[House Hearing, 118 Congress]
[From the U.S. Government Publishing Office]

EXAMINING THE STATE OF RAIL SAFETY IN THE AFTERMATH OF THE DERAILMENT
IN EAST PALESTINE, OHIO

=======================================================================

(118-67)

HEARING

BEFORE THE

SUBCOMMITTEE ON RAILROADS, PIPELINES,
AND HAZARDOUS MATERIALS

OF THE

COMMITTEE ON
TRANSPORTATION AND INFRASTRUCTURE
HOUSE OF REPRESENTATIVES

ONE HUNDRED EIGHTEENTH CONGRESS

SECOND SESSION

__________

JULY 23, 2024

__________

Printed for the use of the
Committee on Transportation and Infrastructure

GRAPHIC(S) NOT AVAILABLE IN TIFF FIRMAT

Available online at: https://www.govinfo.gov/committee/house-
transportation?path=/browsecommittee/chamber/house/committee/
transportation

U.S. GOVERNMENT PUBLISHING OFFICE
57-570 PDF WASHINGTON : 2024

COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE

Sam Graves, Missouri, Chairman
Rick Larsen, Washington, Ranking
Member
Eleanor Holmes Norton, Eric A. ``Rick'' Crawford,
District of Columbia Arkansas
Grace F. Napolitano, California Daniel Webster, Florida
Steve Cohen, Tennessee Thomas Massie, Kentucky
John Garamendi, California Scott Perry, Pennsylvania
Henry C. ``Hank'' Johnson, Jr., Georgiaian Babin, Texas
Andre Carson, Indiana Garret Graves, Louisiana
Dina Titus, Nevada David Rouzer, North Carolina
Jared Huffman, California Mike Bost, Illinois
Julia Brownley, California Doug LaMalfa, California
Frederica S. Wilson, Florida Bruce Westerman, Arkansas
Mark DeSaulnier, California Brian J. Mast, Florida
Salud O. Carbajal, California Jenniffer Gonzalez-Colon,
Greg Stanton, Arizona, Puerto Rico
Vice Ranking Member Pete Stauber, Minnesota
Colin Z. Allred, Texas Tim Burchett, Tennessee
Sharice Davids, Kansas Dusty Johnson, South Dakota
Jesus G. ``Chuy'' Garcia, Illinois Jefferson Van Drew, New Jersey,
Chris Pappas, New Hampshire Vice Chairman
Seth Moulton, Massachusetts Troy E. Nehls, Texas
Jake Auchincloss, Massachusetts Tracey Mann, Kansas
Marilyn Strickland, Washington Burgess Owens, Utah
Troy A. Carter, Louisiana Rudy Yakym III, Indiana
Patrick Ryan, New York Lori Chavez-DeRemer, Oregon
Mary Sattler Peltola, Alaska Thomas H. Kean, Jr., New Jersey
Robert Menendez, New Jersey Anthony D'Esposito, New York
Val T. Hoyle, Oregon Eric Burlison, Missouri
Emilia Strong Sykes, Ohio Derrick Van Orden, Wisconsin
Hillary J. Scholten, Michigan Brandon Williams, New York
Valerie P. Foushee, North Carolina Marcus J. Molinaro, New York
Christopher R. Deluzio, Pennsylvania Mike Collins, Georgia
Mike Ezell, Mississippi
John S. Duarte, California
Aaron Bean, Florida
Celeste Maloy, Utah
Kevin Kiley, California
Vince Fong, California
Subcommittee on Railroads, Pipelines, and Hazardous Materials

Troy E. Nehls, Texas, Chairman
Frederica S. Wilson, Florida,
Ranking Member
Seth Moulton, Massachusetts Brian Babin, Texas
Troy A. Carter, Louisiana David Rouzer, North Carolina
Andre Carson, Indiana Mike Bost, Illinois
Mark DeSaulnier, California Doug LaMalfa, California
Marilyn Strickland, Washington Bruce Westerman, Arkansas
Valerie P. Foushee, North Carolina, Pete Stauber, Minnesota
Vice Ranking Member Tim Burchett, Tennessee
Grace F. Napolitano, California Dusty Johnson, South Dakota
Steve Cohen, Tennessee Tracey Mann, Kansas
Henry C. ``Hank'' Johnson, Jr., Georgiady Yakym III, Indiana
Jared Huffman, California Thomas H. Kean, Jr., New Jersey
Jesus G. ``Chuy'' Garcia, Illinois Eric Burlison, Missouri
Robert Menendez, New Jersey Brandon Williams, New York,
Christopher R. Deluzio, Pennsylvania Vice Chairman
Rick Larsen, Washington (Ex Officio) Marcus J. Molinaro, New York
John S. Duarte, California
Vince Fong, California
Sam Graves, Missouri (Ex Officio)

CONTENTS

Page

Summary of Subject Matter........................................ vii

STATEMENTS OF MEMBERS OF THE COMMITTEE

Hon. Troy E. Nehls, a Representative in Congress from the State
of Texas, and Chairman, Subcommittee on Railroads, Pipelines,
and Hazardous Materials, opening statement..................... 1
Prepared statement........................................... 3
Hon. Frederica S. Wilson, a Representative in Congress from the
State of Florida, and Ranking Member, Subcommittee on
Railroads, Pipelines, and Hazardous Materials, opening
statement...................................................... 4
Prepared statement........................................... 5
Hon. Rick Larsen, a Representative in Congress from the State of
Washington, and Ranking Member, Committee on Transportation and
Infrastructure, opening statement.............................. 6
Prepared statement........................................... 7

WITNESSES
Panel 1

Hon. Michael A. Rulli, a Representative in Congress From the
State of Ohio, oral statement.................................. 9
Prepared statement........................................... 11

Panel 2

Hon. Jennifer L. Homendy, Chair, National Transportation Safety
Board, oral statement.......................................... 13
Prepared statement........................................... 15
Hon. Amit Bose, Administrator, Federal Railroad Administration,
oral statement................................................. 26
Prepared statement........................................... 27
Tristan H. Brown, Deputy Administrator, Pipeline and Hazardous
Materials Safety Administration, oral statement................ 29
Prepared statement........................................... 31
Jeffrey Sloan, Senior Director for Regulatory and Scientific
Affairs, American Chemistry Council, oral statement............ 37
Prepared statement........................................... 38
David Arouca, National Legislative Director, Transportation
Communications Union (TCU), oral statement..................... 42
Prepared statement........................................... 43
Gregory Hynes, National Legislative Director, Transportation
Division, International Association of Sheet Metal, Air, Rail
and Transportation Workers (SMART-TD), oral statement.......... 50
Prepared statement........................................... 52

SUBMISSIONS FOR THE RECORD

Submissions for the Record by Hon. Troy E. Nehls:
Letter of March 2, 2023, to Hon. Pete Buttigieg, Secretary of
Transportation, U.S. Department of Transportation, from Ian
Jefferies, President and Chief Executive Officer,
Association of American Railroads.......................... 89
Press Release of March 8, 2023, entitled ``Freight Railroads
Announce Key Safety Measures in Drive to Zero Accidents,''
from the Association of American Railroads................. 90
Letter of July 23, 2024, to Hon. Troy E. Nehls, Chairman, and
Hon. Frederica S. Wilson, Ranking Member, Subcommittee on
Railroads, Pipelines, and Hazardous Materials, from Eric
Brock, Chairman and Chief Executive Officer, Ondas Networks
Inc........................................................ 92
Submissions for the Record by Hon. Sam Graves:
Letter of July 26, 2024, to Hon. Sam Graves, Chairman, and
Hon. Rick Larsen, Ranking Member, Committee on
Transportation and Infrastructure, and Hon. Troy E. Nehls,
Chairman, Subcommittee on Railroads, Pipelines, and
Hazardous Materials, from Rob Benedict, Vice President,
Petrochemicals and Midstream, American Fuel & Petrochemical
Manufacturers.............................................. 94
Statement of Ian Jefferies, President and Chief Executive
Officer, Association of American Railroads................. 98
Statement of Joanne F. Casey, President and Chief Executive
Officer, Intermodal Association of North America........... 103
Testimony of Alan Shaw, President and Chief Executive Officer,
Norfolk Southern Corporation, Hearing of April 18, 2023, Before
the Ohio Senate Select Committee on Rail Safety, Submitted for
the Record by Hon. Michael A. Rulli............................ 104

APPENDIX

Questions to Hon. Jennifer L. Homendy, Chair, National
Transportation Safety Board, from:
Hon. Rick Larsen............................................. 111
Hon. Frederica S. Wilson..................................... 114
Questions to Hon. Amit Bose, Administrator, Federal Railroad
Administration, from:
Hon. Rick Larsen............................................. 120
Hon. Steve Cohen............................................. 121
Questions to Tristan H. Brown, Deputy Administrator, Pipeline and
Hazardous Materials Safety Administration, from Hon. Rick
Larsen......................................................... 121

July 19, 2024

SUMMARY OF SUBJECT MATTER

TO: LMembers, Committee on Transportation and
Infrastructure
FROM: LStaff, Subcommittee on Railroads, Pipelines, and
Hazardous Materials
RE: LSubcommittee Hearing on ``Examining the State of
Rail Safety in the Aftermath of the Derailment in East
Palestine, Ohio''
_______________________________________________________________________

I. PURPOSE

The Subcommittee on Railroads, Pipelines, and Hazardous
Materials of the Committee on Transportation and Infrastructure
(T&I) will meet on Tuesday, July 23, 2024, at 2:00 p.m. ET in
2167 of the Rayburn House Office Building to receive testimony
at a hearing entitled ``Examining the State of Rail Safety in
the Aftermath of the Derailment in East Palestine, Ohio.'' The
hearing will review and discuss actions taken in response to
the Norfolk Southern derailment in East Palestine, Ohio on
February 3, 2023, by the Federal Government and the freight
railroad industry. Members will receive testimony from the
Honorable Jennifer Homendy, Chair, National Transportation
Safety Board (NTSB); the Honorable Amit Bose, Administrator,
Federal Railroad Administrator (FRA); Mr. Tristan Brown, Deputy
Administrator, Pipeline and Hazardous Materials Safety
Administration (PHMSA); Mr. Jeff Sloan, Senior Director of
Regulatory Affairs, American Chemistry Council (ACC); Mr. David
Arouca, National Legislative Director, Transportation
Communications Union (TCU), and Mr. Gregory Hynes, National
Legislative Director, International Association of Sheet Metal,
Air, Rail and Transportation Workers (SMART-TD).

II. BACKGROUND

DERAILMENT IN EAST PALESTINE, OHIO

On February 3, 2023, a Norfolk Southern freight train
derailed around 8:54 p.m. heading eastward in East Palestine,
Ohio.\1\ East Palestine has a population of fewer than 4,800
people and is about 50 miles northwest of Pittsburgh,
Pennsylvania.\2\ Thirty-eight out of 149 railcars derailed
because a bearing on a hopper car overheated and caused an axle
to separate.\3\ The derailment led to a fire that likely began
with the release of a Class 3 flammable liquid from a DOT-111
car that was punctured during the derailment.\4\ One of three
hot bearing detectors along the route detected an elevated
temperature on the overheating bearing, but the low priority
alert it transmitted to railroad personnel did not reflect the
true condition of the failing bearing.\5\ Eleven cars carrying
hazardous materials (hazmat) derailed, including five DOT-105
tank cars carrying vinyl chloride.\6\ Vinyl chloride is a
flammable chemical used in plastics and exposure to it can
cause symptoms ranging from nausea and dizziness to more
serious problems, including liver cancer.\7\ The train was
traveling at approximately 43 miles per hour, below the
recommended speed limit.\8\
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\1\ NTSB, Norfolk Southern Railway Derailment and Hazardous
Materials Release, RIR-24-05, Railroad Investigation Report, (June 25,
2024) [hereinafter ``Investigation Report''] at 1, available at https:/
/www.ntsb.gov/investigations/AccidentReports/Reports/RIR2405.pdf.
\2\ National Transp. Safety Board, Preliminary Report RRD23MR005,
Norfolk Southern Railway Train Derailment With Subsequent Hazardous
Material Release And Fires, (2023), available at https://www.ntsb.gov/
investigations/Documents/RRD23MR005%20East
%20Palestine%20OH%20Prelim.pdf [hereinafter ``Preliminary Report'']
available at https://www.ntsb.gov/investigations/Documents/
RRD23MR005%20East%20Palestine%20OH
%20Prelim.pdf; see also, National Transp. Safety Board, Norfolk
Southern Railway Train Derailment and Hazardous Materials Release East
Palestine Ohio February 4, 2024 East Palestine, Ohio, Board Meeting,
June 25, 2024, slides on file with Committee, [hereinafter ``Board
Meeting Slides''] https://www.ntsb.gov/news/events/Pages/East-
Palestine-Board-Meeting.aspx.
\3\ Investigation Report, supra note 1, at 1.
\4\ Id. at xii.
\5\ Id. at x.
\6\ Investigation Report, supra note 1, at 14-15.
\7\ EPA, Vinyl Chloride, available at https://
19january2017snapshot.epa.gov/sites/production/files/2016-09/documents/
vinyl-chloride.pdf.
\8\ Investigation Report, supra note 1.
---------------------------------------------------------------------------
Following an audible alarm that was triggered by the final
third hot bearing detector, Norfolk Southern crew members
aboard the train applied the automatic emergency brake to slow
and stop the train.\9\ Once the train was stopped, the crew
observed fire and smoke and notified the Cleveland East Norfolk
Southern dispatcher of a possible derailment and requested
permission to cut the locomotive away from the train.\10\ The
dispatcher gave authorization to apply handbrakes to the two
railcars at the front of the train, uncouple the front-end
locomotives, and move them one-mile away from the accident
site.\11\ First responders from 48 different area agencies
responded to the derailment scene, followed by Norfolk Southern
hazmat personnel and contractors.\12\
---------------------------------------------------------------------------
\9\ Id. at 8.
\10\ Id.; see also, NTSB, Project Summary: Rail Investigation--2
Transcript--Public Hearing Day 1 (06/22/2023), available at https://
data.ntsb.gov/Docket?ProjectID=106679, at 27.
\11\ Id. at 10.
\12\ Investigation Report, supra note 1, at 8-9; see also, NTSB,
Project Summary: Rail Investigation--2 Transcript--Public Hearing Day 1
(06/22/2023), available at https://data.ntsb.gov/
Docket?ProjectID=106679, at 28.
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The five derailed tank cars carrying vinyl chloride were
not mechanically breached by the derailment but were exposed to
fire from the derailment.\13\ A fire ignited during the
derailment and grew to involve 35 railcars: three mechanically
DOT-111 breached tank cars carrying flammable and combustible
hazardous materials, 20 additional derailed tank and freight
cars carrying both hazardous and non-hazardous materials, and
12 non-derailed freight cars.\14\ Upon what the NTSB found to
be an erroneous belief that a dangerous chemical reaction was
occurring in the five DOT-105 tank cars carrying vinyl chloride
and an explosion was imminent, the incident commander decided
to perform a vent and burn of the cars,\15\ which is a
purposeful breach of a tank car, followed by setting the
material on fire to prevent it from contaminating the
environment in a prepared pit.\16\ A contractor hired by
Norfolk Southern performed the vent and burn on February 6,
2023, which released and ignited the vinyl chloride.\17\ No
deaths or serious injuries occurred, but approximately 2,000
residents within a one-mile by two mile radius of the accident
were evacuated until February 8, 2023 that included areas in
Ohio and Pennsylvania.\18\
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\13\ Id., at 1.
\14\ Id. at 16.
\15\ Id. at 18.
\16\ FRA Handbook for Vent and Burn Method of Filed Product Removal
(1994), at 1, available at https://railroads.dot.gov/sites/fra.dot.gov/
files/fra_net/16432/1994_HANDBOOK%20FOR
%20VENT%20AND%20BURN%20METHOD%20OF%20FIELD%20PRODUCT.PDF.
\17\ Id. at 1.
\18\ Id. at 1-2; see also, Peter Charalambous and Morgan Winsor,
Ohio train derailment: Evacuation order lifted, residents can return
home, ABC News, (Feb. 8, 2023), available at https://abcnews.go.com/US/
ohio-train-derailment-residents-forced-evacuate-allowed-return/
story?id=96941403 and https://governor.ohio.gov/media/news-and-media/
east-palestine-update-evacuation-area-extended-controlled-release-of-
rail-car-contents-planned-for-3-30-pm-02062023.
---------------------------------------------------------------------------

III. NTSB ACTIONS, FINDINGS, AND RECOMMENDATIONS

NTSB ACTIONS TIMELINE

LFebruary 4, 2023: NTSB initiated its
investigation.\19\
---------------------------------------------------------------------------
\19\ Email from Joseph Schmoll, Cong. Affairs, DOT to T&I
Subcommittee Staff, (Feb. 4, 2023 at 10:06 a.m.), (on file with Comm.).
---------------------------------------------------------------------------
LFebruary 23, 2023: NTSB released a Preliminary
Report setting forth the basic facts of the derailment and
parties to the investigation.\20\
---------------------------------------------------------------------------
\20\ Preliminary Report, supra note 2.
---------------------------------------------------------------------------
LJune 22-23, 2023: NTSB held a hearing in East
Palestine where it took testimony from interested parties and
shared updates.\21\
---------------------------------------------------------------------------
\21\ NTSB, Investigative Hearing: Norfolk Southern Railway Train
Derailment with Subsequent Hazardous Material Release and Fires, (June
2023), https://www.ntsb.gov/news/events/Pages/East-Palestine-Hearing-
Event.aspx
---------------------------------------------------------------------------
LJune 25, 2024: NTSB held a public meeting in East
Palestine where it released its findings and recommendations
and voted on amendments to the final report.\22\
---------------------------------------------------------------------------
\22\ Preliminary Report, supra note 2.
---------------------------------------------------------------------------
LJuly 12, 2024: The final report was released.\23\
---------------------------------------------------------------------------
\23\ NTSB, Norfolk Southern Railway Derailment and Hazardous
Materials Release (June 25, 2024) available at https://www.ntsb.gov/
investigations/AccidentReports/Reports/RIR2405.pdf
---------------------------------------------------------------------------

NTSB FINDINGS

The NTSB first found that the derailment was not caused by
track or infrastructure defects, the train signals, the train
crew's response, the marking or loading of the vinyl chloride,
the weight/volume of the derailed tank cars, or the
crashworthiness of the DOT-105 tank cars.\24\ The derailment
was caused by a failure of the L1 wheel bearing on the 23rd
railcar that overheated and caused the axle to separate
resulting in a post-derailment fire that likely began with the
release of a Class 3 flammable liquid from a DOT-111 tank car
punctured during the derailment.\25\
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\24\ NTSB, Meeting of June 25, 2024, Norfolk Southern Railway
Derailment and Hazardous Materials Release East Palestine, Ohio,
February 3, 2023, RRD23MR005, Executive Summary [hereinafter
``Executive Summary''] at 5 available at https://www.ntsb.gov/
investigations/Documents/
East%20Palestine%20Ohio%20Board%20Meeting%20Summary%20with
%20Amendments.pdf.
\25\ Id.
---------------------------------------------------------------------------
The final report also reported the following: (1) Norfolk
Southern and its contractors inadequately communicated relevant
information to the incident commander; and (2) the inaccurate
representation by Norfolk Southern and its contractors that the
tank cars carrying vinyl chloride risked catastrophic failure
led to the decision to vent and burn five derailed vinyl
chloride tank cars.\26\ NTSB further reported that first
responder and public exposure were caused by: (1) Norfolk
Southern's delay in transmitting train consist \27\ information
to emergency responders; and (2) Ohio's insufficient training
requirements for volunteer firefighters.\28\
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\26\ Investigation Report, supra, note 1, at xii.
\27\ The train consist generally refers to the contents of a train
including the position of locomotives and cars, as well as both non-
hazardous and hazardous freight within those cars.
\28\ Id.
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NTSB RECOMMENDATIONS

NTSB issued 31 new recommendations, reiterated one
previously issued recommendation, and classified four
previously issued recommendations as closed.\29\ Notable
recommendations to Federal agencies, freight railroads, and the
State of Ohio are highlighted below.
---------------------------------------------------------------------------
\29\ Investigation Report, supra note 1, at 172.
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DEPARTMENT OF TRANSPORTATION (DOT)

LInward/Outward facing crew cameras: \30\ DOT
should require the FRA to issue regulations for inward facing
cameras with audio recording in the locomotive cab that have a
minimum 12-hour continuous recording capability. If necessary,
obtain legislative authority to act on this recommendation.
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\30\ Investigation Report, supra note 1, at 172.
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FEDERAL RAILROAD ADMINISTRATION (FRA)

LWheel bearing defect detection systems: \31\ FRA
should research the effectiveness of current wheel bearing
defect detection systems and identify minimum standards to
protect railroad personnel and the public and make public its
findings. It should use its research findings to establish
minimum requirements for bearing defect detection systems,
including criteria for bearing alert and alarm thresholds and
maximum distances between wayside defect detectors. The FRA
should establish requirements for the installation, inspection,
and maintenance of wayside bearing defect detectors to protect
the reliability of these devices and improve the safety of
railroad operations.
---------------------------------------------------------------------------
\31\ Id. at 172.

LInward/Outward facing crew cameras: \32\ As
recommended to DOT, FRA should require the installation of
inward- and outward-facing audio and image recorders in all
crew cabs to verify that train crews follow procedures
essential to safety, as well as train conditions. Devices
should have a minimum 12-hour continuous recording capability
and should be easily accessible for review, for the
investigation of accidents, or for use by management in
carrying out efficiency testing and systemwide performance
monitoring programs. FRA should also require that railroads
regularly review and use in cab audio and image recordings
(with appropriate limitations on public release), in
conjunction with other performance data, to verify that train
crew actions are in accordance with rules and procedures that
are essential to safety. If necessary, obtain legislative
authority to act on this recommendation.
---------------------------------------------------------------------------
\32\ Id. at 173.

