about 9

major (Class I) carriers that control more than 90% of rail freight revenues), with over

265,000 employees, 1.2 million freight cars, 20,000 locomotives, 220,000 miles of track, and

over 252,000 highway-rail grade crossings with 62,000 automated warning devices. The

safety of that system affects millions of people who commute by rail each year, billions of

dollars of commerce transported by railroads each year, millions of commuters who drive

over highway-rail grade crossings each year, and millions of residents who live near railroad

tracks used to transport hazardous materials. Safety is primarily the responsibility of the

industry and its employees, as well as the motoring public, especially at highway-rail grade

crossings. The FRA and state and local governments also are participants in the safety

process.

The development of new or revised regulations, the assessment of the safety operations

of railroads, and the promotion of compliance with the federal safety regulations form the

core of FRA’s safety program. FRA uses numerous strategies to implement those functions.

For example, FRA issues the federal railroad safety regulations that prescribe a minimum or

floor level of safety standards affecting various aspects of railroad operations. Those

regulations include standards for track, signals, brake testing, operating equipment, engineer

certification, and maintenance of highway-rail grade crossings. Some 422 FRA railroad

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safety personnel conduct audits or investigations of railroads, their personnel, and shippers

offering hazardous materials for rail transportation, or conduct other safety-oriented

activities. Federal inspectors check for compliance with the federal safety regulations, which

include hazardous materials transportation regulations pertaining to railroad transportation.

When deemed appropriate, FRA’s safety personnel, working with their attorneys, issue civil

penalties or pursue stronger actions that are imposed against railroads, hazardous materials

shippers, or employees who are alleged not to be in compliance with the safety regulations.

In addition to team and individual inspections, the agency conducts the Safety Assurance and

Compliance Program, which is discussed below.

FRA’s resources also help train about 150 state inspectors who submit reports of

probable violations of the safety regulations to FRA. Those state inspectors also work jointly

with federal personnel on various safety issues. Each year federal and state railroad

inspectors are able to audit only a small part of the industry. Government safety personnel

also provide technical and educational assistance, especially to small and historic (or tourist)

railroads.

In P.L. 105-277, Congress appropriated $77.3 million in FY1999 to fund the activities

of FRA’s Office of Safety and administrative expenses of other associated offices within

FRA. In the FY2000 budget, the Clinton Administration requested $95.462 million for those

expenses. Most of those funds are used to pay for salaries as well as associated travel and

training expenses for field and headquarters staff and for information systems monitoring the

safety performance of the industry. P.L. 106-69 appropriated $94.288 million for FRA’s

FY2000 railroad safety program and related expenses. In its FY2001 budget submission, the

Clinton Administration requested $103.2 million for these activities. P.L. 106-346

appropriated $101.7 million for these activities in FY 2001. P.L. 107-87 appropriated $110.9

million for these expenses in FY2002, rejecting the Bush Administration’s request for user

fees. For FY2003, the Administration proposed $122.9 million, and again requested user

fees (which the Administration said would reduce the net request by about $45 million). In

P.L. 108-7 $117.4 million is appropriated for these activities without a user fee imposed on

industry.

Regulatory Development and the Railroad Safety Advisory

Committee

The Railroad Safety Act of 1970 and subsequent railroad safety laws have provided the

legal basis for much of FRA’s regulatory agenda. Over the last 30 years, and often in

response to specific crashes involving railroads, Congress also has directed the FRA to issue

specific regulations in various technical areas. In many of its rulemaking procedures

conducted during the last two and one half years, FRA has made substantial use of the work

of the Railroad Safety Advisory Committee (RSAC). That federal advisory committee helps

FRA develop new regulatory standards through a collaborative, consensus-based process

involving key segments of the railroad community. FRA either can choose to use, modify,

or reject the recommendations from RSAC as it formulates notices of proposed rulemakings.

The record of the RSAC shows numerous accomplishments in a regulatory arena where

progress has often been difficult. (Two examples of final regulations that were expedited by

RSAC deliberations include revisions of the track standards and radio communication

regulations.) According to FRA, RSAC’s collaborative approach of creating regulations

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established by a consensus of all involved parties yields rules that are more easily understood

and consistently complied with than rules produced by using FRA’s traditional, less

consultative method. Prior to the implementation of the RSAC, FRA’s rulemaking officials

had to deal more often with one or more parties that either threatened to challenge a new

regulation in court, or formally petitioned the FRA Administrator to reconsider the

imposition of a final rule. The RSAC process has reduced that concern for FRA and, in

general, is supported by both railroad labor and management.

