Federal Railroad Safety Program and Reauthorization Issues

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
further improve safety. Enacting a new statute
(FRA) of the U.S. Department of Transporta-
affecting railroad safety is difficult, especially
tion (DOT) is the primary federal agency that
when a balance is sought among the interests
promotes and regulates railroad safety. To
of public safety, railroad labor, and manage-
implement its safety responsibilities, FRA
ment. The costs and benefits of new regula-
uses numerous strategies including the Safety
tions and revised federal programs affecting
Assurance and Compliance Program (SACP),
railroad operations also are major consider-
field inspections; and to help improve its
ations.
regulations, FRA uses the Railroad Safety
Advisory Committee (RSAC).
SACP in-
Several hearings on railroad safety were
volves numerous partnerships forged by rail-
held during the 105th, 106th, and 107th Con-
road management, FRA personnel, and labor
gresses, but no consensus has yet been reached
to improve safety and compliance with federal
on a railroad safety reauthorization bill. For
railroad safety regulations. About 422 FRA
FY2001, P.L. 106-346 appropriated $101.7
personnel and 150 state inspectors oversee the
million for FRA’s railroad safety program and
operations of the railroad industry in the field.
related expenses. In P.L. 107-87 Congress
RSAC uses a consensus-based process involv-
appropriated $110.9 million for these ex-
ing hundreds of experts who work together to
penses for FY2002. And for FY 2003, the
formulate recommendations on new or revised
Administration requested $122.9 million and
safety regulations for FRA’s consideration.
P.L. 108-7 appropriates $117.4 million. In
July 2002, the Administration submitted to
The combined impacts of SACP, RSAC,
Congress proposed legislation to amend rail-
and billions of dollars of investment in rail-
road safety law and to authorize funds for
road infrastructure, as well as other industry,
specified FRA activities for FYs 2003 through
labor, and government initiatives, have
2006.
yielded improvements in railroad safety,
especially during the last 20 years. Despite
This issue brief discusses various rail
those advances, further improvements in both
safety issues that either were considered or
the safety record and FRA’s regulations and
discussed during the 106th, 107th, or 108th
programs are possible, but each approach has
Congress. Those include: whether the rail-
its own potential benefits and costs.
roads should be required to develop fatigue
management plans, whether changes in the -
The last railroad safety reauthorization
hours of service requirements for railroad
statute (P.L. 103-440) was enacted in 1994
workers
should
be
instituted,
whether
and funding authority for that program expired
increased protection for railroad workers from
at the end of FY1998. FRA safety programs
alleged harassment and intimidation is needed,
continue using the authorities of existing laws
and whether federal efforts and FRA funding
and funds appropriated annually.
The
levels to improve grade crossing safety are
reauthorization process provides an opportu-
adequate.
Also, the option of simply
nity to review federal policies and programs,
reauthorizing current federal railroad safety
to consider the current state of railroad safety,
law without any new requirements or authori-
and to explore various options intended to
ties for FRA to implement is analyzed.
Congressional Research Service
˜ The Library of Congress

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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. 103-
440) 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 non-
compliance; 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 site-
specific 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
Total Railroad Related Fatalities
1,247
1,279
-2.6%
1,279
953
25.5%
Highway/Rail Grade Crossing
649
626
3.5%
626
355
43.3%
Fatalities a
Trespasser Fatalities b
499
523
-4.8%
523
544
-4.0%
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%
Train Accidents e
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 rail-
related 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 highway-
rail 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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