LVent and burn guidance: \33\ FRA should
distribute the public versions of its 2007 vent and burn
reports to emergency responder associations, including the
International Association of Fire Chiefs, the International
Association of Fire Fighters, and the National Volunteer Fire
Council. It should also update and re-publish the 2007 vent and
burn reports to include clear instructions to rely on when
considering a vent and burn, including consulting the shipper,
more comprehensive guidance on what products are candidates for
a vent and burn, and an updated process with lessons from the
East Palestine incident. The reports should identify questions
an incident commander should ask when considering a vent and
burn and identify the resources available to allow for an
informed decision to be made.
---------------------------------------------------------------------------
\33\ Id. at 172-173.
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PIPELINE AND HAZARDOUS MATERIALS SAFETY ADMINISTRATION (PHMSA)

LStrengthen tank car placards: \34\ PHMSA should
require that placards be able to survive fires and safety
incidents and remain legible during emergencies.
---------------------------------------------------------------------------
\34\ Id. at 173.
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LDOT-111 phase out: \35\ PHSMA should obtain
legislative authority to accelerate the deadline for removing
DOT-111 tank cars from flammable liquids service and establish
a tank car replacement schedule for non-pressure tank cars in
hazmat service that must meet or exceed the safety standards of
DOT-117 cars.
---------------------------------------------------------------------------
\35\ Id. at 173-174.
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LHigh-Hazard flammable train definition: \36\
PHMSA should revise the definition of ``high-hazard flammable
train'' to account for differences in survivability between
tank car specifications, and include hazmat other than
flammable liquids, that can contribute to cascading hazmat
releases and if necessary, should obtain legislative authority
to act on this recommendation.
---------------------------------------------------------------------------
\36\ Id. at 173.
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LVent and burn guidance: \37\ PHMSA should
distribute the FRA's most current guidance on the vent and burn
method to emergency response agencies by referencing it in the
next edition of the Emergency Response Guidebook.
---------------------------------------------------------------------------
\37\ Id.
---------------------------------------------------------------------------

ASSOCIATION OF AMERICAN RAILROADS (AAR)

LBearing Failure Database: \38\ AAR should develop
a public database of bearing failures and replacements
available to railroads, regulators, and investigators to help
determine and address failure risk factors.
---------------------------------------------------------------------------
\38\ Id.
---------------------------------------------------------------------------
LUpdate Tank Car Specifications: \39\ AAR should
revise the manual of specifications for tank cars to establish
criteria and procedures for manufacturers of tank car service
equipment to demonstrate compatibility of pressure relief
devices and other AAR-approved service equipment with intended
ladings.
---------------------------------------------------------------------------
\39\ Id. at 174-175 (explaining that ``Lading'' refers to what
constitutes a load or the freight in or on a rail car, trailer, or
container).
---------------------------------------------------------------------------
LUpdate Key Train Definition: \40\ AAR should
revise the definition of key train to designate as a key train
any train containing tank cars transporting hazmat that do not
meet the DOT-117 standard.
---------------------------------------------------------------------------
\40\ Id. at 175 (explaining a Key Train contains at least one car
of nuclear waste, radioactive materials, poisonous materials, or a
train with at least 20 loads of hazmat).
---------------------------------------------------------------------------

NORFOLK SOUTHERN

LEmergency Responder Information: \41\ Norfolk
Southern should review procedures to immediately provide
emergency responders with an accurate copy of the train consist
upon becoming aware of an accident.
---------------------------------------------------------------------------
\41\ Id. at 176.
---------------------------------------------------------------------------
LPHMSA Reporting: \42\ Norfolk Southern should
update submissions to PHMSA's incident database to accurately
reflect the cause of package failures following the East
Palestine derailment.
---------------------------------------------------------------------------
\42\ Id.
---------------------------------------------------------------------------
LEmergency Response Recordkeeping: \43\ Norfolk
Southern should adopt policies to ensure emergency response
contractors keep detailed records of hazmat decision making and
share this information with shippers, chemical associations,
and other relevant entities.
---------------------------------------------------------------------------
\43\ Id.
---------------------------------------------------------------------------
LSharing Hazmat Information: \44\ Norfolk Southern
should ensure the expertise of hazmat manufacturers and
shippers involved in transportation accidents or incidents is
shared with on-scene representatives, contractors, and incident
command.
---------------------------------------------------------------------------
\44\ Id.
---------------------------------------------------------------------------

STATE OF OHIO

LUpdate Firefighter Training: \45\ Ohio should
amend the firefighter training statute and revise volunteer
firefighter certification standards to meet the National Fire
Protection Association (NFPA) standard for professional
firefighters. Volunteer firefighters in Ohio are not required
to complete hazmat training and some did not know to properly
follow the Emergency Response Guidebook for tank car fires and
unknown materials when responding to the train derailment in
East Palestine.
---------------------------------------------------------------------------
\45\ Id. at 174.
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IV. RESPONSE FOLLOWING THE INCIDENT

FEDERAL GOVERNMENT RESPONSE

The FRA and PHMSA sent officials to the scene immediately
after the accident to aid in the NTSB's investigation.\46\ FRA
subsequently completed inspection and investigation of over
40,000 freight cars, 76,888 miles of track and thousands of
wayside detectors on over 25 different railroads.\47\ On June
24, 2024, PHMSA finalized a rule requiring railroads to
maintain electronic information about rail hazmat shipments
that can be accessible by authorized emergency response
personnel.\48\ Railroads are required to proactively share this
information to authorized local first response personnel as
soon as the railroad is aware of an accident involving any
hazardous materials.\49\
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\46\ Press Release, FRA, Readout of Federal Railroad Administration
and Pipeline and Hazardous Materials Safety Administration Activities
in East Palestine, O.H., (Feb. 23, 2023), available at https://
railroads.dot.gov/about-fra/communications/newsroom/press-releases/
readout-federal-railroad-administration-and-0.
\47\ DOT, Fact Sheet on Rail Safety, (June 25, 2024), available at
https://www.transportation.gov/briefing-room/fact-sheet-rail-safety
[hereinafter ``Fact Sheet''].
\48\ Hazardous Materials: FAST Act Requirements for Real-Time Train
Consist Information, 89 Fed. Reg. 52956 (June 24, 2024), https://
www.phmsa.dot.gov/news/biden-harris-administration-announces-new-
requirements-freight-railroads-provide-hazmat
\49\ Id.
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The United States Environmental Protection Agency (EPA) and
the Ohio EPA worked to ensure the air and drinking water were
deemed safe.\50\ On February 10, 2023, EPA issued a notice of
potential liability to Norfolk Southern under the Comprehensive
Environmental Response, Compensation, and Liability Act
(CERCLA).\51\ The Department of Health and Human Services
assisted with state and local partners in Ohio and Pennsylvania
to conduct public health testing and an Assessment of Chemical
Exposures to determine potential health impacts from the
derailment and subsequent vent and burn chemical release.\52\
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\50\ OH EPA, East Palestine Train Derailment Information, available
at https://epa.ohio.gov/monitor-pollution/pollution-issues/east-
palestine; See also, EPA, Statement from Regional Administrator Debra
Shore on the East Palestine Train Derailment, Feb. 14, 2023, available
at https://www.epa.gov/newsreleases/statement-regional-administrator-
debra-shore-east-palestine-train-derailment.
\51\ Letter from Jason El-Zein, Manager, Emergency Response Branch
1, United States Environmental Protection Agency, to Mat Gernand,
Deputy General Counsel, Norfolk Southern Railway Company, (Feb. 10,
2023), available at https://www.epa.gov/system/files/documents
/2023-02/
Norfolk%20Southern%20East%20Palestine%20Train%20Derailment%20General
%20Notice%20Letter%202.10.2023%20%281%29.pdf.
\52\ ATSDR, East Palestine Train Derailment, (last updated Nov. 7,
2023), available at https://www.atsdr.cdc.gov/sites/east-palestine-
train-derailment/index.html.
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On May 23, 2024, EPA and the Department of Justice (DOJ)
announced a $310 million settlement with Norfolk Southern,
which included a requirement to take measures to improve rail
safety, pay for health monitoring and mental health services
for the surrounding communities, fund long-term environmental
monitoring, pay a $15 million civil penalty, and take other
actions to protect nearby waterways and drinking water
resources.\53\ EPA continues to oversee cleanup efforts in East
Palestine.\54\
---------------------------------------------------------------------------
\53\ Press Release, EPA, United States Reaches Over $310 Million
Settlement with Norfolk Southern to Address Harms Caused by East
Palestine Train Derailment, (May 23, 2024), available at https://
www.epa.gov/newsreleases/united-states-reaches-over-310-million-
settlement-norfolk-southern-address-harms.
\54\ EPA, East Palestine, Ohio Train Derailment, (last accessed
July 19, 2024) available at https://www.epa.gov/east-palestine-oh-
train-derailment.
---------------------------------------------------------------------------

NORFOLK SOUTHERN

Since the accident, Norfolk Southern has contributed
roughly $108 million in community support, and reached a $600
million dollar class action lawsuit settlement with impacted
residents to compensate for the accident.\55\ It established a
Family Assistance Center to provide residents with information
and support which has totaled almost 12,000 visits.\56\ Norfolk
Southern became the first Class I freight railroad to commit to
joining the FRA's Confidential Close Call Reporting System
(C3RS) in March 2023, which allows railroad workers to report
safety issues in confidence via an online portal.\57\ In
February 2024, Norfolk Southern announced that three of its
locations would participate in C3RS, covering approximately
1,000 of Norfolk Southern's 9,400 employees.\58\ It has also
implemented track safety technology, including installing
almost 200 new hot bearing detector systems, increasing focus
on reducing accidents, and collaborating with unions and labor
to improve focus on worker safety.\59\ It Formed a ``Vent and
Burn Workgroup'' to better handle future scenarios where a vent
and burn is considered or necessary.\60\ Finally, it continues
to assist the EPA and Ohio EPA in the removal of impacted soil
from the derailment zone.\61\
---------------------------------------------------------------------------
\55\ Norfolk Southern, Making It Right, (last updated June 21,
2024), available at https://nsmakingitright.com/; see also, Norfolk
Southern, Norfolk Southern joins FRA close Call Reporting System,
available at https://norfolksouthern.mediaroom.com/2023-03-02-Norfolk-
Southern-joins-FRA-Close-Call-Reporting-System; see also, Norfolk
Southern, Midyear report: Norfolk Southern advancing safety, (June 17,
2024), available at https://norfolksouthern.
investorroom.com/2024-06-17-Midyear-report-Norfolk-Southern-advancing-
safety.
\56\ Id.
\57\ Id.
\58\ Press Release, FRA, USDOT and FRA Continue Pressing on Rail
Safety, Finalizes Norfolk Southern Railway Participation into
Confidential Close Call Reporting System, (Jan. 30. 2024), available at
https://railroads.dot.gov/about-fra/communications/newsroom/press-
releases/usdot-and-fra-continue-pressing-rail-safety.
\59\ Id.
\60\ Id.
\61\ Id.
---------------------------------------------------------------------------

FREIGHT RAILROADS

The freight railroad industry updated voluntary industry
standards to increase the frequency of hot bearing detectors,
established a new industry standard to stop and inspect trains
when a hot bearing detector exceeds 170 degrees (lowered from
200 degrees), and created a new trending analysis rule to find
an effective algorithm for detecting problematic bearings.\62\
The industry also expanded access to AskRail, which is an
electronic application available on mobile devices to first
responders that provides real-time information on rail car
contents and safe handling procedures.\63\ It also committed to
joining the FRA's Confidential Close Call Reporting System in
March 2023.\64\ As of June 2024, two Class I railroads have
joined with a subset of employees.\65\
---------------------------------------------------------------------------
\62\ Association of American Railroads, Railroads Addressed NTSB
East Palestine Initial Findings, Await Final Report, available at
https://www.aar.org/news/railroads-
addressed-ntsb-east-palestine-initial-findings-await-final-report/
#::text=Since%20the
%20incident%2C%20railroads%20have,valve%20protection%20to%20increase%20s
afety.
\63\ Id.
\64\ Association of American Railroads, Freight Railroads Announce
Key Safety Measures in Drive to Zero Accidents, available at https://
www.aar.org/news/freight-railroads-announce-key-safety-measures-in-
drive-to-zero-accidents/.
\65\ Fact Sheet, supra, note 50.
---------------------------------------------------------------------------

STATE OF OHIO/EMERGENCY RESPONDERS

The East Palestine Fire Department (EPFD) and the East
Palestine Police Department (EPPD) were the first to respond to
the derailment.\66\ Other than the Chief, who acted as the
incident commander, the entire EPFD is comprised of volunteer
firefighters.\67\ The NTSB highlights that Ohio state law does
not provide for sufficient volunteer firefighter training to
support a proper emergency response to a derailment.\68\ Ohio
announced on July 25, 2023, that local volunteer fire
departments are now eligible to receive up to $15,000 in grants
to pay for firefighting safety gear, and in September 2023,
following the report of a Volunteer Fire Service Task Force,
the State Fire Marshal Ohio Fire Academy will waive fees for
all volunteer firefighters.\69\
---------------------------------------------------------------------------
\66\ NTSB, Project Summary: Rail Investigation--89 Docket Items--
RRD23MR005, 15 Village of East Palestine Party Submission, available at
https://data.ntsb.gov/Docket?ProjectID=106679.
\67\ Id. at 4; see also NTSB, Project Summary: Rail Investigation--
89 Docket Items--RRD23MR005, Factual Report of Investigation
Interviews, Statements and Documentation, available at https://
data.ntsb.gov/Docket?ProjectID=106679.
\68\ Executive Summary, supra note 1, at 2.
\69\ News Release, Office of the Gov. of Ohio, Governor DeWine
Announces New Safety Support for Volunteer Fire Departments, (July 25,
2023), available at https://governor.ohio.gov/
media/news-and-media/governor-dewine-announces-new-safety-support-for-
volunteer-fire-departments.
---------------------------------------------------------------------------
Various Ohio state agencies provided the East Palestine
community with grants and loans since the derailment.\70\ The
Ohio Department of Development is loaning $3.3 million to East
Palestine-area businesses; another $150,000 was awarded to East
Palestine to help in securing a Federal grant for
equipment.\71\ The Ohio Department of Health granted $1.3
million in startup funding for the new East Liverpool City
Hospital East Palestine Clinic.\72\ The Ohio Department of
Mental Health and Addiction Services aided the Columbiana
County Mental Health and Recovery Services board in acquiring
$1.1 million in funding for mental health and addiction
services for East Palestine.\73\ Finally, the Ohio Department
of Commerce awarded $10,000 to the East Palestine Fire
Department for personal protective equipment and $2,400 for the
reimbursement of completed courses in 2022.\74\
---------------------------------------------------------------------------
\70\ Fact Sheet, Office of the Governor of the State of Ohio, East
Palestine Train Derailment One Year Later, (Feb. 3, 2024), available at
https://acrobat.adobe.com/link/
review?uri=urn%3Aaaid%3Ascds%3AUS%3A9e298c26-1633-3f60-9118-
fef140dc46e6.
\71\ Id.
\72\ Id.
\73\ Id.
\74\ Id.
---------------------------------------------------------------------------

V. WITNESSES

Hon. Jennifer Homendy, Chair, National
Transportation Safety Board
Hon. Amit Bose, Administrator, Federal Railroad
Administrator
LMr. Tristan Brown, Deputy Administrator, Pipeline
and Hazardous Materials Safety Administration
LMr. Jeff Sloan, Senior Director of Regulatory
Affairs, American Chemistry Council
LMr. David Arouca, National Legislative Director,
Transportation Communications Union (TCU)
LMr. Gregory Hynes, National Legislative Director,
International Association of Sheet Metal, Air, Rail and
Transportation Workers (SMART-TD)

EXAMINING THE STATE OF RAIL SAFETY IN THE AFTERMATH OF THE DERAILMENT
IN EAST PALESTINE, OHIO

----------

TUESDAY, JULY 23, 2024

House of Representatives,
Subcommittee on Railroads, Pipelines, and Hazardous
Materials,
Committee on Transportation and Infrastructure,
Washington, DC.
The subcommittee met, pursuant to call, at 2:02 p.m. in
room 2167 Rayburn House Office Building, Hon. Troy E. Nehls
(Chairman of the subcommittee) presiding.
Mr. Nehls. The Subcommittee on Railroads, Pipelines, and
Hazardous Materials will come to order.
I ask unanimous consent that the chairman be authorized to
declare a recess at any time during today's hearing.
Without objection, so ordered.
I also ask unanimous consent that the Members not on the
subcommittee be permitted to sit with the subcommittee at
today's hearing and ask questions.
Without objection, so ordered.
And as a reminder, if Members wish to insert a document
into the record, please also email it to
DocumentsTI@mail.house.gov.
I now recognize myself for 5 minutes for the purposes of an
opening statement.

OPENING STATEMENT OF HON. TROY E. NEHLS OF TEXAS, CHAIRMAN,
SUBCOMMITTEE ON RAILROADS, PIPELINES, AND HAZARDOUS MATERIALS

Mr. Nehls. I am pleased to call this hearing today to
discuss rail safety, as well as the events that occurred in
East Palestine. I am hopeful every Member has had ample
opportunity to review the NTSB final report and the pending
bipartisan legislation in both the Senate and in the House.
The Railroad Safety Enhancement Act, or RSEA, that I
introduced with Congressman Moulton, builds upon the bipartisan
legislation our Senate colleagues marked up and passed
favorably out of the Commerce Committee.
First, it requires all Class I railroads to enroll in the
Confidential Close Call Reporting System for a period of 2
years. This program is run by an independent third party, and
allows railroad employees to report close calls and unsafe
incidents.
Second, our legislation does not include the periodic
railcar inspections included in the Senate rail safety bill. It
was well intentioned, but I believe, after discussions from a
wide variety of stakeholders, that these were redundant and
just not necessary, unnecessary.
Our legislation requires State DOTs to notify first
responders of the existence of the AskRail app, which is a tool
that provides real-time data to first responders about a train
consist--the makeup, all the stuff about the train. The first
responders in East Palestine had issues accessing the AskRail
app due to a lack of connectivity. Our bill creates an AskRail
connectivity pilot program to fill gaps in service for the app
along the national freight network. Folks, people came to East
Palestine, volunteer firemen, they get to the scene, they can't
even--they have no connectivity. They don't even know what is
inside the cars. We've got to fix that, and our legislation
does that.
Our legislation authorizes an additional $1 billion for the
Railroad Crossing Elimination Grant program, $1 billion. I will
quote Ms. Homendy: ``Grade crossings are among the deadliest
spaces in our rail system, in part because they are where our
rail and highway systems meet. Better separating these systems
would save thousands of lives and incur many other benefits.''
I believe the American people would value Federal investment in
this area. It will not only reduce congestion on the network,
but it will also save lives.
Finally, our legislation authorizes $100 million annually
for the Federal Railroad Administration to establish a grant
program to install onboard freight railcar telematics systems
and gateway devices. The purpose of the program is to outfit
the new and existing freight railcars carrying hazardous
material. Additionally, this program will provide shippers with
real-time data about their tank cars' health and performance.
The bill also contains compromises, compromises on the
phaseout of the DOT-111 tank cars that industry has indicated
that they can meet.
The Senate opted to introduce rail safety legislation in
the immediate aftermath of the derailment in East Palestine.
Now, the House, what did we choose to do? We chose to wait for
the NTSB's final report.
Now, before I move any further, I need to speak to my
Republican colleagues. The Railway Safety Act in the Senate is
supported by President Trump and is authored by Vice
Presidential nominee Senator Vance. Representative Moulton and
I took that bill, and we added four key safety components: the
Confidential Close Call Reporting System, AskRail connectivity
pilot program, the telematics to modernize the tank car fleet,
and more funding for the Railroad Crossing Elimination Grant
program. Taking Senator Vance's bill and adding these four
safety provisions makes this a very good rail safety bill, and
I humbly ask for your support because it is the right thing to
do.
I have read every page of the East Palestine final report
and reports related to other derailments and tragic incidents
across the rail network. The idea that we do not evolve in the
safety realm is indefensible.
I extended invites to several of the Class I railroad CEOs.
It was my intention that they would use this opportunity to
discuss the positive policies their companies have undertaken
in the area of safety. Some of these railroads, they have good
stories to tell. I have personally visited several of them. I
visited CN's operation in Homewood, Illinois, and it was top
tier, top tier. The types of technologies they are developing
are state of the art and will save lives, and I commend them
for their efforts. But we can do more.
I am eager to listen to the witnesses today, and I look
forward to asking the panel questions.
[Mr. Nehls' prepared statement follows:]

Prepared Statement of Hon. Troy E. Nehls, a Representative in Congress
from the State of Texas, and Chairman, Subcommittee on Railroads,
Pipelines, and Hazardous Materials
I am pleased to call this hearing today to discuss rail safety, as
well as the events that occurred in East Palestine. I am hopeful every
Member has had ample opportunity to review the NTSB final report and
the pending bipartisan legislation in both the Senate and in the House.
The Railroad Safety Enhancement Act (RSEA) that I introduced with
Congressman Moulton builds upon the bipartisan legislation our Senate
colleagues marked up and passed favorably out of the Commerce
Committee.
First, it requires all class I railroads to enroll in the
Confidential Close Call Reporting System for a period of two years.
This program is run by an independent third party and allows railroad
employees to report close calls and unsafe incidents.
Second, our legislation does not include the periodic railcar
inspections included in the Senate rail safety bill. While well
intentioned, I believe after discussions from a wide variety of
stakeholders that these were redundant and unnecessary.
Our legislation requires state DOTs to notify first responders of
the existence of the AskRail app, which is a tool that provides real-
time data to first responders about a train consist. The first
responders in East Palestine had issues accessing the AskRail app due
to lack of connectivity. Our bill creates an AskRail connectivity pilot
program to fill gaps in service for the app along the national freight
network.
Our legislation authorizes an additional $1 billion dollars for the
Railroad Crossing Elimination Grant Program. I'll quote Ms. Homendy:
``Grade crossings are among the deadliest spaces in our rail system, in
part, because they are where our rail and highway systems meet. Better
separating these systems would save thousands of lives and incur many
other benefits.'' I believe that the American people would value
federal investment in this area. It will not only reduce congestion on
the network but also save lives.
Finally, our legislation authorizes $100 million annually for the
Federal Railroad Administration to establish a grant program to install
onboard freight railcar telematics systems and gateway devices. The
purpose of the program is to outfit the new and existing freight
railcars carrying hazardous materials. Additionally, this program will
provide shippers with real-time data about their tank cars' health and
performance.
The bill also contains compromises on the phase-out date of DOT 111
tank cars that industry has indicated they can meet.
The Senate opted to introduce rail safety legislation in the
immediate aftermath of the derailment in East Palestine, while the
House chose to wait for the NTSB final report.
Now before we move any further, I am going to speak directly to my
Republican colleagues on the Committee. The Railway Safety Act in the
Senate is supported by President Trump and is authored by Vice
Presidential nominee Senator Vance. Representative Moulton and I took
that bill and added four key safety components:
1) Confidential Close Call Reporting System
2) AskRail connectivity pilot program
3) Telematics to modernize the tank car fleet
4) And more funding for the Railroad Crossing Elimination Grant
Program.

Taking Senator Vance's bill, and adding these four safety
provisions, makes this a very good rail safety bill, and I humbly ask
for your support because it's the right thing to do.
I have read every page of the East Palestine final report, and
reports related to other derailments and tragic incidents across the
rail network. The idea that we do not evolve in the safety realm is
indefensible.
I extended invites to several of the class I railroad CEOs. It was
my intention that they would use the opportunity to discuss the
positive policies their companies have undertaken in the area of
safety. Some of these railroads have good stories to tell, and I have
personally visited several of them. I visited CN's operation in
Homewood, Illinois, and it was top-tier. The types of technologies they
are deploying are state of the art and will save lives, and I commend
them for their efforts. But we can do more.
I am eager to listen to the witness testimony and look forward to
asking the panel questions.

Mr. Nehls. I now recognize Ranking Member Wilson for 5
minutes for an opening statement.

OPENING STATEMENT OF HON. FREDERICA S. WILSON OF FLORIDA,
RANKING MEMBER, SUBCOMMITTEE ON RAILROADS, PIPELINES, AND
HAZARDOUS MATERIALS

Ms. Wilson of Florida. Thank you, Mr. Chair, for convening
this important hearing. The safety of freight and passenger
railroads and the communities that they travel through should
be our top priority on this subcommittee.
The Norfolk Southern train derailment in East Palestine
shocked the Nation, but we cannot lose sight that there have
been over 1,500 rail incidents since then. In my district in
Florida, collisions between cars and trains remain a persistent
problem. While technological solutions to improve rail safety
exist, it is clear that railroading's overall safety culture
has room to improve.
My top priority has always been rail safety, and I am
thankful that our chair has made it a priority with this
legislation alongside other members of this committee:
Representatives Moulton, Sykes, and Deluzio. I hope the
information from today's hearing will encourage us to mark up
this legislation and send a bipartisan rail safety bill to the
floor.
No transportation accident has a single cause. The NTSB's
report on the Norfolk Southern derailment makes it clear that
there were many causes of the derailment, and the decision to
vent and burn vinyl chloride under the mistaken belief that the
tank cars were in imminent danger of exploding. According to
the report, 26 percent of cars that did not derail had
reportable defects, despite being inspected before departure. I
look forward to hearing from our witnesses about what
railroading practices need to change to catch defects like
these.
In the year and a half since the derailment, many media
outlets have reported that carmen have had less than 90 seconds
to inspect a railcar or have been pressured to release cars
known to be defective. Fortunately, after the derailment, the
train in East Palestine had two crewmembers and one trainee on
board who were able to respond swiftly to the accident and
derailment. Thanks to their quick actions, they moved the
locomotive away from the fire, preventing additional fires and
dangers to the first responders and the surrounding community.
If only one person had been on board, they would not have been
able to do that so quickly. So, I am glad to see that Chairman
Nehls' legislation ensures two-person crews.
I am also concerned by the NTSB's finding that, despite
having bearing detectors placed on average every 15 miles prior
to the derailment site, the crew did not know that the bearing
was in danger of failure before the train derailed in East
Palestine. Expanding the use of hot bearing detectors will only
improve rail if the detectors are active and the spacing gives
sufficient time to stop a faulty train before a catastrophic
failure.
Thank you, Mr. Chair, for holding this hearing, and I yield
back.
[Ms. Wilson of Florida's prepared statement follows:]

Prepared Statement of Hon. Frederica S. Wilson, a Representative in
Congress from the State of Florida, and Ranking Member, Subcommittee on
Railroads, Pipelines, and Hazardous Materials
Thank you, Mr. Chairman, for convening this important hearing. The
safety of freight and passenger railroads, and the communities they
travel through, should be our top priority on this subcommittee.
The Norfolk Southern train derailment in East Palestine shocked the
nation, but we cannot lose sight that there have been over 1,500 rail
incidents since then. In my district in Florida, collisions between
cars and Brightline passenger trains remain a persistent problem. While
technological solutions to improve rail safety exist, it's clear that
railroading's overall safety culture has room to improve.
I'm thankful that Chairman Nehls has prioritized rail safety
legislation, alongside other Members of this Committee: Representatives
Moulton, Sykes and Deluzio. I'm hopeful that the information from
today's hearing will encourage us to mark up this legislation and send
a bipartisan rail safety bill to the floor.
No transportation accident has a single cause, and the NTSB's
report on the Norfolk Southern derailment makes it clear that there
were many causes of both the derailment itself and the decision to vent
and burn vinyl chloride under the apparently mistaken belief that the
tank cars were in imminent danger of exploding.
According to the report, 26 percent of cars that did not derail had
reportable defects, despite being inspected prior to departure. I look
forward to hearing from our witnesses about what railroading practices
need to change to catch defects like these. In the year and a half
since the derailment, many media outlets have reported that carmen have
had less than 90 seconds to inspect a rail car or have been pressured
to release cars known to be defective.
Fortunately, after the derailment, the train in East Palestine had
two crewmembers and one trainee on board that were able to respond
swiftly to the accident and derailment. Thanks to their quick actions,
they moved the locomotive away from the fire, preventing additional
fires and dangers to the first responders and the surrounding
community. If only one person had been on-board, they would not have
been able to do that so quickly. I'm glad to see that Chairman Nehls'
legislation ensures two-person crews.
I am also concerned by the NTSB's finding that despite having
bearing detectors placed an average of every fifteen miles prior to the
derailment site, the crew did not know that the bearing was in danger
of failure before the train derailed in East Palestine. Expanding the
use of hot bearing detectors will only improve rail if the detectors
are active and if the spacing gives sufficient time to stop a faulty
train before a catastrophic failure.
Thank you, Mr. Chairman, for holding this hearing, and I yield
back.