Despite intensive work and prolonged debates, RSAC members sometimes cannot

reach an agreement on some issues, e.g., the development of power brake regulations. In

such cases, if the FRA decides to pursue a rulemaking using its conventional procedures, the

agency has the option of using the analysis obtained and research conducted earlier as part

of the RSAC deliberations.

The FRA issues each year many proposed safety regulations that often draw heavily

from the RSAC work. And after receiving comments from interested parties, FRA issues

final rules. An overview of FRA regulations, orders and notices may be found at:

[http://www.fra.dot.gov/counsel/regs/index.htm].

Compliance and Enforcement

Historically, FRA conducted audits of the operation and equipment of many railroads,

sometimes found probable violations of the safety regulations, sometimes assessed penalties

against those railroad companies, and on many occasions issued out-of-service orders for

defective equipment. According to FRA, such team and individual inspector-based audits

still comprise about 70% of the agency’s inspection and enforcement program.

FRA now complements its traditional enforcement approach with a much broader

strategy that seeks to promote overall railroad safety, improve labor/industry relationships

affecting safety, and strengthen commitments to safety by all involved parties. FRA’s new

strategy, which began to evolve in 1993 and was first implemented in 1995, is embodied in

the Safety Assurance and Compliance Program (SACP). As part of that process, FRA seeks

to determine the root causes of system wide safety problems and eliminate those through a

partnership effort involving railroad managers and employees who are directly affected by

safety challenges. Under SACP, FRA serves as a catalyst to bring labor and management

together to work collaboratively on safety issues.

A key component of the SACP is the “Safety Action Plan.” In that document, each

participating railroad describes steps it will take to correct systemic safety defects or areas

of noncompliance with the federal railroad safety and hazardous materials transportation

regulations. FRA claims that it works with the railroads to ensure that the plan is

implemented. The topics dealt with by the SACP process and the action plan may extend

considerably beyond compliance with the federal safety regulations. Depending on the safety

challenges found at a particular railroad, FRA may work with labor and management to

address such issues as: How can industry/labor relationships affecting safety be improved?

How can the “corporate culture” affecting safety be improved? How can communications

among labor organizations and senior management be improved? How can rail labor and

management work together to solve a particular safety problem?

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According to FRA, the ultimate goal of the railroad safety program is zero tolerance for

any safety hazard in the industry. To reach that goal, FRA managers seek to direct their

inspection and enforcement resources at the most critical safety problems. In some cases,

the FRA has noted that some railroads have taken major steps and invested substantial sums

to improve the safety of their operations and the compliance with the federal safety

regulations. In some other cases, FRA found continuing problems of alleged noncompliance; and, consequently, FRA issued civil penalties and took other actions to promote

compliance with the safety regulations and to address safety issues.

Some are critical of the FRA compliance and enforcement program. For example, at

times some in rail labor complain that the vitality and vigor of the program needs to be

increased. On the other hand, some in rail management complain that FRA’s proposed civil

penalties for alleged noncompliance with the safety regulations are too high. As is the case

with each of the various modal administrations of the U.S. Department of Transportation,

FRA faces the challenge of using a mix of appropriate strategies to promote safety and to

improve compliance with its regulations.

Railroad Safety Statistics

The long-term safety record of the railroad industry is important to consider when

evaluating various legislative alternatives regarding the future of the federal railroad safety

program or the possible imposition of future regulatory requirements. Those opposing the

mandating of various new safety regulations in a reauthorization bill often cite the steady and

significant improvements in the long-term safety record of the industry, while proponents of

legislation specifying new safety requirements cite opportunities to further improve the safety

record. The following discussion summarizes the overall safety record and focuses on

statistics involving highway-rail grade crossing crashes.

The safety record of railroad operations, as measured using a variety of different criteria,

continues to improve steadily. Table 1 shows safety data for two recent time periods:

between 1984 through 1993 (under FRA’s more traditional approach of using primarily sitespecific enforcement actions to promote compliance with the safety regulations), and from

1993 through 2002 (under the new SACP approach and the time period immediately leading

towards the SACP).

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Table 1. Safety Improvements

1984

1993

Change 1993 2002

Change

from 1984

from 1993

through

through

1993

2002

1,247 1,279

-2.6% 1,279 953

25.5%

649

626

3.5%

626 355

43.3%

Total Railroad Related Fatalities

Highway/Rail Grade Crossing

Fatalities a

499

523

-4.8%

523 544

-4.0%

Trespasser Fatalities b

EOD Casualties c

33,423 15,410

53.9% 15,410 6,504

57.8%

EOD Casualty Rated

9.00

5.93

34.1%

5.93 2.87

51.6%

e

Train Accidents

3,900 2,785

28.6% 2,785 2,851

-2.4%

Excluding Highway-Rail

3,712 2,611

29.7% 2,611 2,652

-1.6%

Crossings

Train Accident Rate

6.58

4.54

31.1%

4.54 3.98

12.4%

Excluding Highway-Rail

6.26

4.25

32.1%

4.25 3.70

13.0%

Crossings

a

Includes all trespasser and employee fatalities at highway-rail grade crossings.

b

Does not include trespasser deaths at grade crossings.

c

EOD = Employee on Duty. The casualties shown include both employee deaths (roughly 22 per

year) and the rest as injuries or illnesses, most of which are due to nontrain incidents.

d

Rate = number of cases per 200,000 hours worked.

e

A “train accident” involves a fatality resulting from a collision, derailment, fire, etc., that caused

monetary damage to on-track equipment or to the track above a specified dollar threshold —

in 2002 that threshold limit was $6,700. “Other incidents” involve any other situation that

resulted in a death but did not result in railroad damage above the threshold limit. Those

definitions are specified by FRA and are used throughout the industry.

Source: Federal Railroad Administration.

The train accident rates (excluding crossings) from 1978 through 2002 are presented in

Figure 1 below.

FRA data indicate that the total number of fatalities at highway-rail grade crossings

decreased from 488 during 1996, to 461 in 1997, to 431 in 1998, to 402 in 1999, but

increased to 425 in 2000, and then decreased to 421 in 2001 and 355 in 2002. Also, FRA

data indicate that the number of trespasser fatalities in incidents that do not involve crossings

went from 471 during 1996, to 544 in 2002. From 1997 to 2002, trespasser fatalities

occurring in incidents not involving grade crossings outnumbered total grade crossing

fatalities and were the largest single component of railroad-related fatalities. Grade crossing

and trespasser incidents combined account for about 95% of the fatalities associated with

railroad transportation in 2000. The FRA says that about 90% of the fatalities that occur at

grade crossings are the result of a driver failing to stop at a crossing or stopping and then

proceeding in error.

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* Train Accident Rate—Train Accidents Per Million Train Miles

Source: Federal Railroad Administration

In recent years (1996-2002), between 4-14 passenger deaths occurred each year on the

nation’s railroads. Historically, many passenger deaths have little, if anything, to do with

actual railroad operations. For example, some fatalities occur when a passenger is getting

on or off the train. Events external to railroad operations, such as a barge operator hitting a

rail bridge and causing a train to derail or a truck driver violating the traffic signals at a

crossing and causing a collision with a passenger train, sometimes have led to catastrophic

disasters. During the last 15 years, several major train crashes, however, occurred involving

passenger fatalities that were directly related to train operations.

Although there are variations in the safety record or the degree of regulatory compliance

of an individual railroad from year to year, the long-term indicators document that

improvements in railroad safety have already been made in many areas. Since 1993 FRA

data indicate that this is especially true in such areas as total railroad related deaths,

highway/rail grade crossings deaths, and employee on duty casualties, and train accident

rates, but not true in terms of total number of trespasser fatalities or train accidents.

Nevertheless, many in railroad labor continue to express concern over work conditions and

shortages of skilled staff who often must assume greater responsibility for heavier and longer

trains. Catastrophic events can occur at any time that will significantly change crash

statistics, especially for the year of the event.