Mr. Nehls. The gentlelady yields. I now recognize the
ranking member of the full committee, Mr. Larsen, for 5 minutes
for an opening.

OPENING STATEMENT OF HON. RICK LARSEN OF WASHINGTON, RANKING
MEMBER, COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE

Mr. Larsen of Washington. Thank you, Chair Nehls and
Ranking Member Wilson, for holding today's hearing on rail
safety.
Ensuring safety in every mode of transportation should
always be this committee's top priority. Since the Norfolk
Southern derailment in East Palestine, Ohio, committee
Democrats have been calling for a rail safety hearing and rail
safety legislation.
In May of 2023, every T&I Democrat signed a letter asking
for a rail safety hearing highlighting the dozens of
outstanding rail safety recommendations from the National
Transportation Safety Board. Now that the NTSB has issued its
final report on the derailment, subcommittee Chair Nehls, along
with committee Democratic Representatives Moulton, Sykes, and
Deluzio, have introduced rail safety legislation.
Today's hearing is an opportunity to hear a variety of
perspectives on the NTSB's final report, which includes more
than 30 additional rail safety recommendations, several of
which require congressional action.
Nearly a year and a half ago, we all watched as a giant
plume of toxic fumes was released into the sky after the
Norfolk Southern derailment. Fortunately, no one died as a
result of the derailment, but it remains a stark reminder of
why we need to be vigilant about rail safety.
That is why T&I Democrats held a rail safety roundtable in
March to hear from communities and rail workers impacted by
rail accidents. Mayor Frank Moran of Hiram, Georgia, told
Members that legislation concerning blocked crossings would
help his community. The National League of Cities Executive
Director Clarence Anthony told Members that thousands of
communities across the country support commonsense rail safety
legislation. The Brotherhood of Locomotive Engineers and
Trainmen national legislative representative Vince Verna
expressed concern that the freight railroads continue to pile
on to the tally of rail accidents and derailments. Sheet Metal,
Air, Rail and Transportation Workers International
Representative Peter Kennedy said Congress needs to make
freight rail safety a priority because meaningful change is
needed in the industry. And Anna Sevi-Doss, an owner of a small
business in East Palestine, Ohio, highlighted how this
dangerous derailment devastated her community.
Meanwhile, rail safety accidents and incidents continue to
occur. Over the last decade, the trends have not improved. In
Washington State alone, there were 193 train accidents, 71
grade crossing incidents, and 167 railroad right-of-way
trespasser fatalities over the last 5 years, including a
Burlington Northern Santa Fe derailment that spilled over 3,000
gallons of diesel fuel on the Swinomish Indian Reservation in
March of 2023.
While trains are getting longer, freight railroads continue
to shrink their workforce. From 2015 to 2022, Class I railroads
laid off 55 percent of mechanical employees, 44 percent of
locomotive repair employees, and 43 percent of railcar repair
employees. In 2023, there were 114 more rail accidents than in
2022. So, I look forward to this committee passing legislation
to address the rail safety concerns.
The Railroad Safety Enhancement Act contains the language
that passed out of the Senate Commerce Committee last May. It
addresses NTSB recommendations to expand the ``high-hazard
flammable trains'' definition, establish requirements for
wayside bearing defect detectors, and accelerate the removal of
DOT-111 tank cars from flammable liquids service.
The bill also provides needed funding for hazardous
materials emergency responder training. And importantly, it
mandates the Class I railroads to join the Federal Railroad
Administration's Confidential Close Call Reporting System.
The Bipartisan Infrastructure Law, BIL, supercharged
investment in rail with $102 billion in planned funding. Many
of these investments will improve safety, along with making
service improvements.
Last year, the city of Blaine in my district, for instance,
received a $9.5 million RAISE grant to begin work on the Bell
Road-BNSF at-grade crossing. That town can now begin to resolve
the issues at the crossing that I first heard about more than
20 years ago as a freshman Member of the House of
Representatives. I am pleased that project is advancing to
improve safety and accessibility, reduce congestion, create
jobs, and keep the regional economy moving.
The BIL also includes $3 billion to separate or close grade
crossings through the Railroad Crossing Elimination Grant
program, and $5 billion to enhance the safety, efficiency, and
reliability of rail through the Consolidated Rail
Infrastructure and Safety Improvements, or CRISI, grant
program. I expect great results for communities from these
grants and additional rail funding to come, but there is more
to do.
So, I thank the chair, I thank the ranking member and the
witnesses, including our new Member of the House of
Representatives from Ohio, and I look forward to hearing all
their testimony.
With that, I yield back.
[Mr. Larsen of Washington's prepared statement follows:]

Prepared Statement of Hon. Rick Larsen, a Representative in Congress
from the State of Washington, and Ranking Member, Committee on
Transportation and Infrastructure
Thank you, Chairman Nehls and Ranking Member Wilson, for holding
today's hearing on rail safety.
Ensuring safety in every mode of transportation should always be
this Committee's top priority.
Since the Norfolk Southern derailment in East Palestine, Ohio,
Committee Democrats have been calling for a rail safety hearing and
rail safety legislation.
In May of 2023, every T&I Democrat signed a letter asking for a
rail safety hearing, highlighting the dozens of outstanding rail safety
recommendations from the National Transportation Safety Board (NTSB).
Now that the NTSB has issued its final report on the derailment,
Subcommittee Chairman Nehls, along with Committee Democrats
Representatives Moulton, Sykes and Deluzio, have introduced rail safety
legislation.
Today's hearing is an opportunity to hear a variety of perspectives
on the NTSB's final report, which includes more than 30 additional rail
safety recommendations--several of which require Congressional action.
Nearly a year and a half ago, we all watched as a giant plume of
toxic fumes was released into the sky after the Norfolk Southern
derailment.
Fortunately, no one died as a result of the derailment, but it
remains a stark reminder of why we need to be vigilant about rail
safety.
That's why T&I Democrats held a rail safety roundtable in March to
hear from communities and rail workers impacted by rail accidents.
Mayor Frank Moran of Hiram, Georgia, told Members that legislation
concerning blocked crossings would help his community.
National League of Cities Executive Director Clarence Anthony told
Members that thousands of communities across the country support common
sense rail safety legislation.
Brotherhood of Locomotive Engineers and Trainmen National
Legislative Representative Vince Verna expressed concern that the
freight railroads continue to pile on to the tally of rail accidents
and derailments.
Sheet Metal, Air, Rail and Transportation Workers International
Representative Peter Kennedy said Congress needs to make freight rail
safety a priority because meaningful change is needed in the industry.
And Anna Sevi-Doss, an owner of a small business in East Palestine,
Ohio, highlighted how this dangerous derailment devastated her
community.
Meanwhile, rail safety accidents and incidents continue to occur.
Over the last decade, the trends did not improve.
In Washington state alone, there were 193 train accidents, 71 grade
crossing incidents and 167 railroad right-of-way trespasser fatalities
over the last five years, including a Burlington Northern Santa Fe
(BNSF) derailment that spilled over 3,000 gallons of diesel fuel on the
Swinomish Indian Reservation in March 2023.
While trains are getting longer, freight railroads continue to
shrink their workforce. From 2015 to 2022, Class I railroads laid off
55 percent of mechanical employees, 44 percent of locomotive repair
employees and 43 percent of rail car repair employees.
And in 2023, there were 114 more rail accidents than in 2022.
I look forward to this Committee passing legislation to address
rail safety concerns.
The Rail Safety Enhancement Act contains the language that passed
out of the Senate Commerce Committee last May. It addresses NTSB
recommendations to expand the high-hazard flammable trains definition,
establish requirements for wayside bearing defect detectors and
accelerate the removal of DOT-111 tank cars from flammable liquids
service.
The bill also provides needed funding for hazardous materials
emergency responder training.
And, importantly, it mandates the Class I railroads to join the
Federal Railroad Administration's Confidential Close Call Reporting
System.
The Bipartisan Infrastructure Law (BIL) supercharged investment in
rail with $102 billion in planned funding.
Many of these investments will improve safety, along with making
service improvements.
Last year, the city of Blaine, in my district, received a $9.5
million RAISE grant to begin work on the Bell Road-BNSF at-grade
crossing.
That town can now begin to resolve the issues at the crossing that
I first heard about more than 20 years ago as a freshman Member of the
House of Representatives.
I am pleased this critical project is advancing to improve safety
and accessibility, reduce congestion, create more jobs and keep the
regional economy moving.
The BIL includes $3 billion to separate or close grade crossings
through the Railroad Crossing Elimination grant program and $5 billion
to enhance the safety, efficiency and reliability of rail through the
Consolidated Rail Infrastructure and Safety Improvement grant program.
I expect great results for communities from these grants and
additional rail funding to come, but there is more to do.
I thank the Chairman, I thank the Ranking Member and witnesses,
including our new Member of the House of Representatives from Ohio. I
look forward to hearing all of your testimony.

Mr. Nehls. The gentleman yields. I would like now to
recognize our witnesses and thank them for being here today.
I will take a moment to explain our lighting system. There
are three lights in front of you, green means go. Yellow means
you are running out of time. And red, conclude your remarks.
I ask unanimous consent that the witnesses' full statements
be included in the record.
Without objection, so ordered.
I ask unanimous consent that the record of today's hearing
remain open until such a time as our witnesses have provided
answers to any questions that may be submitted to them in
writing.
Without objection, so ordered.
I also ask unanimous consent that the record remain open
for 15 days for any additional comments and information
submitted by the Members or witnesses to be included in the
record of today's hearing.
Without objection, so ordered.
As your written testimony has been made part of the record,
the subcommittee asks that you limit your oral remarks to 5
minutes.
With that, we will turn to our first panel.
And Representative Rulli from the great State of Ohio, you
are recognized for 5 minutes for your testimony.

TESTIMONY OF HON. MICHAEL A. RULLI, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF OHIO

Mr. Rulli. Thank you. Chairman Nehls, Ranking Member
Wilson, and members of the subcommittee, thank you for allowing
me to testify on this critical issue of rail safety.
Let me be clear: the state of our rail safety is a global
disgrace. When the Norfolk Southern train derailed in East
Palestine just 16 miles from my home, President Biden was
nowhere to be found. When Secretary Buttigieg commented on his
behalf 10 days after the fact, he blew off the situation by
saying there are roughly 1,000 cases a year of a train
derailing.
One thousand derailments a year? That is pure Government
negligence. The East Palestine disaster wasn't an isolated
incident. It was a wakeup call that I heard, but fell on deaf
ears everywhere in the Government.
Derailments are not limited to just one State or company,
and issues with rail safety are not limited to derailments.
Some other tragic incidents that we have seen since February 3,
2023, include the death of Louis Shuster, a Norfolk Southern
conductor, killed switching operations in Cleveland, Ohio, in
March of 2023. The death of Danny Brent Wilkins, a Union
Pacific track worker, killed while making track repairs in
Arkansas in of April 2024.
Class I railroads are asleep at the switch, while our
communities live in fear that each passing train could be the
next disaster. This is unacceptable.
The consequences of inaction are not limited to human
costs, but also financial. In the year since February 23, 2023,
Norfolk Southern's costs tied to the derailment are estimated
at over $1.1 billion. That is billion, with a B, and that
doesn't even include the meager settlement agreed to by the
Department of Justice. Who ultimately pays for this? The
American people, through increased cost of goods shipped over
these rail networks. When my neighbors are already paying for
the disaster with their health--I have seen their rashes, I
have listened to their stories of their doctors' visits told to
me with scratchy voices and sore throats--this is a slap in all
of their faces.
The National Transportation Safety Board under Chair
Jennifer Homendy's leadership has made 27 recommendations to
rail companies that remained unfulfilled to this day. One of
these could have saved the conductor's life in Cleveland: a
simple cage on the front of the car to protect against
collisions. Yet it remains unimplemented.
Another recommends Norfolk Southern ensure all relevant
expertise regarding hazmat on board is shared with on-scene
responders. OxyVinyls manufactured the chemicals on board the
train in East Palestine. They recommended not to vent and burn
the contents of the train, but this recommendation wasn't
shared with first responders until after the fact.
A third recommends Norfolk Southern immediately provide
first responders with an accurate list of materials on board.
It took them a full hour to provide this to East Palestine,
putting those first responders at extreme risk.
Many of these 27 recommendations are included in Chairman
Nehls' H.R. 8996, which is a bipartisan effort that should
appeal to anyone who recognizes the NTSB's critical role in
transportation safety.
You may be wondering why Chairman Nehls, myself, and many
others cosponsored to introduce this bill. We are doing it
because Class I railroads can't be trusted to do it on their
own. NTSB recommendation R-26 was issued over a decade ago in
response to a head-on collision in Oklahoma. It urged Class I
railroads to install audio and image recorders with a minimum
of 12-hour recording capability. The NTSB reiterated the
importance of this recommendation in a June letter on the East
Palestine disaster. That train had a 12-hour recording
capability. However, Norfolk Southern overwrote that and only
provided 20 minutes surrounding the derailment itself.
With Norfolk Southern controlling one-quarter of this
Nation's rail network, this disregard for safety
recommendations is just purely unacceptable. We must take
decisive action to ensure the safety and security of this
Nation's rail networks by passing H.R. 8996.
This bill has been cosponsored by nine Members and
counting, and includes many parts of Senator Vance and Senator
Brown's already vetted S. 576. This bill requires DOT to: issue
regulations so shippers must provide first responders with
advance notice of hazardous trains; establish requirements for
wayside detectors; require a minimum two-man crew on certain
freight trains--in my opinion, these are the most important
words out of my mouth today; create a Hazardous Materials
Emergency Preparedness Fund; provide funds for telematics and
gateway devices; phase out certain flawed tank cars--like those
that derailed in East Palestine--by May 21, 2027, giving them
lead time to make this happen; require Amtrak and all Class I
railroads to enroll in the Confidential Close Call Reporting
System; and provide funds to study the 20 most frequently
blocked crossings in at least 10 States.
These aren't suggestions; these are imperatives. Employing
a second crewman in-cab provides a necessary layer of defense
against potential disasters. And we, as legislators, must now
act as that second crewman in protecting the American people
from inaction of rail companies and the administration.
The cost of inaction is way too high. We have seen the
economic disruption and the environmental damage and the threat
to human life. My community has seen it firsthand. I personally
arrived at ground zero 18 hours after the train derailment in
East Palestine. The impact was immediate and personal. Every
single time I left that site, I had a sore throat. And to this
day, right now, today, my family that lives 15 miles apart are
still using bottled water. The effects of this disaster are not
abstract. They are part of our daily lives in East Palestine.
How many more residents need to be displaced? How many more
people need to lose their lives before we say enough is enough?
Our Nation's railroad network used to be the crowning
achievement of American industry. It once was hailed as a
marvel of innovation, completed with a gold spike, and offering
the promise of a brighter and more prosperous future. But now
it simply exists as a nightmare in the minds and the backyards
of millions of Americans. I urge this committee to take
decisive action. Hold the Class I railroads and the Department
of Transportation accountable; demand stricter regulations and
enforcement. Our communities can't afford to wait. The next
train derailment could be in your own neighborhood.
By all of us supporting H.R. 8996, we are not only
improving, but we are also acknowledging the vital work of the
NTSB and Chairman Homendy. This is our chance to take
meaningful, bipartisan action on a critical issue affecting
every State and every district in the United States. Thank you
so much.
[Mr. Rulli's prepared statement follows:]

Prepared Statement of Hon. Michael A. Rulli, a Representative in
Congress From the State of Ohio
Chairman Nehls, Ranking Member Wilson, and members of the
subcommittee, thank you for allowing me to testify on the critical
issue of rail safety in our nation.
Let me be clear: the state of our rail safety is a global disgrace.
When the Norfolk Southern train derailed in East Palestine, just 16
miles from my home, President Biden was nowhere to be found. When
Secretary Buttigieg commented on his behalf, 10 days after the fact, he
blew the situation off, saying `` . . . there are roughly a thousand
cases a year of a train derailing . . . ''
1,000 derailments a year. That is a damning indication of our
government's negligence. The East Palestine disaster wasn't an isolated
incident. It was a wake-up call that I heard, but fell on deaf ears
elsewhere in government. Since February 3rd, 2023, we've seen:
A train carrying ethanol and corn syrup derailing and
catching fire in Raymond, Minnesota, causing a partial evacuation
A train carrying grain derailing in the middle of West
Mansfield, Ohio

Derailments are not limited to one state or company, and issues
with rail safety are not limited to derailments. Other tragic incidents
we have seen since February 3rd, 2023 include:
The death of Louis Shuster, a Norfolk Southern conductor,
killed during switching operations in Cleveland, Ohio (March 2023)
The death of Danny Brent Wilkins, a Union Pacific track
worker, killed while making track repairs in Arkansas (April 2024)

Our federal regulators are asleep at the switch while our
communities live in fear that each passing train could be the next
disaster. This is unacceptable. The consequences of inaction are not
limited to human cost, but also financial. In the year since February
23rd, 2023, Norfolk Southern's costs tied to the derailment are
estimated at over $1.1 billion. That's billion with a ``B'', and does
not even include the meager settlement agreed to by the Department of
Justice . . . Who ultimately pays for this? The American people through
increased cost of goods shipped over these rail networks. When my
neighbors are already paying for this disaster with their health--I've
seen their rashes, I've listened to their stories of doctor's visits
told with scratchy voices and sore throats--this is a slap in their
face.
The National Transportation Safety Board, under Chair Jennifer
Homendy's leadership, has made 27 recommendations to rail companies
that remain unfulfilled.
One of these could have saved the conductor's life in
Cleveland--a simple cage on the front cart to protect against
collisions. Yet, it remains unimplemented.
Another, R-31, recommends Norfolk Southern ensures all
relevant expertise regarding hazmat onboard is shared with on-scene
responders.
``Oxy Vinyls'' manufactured the chemicals onboard that
train in East Palestine. They recommended NOT to vent and burn the
contents of the train, but this recommendation was not shared with
first responders until AFTER the fact.
Another, R-29, recommends Norfolk Southern immediately
provides emergency responders with an accurate list of the materials
onboard. It took them a FULL HOUR to provide this in East Palestine,
putting first responders at extreme risk.

Many of these 27 recommendations are included in Chairman Nehls'
HR8996, which is a bipartisan effort that should appeal to anyone who
recognizes the NTSB's critical role in transportation safety.
You may be wondering why Chairman Nehls, myself and our many
cosponsors introduced this bill. We are doing it because Class 1
railroads can't be trusted to do it on their own. NTSB recommendation
R-26 was issued over a decade ago in response to a head-on collision in
Oklahoma. It urged all Class 1 railroads install audio and image
recorders with a minimum 12-hour recording capability. The NTSB
reiterated the importance of this recommendation in a June letter on
the East Palestine disaster. That train did have 12hr recording
capability, but Norfolk Southern overwrote all but 20 minutes
surrounding the derailment. With Norfolk Southern controlling a quarter
of our nation's rail network, this disregard for safety recommendations
is unacceptable.
We MUST take decisive action to ensure the safety and security of
our nation's rail network by passing HR8996. This bill has been
cosponsored by nine members and counting, and includes many parts of
Senators Vance and Brown's already-vetted S.576.
This bill requires the DOT to:
Issue regulations so shippers must provide our first
responders with advance notice of hazmat trains traveling through their
towns and information about their contents
Establish requirements for wayside detectors.
Require a minimum two-man crew on certain freight
trains--in my opinion, the most important.
Create the ``Hazardous Materials Emergency Preparedness
Fund.''
Provide funds for telematics and gateway devices.
Phase out certain issue-prone tank cars--like some of
those that derailed in East Palestine--by May 1st, 2027.
Require Amtrak and all Class 1 railroads to enroll in a
confidential close-call reporting system.
Provide funds to study the 20 most-frequently blocked
crossings in at least 10 states.

These aren't just suggestions--these are imperatives. Employing a
second crewman in-cab provides a necessary layer of defense against
potential disasters, and we as legislators must now act as second
crewman in protecting the American people from the inaction of rail
companies and this administration.
The cost of inaction is too high.
We've seen the economic disruption . . . the environmental damage .
. . and the threat to human life--my community has seen it firsthand. I
arrived at ground zero within 18 hours of the train derailment in East
Palestine. The impact was immediate and personal--every time I left the
site I had a sore throat and to this day, my family and I continue to
rely on bottled water. The effects of this disaster are not abstract;
they're part of our daily lives. How many more residents need to be
displaced? How many more lives need to be lost before we say enough is
enough?
Our nation's rail network used to be the crowning achievement of
American industry. What once was hailed as a marvel of innovation,
completed with a gold spike and offering the promise of a brighter and
more prosperous future, now exists as a nightmare in the minds and
backyards of millions.
I urge this committee to take decisive action. Hold the Class 1
railroads and the Department of Transportation accountable. Demand
stricter regulations and enforcement. Our communities can't afford to
wait. The next train derailment could be in your neighborhood. By
supporting HR8996, we're not only improving safety but we're also
acknowledging the vital work of the NTSB and Chair Homendy. This is our
chance to take meaningful, bipartisan action on a critical issue
affecting every state and district in our nation.

Mr. Nehls. Thank you, Representative Rulli.
Are there any other questions? Any questions?
Seeing none, thank you. I want to thank you for being here.
This concludes our first panel. You are excused, sir.
I would like to now welcome our second panel of witnesses.
[Pause.]
Mr. Nehls. As a reminder, your written testimony has been
made part of the record, so, the subcommittee asks that you
limit your oral remarks to 5 minutes.
With that, Chair Homendy, you are recognized for 5 minutes
for your testimony.