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Key Reauthorization Issues and Other Current Topics

Debate over the reauthorization of the federal railroad safety program generally includes

two major considerations: the reauthorization of funding for continuation of the core FRA

safety program (including RSAC, SACP, and the basic compliance and enforcement

activities), and whether to provide FRA with any new authorities or mandates to issue new

or revised safety regulations. Debate over the first consideration is generally not

controversial. Debate over the second consideration has historically proven to be much more

problematic because of the complexity of the issues and the diversity of perspectives help by

railroad labor, management, and FRA. Some of the issues debated as part of the

reauthorization process include: Should railroads be required to implement fatigue

management plans? Should the hours of service regulations be extended to cover additional

railroad workers? What should be done, if anything, to deal more effectively with alleged

harassment and intimidation of railroad workers? What might be done to further reduce

death and injury at highway-rail grade crossings?

Those issues were discussed during each of the last three Congresses and are of interest

in the 108th Congress. Brief background information and analysis on each issue is presented

below, and other current topics also are considered.

Fatigue and Hours of Service

Fatigue due to excessive work hours or numerous shifts in working schedules may

reduce the alertness, mental acuity, and judgement of operating employees. As the NTSB

has noted, unpredictable work and rest cycles can adversely affect the performance of the

duties of a train crew, and ultimately, the safety of railroad operations. To help deal with

those challenges, labor and management on some railroads are working cooperatively to

reduce fatigue and related job stress. AAR points out that the class I railroads and various

unions have signed an agreement to establish joint work/rest committees to address various

aspects of railroad operations affecting fatigue. On some railroads, employees, however,

claim that they still face difficult conditions, such as working numerous concurrent 12-hour

days without sufficient time off to rest and dealing with unpredictable work schedules.

There are numerous approaches that have been considered that might reduce fatigue and

stress in the railroad environment. During hearings held in recent years, the legislative

option that received significant attention was included in the Clinton Administration’s

reauthorization proposal. The Clinton Administration’s proposal would have required

specified railroads to develop programs to minimize the occurrence of fatigue-related crashes

and to submit a fatigue management plan that addressed appropriate fatigue countermeasures,

training on fatigue issues, screening for sleep disorders, and scheduling practices for railroad

operations. (The Bush Administration’s proposal does not address this issue.) FRA approval

of the plans would have been required. In support of this proposal during testimony

delivered on September 16, 1998, before the Subcommittee on Surface Transportation and

Merchant Marine of the Senate Committee on Commerce, Science, and Transportation, the

FRA Administrator indicated that about one-third of railroad accidents/incidents are caused

by human factors and cited fatigue of operating employees as the most pervasive railroad

safety issue. The FRA Administrator at the time (Jolene Molitoris) concluded that fatigue

management was an essential element for improving railroad safety. Some union

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representatives, such as the Brotherhood of Railroad Signalmen, favored the Clinton

Administration’s proposal regarding fatigue management.

Many in industry do not want mandated fatigue management plans that would have to

meet specified requirements set by FRA. Those supporting that view assert that joint

labor/management demonstration projects to reduce fatigue already are improving safety and

advancing the current state of knowledge. Because those efforts are being pursued on a

voluntary basis, they see no need for mandated federal requirements to deal with fatigue and

work schedules. Given the complexity and detailed requirements of the Clinton

Administration’s proposal, some maintain that the proposed requirements for a fatigue

management plan are too prescriptive and burdensome.

The Clinton Administration’s 1998 safety proposal also sought to extend the coverage

of the existing Hours of Service Act to some workers involved in railroad operations who

are not currently covered and to clarify coverage in the case of employees working for two

different railroads. When commenting on that proposal before a subcommittee of the House

Committee on Transportation and Infrastructure on May 20, 1998, a spokesman for the

Brotherhood of Railway Carmen (BRC) Division of the Transportation Communications

International Union favored the concept of extending the coverage of the hours of service

regulations and stated that the changes were long overdue. On the other hand, the

Association of American Railroads (AAR) supported simply reauthorizing the basic FRA

safety program without a change in the coverage of the Hours of Service Act and without the

inclusion of new mandates for additional regulations.