TESTIMONY OF HON. JENNIFER L. HOMENDY, CHAIR, NATIONAL
TRANSPORTATION SAFETY BOARD; HON. AMIT BOSE, ADMINISTRATOR,
FEDERAL RAILROAD ADMINISTRATION; TRISTAN H. BROWN, DEPUTY
ADMINISTRATOR, PIPELINE AND HAZARDOUS MATERIALS SAFETY
ADMINISTRATION; JEFFREY SLOAN, SENIOR DIRECTOR FOR REGULATORY
AND SCIENTIFIC AFFAIRS, AMERICAN CHEMISTRY COUNCIL; DAVID
AROUCA, NATIONAL LEGISLATIVE DIRECTOR, TRANSPORTATION
COMMUNICATIONS UNION (TCU); AND GREGORY HYNES, NATIONAL
LEGISLATIVE DIRECTOR, TRANSPORTATION DIVISION, INTERNATIONAL
ASSOCIATION OF SHEET METAL, AIR, RAIL AND TRANSPORTATION
WORKERS (SMART-TD)

TESTIMONY OF HON. JENNIFER L. HOMENDY, CHAIR, NATIONAL
TRANSPORTATION SAFETY BOARD

Ms. Homendy. Good afternoon. Thank you for the opportunity
to be here today.
Since 1967, the National Transportation Safety Board has
been at the forefront of railroad safety. While our
investigation of the East Palestine derailment has garnered
significant attention, we launch to rail accidents almost
weekly. This past Saturday, we sent a team to Norfolk,
Virginia, to investigate an accident involving a Norfolk
Southern conductor who sustained severe injuries during
switching operations in a rail yard. Last March, a Norfolk
Southern conductor was killed when the train collided with a
dump truck at a grade crossing in Cleveland. The conductor was
riding the lead railcar during a shoving movement when he was
pinned between the railcar and the dump truck during the
collision. A Union Pacific employee was also killed during a
shoving movement just a few weeks ago, this time in an Illinois
rail yard.
The NTSB has issued multiple recommendations urging
railroads and the FRA to prevent employees from riding railcars
during certain movements. Those recommendations remain open,
meaning they have not been addressed. In fact, we have 215 open
recommendations that will transform rail safety, but only if
they are acted on. According to the railroad's own data, the
accident rate in rail yards has soared more than 50 percent
over the last decade, reaching levels we haven't seen since
2005. And over half of our open rail investigations involve
employee injuries, some of which were fatal, all of which are
unacceptable and preventable.
I urge this committee to exercise robust oversight over
rail employee safety, which is clearly at risk.
Turning to East Palestine, we determined that the probable
cause of the derailment and hazmat release was the failure of a
wheel bearing that overheated and caused the axle to separate,
derailing 38 cars of the train. Eleven of those cars contained
hazmat. Three were mechanically breached, releasing their
contents that ignited. All of those mechanically breached tank
cars were DOT-111s. We determined the massive fire likely began
with the release of a flammable liquid from a punctured DOT-111
tank car, which is not scheduled for replacement until May
2029. Other DOT-111s that breached were transporting
combustible liquids. Those aren't covered under the FAST Act.
And this is a vital finding I want to drive home: We
determined that if those DOT-111 tank cars had not sustained
mechanical breaches during the derailment, the DOT-105 tank
cars transporting vinyl chloride likely would not have been
exposed to the fire conditions that led to the concerns about
polymerization and, ultimately, the vent and burn actions in
East Palestine.
We also determined that Norfolk Southern failed to provide
responders with information on the contents of the railcars for
hours. This not only delayed the evacuation of residents, but
prolonged firefighters' exposures to extremely hazardous
conditions. They couldn't rely on the placards, which had
melted, and only one responder we interviewed was able to
access AskRail.
Complicating matters, there are restrictions in Ohio for
training volunteer firefighters, many of whom bravely
responded, despite having received minimal training. Radio
communications were a significant challenge: 48 agencies
responded and struggled to communicate with each other.
And importantly, we determined that Norfolk Southern failed
to communicate relevant expertise and dissenting opinions to
the incident commander. They also inaccurately represented that
the tank cars were at risk of a catastrophic failure, which
created unwarranted urgency and led to the unnecessary decision
to vent and burn the five vinyl chloride tank cars.
As a result of this investigation, we issued 37 findings
and 34 new safety recommendations, all of which Norfolk
Southern has endorsed.
Thank you, Chairman Nehls and committee members, for your
rail safety leadership. I look forward to your questions.
[Ms. Homendy's prepared statement follows:]

Prepared Statement of Hon. Jennifer L. Homendy, Chair, National
Transportation Safety Board
Good afternoon, Chairman Nehls, Ranking Member Wilson, and members
of the subcommittee. Thank you for inviting the National Transportation
Safety Board (NTSB) to testify before you today regarding rail safety
following our investigation into the Norfolk Southern Railway (NS)
derailment and hazardous materials release in East Palestine, Ohio.\1\
---------------------------------------------------------------------------
\1\ National Transportation Safety Board. Norfolk Southern Railway
Train Derailment with Subsequent Hazardous Material Release and Fires,
East Palestine, Ohio, February 3, 2023. Washington, DC: NTSB 2024; Rpt.
No. RIR 24/05.
---------------------------------------------------------------------------
As you know, the NTSB is an independent federal agency charged by
Congress with investigating every civil aviation accident in the United
States and significant events in other modes of transportation--
railroad, transit, highway, marine, pipeline, and commercial space. We
determine the probable causes of the accidents and events we
investigate and issue safety recommendations aimed at preventing future
occurrences. In addition, we conduct transportation safety research
studies and offer information and other assistance to family members
and survivors for each accident or event we investigate. We also serve
as the appellate authority for enforcement actions involving aviation
and mariner certificates issued by the Federal Aviation Administration
(FAA) and the US Coast Guard, and we adjudicate appeals of civil
penalty actions taken by the FAA.
The NTSB does not have authority to promulgate operating standards,
nor do we certificate organizations, individuals, or equipment.
Instead, we advance safety through our investigations and
recommendations, which are issued to any entity that can improve
safety. Our goal is to identify issues and advocate for safety
improvements that, if implemented, would prevent injuries and save
lives.
Since 1967, the NTSB has been at the forefront of railroad safety.
We have a long record of highlighting numerous safety issues on our
railways, including the need for an aggressive phase-out of DOT-111
tank cars in hazardous materials service.
I believe it is important, as we have this discussion today, to
keep in mind that rail passenger and freight transportation in the
United States is far safer than road transportation. The United States
confronts an ongoing public health crisis on our roadways in every
corner of this country, losing over 40,000 lives annually in crashes on
our roadways.\2\ I would never want to see traffic shift away from
railways to roadways--particularly hazardous materials traffic. What we
should strive for is to shift passenger and freight transportation from
our deadly roadways to far safer modes of transportation, like rail.
However, as I testified before this committee in January and now
reiterate, we must also be clear that the only acceptable number of
accidents and injuries--fatal and nonfatal--is zero, and although rail
transportation is comparatively safe in contrast to highway
transportation, we must still work to ensure that no lives are lost in
rail transportation and no communities are impacted by hazardous
materials releases. There is much work left to be done.
---------------------------------------------------------------------------
\2\ US Department of Transportation, National Highway Traffic
Safety Administration. Traffic Safety Facts: Early Estimate of Motor
Vehicle Traffic Fatalities for the First Quarter of 2024. Washington,
DC: NHTSA, 2024.
---------------------------------------------------------------------------
In total, the NTSB currently has over 215 open rail safety
recommendations.\3\ These include 5 recommendations to the US
Department of Transportation (DOT), 98 recommendations to the Federal
Railroad Administration (FRA), and 15 recommendations to the Pipeline
and Hazardous Materials Safety Administration (PHMSA). There are also
116 recommendations to the FRA that are closed with unacceptable
action.\4\ In addition, NS has 17 open recommendations and 3
recommendations classified Closed--Unacceptable Action. Finally, eight
recommendations are currently open to all the Class I railroads. The
collisions and derailments we see in our investigations are tragic
because they are preventable, and we believe the safety issues we
identify in these investigations should be acted on swiftly.
---------------------------------------------------------------------------
\3\ A report of all open safety recommendations related to rail
(nontransit) can be accessed here: https://data.ntsb.gov/carol-main-
public/query-builder/route/?t=published&n=28.
\4\ A report of all closed--unacceptable safety recommendations
related to the FRA can be accessed here: https://data.ntsb.gov/carol-
main-public/query-builder/route/?t=published&n=33.
---------------------------------------------------------------------------
As examples, I'd like to highlight just three investigations we
launched following the completion of our East Palestine investigation.
This past Friday, July 19, 2024, at about 12:38 p.m., a NS
conductor sustained severe injuries during switching operations at
Lambert's Point Yard in Norfolk, Virginia. This follows our
investigation of a March 7, 2023, incident where a NS conductor was
killed when the train he was riding collided with a dump truck as they
entered a private grade crossing in the Cleveland-Cliffs Incorporated
steel plant in Cleveland, Ohio.\5\ The conductor was riding on the end
platform of the lead railcar during a shoving movement when he was
pinned between the railcar and the dump truck during the collision, a
procedure that is authorized by railroad operating rules.
---------------------------------------------------------------------------
\5\ NTSB. Norfolk Southern Conductor Fatality, Cleveland, Ohio,
March 7, 2023.
---------------------------------------------------------------------------
This also follows the July 6, 2024, incident where a Union Pacific
employee was killed in a rail yard in Melrose Park, Illinois, when he
was riding on a tank car during a shoving movement and was pinched
between it and another passing train.\6\ The NTSB has issued multiple
recommendations aimed at ensuring employees are not riding train cars
through certain shoving movements, and we intend to continue
investigating and advocating on this issue.\7\ I want to emphasize that
over half--12 out of 23--of our open investigations in rail involve
employee fatalities. Accidents on yard track, in particular, are
increasing, and I urge this committee to exercise robust oversight for
employee safety.
---------------------------------------------------------------------------
\6\ A shoving movement is the process of pushing railcars or a
train from the rear with a locomotive.
\7\ Safety Recommendations R-23-19 and -20.
---------------------------------------------------------------------------
In the early morning of July 5, 2024, a Canadian Pacific Kansas
City Railroad train derailed 29 cars near the town of Bordulac, North
Dakota. The 8,850-foot train consisted of one headend locomotive, one
rear distributed power locomotive, 126 loaded cars, and 25 empty cars.
Preliminary information indicates that the derailed cars included 6
methanol, 11 anhydrous ammonia, and 12 propylene pellet cars. There was
a postaccident fire involving methanol and propylene pellets, and at
least four anhydrous ammonia cars were leaking, three of which are
believed to be breached. There are no initial reports of injuries, but
there was a voluntary evacuation of two houses. Due to ongoing work to
mitigate the hazmat on scene, our investigators have not been able to
visually inspect the tank cars, and some of the tank cars have not yet
been identified due to their condition. One of the tank cars
transporting methanol, a flammable liquid, was reportedly a DOT-111
tank car. Investigators will confirm car types when they are able to
perform detailed damage assessments of all the tank cars involved in
the accident. Underlining our recommendations coming out of the East
Palestine investigation, though, I wanted to note the presence of a
possible DOT-111 tank car in this accident. As part of this
investigation, we will assess the performance of all the tank cars
involved.
All information on these three investigations is still preliminary,
but more will be forthcoming, and I am happy to discuss as much as I
can at this point.
East Palestine Findings and Recommendations
Turning to East Palestine, on February 3, 2023, about 8:54 p.m.,
eastbound NS train 32N derailed 38 mixed freight railcars at milepost
49.5 on the NS Fort Wayne Line of the Keystone Division in East
Palestine, Ohio. Three tank cars carrying flammable and combustible
hazardous materials were mechanically breached during the derailment. A
fire ignited during the derailment and grew to involve lading released
from these three mechanically breached tank cars, additional derailed
tank cars carrying both hazardous and nonhazardous materials, and
freight cars. Emergency responders established a 1-mile evacuation zone
that affected about 2,000 residents. The derailed equipment included
five hazardous materials tank cars carrying vinyl chloride monomer
(VCM), a compressed liquified flammable gas offered for shipment as
``UN1086 vinyl chloride, stabilized, 2.1.'' The five VCM tank cars were
not mechanically breached during the derailment, but over the next day,
four of those tank cars were exposed to fires and released material
from pressure relief devices. These releases ceased on the afternoon of
February 4. Acting on information provided by NS and its contractors
that a dangerous chemical reaction was occurring within a VCM tank car,
the incident commander managing the response chose to expand the
evacuation zone and perform a vent and burn (a deliberate breach of a
tank car) on all five derailed VCM tank cars. The incident commander
was not aware of dissenting opinions the VCM shipper had provided to NS
and its contractors. A contractor hired by NS breached the VCM tank
cars at 4:37 p.m. on February 6, releasing and igniting their lading.
No injuries were reported during the derailment or emergency response.
What We Found
The NTSB determined the derailment occurred because a bearing on a
hopper car overheated and caused an axle to separate. There was not
enough evidence to determine if a mechanical inspection conducted
before the derailment failed to identify signs of bearing failure; the
bearing may not have been showing visible problems at the time of the
inspection.
A hot bearing detector traversed by train 32N detected an elevated
temperature on the overheating bearing, but the low priority alert it
transmitted to railroad personnel did not reflect the true condition of
the failing bearing. Because of design constraints, hot bearing
detectors are likely to indicate misleadingly low bearing temperatures.
This limit on detector performance, combined with NS's standard
operating procedures and the spacing between detectors, meant that the
train's crew did not have adequate warning to stop the train before the
derailment.
Research will be necessary to determine if changes to wayside
bearing defect detection systems--such as lower alert and alarm
thresholds--would produce a significant safety improvement. Research is
also necessary to determine what operational responses to bearing
alerts and alarms are sufficient to prevent derailments.
Our investigation also found that the state of Ohio's laws
regarding volunteer firefighter training were insufficient to support a
safe emergency response to the derailment. Further, the emergency
response lacked efficient coordination because the responding agencies
did not have common radio channels. Also hampering efforts was the
illegibility of the railcar placards after they were exposed to fire.
Delays in NS transmitting train consist information to emergency
responders also increased responders' and the public's exposure to
postderailment hazards.
The postderailment fires likely began because of hazardous
materials released from a punctured DOT-111 tank car. The subsequent
release of VCM from mechanically intact DOT-105 tank cars likely would
not have occurred if the DOT-111 tank cars in the consist had survived
the derailment. Since 1991, the NTSB has raised concerns about DOT-111
tank cars. We have repeatedly stated that the presence of DOT-111 tank
cars carrying hazardous materials in a train can increase the risk of
more resilient tank cars releasing hazardous materials following a
derailment; the Association of American Railroads' (AAR's) definition
of key train does not account for this. Although voluntary phase out of
the remaining DOT-111 tank cars in hazardous materials service is
technically possible, it is unlikely because of economic and business
disincentives.
The VCM in the derailed DOT-105 tank cars in East Palestine
remained in a stabilized environment (that is, was unable to undergo
polymerization, a potentially dangerous chemical reaction) until those
tank cars were deliberately breached with explosives (the vent and burn
procedure). On-scene temperature trends did not indicate that a
polymerization reaction was occurring, and postaccident examinations
confirmed this. The vent and burn procedure was not necessary to
prevent a polymerization-induced explosion. One source of information
about polymerization consulted by NS and its contractors, The Chlorine
Institute's Pamphlet 171, included misleading information about signs
of polymerization. NS and its contractors continued to describe
polymerization as an imminent threat when expert opinions and available
evidence should have led them to reconsider their course of action. NS
compromised the integrity of the decision to vent and burn the tank
cars by not communicating expertise and dissenting opinions to the
incident commander making the final decision. This failure to
communicate completely and accurately with the incident commander was
unjustified. The significant local and environmental impacts of a vent
and burn decision demonstrate the need for federal guidance about when
to conduct a vent and burn.
Lastly, inward- and outward-facing recorders can help railroads
verify train crew actions and investigators improve the quality of
investigations and identification of safety enhancements, and without a
requirement, we have missed an opportunity to record important safety
data.
Probable Cause
The NTSB determined that the probable cause of NS train 32N's
derailment was the failure of the L1 bearing on the 23rd railcar in the
consist that overheated and caused the axle to separate, derailing the
train and leading to a postderailment fire that likely began with the
release of a Class 3 flammable liquid from a DOT-111 tank car that was
punctured during the derailment. Contributing to the postderailment
fire and the severity of the hazardous materials release was the
continued use of DOT-111 tank cars in hazardous materials service. Also
contributing to the severity of the hazardous materials release were
the failure of NS and its contractors to communicate relevant expertise
and dissenting opinions to the incident commander, and the inaccurate
representation by NS and its contractors that the tank cars were at
risk of catastrophic failure from a polymerization reaction, which
created unwarranted urgency and led to the unnecessary decision to vent
and burn five derailed VCM tank cars to prevent a polymerization-
induced tank car rupture. Contributing to the exposure of emergency
responders and the public to postderailment hazards were NS's delay in
transmitting the train consist information to emergency responders and
Ohio's insufficient training requirements for volunteer firefighters.
What We Recommended
As a result of this investigation, we issued 34 new recommendations
and reiterated 1 previously issued recommendation. We also classified
four previously issued recommendations.
We recommended the FRA to research bearing defect detection systems
and use the results to establish regulations on the following related
subjects:
Railroads' use of bearing defect detection systems,
including thresholds for alerts and alarms and distances between
wayside detectors.
Railroads' operational responses to bearing alerts and
alarms.
Installation, inspection, and maintenance of wayside
bearing defect detection systems.

We recommended that the AAR develop a database of bearing failure
and replacement data to help railroads, regulators, and investigators
identify and address bearing failure risk factors.
We issued a recommendation to Ohio to amend its statute limiting
volunteer firefighter training and bring its training requirements in
line with a widely accepted standard. To expand the reach of lessons
learned at East Palestine, we recommended that the International
Association of Fire Chiefs, the International Association of Fire
Fighters, and the National Volunteer Fire Council inform their members
of the derailment and fire and encourage them to adopt training that
meets a widely accepted standard. We also recommended that the National
Volunteer Fire Council identify barriers to volunteer firefighter
training and actions to address them.
To improve local preparedness, we recommended that the Columbiana
County Emergency Management Agency develop a policy to immediately
provide train consists to emergency responders and update its emergency
plans to incorporate lessons learned from the East Palestine
derailment.
Our investigation report classified Safety Recommendation R-07-4 to
PHMSA Closed--Acceptable Action. This recommendation, previously
classified Open--Unacceptable Response, asked PHMSA to require
railroads to immediately provide emergency responders with train
consist information. We are grateful to PHMSA for taking this action.
We also recommended that NS review and revise its practices to ensure a
train's consist is immediately communicated to first responders. We
made a new recommendation that PHMSA require that placards used to
identify hazardous materials be able to survive accidents and fires.
We issued additional new recommendations to PHMSA expanding and
accelerating the current phase out of DOT-111 tank cars from hazardous
materials service and expanding the definition of high-hazard flammable
trains (HHFTs) to include a wider variety of hazardous materials and
account for variations in how well different tank car specifications
survive derailments. We made a related recommendation to the AAR to
account for the risk posed by certain tank cars in its definition of
key train. We also recommended that the AAR take steps to require
manufacturers of tank car service equipment to demonstrate that their
products are compatible with a tank car's intended lading, and that the
FRA monitor the AAR's progress to ensure it addresses weaknesses in its
approval process.
Regarding the vent and burn decision, we recommended that:
NS establish a policy of communicating all expert
opinions to the full incident command, share information collected by
its emergency response contractors with entities that provide hazardous
materials guidance, and update its submissions to the PHMSA incident
database.
The FRA disseminate current and updated versions of its
existing study on the vent and burn method to help guide incident
commands in the future.
PHMSA spread awareness of the FRA's most current guidance
by referencing it in the next edition of the Emergency Response
Guidebook.
The Chlorine Institute review and revise its pamphlet on
VCM to ensure that it is accurate and suited to supporting emergency
responses, and that it change its Chlorine Emergency Plan program to
make sure specialized emergency response contractors can appropriately
respond to chemical hazards during a VCM incident.
Oxy Vinyls update its safety data sheet for VCM to ensure
that it is accurate and develop a policy to ensure that its expertise
is communicated to the full incident command.
The American Chemistry Council and The Chlorine Institute
make their members aware of the events at East Palestine and emphasize
the importance of shippers communicating their expertise to the full
incident command.

We made an additional recommendation to the International
Association of Fire Chiefs, the International Association of Fire
Fighters, and the National Volunteer Fire Council to encourage the
distribution of federal guidance about the vent and burn method.
We also recommended that the secretary of transportation and the
FRA require the installation and use of inward- and outward-facing
audio and image recorders on locomotives, obtaining legislative
authority to act if necessary. In addition, we reiterated a
recommendation that we first made to all the Class I railroads in 2013
that they should install and use such recorders in advance of a
requirement to do so.
Each of these recommendations is detailed in our final report, and
I am happy to discuss any of them in detail. I urge this committee to
closely examine the recommendations in which we have identified that
legislative authority may be necessary for implementation, particularly
those related to the following.
Accelerating Phase-out of DOT-111 Tank Cars for Flammable
Liquids. The Fixing America's Surface Transportation (FAST) Act (Public
Law 114-94) phased out legacy DOT-111 specification tank cars for
transporting flammable liquids, such as crude oil and ethanol; however,
certain other flammable liquids may still be transported in such tank
cars until May 1, 2029, under the law. This includes the DOT-111 tank
car transporting flammable liquid that likely started the fire in East
Palestine.

Prohibiting Other Hazardous Materials in DOT-111 Tank
Cars. We recommend prohibiting other hazardous materials in DOT-111
tank cars, including combustible liquids. Any nonpressure tank car
transporting hazardous materials must meet or exceed the safety
standards of DOT-117 specification tank cars. We emphasize meeting or
exceeding the DOT-117 specification because we do not want to see such
hazardous materials moved from DOT-111 tank cars to AAR-211 tank cars,
which also pose a risk in derailments.

Revising and Expanding the Definition of High-Hazard
Flammable Train. The FAST Act codified the definition of an HHFT. The
train in the East Palestine derailment was not an HHFT because it did
not contain a block of 20 or more than 35 total loaded tank cars of a
Class 3 flammable liquid, as defined in the act. We believe the
definition of an HHFT should include a broad range of hazardous
materials, including flammable gases and combustible liquids. We
recommended that PHMSA seek legislative authority if necessary to
revise the definition of HHFT to account for differences in
survivability between tank car specifications and to include hazardous
materials other than flammable liquids that can contribute to cascading
hazardous materials releases. We have previously stated in comments to
the HHFT rulemaking that the threshold of 20 or more than 35 total
loaded tank cars of a Class 3 flammable liquid is far too high.

Requiring Recorders on Freight Rail. The FAST Act
required railroads providing regularly scheduled intercity rail
passenger or commuter rail passenger transportation to the public to
install inward- and outward-facing image recording devices in all
controlling locomotive cabs and cab car operating compartments in
passenger trains. However, the law did not require freight railroads to
install such devices, and when the FRA issued its final rule
implementing the FAST Act requirements, it left out freight railroads,
citing this reason. We have recommended recorders for freight railroads
since 2010, and in the East Palestine report, we issued new
recommendations calling on both the secretary and the FRA to issue
regulations to require them, and for the FRA to require that railroads
routinely review recordings to ensure safety. We recommended that they
seek legislative authority, if necessary.

Providing increased funding for the fire service. PHMSA
provides grant funding to states and other entities (through
competitive grants) for training emergency responders. Our
investigation found that volunteer firefighter training was not
sufficient to support a safe emergency response to the East Palestine
derailment and that the emergency response lacked efficient
coordination because the responding agencies did not have common radio
channels.

Radio systems for emergency responders are subject to numerous
regulations and standards governing their use and minimum
interoperability requirements, including Federal Communications
Commission (FCC) regulations. Authorities with jurisdiction are
ultimately responsible for ensuring interoperability through suitable
equipment, protocols, and training; however, they may not have the
means to do so, as radio interoperability can cost millions of dollars.
While we recognize the committee does not have jurisdiction over
the FCC, it could increase funding for states and other entities, as
well as additional eligibility for radio interoperability, within the
Hazardous Materials Emergency Preparedness Fund.
Rescheduling of Marijuana
As we discuss rail safety, I also want to call your attention to
the comments that we have submitted in response to the US Drug
Enforcement Administration's (DEA's) notice of proposed rulemaking,
``Schedules of Controlled Substances: Rescheduling of Marijuana.'' \8\
The proposed rule would transfer marijuana from Schedule I to Schedule
III of the Controlled Substances Act. As you know, the NTSB has long
been concerned about impairment in all modes of transportation. This
includes our concerns about marijuana use among crewmembers and other
safety-sensitive personnel in rail. We believe there will be a serious
negative impact on transportation safety if the DEA moves forward with
rescheduling without addressing the issues further detailed in our
comments, which are appended to my testimony.
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\8\ 89 Federal Register 44597
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Conclusion
Again, thank you for the opportunity to discuss these critical rail
safety issues and the NTSB's perspectives and recommendations with the
committee today. We strongly believe that continued vigilance and
improvement are needed in our rail system. We recognize the progress
that has been made; yet there will always be room for more when it
comes to safety. We stand ready to work with the committee to continue
improving rail safety, which includes ensuring that the NTSB has the
resources needed to carry out our essential mission.
To that end, I thank you on behalf of our entire agency for your
committee's strong bipartisan work to ensure a robust reauthorization
for the NTSB in the recently passed FAA bill. I also thank you for your
steadfast support for bolstering our agency funding in FY 2024. It was
your support that ensured that funding increases for safety crossed the
finish line. I urge your continued consideration for additional
resources at the NTSB as Congress moves forward with FY 2025
appropriations.
Thank you again, and I am happy to answer your questions.
__________
Attachment
National Transportation Safety Board,
Office of the Chair,
Washington, DC 20594,
July 19, 2024.
US Drug Enforcement Administration,
Attn: DEA Federal Register Representative/DPW,
8701 Morrissette Drive, Springfield, VA 22152.

Re: Docket Number DEA-1362

Dear Sir or Madam:
The National Transportation Safety Board (NTSB) has reviewed the US
Drug Enforcement Administration's (DEA) notice of proposed rulemaking
titled ``Schedules of Controlled Substances: Rescheduling of
Marijuana,'' published at 89 Federal Register (FR) 44597 on May 21,
2024. The proposed rule would transfer marijuana from Schedule I of the
Controlled Substances Act (CSA) to Schedule III of the CSA, consistent
with the US Department of Health and Human Services' (HHS) August 2023
recommendation.\1\
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\1\ See HHS. August 29, 2023, letter from Rachel L. Levine, MD,
Assistant Secretary for Health, HHS, to Anne Milgram, Administrator,
DEA.
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Through our accident and incident investigations and transportation
safety research, the NTSB has developed experience with marijuana use
among noncommercial and commercial vehicle operators and other
transportation safety-sensitive personnel. We recognize that marijuana
is a prevalent drug with performance-impairing effects, that human
performance is critical to the safe operation of transportation
systems, and that most people interact with transportation systems
multiple times per day. Consequently, we believe that interactions with
transportation systems are among the most important ways in which the
public may be exposed to risk from marijuana's effects. This
perspective has informed our related recommendations to improve
transportation safety. It is also why we believe transportation safety
deserves prominence in the national conversation about marijuana
rescheduling. Although the NTSB has not made any recommendation
concerning marijuana's scheduling under the CSA, we appreciate this
opportunity to share our perspective on marijuana-related
transportation safety issues for the DEA to consider during this
rulemaking process.
In commercial transportation operations, the NTSB is particularly
concerned that the proposed rule would prevent testing for marijuana
use by safety-sensitive employees who are subject either to the US
Department of Transportation (DOT) drug testing under Title 49 Code of
Federal Regulations (CFR) Part 40, or (as is the case for many air
traffic controllers) to federal workplace drug testing under HHS
Mandatory Guidelines for Federal Workplace Drug Testing Programs using
Urine and Oral Fluid (HHS Mandatory Guidelines).\2\ Currently, HHS
Mandatory Guidelines authorize testing for Schedule I and II controlled
substances only.\3\ We urge the DEA to ensure that any final rule to
reschedule marijuana does not compromise marijuana testing under DOT
and HHS procedures applicable to safety-sensitive transportation
employees.
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\2\ Procedures for transportation workplace drug and alcohol
testing programs are at 49 CFR Part 40 and include procedures for drug
testing using urine and oral fluid. The HHS Mandatory Guidelines for
Federal Workplace Drug Testing Programs using Urine are at 88 FR 70768.
The HHS Mandatory Guidelines for Federal Workplace Drug Testing
Programs using Oral Fluid are at 88 FR 70814. As of June 3, 2024, there
were not yet any laboratories certified by HHS to conduct oral fluid
testing (see 89 FR 47579). The HHS has proposed Mandatory Guidelines
for Federal Workplace Drug Testing Programs using Hair (85 FR 56108); a
revised version of those guidelines is under review by the Office of
Management and Budget (according to information presented at a June 4,
2024, public meeting of the HHS Substance Abuse and Mental Health
Services Administration Drug Testing Advisory Board).
\3\ See 88 FR 70768 and 88 FR 70814.
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We also have broader concerns related to the transportation safety
effects of marijuana rescheduling that are not limited to drug testing
in commercial operations. Marijuana rescheduling has a potential to
affect everyone who interacts with transportation systems and
infrastructure, from vehicle operators and passengers to pedestrians
and bystanders. Anticipating and mitigating transportation safety risks
of rescheduling marijuana will require diligent consideration of
scientific evidence and expert insight. We urge the DEA to thoroughly
examine issues of transportation safety when evaluating the public
health risks of marijuana, and when accounting for the human and
economic costs of the proposed rescheduling action.
NTSB's Experience with Marijuana in Transportation
The NTSB is an independent federal agency charged by Congress with
investigating every civil aviation accident in the United States and
significant events in the other modes of transportation--railroad,
transit, highway, marine, pipeline, and commercial space. We determine
the probable causes of the accidents and events we investigate and
issue safety recommendations aimed at preventing future occurrences.
The NTSB is a public health authority for purposes of federal health
information privacy laws; we conduct public health activities intended
to prevent or control injury.\4\
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\4\ See 79 FR 28970 and 49 CFR 831.9(b)(2).
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The NTSB regularly reviews toxicological evidence in our
investigations, including from DOT drug testing of commercial vehicle
operators and other safety-sensitive transportation employees subject
to such testing. The NTSB sometimes reviews evidence from workplace
drug testing of safety-sensitive transportation employees of the
federal government, particularly air traffic controllers employed by
the Federal Aviation Administration (FAA). DOT and federal workplace
postaccident and postincident drug testing data provide information
about use of potentially impairing drugs by individuals whose
performance may have contributed to an accident or incident.
Additionally, DOT and federal workplace drug testing data, including
from pre-employment and random drug testing, are useful for evaluating
the safety practices of transportation employers involved in our
investigations. DOT and federal workplace drug testing procedures
include required testing for marijuana use.\5\
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\5\ See 49 CFR 40.82; 49 CFR 40.85; 49 CFR 40.91; 88 FR 70768,
section 3.4; and 88 FR 70814, section 3.4.
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Well-established scientific evidence shows that marijuana impairs
the abilities needed to safely operate a vehicle and to perform other
safety-related tasks. Marijuana can adversely affect performance by
slowing reaction time, altering perception, and impairing sustained
attention, planning, decision-making, and risk assessment.\6\ In our
investigations, the NTSB has repeatedly identified toxicological
findings indicative of marijuana use by noncommercial and commercial
vehicle operators.\7\ Identifying whether marijuana's effects
contributed to an event can be challenging, because toxicological
evidence of marijuana use does not directly predict impairment. Despite
this challenge, the NTSB has found sufficient evidence to cite
marijuana's effects in the probable causes of multiple events,
including in our recent report on a March 2022 intersection crash
between a passenger car and a combination vehicle in Tishomingo,
Oklahoma, in which six teenagers died.\8\
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\6\ Compton, R. 2017. Marijuana-Impaired Driving: A Report to
Congress. DOT HS 812 440. Washington, DC: National Highway Traffic
Safety Administration.
\7\ Some of the NTSB-investigated events that have occurred since
2022, for which dockets have been published, and for which at least one
vehicle operator toxicology test was positive for the primary
psychoactive substance in marijuana or one of its metabolites, include
the following:
Aviation Investigation Final Report, Bay Minette,
Alabama, March 11, 2022 (ERA22FA153)
Intersection Crash Between Passenger Car and Combination
Vehicle, Tishomingo, Oklahoma, March 22, 2022, HIR-24-04 (HWY22FH008)
Aviation Investigation Final Report, Sausalito,
California, May 6, 2022 (WPR22FA172)
Aviation Investigation Final Report, Valdez, Alaska, July
11, 2022 (ANC22FA053)
Collision between Amtrak Passenger Train and Union
Pacific Railroad Roadway Maintenance Machine, Oakland, California, July
15, 2022, RIR-23-11 (RRD22FR011)
Aviation Investigation Final Report, Seguin, Texas, July
22, 2022 (WPR22FA264)
Collision between US Coast Guard Cutter Winslow Griesser
and Center-console Boat Desakata, Atlantic Ocean, Near Dorado, Puerto
Rico, August 8, 2022, MIR-23-14 (DCA22PM034)
Aviation Investigation Final Report, Hanna City,
Illinois, August 13, 2022 (CEN22FA383)
Aviation Investigation Final Report, Watsonville,
California, August 18, 2022 (WPR22FA309)
Aviation Investigation Final Report, Scio, Oregon, August
21, 2022 (WPR22FA312)
Ongoing highway investigation, Goodyear, Arizona,
February 25, 2023, see the ``Medical Factual Report'' (HWY23FH008)
Ongoing highway investigation, Woodlawn, Maryland, March
22, 2023, see the ``Medical Factual Report'' (HWY23FH010)

The public dockets, and in some cases final reports, for these
events can be viewed using the CAROL Query. Together, these events
resulted in 28 fatalities, plus additional injuries. This list is not
intended to be comprehensive, nor were marijuana's effects necessarily
causal or contributory in the listed events.
\8\ (a) NTSB. 2024. Intersection Crash Between Passenger Car and
Combination Vehicle, Tishomingo, Oklahoma, March 22, 2022. HIR-24-04.
(b) Additional cases in which the NTSB has cited marijuana's effects in
the probable cause can be found by using the CAROL Query Custom Search
and searching the ``probable cause'' field for ``marijuana,''
``cannabis,'' or ``tetrahydrocannabinol.''
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In recent years, marijuana use in the United States has grown
rapidly to historic levels, including striking growth in the number of
users reporting daily or near-daily marijuana use, with 42% of past-
month marijuana users reporting to the US National Survey on Drug Use
and Health that they used marijuana for 21 days or more in the past
month.\9\ The DEA recently reported that the potency of delta-9-
tetrahydrocannabinol (delta-9-THC), the primary psychoactive substance
in marijuana, is at an all-time high in leafy marijuana.\10\
Accordingly, the transportation safety risks of marijuana use have
never been more relevant. The NTSB's 2022 safety research report,
Alcohol, Other Drug, and Multiple Drug Use Among Drivers, found that
marijuana was the second-most commonly detected potentially impairing
drug among study drivers, after alcohol.\11\ A 2022 National Highway
Traffic Safety Administration study of road users seriously or fatally
injured in crashes also found evidence of a high prevalence of
marijuana use among study drivers, with delta-9-THC or its psychoactive
metabolite detected in blood from 25% of study drivers who had crash
injuries resulting in a hospital trauma team alert, and 31.7% of
fatally injured study drivers presenting to medical examiners.\12\ Data
published by the Federal Motor Carrier Safety Administration show that
the tested-for nonpsychoactive metabolite of delta-9-THC is by far the
most commonly detected tested-for substance on DOT drug testing of
commercial motor vehicle drivers, with 37,657 tests reported as
positive for this marijuana metabolite in 2023.\13\
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\9\ Caulkins, J. P. 2024. ``Changes in Self-Reported Cannabis Use
in the United States from 1979 to 2022.'' Addiction.
\10\ DEA. 2024. National Drug Threat Assessment 2024. DEA-DCT-DIR-
010-24. DEA Strategic Intelligence Section.
\11\ See NTSB. 2022. Alcohol, Other Drug, and Multiple Drug Use
Among Drivers. SRR-22-02. The safety research included data from four
laboratories, each of which provided data from specific populations of
drivers (such as drivers arrested for impaired driving, crash-involved
drivers arrested for impaired driving, crash-involved fatally injured
drivers, and drivers suspected of impaired driving in a crash that
involved a fatal or serious physical injury). The safety research did
not distinguish between commercial and noncommercial drivers.
\12\ See Thomas, F. D., J. Darrah, L. Graham, A. Berning, R.
Blomberg, K. Finstad, C. Griggs, M. Crandall, C. Schulman, R. Kozar, J.
Lai, N. Mohr, J. Chenoweth, K. Cunningham, K. Babu, J. Dorfman, J. Van
Heukelom, J. Ehsani, J. Fell, and C. Moore. 2022. Alcohol and Drug
Prevalence among Seriously or Fatally Injured Road Users. DOT HS 813
399. Washington, DC: National Highway Traffic Safety Administration.
The study selected seven Level I trauma centers that served large
geographic areas; medical examiners joined the study at four of these
sites. The study did not evaluate impairment or risk associated with
drug presence, and it did not distinguish between commercial and
noncommercial drivers.
\13\ (a) Federal Motor Carrier Safety Administration. 2024. ``Drug
and Alcohol Clearinghouse: April 2024 Monthly Summary Report.'' For
more information see the ``Drug and Alcohol Clearinghouse'' web page.
(b) Notably, in 2023 there were 12,680 drug test refusals for unknown
reasons.
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Although some states have passed laws permitting medicinal and
recreational uses of marijuana, driving under the influence of
marijuana is illegal in all 50 states, the District of Columbia, and
the Commonwealth of Puerto Rico.\14\ In 2022, the NTSB made a
recommendation to the District of Columbia, the Commonwealth of Puerto
Rico, and the 21 states where cannabis use is legal but driving-related
cannabis warning labels are not required or are inadequate, to require
a warning label on marijuana products advising users not to drive after
marijuana use due to its impairing effects.\15\ Recently, as a result
of our Tishomingo crash investigation, the NTSB made several
recommendations and issued a safety alert aimed at increasing public
awareness of the dangers and illegality of driving under the influence
of marijuana.\16\
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\14\ See the Governors Highway Safety Association's ``Drug Impaired
Driving'' web page concerning state laws.
\15\ Overall, Safety Recommendation H-22-42 was classified Open--
Await Response on January 12, 2023. For more information, see NTSB.
2022. Alcohol, Other Drug, and Multiple Drug Use Among Drivers. SRR-22-
02.
\16\ (a) Safety Recommendations H-24-12, H-24-13, H-24-14, H-24-15,
H-24-16, H-24-17, and H-24-18 were classified Open--Await Response on
July 18, 2024. (b) NTSB. 2024. Intersection Crash Between Passenger Car
and Combination Vehicle, Tishomingo, Oklahoma, March 22, 2022. HIR-24-
04. (c) NTSB. 2024. ``Safety Alert--Parents: Protect Your Teen from
Marijuana-Impaired Driving.'' SA-093.
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Laws against operating vehicles under the influence of marijuana
are not limited to driving. Boating under the influence of marijuana is
illegal in all 50 states, the District of Columbia, and the
Commonwealth of Puerto Rico, and the US Coast Guard enforces federal
law prohibiting boating under the influence.\17\ Additionally, federal
regulation prohibits piloting a civil aircraft while using any drug
that affects faculties in a way contrary to safety.\18\ In 2020, as a
result of our safety research report, 2013-2017 Update to Drug Use
Trends in Aviation, the NTSB made a recommendation to the FAA to revise
the Aeronautical Information Manual and the Pilot's Handbook of
Aeronautical Knowledge to explicitly state marijuana's classification
as an illicit drug per federal law and, thus, its prohibited use by
pilots.\19\ For commercial vehicle operators and other safety-sensitive
employees subject to drug testing under DOT regulations for all
transportation modes, the DOT has stated that it is unacceptable to use
marijuana, regardless of the reason for its use, based on the drug's
federal Schedule I status.\20\
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\17\ (a) See the US Coast Guard's ``BUI Initiatives'' web page. (b)
See 33 CFR Part 95.
\18\ See 14 CFR 91.17(a)(3).
\19\ (a) Safety Recommendation A-20-12 was classified Open--
Acceptable Response on July 11, 2024. (b) NTSB. 2020. 2013-2017 Update
to Drug Use Trends in Aviation. SS-20/01.
\20\ (a) DOT. 2012. ``DOT `Recreational Marijuana' Notice.'' Office
of Drug and Alcohol Policy and Compliance. Issued December 3, 2012. (b)
DOT. 2009. ``DOT `Medical Marijuana' Notice.'' Office of Drug and
Alcohol Policy and Compliance. Issued October 22, 2009.
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Marijuana Scheduling Affects Transportation Employee Drug Testing
DOT procedures for transportation workplace drug testing programs
are codified in 49 CFR Part 40. These procedures are incorporated into
drug testing requirements of numerous DOT-regulated modes, including
highway, aviation, railroad, transit, and pipeline.\21\ US Coast Guard
regulations also incorporate 49 CFR Part 40 into drug testing
requirements for merchant marine personnel and following serious marine
incidents involving vessels in commercial service.\22\ Generally,
employees with a verified positive DOT drug test must be removed from
safety-sensitive duties, and may return to those duties only after
successfully completing a return-to-duty process.
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\21\ See 49 CFR Part 382, 14 CFR Part 120, 49 CFR Part 219, 49 CFR
Part 655, and 49 CFR Part 199, respectively.
\22\ See 46 CFR Part 16 and 46 CFR 4.06.
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The Omnibus Transportation Employee Testing Act of 1991 requires
the DOT to conform its drug testing procedures with HHS guidelines for
federal workplace drug testing, including using HHS-certified
laboratories.\23\ Executive Order 12564, which required federal
executive agencies to develop drug-free workplace programs, including
employee testing for illegal drug use, defines ``illegal drugs'' to
include only Schedule I and II controlled substances.\24\ The HHS
Mandatory Guidelines authorize testing for Schedule I and II controlled
substances only.\25\
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\23\ Omnibus Transportation Employee Testing Act of 1991, Public
Law 102-143, 105 Stat. 952 (1991).
\24\ See 51 FR 32889.
\25\ See 88 FR 70768 and 88 FR 70814.
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The NTSB is concerned that the proposed rule to move marijuana to
Schedule III of the CSA would, upon becoming effective, immediately
prohibit continued testing of safety-sensitive transportation employees
for marijuana use under 49 CFR Part 40 and HHS Mandatory Guidelines,
because the HHS-certified laboratories used for such testing are not
authorized to test for Schedule III controlled substances. This would
mean that airline pilots, airline maintenance workers, bus and truck
drivers, locomotive engineers, subway train operators, ship captains,
pipeline operators, personnel transporting hazardous materials, and
other safety-sensitive transportation employees would be prevented from
being tested for marijuana use under 49 CFR Part 40. Testing of FAA-
employed air traffic controllers, which is conducted under the DOT's
Drug and Alcohol-Free Departmental Workplace Program, would be
similarly negatively affected, as would testing of other civilian air
traffic controllers.\26\
---------------------------------------------------------------------------
\26\ Under 14 CFR 120.1(a), the drug testing requirements of 14 CFR
Part 120, which incorporate the procedures of 49 CFR Part 40, apply to
all air traffic control facilities not operated by the FAA or by those
under contract to the US military.
---------------------------------------------------------------------------
As stated above, marijuana use is prevalent and increasing in the
United States, and the drug is known to impair abilities critical to
performing safety-sensitive functions. The NTSB therefore cautions the
DEA that moving marijuana to Schedule III without taking steps to
ensure that marijuana testing remains within the scope of pre-
employment, random, reasonable suspicion, and postaccident/postincident
drug testing would create a safety blind spot that could endanger the
public. This blind spot for marijuana use would be particularly
relevant because of the lack of a reliable toxicological test for
marijuana-related impairment. Removal of marijuana testing from DOT and
HHS drug testing panels for safety-sensitive transportation employees
would remove a layer of safety oversight that employers have been
managing for decades, and it would prevent DOT and HHS drug testing
from acting as a deterrent to marijuana use by those employees.
Additionally, the NTSB would no longer have DOT and federal workplace
marijuana test results as evidence in our investigations.
We urge the DEA to ensure that any final rule to reschedule
marijuana does not compromise marijuana testing under DOT and HHS
procedures applicable to safety-sensitive transportation employees. If,
to achieve this, additional measures are necessary beyond changes to
the text of the rule, we urge the DEA to ensure that the rule does not
become effective until such measures have been implemented.
Because marijuana has no currently accepted medical use in
treatment in the United States (CAMU) under federal law, a physician's
recommendation for the use of medical marijuana does not constitute a
``legitimate medical explanation'' for a positive DOT or federal
workplace marijuana test result under 49 CFR Part 40 and HHS Mandatory
Guidelines.\27\ We additionally urge the DEA to scrutinize how its
determination about marijuana having a CAMU might affect a safety-
sensitive transportation employee's ability to present medical
marijuana use as a legitimate medical explanation for a positive
marijuana result on a DOT or federal workplace drug test. Of course,
this consideration is valid only if the DEA ensures that the ability to
test is preserved.
---------------------------------------------------------------------------
\27\ (a) See 49 CFR 40.137; 49 CFR 40.151; 88 FR 70768, section
13.5; and 88 FR 70814, section 13.5. (b) The NPRM defines CAMU as
``currently accepted medical use in treatment in the United States'';
see 89 FR 44599.
---------------------------------------------------------------------------
Transportation Safety is a Public Health Issue
The NTSB is pleased that the DEA is considering driving safety as
part of its evaluation of the public health risks posed by marijuana.
Effects on driving safety are crucial to consider, as are other effects
on transportation safety at federal, state, and local levels. We note
that the driving-under-the-influence prevalence data cited in the HHS
rescheduling recommendation reflect only a small portion of the large
body of existing research on the epidemiology and consequences of
marijuana use in transportation. We encourage the DEA to diligently
examine the multifaceted transportation safety implications of
marijuana rescheduling. Marijuana is a prevalent drug with performance-
impairing effects, human performance is critical to the safety of
transportation systems, and most people interact with transportation
systems multiple times per day. For these reasons, transportation
safety is a public health issue that deserves prominence in the
national conversation about marijuana scheduling. This topic must be
addressed in any responsible accounting of the public health costs,
both human and economic, of the proposed rescheduling action.
As described above, the NTSB has made efforts through our
recommendations and reports to increase public awareness of the fact
that marijuana's potential to impair is proven, regardless of the
drug's legal status. This will remain true if marijuana is rescheduled
as proposed, or if it is not. Whether used legally or illegally for
medicinal or recreational purposes, marijuana impairs abilities needed
to perform safety-related tasks, and operating a vehicle while impaired
by marijuana is dangerous and broadly illegal across the United States.
The present rulemaking provides an opportunity to spotlight this
message. We encourage the DEA to, in parallel with this rulemaking,
proactively educate the public that marijuana rescheduling does not
imply that driving or performing other safety-sensitive transportation
tasks under the influence of marijuana is safe or legal. Without such
public education, this rescheduling action has a potential to further
cloud the transportation safety risks of marijuana use.
Finally, the NTSB recognizes that the proposed changes to 21 CFR
Part 1308 are preliminary. We also appreciate that 21 CFR Part 1308
must conform with the CSA, and that ongoing legislative efforts to
clarify the CSA hemp exception implemented by the Agriculture
Improvement Act of 2018 might yet affect the proposed rule.\28\
Regardless, any final rule to reschedule marijuana would necessarily
affect the definitions in 21 CFR Part 1308. We urge the DEA to seek
specific expertise to avoid unintended consequences of changes
affecting 21 CFR Part 1308 definitions, including the definitions of
``tetrahydrocannabinols,'' ``marijuana extract,'' and (as newly
proposed) ``naturally derived delta-9-tetrahydrocannabinols.'' The DEA
has a critical responsibility to ensure that those definitions are
unambiguous in scope, so that the rescheduling action affects only the
specific substance(s) for which a CAMU has been established, and for
which the eight factors determinative of control, including public
health risk, have been fully evaluated.\29\ Imprecise definitions could
affect restrictions on psychoactive substances not assessed for this
rulemaking that pose a threat to transportation safety.
---------------------------------------------------------------------------
\28\ (a) Agriculture Improvement Act of 2018, Public Law 115-334,
132 Stat. 4490 (2018). (b) The Agriculture Improvement Act of 2018
implemented a definition of ``hemp,'' excepted hemp from the CSA's
definition of marijuana, and excepted ``tetrahydrocannabinols in hemp''
from control under Schedule I of the CSA. (c) See the Farm, Food, and
National Security Act of 2024, HR 8467, 118th Cong. (2023-2024) and the
``Amendment to HR 8467 Offered by Mrs. Miller of Illinois.'' See also
the Agriculture, Rural Development, Food and Drug Administration, and
Related Agencies Appropriations Act, 2024, HR 4368, 118th Cong. (2023-
2024).
\29\ As noted in the NPRM, when determining whether a drug should
be controlled (and if so, under which schedule), the US Attorney
General must consider eight factors determinative of control set forth
in 21 United States Code 811(c). The sixth of these factors is risk to
the public health.
---------------------------------------------------------------------------
Summary
In summary, as a public health authority and an independent federal
agency that conducts safety investigations in all major modes of
transportation, the NTSB has distinct experience with marijuana-related
transportation safety issues. Based on this experience, the NTSB urges
the DEA to do the following:
Ensure that any final rule to reschedule marijuana does
not compromise marijuana testing under DOT and HHS procedures
applicable to safety-sensitive transportation employees. Such employees
include airline pilots, airline maintenance workers, bus and truck
drivers, locomotive engineers, subway train operators, ship captains,
pipeline operators, personnel transporting hazardous materials, air
traffic controllers, and others.

Scrutinize how a DEA determination about marijuana having
a CAMU might affect a safety-sensitive transportation employee's
ability to present medical marijuana use as a legitimate medical
explanation for a positive marijuana result on a DOT or federal
workplace drug test.

Diligently examine the multifaceted transportation safety
implications of marijuana rescheduling, which has a potential to affect
everyone who interacts with transportation systems and infrastructure,
from vehicle operators and passengers to pedestrians and bystanders.

In parallel with this rulemaking, proactively educate the
public that marijuana rescheduling does not imply that driving or
performing other safety-sensitive transportation tasks under the
influence of marijuana is safe or legal. Marijuana impairs the
abilities needed to safely operate a vehicle and perform other safety-
related tasks, and operating a vehicle under the influence of marijuana
is dangerous regardless of marijuana's scheduling under the CSA.

Seek specific expertise to avoid unintended consequences
of changes affecting 21 CFR Part 1308 definitions, including the
definitions of tetrahydrocannabinols, marijuana extract, and (as newly
proposed) naturally derived delta-9-tetrahydrocannabinols.

Thank you for the opportunity to provide comments. As stated in my
June 20, 2024, letter to DEA Administrator Milgram, an in-person
hearing would facilitate the DEA's examination of the transportation
safety effects of the proposed rule.\30\ The NTSB will participate in
the hearing process if given the opportunity.
---------------------------------------------------------------------------
\30\ NTSB. June 20, 2024, letter from Jennifer Homendy, Chair,
NTSB, to Anne Milgram, Administrator, DEA.
---------------------------------------------------------------------------
Sincerely,
Jennifer Homendy,
Chair, National Transportation Safety Board.

Mr. Nehls. Thank you, Chairwoman Homendy.
Administrator Bose, you are recognized for 5 minutes.