The Clinton Administration’s last reauthorization proposal, which was introduced by

request as H.R. 2683 (of the 106th Congress) on August 3, 1999, was similar in many respects

to the proposal considered by the 105th Congress. The 1999 proposal would have required

specified freight railroads and passenger carriers to develop detailed fatigue management

plans and submit those for FRA’s review. The plans, which FRA proposed to monitor

periodically, would have pertained to employees who are covered by the Hours of Service

Act and employees who construct or maintain track. Similar to the proposal considered

during the 105th Congress, the Clinton Administration’s revised proposal sought to extend

the coverage of the existing Hours of Service Act to some workers involved in railroad

operations who are not currently covered and to clarify coverage in the case of employees

working for two different railroads or a railroad and a railroad contractor.

Debate on reauthorization also has involved the issue of whether FRA should be

authorized to set new hours of service requirements for railroad workers already covered by

the Hours of Service Act. The maximum number of hours that those railroad employees can

work and the minimum number of hours of off duty time required before those employees

can return to work are specified in law. Consequently, the existing statutory requirements

do not allow FRA to issue regulations revising the hours of service.

During the 105th and 106th Congresses, the Clinton Administration did not propose to

provide FRA with the authority to issue new hours of service requirements. The Clinton

Administration recognized that both rail labor and management historically have not favored

that approach. Instead, the Clinton Administration proposed the amendments to the Hours

of Service Act that are described above. In various congressional hearings, the NTSB has

stated that it does not agree with the FRA position. The Safety Board maintains it is time to

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reassess the appropriateness of the current Hours of Service Act because that Act does not

accommodate increased commuting distances crews encounter in going from one job

location to the next; the need to rest, eat, or attend to personal matters; or address the

advances in our scientific understanding of human work/rest scheduling requirements.

On July 23, 2001, Rep. LaTourette introduced H.R. 2596 which would amend the Hours

of Service Act to give train employees 72 consecutive hours of rest after being on duty or

available for duty for seven consecutive days or any portion thereof.

On May 16, 2002, Representatives Oberstar and Filner introduced H.R. 4761, which

would change the existing hours of service requirements affecting train employees, and also

would affect the requirements pertaining to hours of service of signal and dispatching service

employees, power directors, and transport vehicle drivers. The bill also specifies the

requirements for sleeping quarters for employees, and requires specified railroad companies

to develop and implement fatigue management plans. Commenting on the bill before the

Railroad Subcommittee of the House Committee on Transportation and Infrastructure on

June 6, 2002, Dr. Martin Moore-Ede, CEO of Circadian Technologies Inc., stated “...that

current Hours of Service laws, or the proposed modifications, offer little hope for preventing

fatigue, and furthermore they risk unduly restricting the business operations of the railroads

and negatively impacting the lives of rail employees.” He proposed that railroads employ

a “Risk-Informed Performance-Based Fatigue Management” approach to setting employees’

work schedules. On the other hand, many in rail labor are supportive of various proposed

revisions of the hours of service rules as specified in H.R. 4761.

Alleged Harassment and Intimidation

Allegations regarding harassment and intimidation of some railroad workers continue

to be an ongoing problem in some segments of the railroad industry. The Clinton

Administration’s 1998 reauthorization proposal included provisions that were designed to

strengthen protection for railroad employees who report on-the-job injuries or illnesses,

cooperate with FRA or NTSB safety investigations, or refuse to authorize the use of

potentially hazardous equipment, track, or railroad-related structures under specified

conditions. Many in railroad management opposed those provisions, arguing that existing

law provides sufficient protection and that the railroads take many steps to reduce harassment

and intimidation by their managers against employees. The Association of American

Railroads points out that according to the Bureau of Labor Statistics, railroads have lower

employee injury rates than do other transportation industries. In testimony before the House

Committee on Transportation and Infrastructure, Subcommittee on Railroads on May 20,

1998, a representative of the American Short Line and Regional Railroad Association stated

that the Clinton Administration’s proposal:

... would greatly extend and expand the sanctions and penalties which are already in place

to protect railroad employees from harassment and intimidation. The problem is that

there has been no showing of a compelling need for such an extreme remedy. Also the

potential legal and liability burden that would be imposed on our member railroad

companies and their managerial employees is of grave concern.

The representative also objected to the section of this proposal bill that would have increased

the penalties for railroads who discriminate against, suspend or discharge employees for

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protected acts by eliminating the current $20,000 ceiling governing such cases and

authorizing punitive damages in addition to compensatory damages in all cases.