TESTIMONY OF HON. AMIT BOSE, ADMINISTRATOR, FEDERAL RAILROAD
ADMINISTRATION

Mr. Bose. Chairman Nehls, Ranking Member Larsen, Ranking
Member Wilson, and members of the subcommittee, thank you for
the opportunity to testify today on improving railroad safety.
I want to pause to remember Representative Payne, who was a
champion for making freight and passenger rail safe, reliable,
and accessible. I join in remembering him fondly.
Today, I am pleased to join you to discuss rail safety. FRA
works every day to advance safety, our core mission, through
our safety professionals, partnerships with stakeholders, and
investments in rail projects around the country.
The Department of Transportation safety personnel were on
the ground within hours of the Norfolk Southern derailment in
East Palestine, and have been investigating the accident. Last
week, FRA reported on our investigation, which found a roller
bearing overheated and failed, causing the derailment. FRA also
determined that NS's procedures and inadequate staffing for
communicating information from the hot bearing detectors to the
traincrew may have contributed to the accident. And FRA, in
consultation with the Pipeline and Hazardous Materials Safety
Administration, concluded that the use of a general purpose
DOT-111 specification tank car to transport butyl acrylate
contributed to the severity of the accident.
In response to the derailment, Secretary Buttigieg laid out
a three-part push, pressing the major railroads and inviting
Congress to join us in the efforts to increase freight rail
safety and hold railroads accountable. For over a year, the
Department of Transportation has continued those calls, while
concurrently taking important actions to make freight rail
safer.
For instance, FRA conducted 7,500 focused inspections on
high-hazard flammable train routes, and began collecting train
length data. FRA deployed billions of dollars for rail
improvement and safety projects, including 63 projects that
address more than 400 grade crossings through the Bipartisan
Infrastructure Law's Railroad Crossing Elimination Grant
program. FRA also began collecting information from crews and
dispatchers at two Class I freight railroads through pilots of
the C3RS program. And work continues with FRA's wayside
detector Railroad Safety Advisory Committee working group.
I am encouraged to see the renewed bipartisan interest in
this Chamber for legislation that would add to these safety
actions. While FRA will continue using our existing
authorities, we need Congress to do its part because data shows
that the Class I freight railroad safety performance has
stagnated over the last decade, and by some measures,
deteriorated.
For yard derailments, the data show that the rate in 2023
was 51 percent higher compared to 10 years ago. While the
deterioration of derailment rates has not been uniform, recent
data does show one Class I freight railroad experiencing an
improvement in reductions of derailments during 2023.
The overall rate of accidents not at grade crossings has
been rising slowly throughout the decade, peaking in 2022.
While not all derailments are equal, yard derailments should be
taken seriously. Since July 2023, FRA has issued four safety
bulletins related to rail yard fatalities. Just earlier this
month, a conductor lost his life in a rail yard accident. This
is neither acceptable nor inevitable, and that is why FRA has
been pushing the industry to do better.
For instance, FRA has issued 19 safety advisories and
safety bulletins calling for attention and action on issues
like shove movements, switching cars, wayside detectors, long
trains, and roadway maintenance machines. FRA also finalized
new safety rules on traincrew size, ensuring that crews have
emergency escape breathing apparatus, certifying dispatcher and
signal employees, and requiring railroads to develop fatigue
risk management plans.
FRA has made progress on rail safety, but history has shown
that the major freight railroads and many in Congress are eager
not to settle for the status quo. Like the American public, FRA
and DOT think that is unacceptable. I urge all of you and your
colleagues in both Chambers to act quickly on commonsense rail
safety measures. Thank you.
[Mr. Bose's prepared statement follows:]

Prepared Statement of Hon. Amit Bose, Administrator, Federal Railroad
Administration
Chairman Graves, Ranking Member Larsen, Chairman Nehls, Ranking
Member Wilson, and members of the subcommittee--thank you for the
opportunity to testify today on improving railroad safety.
At the outset, I want to take a moment to remember Representative
Donald M. Payne, Jr. He was an avid champion for making our freight and
passenger rail systems safe, reliable, and accessible to everyone. I
join his family, friends, colleagues, and staff in remembering him
fondly.
Today, I am pleased to join you to discuss rail safety. At the
Federal Railroad Administration, we work every day to advance safety--
the agency's core mission--through the work of FRA's safety
professionals, partnerships with stakeholders, and investments in rail
projects around the country.
Last week, FRA published findings following our investigation of
the Norfolk Southern (NS) derailment in East Palestine. U.S. DOT safety
personnel were on the ground within hours of the derailment, and have
been investigating the incident and compliance with rail safety
regulations. As indicated in our publicly available report, consistent
with the findings of the National Transportation Safety Board, FRA
found that a roller bearing overheated and failed, causing the
derailment. FRA also determined that NS's procedures and inadequate
staffing for communicating information from the hot bearing detectors
to the train crew may have contributed to the accident. And FRA, in
consultation with the Pipeline and Hazardous Materials Safety
Administration, concluded that the use of a general-purpose DOT 111
specification tank car to transport butyl acrylate contributed to the
severity of the accident.
In response to the derailment, Secretary Buttigieg laid out a
three-part push, pressing the major railroads and inviting Congress to
join us in efforts to increase freight rail safety and hold railroads
accountable. For over a year, DOT has continued those calls and urged
Congress to pass comprehensive railroad safety legislation, while
concurrently taking important and urgent actions within our authorities
to make freight rail safer and protect the American public.
For instance, earlier this year FRA issued final rules to require
emergency escape breathing apparatuses for trains carrying hazardous
materials, and to establish minimum safety requirements for train crew
size. FRA also conducted 7,500 focused inspections along high-hazard
flammable train routes, and began collecting train length data from
Class I freight railroads to better understand the complexities
associated with railroads operating increasingly longer trains. FRA has
deployed billions in federal grants for rail improvement and safety
projects around the country, including funding 63 projects addressing
more than 400 grade crossings nationwide through BIL's new Railroad
Crossing Elimination (RCE) Grant Program, and began collecting
information from rail employees about close calls they experience on
the job through pilots of the confidential close call reporting system
(C3RS) at two Class I freight railroads. And work remains underway with
FRA's Railroad Safety Advisory Committee's Work Group focused on
wayside detector policies, procedures, and practices.
It is therefore encouraging to see renewed, bipartisan interest in
this chamber for legislation that would add to the safety actions FRA
has already undertaken. I am pleased to see elected leaders on both
sides of the aisle pushing the railroads to improve rail safety. While
FRA will continue using its existing authorities, we need Congress to
do its part.
Because the truth is that the Class I freight railroads' safety
performance has stagnated over the last decade--and by some measures,
deteriorated. Despite assertions to the contrary, derailment rates for
our nation's largest rail companies have not significantly improved. In
fact, in the case of yard derailments, data show that the rate in 2023
was 51 percent higher compared to ten years ago. While the
deterioration in derailment rates has not been uniform--recent data
shows one Class I freight railroad experienced a 34 percent reduction
in the rate of derailments during 2023--the overall rate of accidents
not at grade crossings has been rising slowly throughout the decade,
peaking in 2022.
I want to unequivocally cut through two of industry's consistent
claims. First, while the industry often notes that derailments are less
common than they were a quarter of a century ago, when we consider the
significant changes in rail technology and operations, it is the last
decade that provides the more meaningful and timely measure. It is also
appropriate to use rates per million miles versus total incidents, as
it normalizes for changes in the volume of traffic on the Nation's
railways. And over the last decade, we have not seen any meaningful
improvement in derailment rates.
Secondly, while not all derailments are equal in seriousness--and
certainly few rise to the level of the East Palestine, Ohio derailment
in terms of severity and impact--yard derailments should not be taken
lightly or likened to ``fender benders.'' In 2023, three Class I
freight employees on duty lost their lives in rail yard accidents,
while a separate incident resulted in an explosion at Bailey Yard in
North Platte that forced local residents to evacuate their homes. And,
earlier this month, on July 6, a conductor lost his life in a rail yard
accident. Since July of last year, FRA has issued four Safety
Bulletins, each describing circumstances resulting in railroad worker
fatalities in rail yards.
FRA believes this is neither acceptable nor inevitable. The public
and communities across the country do not think so. That is why FRA has
been using our available tools to push the rail industry to do better.
As I noted earlier, this Administration has finalized several rules
to improve freight and passenger rail safety, including final rules to
require emergency escape breathing apparatuses for trains carrying
hazardous materials,\1\ and to establish minimum safety requirements
for train crew size.\2\ FRA also issued two final rules ensuring that
dispatchers and signal employees receive the preparation and training
they need to meet the demands of their safety-sensitive jobs; FRA now
requires railroads to implement FRA-approved certification programs so
that these workers are trained for success.\3\ We also finalized a rule
requiring railroads to develop Fatigue Risk Management Programs in
consultation with their workforce, as fatigue remains a problem in this
24/7 industry.\4\
---------------------------------------------------------------------------
\1\ Emergency Escape Breathing Apparatus Standards, 89 FR 5113
(January 26, 2024).
\2\ Train Crew Size Safety Requirements, 89 FR 25052 (April 9,
2024).
\3\ Certification of Signal Employees, 89 FR 44830 (May 21, 2024);
Certification of Dispatchers, 89 FR 44766 (May 21, 2024).
\4\ Fatigue Risk Management Programs for Certain Passenger and
Freight Railroads, 87 FR 35660 (June 13, 2022).
---------------------------------------------------------------------------
Those are five rules this Administration has delivered to improve
safety. And yet in every instance except one, the railroad industry has
either sued to block them or filed petitions for reconsideration. Those
lawsuits and petitions not only inject uncertainty into enacting these
commonsense safety measures that help safeguard your constituents; they
also force us to redirect federal resources that could be working to
advance new safety measures--including those that this Subcommittee and
Congress have directed FRA to issue.
FRA also acts on emergent issues by issuing Safety Advisories and
Bulletins to raise awareness to accidents, conditions, or other events
that FRA safety professionals believe require prompt attention of the
industry. Since the East Palestine derailment, FRA has issued 9
advisories and 10 bulletins to urge industry action on hot bearing
wayside detectors; highlighting the complexities of operating long
trains and the need to properly sequence a train's cars and locomotives
to help train crews safely operate trains that can be miles-long;
addressing the dangers of shove movements, switching cars, close
clearances, and roadway maintenance machines; and recommending
railroads properly prepare for severe weather, among others.
FRA is also conducting comprehensive safety assessments of all
Class I freight railroads, using interviews, observations, and focused
inspections to measure their safety cultures. FRA issued its assessment
of NS's safety culture last year, and will soon issue an assessment on
our review of BNSF.
The railroad industry is not static, and neither is safety. A
continued reassessment of practices new safety proposals, and other
actions are necessary to improve safety. While FRA has made progress
improving rail safety, all too often it has been despite an industry
seeking to preserve the status quo and record profits. History has
shown us that, unfortunately, major freight railroads, and many in
Congress, are not just willing but eager to settle for the current
state of railroad safety in this country. Like the American public, FRA
and the Department of Transportation think that is unacceptable.
In this safety journey, industry behavior is as important as
government action. I urge you and your colleagues in both chambers to
act quickly on commonsense measures to enhance rail safety across the
board. I thank you for allowing me the opportunity to testify before
the subcommittee today, and I am prepared to answer any questions you
may have.

Mr. Nehls. Thank you, Administrator Bose.
Deputy Administrator Brown, you are recognized for 5
minutes.

TESTIMONY OF TRISTAN H. BROWN, DEPUTY ADMINISTRATOR, PIPELINE
AND HAZARDOUS MATERIALS SAFETY ADMINISTRATION

Mr. Brown. Thank you, Mr. Chairman. Good afternoon, Ranking
Member Wilson, Ranking Member Larsen, members of the
subcommittee. I appreciate the opportunity to be here to
testify on behalf of the Pipeline and Hazardous Materials
Safety Administration as it relates to our hazardous materials
safety and rail safety programs.
As I testified earlier this year before this subcommittee,
safety is and remains a top priority of the Secretary, the
Department, and our agency. Specifically, PHMSA is responsible
for overseeing the safe transportation of hazardous materials
by all modes of transportation. That is trucks, trains, planes,
automobiles, vessels, drones, which amounts to nearly 1 in 10
goods that are transported commercially in the United States,
everything from nuclear waste to bulk petroleum fuels to
lithium ion batteries to spacecraft being transported to
spaceports around the world.
With respect to rail transport, to help ensure the safest,
most competitive, and environmentally responsible hazardous
materials transportation system in the world, PHMSA largely
focuses on establishing and updating standards for tank cars
and operational requirements for hazardous materials carriage,
collaborating with the Federal Railroad Administration in
enforcing those standards, investing in research and
development, participating in investigations, and establishing
requirements for providing information to first responders, as
well as providing funding for training those first responders.
Because the railroad sector and the global economy are
increasingly dynamic and rapidly changing, our challenges as an
agency are as difficult as ever. Since joining the agency, I
have made it a goal to visit with victims of pipeline and
hazardous materials-related incidents from Bellingham,
Washington, with the ranking member to Satartia, Mississippi,
to Marshall, Michigan, and East Palestine, Ohio. I have heard
directly from individuals, from families, from first responders
impacted by hazardous materials incidents.
And in the case of the 2023 Norfolk Southern derailment,
PHMSA personnel were immediately on the ground responding to
that incident and supporting the National Transportation Safety
Board's investigation. Once much of the initial response was
completed, the FRA Administrator and I were on scene to support
the tank car inspections and to meet with and solicit feedback
from the workers and first responders.
And also, for the first time in the Department's history, a
Secretary of Transportation visited the site of a hazmat train
derailment to participate in the hazmat car inspections and
meet with investigators and first responders. The brave first
responders for this incident were critical in helping us
develop major changes to our hazardous materials response
regulations for railroads, which we recently announced as part
of our new real-time train consist rulemaking.
We have known for decades that the much stronger designed
DOT-117 and 105 tank cars reduce safety risk during incidents,
and we have consistently advocated for their expanded use in
rail transport. The NTSB noted in its most recent report that
in the vast majority of accidents involving DOT-111 tank cars
they examined, the hazardous materials releases likely would
have been prevented or reduced by the use of a more robust tank
car specification such as the 117s, which have the thicker tank
shell, thermal protection, and consistent use of full height
head shields.
In the wake of the 2013 crude oil derailment in Lac-
Megantic, Quebec, that killed nearly 50 people and destroyed
dozens of buildings, PHMSA and the FRA moved with haste to
develop an aggressive and comprehensive high-hazard flammable
train rule to, among other things, phase out the DOT-111 tank
cars in favor of newer and stronger and much better performing
cars. Unfortunately, a 2016 congressional mandate just months
after we finished our work delayed that phaseout of the weaker
DOT-111 tank cars, and that remains in place unless Congress
acts to change it.
Mr. Chairman, I know the Secretary was pleased to hear your
support for a quicker phaseout, and I echo those sentiments.
In closing, PHMSA is eager to work with this subcommittee
to advance bipartisan legislation that improves the safety of
hazardous materials transportation by rail. The success of our
hazardous materials safety initiatives depend heavily on the
dedicated efforts of PHMSA's hazardous materials safety team,
who work tirelessly to establish and uphold the highest safety
standards in the world. Their commitment is the driving force
in executing our agency's crucial role in overseeing the safe
transportation of hazardous materials.
However, as members of this subcommittee have pointed out,
too often action is delayed until after a major incident
occurs. PHMSA stands ready to work with you to proactively
advance precautionary safety measures, and thank you for your
efforts to advance the bipartisan railroad safety legislation
before you. We look forward to working with you to improve
hazardous materials safety to protect our communities. I look
forward to your questions.
[Mr. Brown's prepared statement follows:]