In contrast, in testimony at the same hearing, a representative of the BRC supported the

provisions of the proposal bill to strengthen legal protections against harassment and

intimidation. He stated:

While the statute’s current anti-retaliatory language protects only operating employees

who refuse to operate unsafe equipment, the proposed bill would expand such protection

to include 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 being disciplined or otherwise harassed for doing what is, after all, their job.

Highway-Rail Grade Crossing Safety

In recent years, typically over 3500 times each year a train and a highway vehicle collide

at a highway/rail grade crossing, resulting in some 425 deaths, or roughly 43% of all railrelated fatalities. Safety at public crossings is primarily a responsibility of state and local

transportation officials, railroads, law enforcement officers, and the motoring public. State

transportation personnel seek careful engineering of roadways crossing track and appropriate

pavement markings, signs and guardrails at crossings. There are more than 62,000

automated warning devices at more than 252,000 crossings. Those infrastructure

investments, however, require capital and often must compete with other funding priorities.

Railroad personnel are required to maintain and check for proper function of signals at

crossings. Adequate enforcement of state and local codes and regulations pertaining to

traffic movements at crossings is recognized as an essential component of safety.

Enforcement officers, however, often have many other priorities and responsibilities that

limit the time that can be devoted to safety at these crossings. Another means intended to

promote safety is to close a grade crossing. Since 1991, when FRA set a goal of closing 25%

of the U.S. grade crossings by 2001, over 31,000 have been eliminated, which is a net

reduction of 11%. Because elimination of crossings is frequently expensive, this approach

is not always possible, and it often meets with opposition at the local level.

The FRA uses a multifaceted approach intended to improve highway-rail grade crossing

safety. Among the key strategies used are: employing FRA field staff to help communities

address grade crossing problems, working with law enforcement personnel to increase traffic

safety at crossings, and sponsoring public education and outreach activities. For several

years now, FRA has allocated roughly $1 million annually to help support the activities of

Operation Lifesaver, Inc., (OL), which is a nationwide, non-profit organization dedicated

towards reducing deaths and injuries at highway-rail grade crossings and along railroad

rights-of-way. In addition to the support received from FRA, OL receives $500,000 each

year from the Federal Highway Trust Fund to help defray primarily the administrative costs

of running OL. As authorized by the Transportation Equity Act for the 21st Century, the

DOT also makes available about $160 million each year to the states to specifically improve

infrastructure at grade crossings.

As part of the reauthorization process, numerous options to improve grade crossing

safety have been considered. For example, H.R. 2450, introduced in the 106th Congress,

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included various provisions pertaining to emergency notification of operating problems at

crossings. That bill would have required each railroad carrier to establish and maintain a

toll-free telephone service to receive calls reporting malfunctions of signals and gates at

highway-rail grade crossings over which it dispatches trains and disabled vehicles blocking

railroad tracks at such crossings. Many railroads have already installed toll-free telephone

lines to facilitate the reporting of malfunctioning grade crossings equipment, but those

systems are not universal. In its reauthorization proposal, the Bush Administration seeks

to enhance the DOT’s authority to gather information that is intended to help to assess and

reduce or offset hazards at crossings. Their proposal is intended to improve DOT’s National

Crossing Inventory, which contains information on the location, physical characteristics, and

other features of crossings. This inventory is important because many states rely upon it to

help base decisions on which crossings need better warning systems. The Administration’s

proposal “...would require the railroads and States make initial reports to the Inventory about

new and previously unreported crossings and provide periodic updates for all crossings, so

that the crossings can be accurately ranked according to risk.” At present, reporting by both

states and railroads is voluntary.

DOT reports that since 1993 there have been about 43% fewer fatalities at U.S.

highway-rail grade crossings. Given the progress that has been made in reducing the number

of deaths at grade crossings during the last 10 years, some have questioned whether there is

a need for additional congressional action in this area. On the other hand, recent, high

visibility crashes have strengthened the argument of those supporting additional efforts to

improve safety at grade crossings.