Prepared Statement of Tristan H. Brown, Deputy Administrator, Pipeline
and Hazardous Materials Safety Administration
Introduction
Good afternoon, Chairman Nehls, Ranking Member Wilson, and members
of the Subcommittee. Thank you for inviting me to testify today on the
U.S. Department of Transportation's (DOT) Pipeline and Hazardous
Materials Safety Administration's (PHMSA) hazardous materials safety
program as it relates to railroad transportation safety.
As I testified earlier this year before this Subcommittee--safety
is, and remains, the top priority for Secretary Buttigieg, DOT, and
PHMSA. Specifically, PHMSA is responsible for overseeing the safe
transport of hazardous materials--by all modes. This includes nearly
one in 10 goods that are transported commercially in the U.S.,
everything from nuclear waste to bulk petroleum fuels, to lithium-ion
batteries, to spacecraft being transported to spaceports around the
world. With respect to railroad transport, to help ensure the safest,
most competitive, and environmentally responsible hazmat transportation
system in the world, PHMSA largely focuses on establishing and updating
standards for tank cars and operational requirements for hazardous
materials carriage; collaborating with the Federal Railroad
Administration (FRA) in enforcing standards; investing in research and
development; and establishing requirements for providing information to
first responders. Because the railroad sector and the global economy
are increasingly dynamic and rapidly changing, our challenges as an
Agency are as difficult as ever.
America's red-hot economy and record amount of domestic energy
production have in turn resulted in a record amount of energy being
transported around our country. Most of this energy is transported via
pipelines, which are regulated by PHMSA. For example, 90 percent of
crude oil is transported via pipeline with roughly 10 percent
transported by rail. As of this year, chemical and petroleum products
are up 4.3 percent and 11 percent, respectively. Generally, an increase
in throughput of energy products in our transportation system increases
safety and environmental risks. This Committee has acknowledged the
heightened burden on our Agency from our expanding responsibilities in
oversight, and has advanced bipartisan legislation (H.R. 6494, the
PIPES Act of 2023) that includes additional support and directives to
our Agency. As we face more challenges and broader demands on our
Agency, clear direction and resources from Congress are important. To
that end, we appreciate your efforts to advance bipartisan legislation
to strengthen safety and hazardous materials related provisions with
respect to the railroad sector.
Since joining Team PHMSA in 2021, I have made it a goal to visit
with victims of pipeline and hazardous materials related incidents.
From Bellingham, Washington, to Satartia, Mississippi, to Marshall,
Michigan, and East Palestine, Ohio--I have heard directly from
individuals and families impacted by hazardous materials incidents. In
the case of the 2023 Norfolk Southern derailment in East Palestine,
Ohio--as in so many incidents throughout the year, across the country--
PHMSA personnel were immediately on the ground responding to the
incident and supporting the National Transportation Safety Board's
(NTSB) investigation. Once much of the initial response was completed,
FRA Administrator Bose and I were on scene to support the tank car
inspections and meet with and solicit feedback from railroad workers
and first responders. Also, for the first time in the Department's
history, a Secretary of Transportation visited the site of a hazmat
train derailment to participate in the hazmat car inspections and meet
with investigators and first responders. The brave first responders for
this incident were critical in helping us develop major changes to our
hazardous materials response regulations for railroads, which we
recently announced as part of our new Real-Time Train Consist
Rulemaking.
Additionally, we have known for more than a decade that the much
stronger design of DOT-117 and DOT-105 tank cars reduces safety risks
during incidents, such as the 2023 Norfolk Southern derailment in East
Palestine, and we have consistently advocated for their expanded use in
transport. As the NTSB noted in its most recent report on the East
Palestine event: ``From 2013 through 2023, the NTSB investigated 17
accidents in which damaged DOT-111 and CPC-1232 tank cars released
hazardous materials. In 15 of these accidents (88%), the hazardous
materials release likely would have been prevented or reduced by the
use of a more robust tank car specification, such as the DOT-117, with
a thicker tank shell, thermal protection, and consistent use of full-
height head shields.'' These 17 derailments occurred in communities
across the U.S. and Canada, including Casselton, North Dakota; Plaster
Rock, New Brunswick; Lynchburg, Virginia; Mount Carbon, West Virginia;
Heimdal, North Dakota; Lesterville, South Dakota; Fredericksburg,
Virginia; Graettinger, Iowa; Money, Mississippi; Hyndman, Pennsylvania;
Fort Worth, Texas; Sarnia, Ontario; Draffin, Kentucky; Tempe, Arizona;
East Palestine, Ohio; Reed Point, Montana; and Lac-Megantic, Quebec.
In the wake of the tragic 2013 crude oil train derailment in Lac-
Megantic that killed nearly 50 people and destroyed dozens of
buildings, PHMSA and FRA moved with haste to develop an aggressive and
comprehensive rail and hazardous materials safety rule--the High Hazard
Flammable Train (HHFT) Rule--to, among other things, phase out legacy
DOT-111 tank cars in favor of newer, stronger, and much better
performing tank cars. Unfortunately, our agencies' efforts to phase out
these tank cars was met with resistance from industry lobbyists, which
ultimately resulted in a 2016 congressional mandate that delayed the
phase out of the DOT-111 tank cars. This delayed schedule will remain
in place unless Congress acts to change it. In February of 2023,
Secretary Buttigieg called on Congress to amend the 2016 Fixing
America's Surface Transportation (FAST) Act schedule and return to one
aligned with what PHMSA and FRA initially established in the 2015 HHFT
Rule--and similar to what Canada has mandated and been working toward
for many years.
The latest report from the Bureau of Transportation Statistics
(BTS), as required by Section 7308 of the FAST Act (P. L. 114-94;
December 4, 2015), published on September 15, 2023, indicates that
approximately 60 percent of tank cars used to transport flammable
liquids meet the new safety standards. A review of the North American
Tank Car Fleet Status Report from the Association of American Railroads
issued on May 23, 2024, indicates that the industry is on target to
meet existing replacement requirements for the remainder of the fleet,
but not until 2029.
Our review indicates the most significant impediment for a more
rapid replacement/retrofit of the legacy DOT-111 tank cars is the
tradeoff of safety for our communities vs. economic considerations.
Despite our safety advisory in March 2024, and the NTSB's calls for
more than a decade to swiftly replace or retrofit the DOT-111 tank
cars, the phase out timeline still largely matches what Congress
established in the 2016 FAST Act. I will reiterate what Secretary
Buttigieg, Administrator Bose and I have stated previously, PHMSA needs
congressional action to facilitate the quicker phase-out of DOT-111
tank cars from flammable liquid service. The FAST Act sets a final date
of May 31, 2029, and we know that the tank car industrial base can
support a quicker phaseout if Congress reinstates PHMSA's original
mandate--which as I noted would be in line with Canada's phaseout
schedule. Chairman Nehls, I know the Secretary was pleased to hear your
support for a quicker phase-out, and I echo those sentiments.
Actions Taken Since East Palestine Accident
PHMSA worked closely with FRA and the NTSB in the wake of the
Norfolk Southern East Palestine derailment to highlight additional
avenues to improve safety and decrease risk when transporting hazardous
materials by rail. These efforts included encouraging the use of steel
manway covers; emphasizing the importance of railroad emergency
planning and preparedness; urging tank car owners and shippers to
voluntarily utilize the best available model of tank car--the DOT-117--
as soon as possible for flammable liquid transportation; and
encouraging 9-1-1 call centers to use real-time train consist
information.
Additionally, on August 14, 2023, Administrator Bose and I sent a
joint letter to Fusion Center Directors, State Emergency Response
Commissions, and Tribal Emergency Response Commissions throughout the
United States encouraging these entities to share information with
local governments and emergency responders so that they have the
necessary information to develop emergency preparedness plans.
PHMSA collaborated with FRA and the National Highway Traffic Safety
Administration to encourage 9-1-1 call centers to use all available
technologies to improve the dissemination of emergency response
information during rail incidents involving hazardous materials. As a
result, many public safety access points joined the rail industry's
AskRail program, which provides real-time train consist information on
demand. However, currently responders are not necessarily even aware
that an accident that they are responding to involves a release of
hazmat information and so they often will not even attempt to access
the Ask Rail app until after they arrive on scene. As a result, we
worked with stakeholders from a wide array of entities to implement a
better solution--in line with Congress' intent to get information to
those who need it, promptly.
Real-time Train Consist Rulemaking
On June 24, 2024, PHMSA published a final rule \1\ adopting real-
time electronic train consist information requirements for all
railroads that transport hazardous materials in the United States.
Train consists are documents that describe the position and contents of
railcars within a train. PHMSA's final rule requires railroads to
update this information when changes are made by train crews; maintain
it off the train in an electronic format; and immediately provide it to
emergency responders when an incident requires a response from public
emergency personnel. Railroads are also required to immediately notify
the primary public safety access point--such as a 9-1-1 call center--
responsible for the area where an accident or incident involving hazmat
transportation has occurred, and transmit train consist information to
them in electronic form.
---------------------------------------------------------------------------
\1\ Federal Register: Hazardous Materials: FAST Act Requirements
for Real-Time Train Consist Information https://
www.federalregister.gov/documents/2024/06/24/2024-13474/hazardous-
materials-fast-act-requirements-for-real-time-train-consist-information
---------------------------------------------------------------------------
These changes allow train crews to protect themselves while
providing immediate information to dispatchers for further
dissemination to a wider audience, including firefighters, law
enforcement, emergency planning, public works personnel, and community
officials. Secretary Buttigieg, FRA Administrator Bose, and I all heard
first-hand from firefighters who responded from neighboring communities
that they were not aware of what type of fire and hazardous materials
they might encounter when responding to the derailment in East
Palestine. Ultimately, this rule improves the ability of emergency
responders to keep themselves, their communities, and all of us safe
during rail emergencies involving hazardous materials.
The FAST Act had required PHMSA to impose requirements on Class I
railroads to do what they are already voluntarily doing: provide hazmat
information to pre-approved first responders via the AskRail phone app.
However, PHMSA used this rulemaking opportunity to go beyond the
original mandate and provide firefighters with what they said they
needed. PHMSA used our existing statutory safety authorities to ensure
firefighters, police, and other first responders not only have access
to hazmat information when responding to an emergency, and to require
all railroads to proactively communicate relevant information to the
first responders when there's a hazmat emergency requiring a response.
We also considered the feedback we received from railroads--
particularly the hundreds of short line railroads, many of which
already have existing personal relationships with their first responder
communities. When the rule became final, the International Association
of Fire Fighters noted that the rule will ``save lives'' and General
President Edward Kelly underscored that ``Fire fighters are all-hazard
responders, often first to arrive at incidents like train derailments .
. . Getting fire fighters and rescue workers the information they need
in an emergency helps us mitigate further risk, protect the community,
and stay safe on the job.'' \2\ In its final hearing on the East
Palestine accident investigation, the NTSB confirmed that this
rulemaking is fully responsive to NTSB Safety Recommendation R-07-04.
---------------------------------------------------------------------------
\2\ https://www.iaff.org/news/new-dot-rule-gives-fire-fighters-
better-protections-from-hazardous-materials/
---------------------------------------------------------------------------
High-Hazard Train Rulemaking
While PHMSA and FRA's 2015 HHFT Rule made significant safety
advancements, the Norfolk Southern derailment in East Palestine was a
stark reminder that there is still much more work to do. The HHFT rule
addressed the growing energy transportation risk that we were
experiencing at the time. The Norfolk Southern derailment underscored
the potential safety, economic, and environmental benefits of expanding
the HHFT beyond unit trains of flammable liquids. As such, FRA and
PHMSA have sought input on proposing regulatory changes to expand the
requirements beyond the existing universe of high-hazard flammable
trains to include other hazardous tank cars, such as those that were at
issue in the Norfolk Southern derailment.
Grants
In the wake of the East Palestine accident, responders highlighted
one of PHMSA's most important programs that provides training and
planning resources to communities. In his March 22, 2023, testimony to
the Senate Committee on Commerce, Science, and Transportation, Fire
Chief David Comstock of the Western Reserve Fire District of Poland,
Ohio, lauded the use of PHMSA grants to the response community that
ensured front line responders could acquire hazardous materials
training at no cost--and he noted the value of increased support for
PHMSA's hazmat grant program.\3\ Created in 1993, the Hazardous
Materials Grant Program provides funds to states, territories, Tribes,
not-for-profit organizations, and national non-profit fire service
organizations to improve preparedness and training for responders
called to protect their communities from hazardous materials incidents
if or when they occur.
---------------------------------------------------------------------------
\3\ https://www.nvfc.org/nvfc-testifies-before-congress-regarding-
hazmat-response-needs-of-the-fire-service/
---------------------------------------------------------------------------
This grant program has been funded at approximately $28.3M
annually, through our Agency's hazardous materials registration fees.
Shippers and carriers who transport or offer for transportation certain
hazmat in intrastate, interstate, or foreign commerce must register and
pay these fees, annually. Between fiscal years 2019-2022, the Hazardous
Materials Emergency Preparedness grants funded training for more than
230,000 emergency responders nationwide and funded more than 600
emergency preparedness activities in hazmat emergency response plans,
exercises, commodity flow studies, hazard assessments, and various
other planning activities. Over the same period, PHMSA's hazmat non-
profit grants--Supplemental Public Sector Training, Hazardous Materials
Instructor Training, Community Safety Grant, and the Assistance for
Local Emergency Response Training--trained more than 47,000 emergency
responders and hazmat employees nationwide.
We appreciate Congress' attention to the grants program as
evidenced by the Bipartisan Infrastructure Law that increased the
authorization for these critical funds from $28.3 million to $46.8
million. We have heard from our response stakeholders that this funding
is vital to expand training and preparedness across the nation. We are
currently taking actions to increase hazmat transportation registration
fees--commensurate with Congress' mandate to increase funding for
programs that support first responders--that will enable providing
these greater grant dollars. We look forward to continued work with
Congress to revise the current cap on fees so that we can collect the
full amount authorized. The Senate Railway Safety Act of 2023 (H.R.
1674/S. 576) recognized that the current statutory limit of $3,000 for
hazmat registration fees for the largest companies--such as Norfolk
Southern--is too low to allow for increased support for the hazmat
grant programs. In turn, that bill would direct Class I railroads to
pay fees that are more commensurate to the potential risk imposed from
the transport of large quantities of hazardous materials. The Senate
Commerce Committee-passed version of that bill and the Railroad Safety
Enhancement Act of 2024 (H.R. 8996) would increase the cap on
registration fees from $3,000 to $5,000. However, there is no
differentiation in that legislation between large businesses and
extremely large businesses, which can pose a greater risk to the public
when moving large quantities of hazmat through our communities.
Therefore, to meet Congress' directive to increase funding for our
hazardous materials training programs, without congressional action,
large businesses are capped at a registration fee of $3,000 per year--
only a few hundred dollars more than their current fee. Smaller
businesses in turn would be forced to shoulder additional fees to meet
the congressional directive--something neither PHMSA nor Congress
wants--unless Congress raises the registration fee cap and/or creates a
new class of extremely large businesses with a fee commensurate with
market principles that account for the greater risk posed by larger
quantities of hazmat transportation, as endorsed by the Secretary in
response to the initial rail safety bill.
Emergency Response Guide (ERG) 2024 Rollout
To support first responder training, PHMSA also uses some of the
registration fees to develop and distribute the Emergency Response
Guidebook (ERG). This book is the primary guide used by first
responders to quickly identify hazardous materials involved in an
incident, and to help first responders identify measures to protect
themselves and the public during the first critical minutes of an
incident. The ERG is updated and distributed every four years and is
available for free via Apple iOS and Android mobile application.
The Department's goal is to ensure a copy of this manual is in
every emergency response vehicle nationwide. Since its inception, and
with this Committee's support, PHMSA has distributed nearly 18.2
million free copies of the ERG to the emergency response community. In
April 2024, PHMSA released 1.9 million copies of the updated 2024 ERG
\4\. As part of this effort, PHMSA increased our distribution directly
to federally recognized Tribes with more than 1,500 ERGs having been
shipped to 80 Tribes and Tribal organizations.
---------------------------------------------------------------------------
\4\ https://www.phmsa.dot.gov/training/hazmat/erg/emergency-
response-guidebook-erg
---------------------------------------------------------------------------
Work with First Responders
Ensuring our nation's heroic responders are prepared when they
encounter hazardous materials is a top priority at PHMSA and DOT. The
best way to accomplish that goal effectively is to listen carefully to
their voices. We use several venues to hear their concerns, calibrate
our program, and meet their needs.
The first venue we use is the hazmat roundtable. The Hazardous
Materials Emergency Response Roundtable provides a forum to discuss
challenges in hazmat preparedness, prevention, and response.
Reestablished in 2019, the Roundtable discussions aim to identify
critical issues and suggested plans of action to strengthen hazmat
response throughout the country, thereby protecting lives, property,
and the environment. Roundtable members include representatives from
federal, state, and local governments; fire and emergency service
agencies; and subject matter experts from the hazmat response
community. The Roundtable final reports [https://www.phmsa.dot.gov/
about-phmsa/working-phmsa/grants/hazmat/hazardous-materials-emergency-
response-roundtable] are available on the PHMSA website and are widely
promoted among the response community at national conferences and
response forums.
Secondly, after the East Palestine accident, we held a Rail
Preparedness and Response Thought Leader Summit in Addison, Texas. This
summit brought together more than 80 attendees who represented
carriers, responders, academia, trainers, government, communities,
emergency managers, and commercial response organizations--as well as
PHMSA's most recent Administrator Skip Elliott--to discuss the current
state of rail accident preparedness and response. The event served as a
neutral forum for discussing various forms of training, planning,
outreach, and best practices available to the emergency preparedness
community concerning the transportation of hazardous materials by rail.
The summit has already spurred actions by attendees that improve rail
and hazmat safety.
Research
PHMSA is making advancements in rail and hazmat safety by
conducting research that finds solutions to critical hazmat problems.
For instance, we are conducting research to address the problem with
placards consumed in fires at rail accidents.
Placards--diamond shaped signs containing identification numbers,
symbols, and colors--are mounted on the outside of transport packages,
such as railroad tank cars, to provide quick and easy identification of
the products inside. These safety markings are an integral part of an
internationally harmonized system of communicating the hazards and
presence of hazardous materials in transportation. Damaged or lost
placards increase the risk of emergency responders not knowing the type
and hazards of material(s) they are dealing with. For example, the NTSB
noted in its report on the East Palestine accident (Railroad
Investigation Report RIR-24-05) that the placards on the tank cars in
the Norfolk Southern derailment melted in the heat from the ensuing
fire, preventing first responders from quickly identifying what
chemicals they were encountering. Therefore, as the NTSB recently
recommended, with which PHMSA agrees, there is a need to develop a
solution that enhances the durability and security of placards on bulk
packaging such as rail tank cars.
In February 2024, PHMSA issued a research solicitation for the
survivability of hazardous materials placards. This project calls for
the development of a readily available tool, technology, or material to
improve the survivability of placards on rail tank cars or motor
vehicles involved in a hazardous material incident. PHMSA has selected
a vendor and will evaluate the research as it is carried out over the
next year.
Another example of PHMSA's research efforts includes developing a
quantitative risk analysis framework, in response to recommendations
from the National Academy of Sciences, Transportation Research Board
report on safety issues surrounding transportation of liquefied natural
gas in railroad tank cars. While the research focused on an enhanced
Quantitative Risk Assessment for LNG transport by rail, the research
demonstrated that this analysis can also be used for other chemicals.
The effort resulted in a broadly applicable methodology to predict
accident scenarios and quantify risk estimates at incremental
geographies along representative rail routes.
Challenges and Opportunities
As Secretary Buttigieg has noted, despite the tremendous work by a
dedicated team at DOT, there are concrete actions that DOT, Congress,
and the railroad industry should take to reduce the risk to the public
from hazardous materials transportation by rail. The first is a
statutory change to mandate an accelerated phase-out of DOT-111 tank
cars from flammable liquid service. The current timeline set by the
FAST Act extends until May 31, 2029.
Additionally, a robust and reliable communication network is vital
for the efficient management and exchange of information between
trains, railroad operators, and emergency responders. Unfortunately,
PHMSA has received feedback from railroads and emergency responders
about gaps in cellular coverage, creating dead zones that hinder real-
time updates and information exchange. The President's Bipartisan
Infrastructure Law is deploying nearly $65 billion to help improve high
speed connectivity in underserved areas, so we anticipate connectivity
will continue to improve in the coming years.
Improving the communication network also helps responders by
improving connectivity of the AskRail application in remote areas. That
application, as I noted before, informs first responders about the
hazardous materials carried and their specific location on a train, and
is another redundant, but important layer of protection for
communities.
Finally, we appreciate the leadership from Chairman Nehls and
Congressman Moulton in drafting and advancing legislation to improve
hazardous materials transportation via railroad. In particular, the
draft Railroad Safety Enhancement Act of 2024 (H.R. 8996) would
expedite the phase-out of DOT-111 tanks cars in flammable liquid
service by December 31, 2027, which is 18 months faster than currently
required by law. Further, the legislation expands the definition of
high hazard trains--in line with what PHMSA and FRA have sought input
on. To that end, Congress may wish to consider taking the proposed
definition further to include all classes of hazardous materials, such
as oxidizing materials and corrosive liquids--both of which can pose
significant hazards to the public, workers, and first responders during
a derailment.
Closing
In closing, PHMSA is eager to work with the subcommittee to advance
legislation that improves the safety of hazardous materials
transportation by rail.
The success of our hazardous materials safety initiatives depends
heavily on the dedicated efforts of PHMSA's hazardous materials safety
team, who work tirelessly to establish and uphold the highest safety
standards. Their commitment is the driving force in executing our
Agency's crucial role in overseeing the safe transportation of
hazardous materials. However, as members of this subcommittee have
pointed out, too often Agency action is delayed until after a major
failure or tragedy occurs. Even then, our Agency often faces hardened
industry opposition to enhancement of safety measures. PHMSA stands
ready to work closely and proactively with Congress to advance
precautionary safety measures now.
Thank you for your efforts to advance bipartisan railroad safety
legislation. We look forward to working with you to improve hazardous
materials safety and protect our communities.

Mr. Nehls. Thank you, Mr. Brown.
Mr. Sloan, you are recognized for 5 minutes.

TESTIMONY OF JEFFREY SLOAN, SENIOR DIRECTOR FOR REGULATORY AND
SCIENTIFIC AFFAIRS, AMERICAN CHEMISTRY COUNCIL

Mr. Sloan. Chairman Nehls, Ranking Member Wilson, and
members of the subcommittee, thank you for the opportunity to
join this panel today to discuss rail safety and important
lessons from the tragic events related to the East Palestine
derailment.
The American Chemistry Council shares the committee's goal
to advance transportation safety and to protect public health
and the environment. We also share your gratitude to the
emergency responders, Government officials, and rail workers
for their tireless efforts responding to the incident. We thank
the NTSB for its thorough investigation.
The East Palestine incident is a strong reminder that more
work is needed, and ACC is committed to working with Congress,
the administration, and all stakeholders to further improve
freight rail and hazardous materials transportation safety.
ACC represents the leading companies in the business of
chemistry. Our members manufacture products that make our lives
healthier, safer, and more sustainable. Each year, our industry
ships more than 2.3 million carloads by rail. We ship chemicals
because the country needs these essential products to support
virtually every aspect of daily life. ACC and its members are
committed to transporting these products safely. We demonstrate
this commitment through Responsible Care, our environmental
health, safety, and security performance initiative. In
addition, our CHEMTREC and TRANSCAER programs provide
specialized training and critical information to local
emergency responders.
While rail is already recognized as the safest way to
transport hazardous materials over land, ACC supports a
multilayered approach to further advance safety, including
steps to reduce derailments, minimize the risk of hazmat
release, and strengthen emergency response. ACC believes that
the bipartisan Railroad Safety Enhancement Act and the Senate
Railway Safety Act provide a solid foundation to move us
forward.
I want to focus on one element of overall rail safety:
improving tank car performance. It is important to recognize
that shippers, not railroads, own or lease the cars used to
ship their products, and have made significant investments in
tank car safety. ACC members are currently upgrading their tank
cars used to transport flammable liquids, replacing DOT-111
cars with cars built to newer, DOT-117 standards. These actions
require significant long-term planning and capital investment.
The FAST Act deadline for the final group of these cars is
May 1, 2029. I want to clarify that, prior to the FAST Act, the
phaseout requirement applied only to DOT-111 cars carried on
high-hazard flammable trains. It would not have applied to the
train that derailed in East Palestine. The FAST Act expanded
the scope to apply to all flammable liquid cars, regardless of
what type of train they are on.
ACC supported the FAST Act. ACC also supports establishing
an earlier deadline, but it must be consistent with the railcar
industry's ability to produce DOT-117 cars while also building,
maintaining, and repairing all types of railcars. Industry data
suggest that moving up the current deadline by 1 year may be
feasible.
ACC believes that the Nehls-Moulton bill provides a
workable approach. While it accelerates the deadline, it also
recognizes that an unworkable phaseout timeline could disrupt
critical supply chains. Therefore, the bill asks the GAO to
review industry capacity, and authorizes DOT to extend the
timeframe if necessary.
I would like to briefly touch on two other aspects of the
House bill.
First, ACC strongly supports additional funding for PHMSA's
Hazardous Materials Grants program. The program supports
emergency response planning and training activities, and is
funded by the registration fees paid by shippers and others
involved in hazmat transportation. The bill would modify the
fee structure, providing flexibility to nearly double the
funding of emergency response training programs without
disproportionately impacting small business.
Second, ACC supports provisions to assist the development
and use of onboard telematics systems for railcars. Telematics
have the potential to provide better visibility into railcar
locations, and may help monitor railcar conditions while in
transit. The bill's grant funding and pilot programs can help
enhance safety benefits of these technologies.
Thank you again for the opportunity to testify today. ACC
is committed to working with policymakers and our
transportation partners to find data-driven solutions so the
products of our industry can be delivered safely and without
incident.
I would be happy to take questions.
[Mr. Sloan's prepared statement follows:]

Prepared Statement of Jeffrey Sloan, Senior Director for Regulatory and
Scientific Affairs, American Chemistry Council
Chairman Nehls, Ranking Member Wilson, and Members of the
Subcommittee, thank you for the opportunity to discuss rail safety
issues, including important lessons from the tragic events related to
the derailment in East Palestine, Ohio.
The American Chemistry Council (ACC) shares the Committee's goal to
advance transportation safety and to protect public health and the
environment. We also share the Committee's gratitude to the emergency
responders, government officials, and rail workers for their tireless
efforts responding to this incident. In addition, we appreciate the
hard work and diligence that the National Transportation Safety Board
put into its thorough investigation of the East Palestine derailment.
This incident is a strong reminder that more work is needed to further
improve freight rail and hazardous materials transportation safety.
Our nation's freight rail network and supply chain have faced many
challenges over the years, and ACC is committed to working with
Congress, the Administration, and all stakeholders to further advance
safety while supporting a resilient and reliable transportation
network.
About The American Chemistry Council
ACC is an industry trade association that represents the leading
companies in the business of chemistry. Our members produce and
manufacture a wide variety of chemicals, polymers, and related products
that make our lives and our world healthier, safer, more sustainable,
and more productive. As a $639 billion enterprise, the business of
chemistry is a key element in the nation's economy and a large user of
the U.S. freight transportation system. In 2022, our industry shipped
more than 2.3 million carloads of chemical products on freight
railroads.
ACC and its members are committed to the safe transportation of
hazardous materials throughout the supply chain. As part of Responsible
Care, the chemical industry's world-class environmental, health,
safety and security performance initiative, our members have invested
billions of dollars in training and technology, including railcars and
other containers used to transport our products. In addition, ACC
members support communities and local emergency responders through the
CHEMTREC and TRANSCAER programs that provide resources and training
to respond to hazardous material transportation incidents. This
includes immediate critical response information about hazardous
materials.
Our industry's products are essential for growing food, protecting
the safety of our water and food supply, producing energy, and making
life-saving medicines and equipment. From farms to factories, more than
25 percent of the U.S. economy and 4.2 million jobs depend on
chemistry. We ship chemicals because the country needs these essential
products to support virtually every aspect of daily life.
Rail Safety
Safety is a shared responsibility between railroads, shippers, and
equipment suppliers, and is governed by a comprehensive federal
regulatory framework. While rail is widely recognized as the safest way
to transport hazardous materials by land, ACC supports a multi-layered
approach to further advance safety. This includes a range of measures:
first, to further reduce derailments and other accidents; second, to
minimize the risk that a rail accident will lead to a hazardous
material release; and third, to strengthen emergency response and
mitigate the impacts of any incident that does occur.
ACC supports the Subcommittee's bipartisan efforts and believes
that the Railroad Safety Enhancement Act of 2024 (H.R. 8996) and the
Railway Safety Act of 2023 (S. 576) provide a solid foundation to
further improve the safety of the national rail network, reduce
hazardous material risks, and enhance emergency response capabilities.
The following sections highlight several aspects of the legislation
that are particularly important to ACC and its member companies.
Improving Tank Car Performance
Tank car safety is a critical element of hazardous materials
transportation safety. Chemical shippers own or lease the rail tank
cars used to ship their products and are ultimately responsible for
maintaining their fleets. ACC members have made significant investments
in recent years to upgrade tank cars and will continue to do so. In
particular, they are in the process of upgrading tank cars used to
transport Class 3 flammable liquids, replacing cars built to earlier
DOT standards (DOT-111 cars) with cars built to newer standards (DOT-
117 cars). These cars are used to transport multiple products with a
wide range of beneficial end uses, including water treatment and the
production of food, fuels, pharmaceuticals, and construction materials.
ACC members have plans in place to complete these upgrades by the
deadlines Congress established in the FAST Act. And, where feasible,
companies are pursuing accelerated schedules for their fleets. These
actions require significant long-term planning and capital
expenditures. Currently, it takes approximately one year from when a
car is ordered to receive final delivery.
Overall, approximately 72,000 tank cars used to transport flammable
liquids meet DOT-117 or equivalent safety standards. An additional
17,000 still require upgrades.
The current deadline for Packing Group II and III flammable liquids
(the lowest hazard groups) other than unrefined petroleum products and
ethanol is May 1, 2029. ACC supports establishing an earlier deadline
that is consistent with the rail equipment industry's ability to
manufacture new cars and retrofit existing cars to meet DOT-117
standards while also meeting demand for construction, maintenance, and
repairs of all types of railcars. Current railcar industry data
suggests that the earliest potentially feasible deadline would be May
1, 2028.
We believe the Railroad Safety Enhancement Act provides a workable
approach to setting an appropriate phaseout period. While it
accelerates the deadline to December 31, 2027, it also recognizes that
an unworkable phaseout timeline could disrupt critical supply chains
across the U.S. Therefore, the bill also asks the Government
Accountability Office (GAO) to review tank car production capacity and
authorizes DOT to extend the timeframe if the Agency determines that
the accelerated deadline is not feasible.
Supporting Emergency Responders
ACC supports additional funding for PHMSA's Hazardous Materials
Grants Program. The grant program supports emergency response planning
and training activities and is funded by hazardous material
registration fees paid by both shippers and transportation carriers.
PHMSA's current fee structure currently raises approximately $23.6
million annually, well below the amount authorized in the
Infrastructure Investment and Jobs Act (IIJA).
ACC supports the House and Senate bills' provisions to replace the
current $3,000 statutory limit on registration fees with a two-tiered
limit of $500 for small businesses and $5,000 for large businesses.
This approach would provide flexibility to nearly double the funding of
emergency response training programs while preventing a
disproportionate impact on small businesses.
Railcar Telematics
ACC also supports provisions of the Railway Safety Enhancement Act
that assist the development and use of onboard telematics systems for
railcars. This technology can be used to provide shippers with better
visibility into railcar locations and may help enhance capabilities to
monitor railcar conditions and product integrity while in transit. By
providing grant funding and establishing a pilot program, the
legislation can help achieve additional safety benefits from these
technologies.
Conclusion
Shippers, rail carriers, equipment suppliers, and the federal
government have made significant progress through a collaborative
approach and by using data to drive results. But we can, and must, do
more. ACC is committed to working with policymakers and our
transportation partners to apply the lessons learned from the East
Palestine derailment so the products of our industry can be delivered
safely and without incident.

Mr. Nehls. Thank you, Mr. Sloan.
Mr. Arouca, you are recognized for 5 minutes.