Congress has expressed much interest in efforts by communities to ban the sounding

of train horns at highway-rail grade crossings. FRA studies show that on average collision

risk increases when a community bans the sounding of a train horn. Section 302 of the 1994

Swift Rail Development Act (P.L. 103-440) directs the Secretary of Transportation to

prescribe regulations requiring that a locomotive horn must be sounded at public highwayrail grade crossings, except under specified circumstances. In the Federal Register on

January 13, 2000, the FRA proposed new regulations to require, in general, that the horn on

the lead locomotive be sounded in a specified manner when the train is approaching and

passes through each public crossing. FRA proposes, however, that locomotive horns need

not be sounded where there is little risk of danger, e.g., when trains operate at low speeds (no

more than 15 mph) under specified conditions, or where a “quiet zone” has been established

that provides for supplementary safety measures which fully compensate for the absence of

the warning provided by the horn.

On July 18, 2000, the Subcommittee on Ground Transportation of the House Committee

on Transportation and Infrastructure held a hearing to obtain information and views on the

FRA rulemaking proceeding to implement the 1994 law. Some opponents of FRA’s

proposal have asserted that it would divert resources away from improvements at high risk

crossings to fund noise abatement efforts, raise adverse “quality of life” impacts caused by

the sounding of train horns, and require expensive infrastructure investments to meet FRA

requirements to avoid the sounding of a train horn. Some view FRA’s proposal as an

inappropriate intrusion into local decision making, especially given efforts by communities

to improve the safety of their crossings. The final rule has not yet been issued.

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On February 6, 200l, Representative Dingell introduced H.R. 432, which would

authorize a State or local government to regulate trains blocking grade crossings, if the

Secretary of Transportation has not issued regulations to deal with this problem before

August 1, 2002. Representative Dingell also introduced H.R. 433 on February 6, which

directs the Secretary of Transportation to issue regulations regarding trains blocking grade

crossings and to minimize delay for affected automobile traffic. On June 12, 2001, Senator

Levin et al. introduced S. 1015, which would require the Secretary of Transportation to issue

regulations to address safety concerns and to minimize delays for motorists at railroad grade

crossings.

Track Safety Standards

At a June 6, 2002 hearing before the railroad subcommittee of the House Transportation

and Infrastructure Committee, FRA Administrator Alan Rutter stated that track-caused

accidents have been increasing recently, and these became the leading accident cause in

2001. He asserted that possible reasons for this increase and the deterioration in track

conditions may include reduced investment in infrastructure, reduced number of

maintenance-of-way employees, insufficient training or monitoring of railroad track

inspectors, increased traffic, increased axle loadings, and/or higher speeds. In contrast, the

AAR points out that safety, in general, has improved for many reasons: huge investments in

infrastructure and technology, comprehensive employee training, and cooperative

relationships with various groups affecting safety. More specifically, AAR also states that

many railroad have applied and are developing new technologies to improve track safety.

To help address this challenge, FRA obtained 12 additional track inspector positions in

FY 2002, and is seeking 12 additional inspectors positions in the FY2003 request. In

addition, FRA claims it has strengthened its enforcement program in this area. The National

Transportation Safety Board notes that FRA’s recently revised track standards did not require

the use of advanced track inspection technology, such as track geometry cars. The Board

asserts that data identified by such cars would enable a track inspector to more effectively

identify track anomalies, monitor segments with potential defects, and monitor the results

of track work performed. NTSB also maintains that the FRA should do much more track

inspecting, and consider the volume of hazardous materials shipments over the line in

determining frequency and type of inspections.

Maintain the Status Quo

There also is the option of reauthorizing funding for FRA’s railroad safety program

without providing any new mandates or authorities. Those favoring that approach maintain

that additional mandates or authorities are not warranted or justified in view of the improving

trend in railroad safety statistics. Railroad representatives also point out that their companies

have been investing billions of dollars annually in infrastructure and safety programs.

Indeed, the commitment of many in labor, management, and government to work together,

as well as independently, has resulted in many safety improvements. Various safety

measures taken by railroad management and labor under the SACP and the regulatory

improvements recommended by the consensus-based RSAC and implemented by FRA have

accelerated the momentum to improve safety.

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On the other hand, simply reauthorizing funding for the existing FRA program without

any new directions or guidance may not address some pressing safety challenges in a timely

manner. In past reauthorization statutes, the Congress has required the issuance of specific

safety regulations and set deadlines for regulatory action. FRA has now completed most of

the congressionally mandated regulations and has made progress on those remaining.

LEGISLATION

S. 104 (Hollings et al)

Directs the Secretary of Transportation to conduct an analysis of the risks to public

safety and to the security of rail transportation that are associated with long delays in the

movement of trains that have stopped on railroad grade crossings of highways, streets, and

other roads for motor vehicle traffic. Introduced January 7, 2003. Read twice and referred

to the Committee on Commerce, Science, and Transportation.

S. 1402 (McCain and Hollings)

Reauthorizes federal rail safety activities for FY2004-2008. The bill seeks to improve

the information contained in the a national highway-rail grade crossing inventory, directs the

FRA to develop a plan for a joint initiative with the states to reduce the number of public and

private highway-rail grade crossings by 1 percent per year in each of the succeeding 10 years,

creates a working group to consider how to improve fatigue management for railroad

employees subject to the hours of service law (title 49, chapter 211); and requires the

Department of Transportation (DOT) and the Department of Homeland Security (DHS) to

execute a memorandum of understanding regarding railroad security matters. Introduced July

14, 2003 and approved, as amended, by the Senate Committee on Commerce, Science and

Transportation, July 17, 2003.

H.R. 288 (Inslee et al)

Amends Title 23 U.S.C. §104 to provide additional funding for grade crossing safety.

Introduced January 8, 2003, referred to the Committee on Transportation and Infrastructure,

referred on January 9, 2003 to the Highways and Transit Subcommittee.

H.R. 874 (Young et al.)

Establishes a program, coordinated by the National Transportation Safety Board, of

assistance to families of passengers involved in rail passenger accidents. Introduced

February 25, 2003, referred to Committee on Transportation and Infrastructure. Committee

mark up held on February 26, 2003. Reported by the Committee on March 18, 2003, and

placed on the Union Calendar.

H.R. 1617 (Lipinski et al.)

Establishes a National Rail Infrastructure Program which would, among other things,

provide funding for grade crossing improvements or elimination. Would establish a trust

fund whose funding would come from a tax on railroad equipment, passengers, and freight.

Introduced April 3, 2003, referred to the Committee on Transportation and Infrastructure and

to the Committee on Ways and Means.

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H.R. 2378 (Oberstar et al.)

Amends Title 49 U.S.C. seeking to reform the safety practices of the railroad industry,

to prevent railroad fatalities, injuries, and hazardous materials releases. Proposes changes

to hours of service law, requires fatigue management plans for specified railroads, amends

protection of railroad employees provisions, and changes other federal railroad safety

provisions. Introduced June 5, 2003, referred to Committee on Transportation and

Infrastructure.

CONGRESSIONAL HEARINGS, REPORTS, AND DOCUMENTS

U.S. Congress. House. Committee on Transportation and Infrastructure. Subcommittee on

Railroads. Reauthorization of the Federal Railroad Administration. Hearings held

March 26, 1998, April 1, 1998, April 29, 1998 and May 20, 1998. H.Rept. 105-62.

1269 p.

U.S. Congress. House. Committee of Conference. Making Appropriations for the

Department of Transportation And Related Agencies for the Fiscal Year Ending

September 30, 2000, and for Other Purposes. H.Rept. 106-355. 142 p.

U.S. Congress. House. Committee of Conference. Making Appropriations for the

Department of Transportation And Related Agencies for the Fiscal Year Ending

September 30, 2001, and for Other Purposes. H.Rept. 106-940. 189 p.

U.S. Congress. Senate. Committee on Appropriations. DOT and Related Agencies

Appropriations, Fiscal Year 1999. S.Hrng. 105-851. 983 p.

U.S. Congress. House. Committee on Transportation and Infrastructure. Subcommittee on

Railroads. Reauthorization of the Federal Railroad Administration. Hearing held June

6, 2002. [http://www.house.gov/transportation/rail/06-06-02/06-06-02memo.html]

U.S. Congress. House. Committee on Transportation and Infrastructure. Subcommittee on

Railroads. Recent Derailments and Railroad Safety. Hearing held June 6, 2002.

H.Rept. 107-84. 160 p.

[http://www.house.gov/transportation/rail/06-06-02/06-06-02memo.html]

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