TESTIMONY OF DAVID AROUCA, NATIONAL LEGISLATIVE DIRECTOR,
TRANSPORTATION COMMUNICATIONS UNION (TCU)

Mr. Arouca. Good afternoon, Chairman Nehls, Ranking Members
Wilson and Larsen, members of the committee, and thank you for
the invitation to be here. My name is David Arouca, national
legislative director for the Transportation Communications
Union. I am here to testify about the imminent and immense need
for legislation that improves the safety of our Nation's rail
network.
I would like to briefly pay my respects to the
subcommittee's former chairman, Donald Payne. He was indeed one
of the kindest souls on Capitol Hill, and he cared deeply for
railroad workers. He will be missed dearly.
I also want to extend our union's deepest sympathies to the
residents of East Palestine, its surrounding communities, and
especially the first responders. Please know that we want the
same thing as you: to make sure this never happens again.
TCU represents various crafts across the rail industry, but
germane to this hearing are the carmen, those tasked with
maintaining, repairing, and inspecting all freight railcars for
FRA reportable defects. We represent carmen in every Class I
all across the country.
What I am about to tell you may seem shocking, but it is
the truth. The railroads do not want to know how defective
their trains are. Please know that we do not make this
conclusion lightly, but it is based on years of watching how
the railroads have systematically rigged their operations to
avoid and evade quality safety inspections, including cutting
the carmen's time to inspect by two-thirds or more; turning off
defect detectors when the number of defects identified becomes
too inconvenient; and relying upon inspections by untrained
crews and utility personnel, not despite but because they are
held to a lower regulatory standard.
To quote a recent investigative piece from ProPublica,
``The railroads use performance-pay systems that effectively
penalize supervisors for taking the time to fix hazards and
that pressure them to quash dissent, threatening and firing the
very workers they hired to keep their operations safe. As a
result, trains with known problems are rolling from yard to
yard like ticking time bombs, getting passed down the line for
the next crew to defuse--or defer again.''
Just recently, the FRA had to halt their safety culture
study at Union Pacific, citing that employees were coached in
their responses, or that employees were reluctant to even
participate, citing intimidation or fear of retaliation. Just
last week, the FRA completed a qualitative time study of
mechanical inspections across all the Class I's, which is
attached to my testimony. Their findings would be eye opening
to nonrailroaders. When FRA is present, carmen are given, on
average, a mere 1 minute and 38 seconds per car to inspect.
Still too short. But when the FRA isn't there, that time drops
even further to 44 seconds per car, or 22 seconds per side.
When addressing traincrews or utility personnel performing
in these inspections, ``report data and time observations do
not support confidence in the performance of quality
inspections,'' and that ``mechanical employees perform a more
quality brake test when given adequate time, and this would
contribute to a safer train.''
Safer trains mean fewer defects, fewer injuries, and
therefore, fewer East Palestines. Sadly, the prevailing mindset
of the Class I's in the current so-called Precision Scheduled
Railroading era can be summed up in a common refrain that our
members hear every single day from their managers: We are in
the business of moving freight, not fixing railcars.
In June 2022, TCU Carmen Division President Don Grissom
testified to this very committee about many of these pressures,
but nothing has been done. Fatigue issues abound in the
industry, as forced overtime of 16- and even 24-hour shifts now
force many carmen to sleep in their cars because they are too
tired to drive. I ask members of the committee, if it is too
dangerous for you to drive, isn't it too dangerous to work in a
rail yard?
The FRA under Administrator Bose has been trying to help
combat these safety issues, but we believe the agency is
underresourced and their field inspectors lack the teeth to
enforce proper compliance.
All of the aforementioned reasons are why our union is
wholeheartedly endorsing the legislation introduced by Chairman
Nehls and Congressman Moulton, just as we support Brown-Vance.
We are specifically grateful to Chairman Nehls, Senator Vance,
and all the Republican cosponsors for having the courage to
step away from party orthodoxy that has historically drawn a
partisan line between the railroads and rail labor.
And obviously, I want to thank our Democratic friends,
including Congressman Deluzio, who has been so focused on this
issue, for being longstanding supporters of rail safety efforts
and rail workers. Indeed, it seems that both sides of the aisle
can agree: rail safety should never be a partisan issue. After
all, every American agrees that trains need to stay on the
tracks.
Thank you for the opportunity to testify, and I look
forward to your questions.
[Mr. Arouca's prepared statement follows:]

Prepared Statement of David Arouca, National Legislative Director,
Transportation Communications Union (TCU)
Good afternoon Chairman Nehls, Ranking Member Wilson, Members of
the Subcommittee, and thank you for invitation to testify today on the
immense and imminent need for legislation that improves the safety of
our nation's rail network.
I'd like to briefly pay my respects to our committee's former
Chairman Donald Payne. He was indeed one of the kindest souls on
Capitol Hill and he cared deeply for all working people--especially
railroaders. He is--and forever will be--missed dearly.
My name is David Arouca and I'm the National Legislative Director
for the Transportation Communications Union, or TCU.
TCU is a merged affiliate of the Machinists Union. TCU itself
represents about 30,000 workers across many different rail crafts,
including: clerical, intermodal workers, supervisors, crew callers,
crew haulers, bridge tenders, onboard service workers, dispatchers,
and--as it specifically pertains to this hearing, the Carmen.
The Carmen
TCU's Brotherhood of Railway Carmen Division represents
approximately 10,000 carmen all across the country. The Carman craft
consists of the skilled journeyman tasked with the inspection,
maintenance and repair of passenger and freight railcars.
A Carman's primary duty is to inspect freight rail cars for
compliance with 49 CFR parts:
Sec. 215--Railroad Freight Car Safety Standards
(primarily mechanical defects)
Sec. 231--Railroad Safety Appliance Standards (mostly
defects that could injure a crewmember)
Sec. 232--Brake System Safety Standards (all braking
system components)

In all, the various components on a railcar amount to at least 90
points of inspection per side of a rail car--180 in total minimum. Some
of the most important components to inspect are: the brake shoes and
brake air hoses, couplers, wheel flanges, signs of bearing failures,
and safety appliances.
Sadly, in today's era of railroading, many Carmen have to make the
difficult decision of what to inspect. Under impossible time pressures,
Carmen are simply unable to perform full inspections. Some just try to
inspect mechanical components or other major derailment-causing
defects. Others only inspect the Safety Appliances--critical components
to ensure that train crews can safely perform their duties.\1\ Carmen
are making the conscious and difficult decision to protect either their
fellow railroaders or the general public.
---------------------------------------------------------------------------
\1\ See Attachments #1 & #2--Schedules of Parts 231 and 215
standards detailing FRA defects.
---------------------------------------------------------------------------
It should go without saying: nobody should have to make that
choice.
A Carman is very much a skilled position--not a job you just pick
up off the street. In fact, you remain an apprentice and do not become
a full journeyman until 732 working days, or 5,856 working hours.
As my colleagues at SMART-TD have testified, ``a conductor may have
an Associates in car inspection, but the carmen are the Phds.'' Carmen
are known to have a ``sixth sense'' for detecting rail car defects.
That's what they spent years training to do. That's what they were
hired to do.
Commonsense would tell you that the Carmen should therefore be
empowered as much as possible to find defective components and fix them
before they cause an accident or injury.
What I'm about to tell you may seem shocking, but it's the truth:
the railroads do not want to know how defective their trains are.
Indeed, the prevailing mindset of the Class 1s in the current era
can be summed up in the common refrain that our members hear every
single day from management: ``we're in the business of moving freight,
not fixing rail cars.'' This mentality was detailed in a recent
ProPublica piece that centered on the pressures applied to various
crafts, primarily the Carmen.\2\
---------------------------------------------------------------------------
\2\ Sanders, Topher, et al. ``How the Railroad Industry Intimidates
Employees into Putting Speed before Safety.'' ProPublica, 15 Nov. 2023,
www.propublica.org/article/railroad-
safety-union-pacific-csx-bnsf-trains-
freight#::text=Bradley%20Haynes%20and%20his
%20colleagues,and%20send%20them%20for%20repairs.
---------------------------------------------------------------------------
To quote the article directly:

``They use performance-pay systems that effectively penalize
supervisors for taking the time to fix hazards and that
pressure them to quash dissent, threatening and firing the very
workers they hired to keep their operations safe. As a result,
trains with known problems are rolling from yard to yard like
ticking time bombs, getting passed down the line for the next
crew to defuse--or defer . . .''

`` . . . a senior general foreman in Norfolk Southern's
Savannah, Georgia, yard, had a reputation for keeping a close
eye on bad orders. In 2019, car inspectors Kelvin Taylor and
Shane Fowler filed a federal complaint alleging that Ware had
repeatedly removed their repair order tags, allowing dangerous
cars to leave the yard. They said Ware told them he had a
quota--no more than 10 a week--regardless of the actual number
of defects the inspectors found. (Ware disputed that figure,
arguing that his goal was actually 20 bad orders at the time.)

Numbers like ``bad order counts'' can be used on scorecards to
rank a manager. For example, Ware's supervisor said in a
deposition that metrics related to bad orders made up 15% of
her final score.''

This mentality to lower dwell times at all costs, safety be damned,
is sadly prevalent and pervasive throughout the industry.
BRC President Grissom's Warning in 2022
In June of 2022, TCU's Carmen Division General President Don
Grissom testified to this very committee about how industry changes
have ``created a ticking time bomb on our nation's rails.'' \3\
---------------------------------------------------------------------------
\3\ Grissom, Don. ``Written Statement before Subcommittee on
Railroads, Pipelines & HazMat.'' 14 June, 2022, https://
www.congress.gov/117/meeting/house/114882/witnesses/HHRG-117-PW14-
Wstate-GrissomD-20220614.pdf
---------------------------------------------------------------------------
He warned about the dramatic decline in the number of Carmen, and
the intense pressures being placed upon the limited forces that remain.
He warned about the railroads utilizing other types of crews for
inspections, abusing the loophole in the regulations (49 CFR 215.13)
that allows non-Carmen to inspect trains if Carmen are not present. How
do you ensure the Carmen aren't present? You furlough or relocate all
of them.
He warned about the railroads' concerted efforts to reduce
inspection times from what used to be 3 minutes per car down to one
minute or less--or 30 seconds a side.
He warned about the pressures NOT to perform car repairs--
especially when shops or Repair-In-Place (RIP) tracks were overloaded
due to the railroads' own self-inflicted staffing-shortages and/or
short-sighted safety policies.
He warned about managers ripping off Bad Order tags just to keep
freight moving--a major violation, but one that is seldom held to
account.

Figure 1. Example of a Bad Order tag that signifies a defect
that must be fixed prior to being put back into service

He warned about the increasing and dangerous level of fatigue,
especially as short-staffing forces 16-24 hour shifts, sometimes 4-6
days in a row.
He warned about Carmen having to sleep in their cars in the parking
lots because they're too tired to drive and have to be back at work in
4 hours.
I ask Members of the Committee, if it's too dangerous for you to
drive, isn't it too dangerous to work on the railroad? Apparently not
to the railroads.
FRA Responses
The Federal Railroad Administration (FRA) has been doing as much as
possible through focused inspections, Risk Reduction Plans (RRPs), and
safety culture assessments.\4\
---------------------------------------------------------------------------
\4\ U.S. Dept. of Transportation, Federal Railroad Administration.
Guidance on Railroad/Employee Consultation Requirements in 49 CFR Parts
270 and 271, 12 Oct. 2022. https://railroads.dot.gov/elibrary/guidance-
railroademployee-consultation-requirements-49-cfr-parts-270-and-271.
Issued 22 Oct. 2022.
---------------------------------------------------------------------------
However, the railroads can't even get those right. In fact, often
times they throw up road blocks whenever and wherever possible.
The FRA recently conducted a series of three focused inspections at
Union Pacific's North Platte yard. These are inspections--or safety
blitzes--where several FRA inspectors from across the region descend
upon a yard in order to get a fuller picture of the operations and
attempt to better-enforce compliance.
Union Pacific (UP) management knew the FRA was coming the second
and third times and yet they did nothing to alter their operations. In
fact, their defect ratio rose over those three focused inspections. In
talking with FRA inspectors after the fact, they recounted that the
attitude of UP management was dismissive, and could be summarized as:
``thanks, write me the violations and get out of my way so I can move
these trains.''
As for the Risk Reduction Plans, the railroads were supposed to
consult with labor when crafting the plans, including System Safety
Plans and Fatigue Risk Management Programs:

`` . . . Consistent with the statutory consultation
requirements, the regulatory requirements under Parts 270 and
271 require freight railroads and passenger rail operations to
use ``good faith'' and ``best efforts'' to reach agreement with
all directly affected employees, including any non-profit
employee labor organization (``labor organization'')
representing a class or craft of directly affected employees,
on the contents of the relevant plan . . .'' \5\
---------------------------------------------------------------------------
\5\ Ibid, page 2.

Without exception, those ``consultations'' from the freights can be
summed up merely as one-way Zoom calls without time allotted for
questions or the ability to provide an ounce of feedback. This was
uniformly reported by every Carman representative across the Class 1
railroads.
Most recently, the FRA had to completely halt their safety culture
assessment of Union Pacific, citing rampant meddling by management.
Associate Administrator for Safety Karl Alexy recently wrote to Union
Pacific leadership:

``FRA has discovered that numerous employees were coached to
provide specific responses to FRA questions if they were
approached for a safety culture interview. Reports of this
coaching span the UPRR system and railroad crafts. FRA has also
encountered reluctance to participate in field interviews from
employees who cite intimidation or fear of retaliation . . .''
\6\
---------------------------------------------------------------------------
\6\ Alexy, Karl, FRA Assoc. Admin for Safety. ``Re: Safety Culture
Assessment Data Collection Suspension.'' Letter to Elizabeth Whited,
President, Union Pacific Railroad, 26 Apr. 2024.

This is just a portion of the safety-last ecosystem in which the
East Palestine, Ohio derailment occurred.
The repeated statements from our union about the increased risks
profiles of each of the Class 1s have been summarily ignored by the
rail industry. This may be surprising, after this Subcommittee has
repeatedly heard the railroads and their representatives testify about
their supposed commitment to safety--but for rail workers, this ``say
one thing, do another'' attitude is just another day on the railroad.
East Palestine Derailment
In the wake of the East Palestine disaster, Congress and the nation
were once again reminded of the dangerous nature of our industry.
The railcar that caused the derailment originated from the Union
Pacific Railroad in Texas, and was last inspected in St. Louis, MO.
Along its route, the car passed many different yards that used to
employ Carmen tasked with inspecting cars. Unfortunately, no Carmen
were there, having been the victims of previous rounds of layoffs, nor
would they have likely been given the time to perform full inspections
had they been present.
While the NTSB did not make a determination if a carmen-performed
inspection could have avoided the derailment and identified the failing
bearing, we want to be clear: TCU Carmen do in fact find bad bearings
every single day on the nation's network, and they set out those cars
accordingly. Often times a bad bearing shows visual signs of failure,
such as leaking/flung grease, or a broken/compromised seal. These are
tell-tale signs that a bearing must be removed from service.

Figure 2. NTSB Board Meeting: Norfolk Southern Train Derailment with
Subsequent Hazmat Release & Fires (Screenshot at timestamp 2:10:49)

Knowing this, it is not unreasonable to wonder if the failure of
Norfolk Southern (or any of the other railroads on which the car
traversed) to permit adequate and complete inspections played a
contributory role in the accident.
Regardless, due to the operations and practices of the industry, it
has become much harder for our Carmen to take the time to be able to
spot these warning signs.
In the wake of East Palestine, the press began looking into what
we've been alarming for years:
The Wall Street Journal published a front-page article
titled: `` `Hurry Up and Get It Done': Norfolk Southern Set Railcar
Safety Checks at One Minute.'' The article detailed the time pressures
applied to railroad mechanical forces such as our carmen.\7\
---------------------------------------------------------------------------
\7\ Fung, Esther, et al. `` `Hurry Up and Get It Done': Norfolk
Southern Set Railcar Safety Checks at One Minute.'' Wall Street
Journal, https://www.wsj.com/articles/railroads-are-a-lot-more-
efficient-are-they-also-less-safe-7c5d2a60, 30 Mar. 2023.
---------------------------------------------------------------------------
ProPublica did a deep dive on this issue in their
investigative piece: `` `Do Your Job.' How the Railroad Industry
Intimidates Employees Into Putting Speed Before Safety'' \8\
---------------------------------------------------------------------------
\8\ Sanders, Topher, et al. ``How the Railroad Industry Intimidates
Employees into Putting Speed before Safety.'' ProPublica, 15 Nov. 2023,
www.propublica.org/article/
railroad-safety-union-pacific-csx-bnsf-trains-
freight#::text=Bradley%20Haynes%20and%20his
%20colleagues,and%20send%20them%20for%20repairs.
---------------------------------------------------------------------------
Sinclair's National News Desk covered the carmen
pressures and syndicated our members' concerns across the country.\9\
---------------------------------------------------------------------------
\9\ Pohlman, Duane. ``Inspectors Claim 1-Minute Railcar Inspections
Not Enough to Flag Faulty Equipment.'' WKRC, 4 May 2023, local12.com/
news/investigates/inspectors-claim-1-minute-railcar-inspections-not-
enough-flag-faulty-equipment-investigates-investigation-trouble-tracks-
railroad-trains-train-mechanics-railroading-freight-railway-safety-
cincinnati-ohio-east-palestine-norfolk-southern-training.
---------------------------------------------------------------------------
The Fault Lines documentary series, made famous for their
Boeing expose, did a 30 minute documentary that covered the inherent
safety risk posed by pressuring carmen to inspect too fast, or
sometimes not at all.\10\
---------------------------------------------------------------------------
\10\ Chekuru, Kavitha and Josh Rushing. ``What's behind Train
Derailments in the US? Fault Lines Documentary.'' Al-Jazeera English,
YouTube, 14 June 2023, www.youtube.com/watch?v=ZJP3kU55JmI.
---------------------------------------------------------------------------
We've published videos from TCU's own Advanced Carmen
Training Center showing visually the difference between a 3-minute and
a 1-minute inspection.
FRA Qualitative Time Study on Rail Car Inspections
Last week the FRA Office of Safety revealed the findings of a
qualitative time study of rail car inspections, and it confirms much of
what I've testified about today. For reference, I've attached a copy of
the study to this testimony.
The study found that approximately 15% of rail cars contain FRA
defects--meaning that operating them is illegal and they should NOT be
traveling at all. Concerningly, the predominant defect found was
inoperable or ineffective brakes.
I ask the Committee: would you fly on a plane if 15% of planes had
safety defects?
As an aside, I should note that the NTSB found that 25% of the cars
in the East Palestine train contained federal defects.
The study also noted several times throughout that Qualified
Mechanical Inspectors--aka Carmen--perform better quality inspections
and brake tests--especially when given adequate time. Again, this is
readily apparent to any railroad worker--but not to the railroads.
Regarding inspection times, the study notes that carmen today, on
average, only provided 1:44 per car to inspect; or, about half of what
we believe to be the safe minimum amount of time: 3-4 mins.
But there's a catch: that 1:44 minutes was only when the FRA was
present and directly observing.
After reviewing the railroads' own inspection records, the FRA
found that when they aren't present, Carmen are only given
approximately 44 seconds per car to inspect. The FRA observed this as
the railroads ``going back to normal'' once they're gone.
44 seconds. You can barely walk cars in 44 seconds, let alone take
any amount of time to properly inspect components.
One FRA Inspector noted in remarks for the study:

``When FRA is on property, they prepare with bringing in extra
employees to anticipate all the extra repairs that will be
needed to be made. When FRA is not present, they work trains
with as little as two employees on outbound, and don't even
utilize the in-train repair vehicle because no defects are
taken.

When I observed this 49-car head end of the train I found one
violation and seven defects. The Carman also found
approximately ten additional defects. That is me walking
directly behind the Carman, so they know I am on property. When
I am not on property, they might find two [or] three defects in
twenty-four hours. It's not realistic.''

These pressures and avoidance maneuvers need to stop. The railroads
shouldn't be acting one way when the FRA is watching--and another when
they aren't.
But thankfully, legislation in both chambers would help put a stop
to it.
House and Senate Proposed Legislation
The Railway Safety Act in the Senate, led by Senators Brown and
Vance of Ohio, and now the Railroad Safety Enhancement Act introduced
by Chairman Nehls and Congressman Moulton, both include language to
prohibit railroads from limiting the time for Carmen to inspect
railcars.
This in itself would do wonders for the safety of the industry, the
safety of the crews and the safety of the communities our trains pass
through.
No longer would our Carmen be harassed to inspect faster.
No longer would they have to choose between mechanical, braking, or
safety appliance components.
No longer would managers be able to put targets on your backs if
you aren't meeting time constraints.
The nation's freight railroad carmen would finally be able to do
what they were hired to do: keep our trains safe.
The bill would also reimagine railcar inspections regime by forcing
the Class 1s to identify specific inspection points throughout their
networks, and require that QMI Carmen are on-duty to inspect trains.
This section was written in an attempt to find a healthy middle ground
with the railroads' operating practices, whilst also formalizing the
need to have properly-trained personnel like the Carmen perform these
inspections, rather than relying on crews or other untrained personnel,
which is less safe--as the FRA has noted in their recent study.
My testimony today has been specifically centered around the Carmen
craft, but I'd be remiss if I didn't mention that many--if not most--of
the same time pressures, time constraints, and utilization of improper
crafts to perform inspections applies to the railroad machinists as
well, who are represented by our parent union and their IAM District
19. The machinists are tasked with inspecting and maintaining
locomotives as well as road way equipment. As noted in the study, their
defect ratio is also incredibly high--mostly due to the same pressures
applied to the Carmen.
The legislation also mandates two crew members on most freight
trains--something long overdue for our colleagues in the operating
crafts. We were glad to see this Administration finalize that rule, and
fully support it being cemented in statute.
And lastly, the adoption of a Close Call Confidential Reporting
System--or C3RS--would be crucial to tamping down on the culture of
intimidation in the rail industry. All too often our members see things
wrong or unsafe at the rail yard. And sadly, those errors and mistakes
can cause serious damage or death to rail workers and the communities
our trains pass through. C3RS has been utilized in the airline industry
for decades with their Aviation Safety Action Program (ASAP), and
Congress has repeatedly praised the program for improving safety.
In the wake of East Palestine, the railroads announced they would
commit to joining a C3RS program. However, with the minor exception of
small amounts of workers at only two railroads in specific areas,
they've largely abandoned that pledge. In summary, the railroads prefer
to adopt ``C2RS''--or, dropping the ``confidential'' nature of the
program, which guts the point of the program--encouraging employees to
report with the safe haven of anonymity.
Despite 30 railroads--mostly passenger and short lines--adopting
C3RS programs already, it appears too hard for the Class 1 railroads.
Our union wholeheartedly endorses Chairman Nehls and Mr. Moulton's
legislation just as we support Brown-Vance. We believe it's a major
step in the right direction, and we thank them for the inclusion of
additional items, including the C3RS requirement, which builds upon the
Senate bill.
We're specifically grateful to Chairman Nehls, Senator Vance, and
all the Republican cosponsors for having the courage to step away from
party orthodoxy that has historically drawn a partisan line between the
railroads and rail labor.
And I'd be remiss if I didn't thank our Democratic friends for
being long-standing supporters of rail safety efforts and rail workers
as well.
It seems that both sides of the aisle can agree: rail safety should
never be a partisan issue. Every American agrees that trains need to
stay on the tracks.
However, we also believe that more can be done because, as Chair
Homendy likes to say, ``every accident is preventable,'' and we
couldn't agree more.
That's why we look forward to working with the Chairman and anybody
else in Congress to work on additional real items, such as:
Put More Cops on the Beat--We drastically need more FRA
field inspectors to help hold the railroads accountable, just as
Representative Van Orden, a member of the full committee, has advocated
for in previous hearings.

Improve the Enforcement of the FRA--First, it should be
noted that there's no difference between a violation and an FRA
defect--the only difference is that a violation was written up by an
FRA inspector and a fine assessed. Many people probably think that
writing a violation for the FRA is simply like a police officer writing
a ticket. We wish it were that simple.

The process for field inspectors is long and laborious. FRA
Inspectors are forced to compile pages and pages of paperwork for each
violation. This requires them to be in-office rather than out in the
field where they're needed most. FRA should amend their violation-
writing mechanism to more resemble that of a police officer writing a
parking or speeding ticket. The ability to quickly write violations
would greatly aid in the ability of our federal safety enforcement.
This small change could drastically improve enforcement abilities while
also saving tax dollars.

Adopt Technology the Right Way--There's often a refrain
that labor opposes technology--that is false. Our members would love to
have access to various technologies that exist on the market right now.
What we disagree with are unfounded safety waivers that excuse the
railroads from performing regulatory tasks on safety-sensitive
components that the proposed technology doesn't even address. Waivers
are appropriate as long as the technology at least exceeds current
safety metrics AND the Test Committees have proper and full access and
authority to review data and administer changes. In some cases, this
may mean that the waiver is revoked or rewritten if waiver request or
existing waiver does not hold up to safety scrutiny.

Access to Data/Imaging--New machine-vision and machine-
learning portals are technologically impressive, but they are best used
in the hands of a carman. Our carmen would like to have the imaging and
data created by these portals--and any other defect detectors--
forwarded to them prior to a train pulling into a yard. But with very
few exceptions, that's not how the railroads are utilizing them today.
Rather, railroads mostly rely on poorly-staffed mechanical desks with
mountains of data coming in, and no ability to process or divert such
information to the proper channels. Railroads could dramatically
improve both safety and efficiency if they utilized QMI Carmen to both
review data/imaging as well as forward that information to Carmen in
the yards so that they have near-real time intel as to incoming train
defects.

Over the years we've seen countless technologies come forward that
could improve rail safety and give frontline employees like the Carmen
the ability to more effectively and efficiently fix rail car defects.
Unfortunately, while these technologies rarely make it into the hands
of our members. Rather, they're used as pawns to extract safety
concessions from the FRA.
Railroads should abandon this mentality. If technology can improve
operations and safety, they should use them. If they don't want to use
it voluntarily, the government should make them.
Again, we believe there are readily-available technologies out
there, right now, that the railroads could use or better-utilize to
ensure our nation's railroads and rail workers are safe.
Unfortunately, the lingering questions remain:
Do the railroads actually want to adopt these new
technologies?
Do the railroads want to know how defective their trains
are?

We do not believe that they do.
The Rail Industry Must Change
I want to close by saying the following: nobody has more of a
vested interest in the success of the railroads than the people that
work there every day. We want our employers to be profitable. We want
them to make money. If they don't make money, our members don't get
paid. Period.
That being said, there's a line which the railroads have long-since
crossed. That line signifies the difference between profitability and
greedy wealth-extraction. The railroads of the pre-Staggers Act (pre-
1980) were indeed in shambles. Consolidations were necessary to ensure
that railroads had the ability to tap into debt markets and properly
fund investments into their own infrastructure.
Today, that is no longer the case--not by a long shot. The pendulum
has swung fully in the opposite direction.
Today, railroads are more profitable than they've ever been--but at
the cost of safety and service. And it's all driven from Wall Street
and private equity firms pushing the so-called Precision Scheduled
Railroading (PSR) business model. One by one, the railroads all succumb
to the billionaire assaults on their Boards of Directors. Most
recently, after a year of making progress post-East Palestine, Norfolk
Southern underwent a proxy fight from a minority shareholder Ancora
Holdings. One of the key tenets of Ancora's proposed operating changes
was to strongly walk back intermodal services--despite most
transportation economists indicating intermodal as being a growth
sector for the railroads long term as coal's future remains muddied at
best.
In short, Ancora's plan aimed to once again cut its way to
prosperity, a short-sighted business mindset that railroads must
abandon--not embrace.
After all, freight railroads are inherently ancillary businesses.
They do not create value themselves, but rather they exist to benefit
the broader economy by offering low-cost, safe transportation. They
exist to benefit and serve their customers, not to pilfer and squeeze
those captive to the industry.
The safety legislation proposed in the House and Senate are one
piece of the puzzle that Congress must address. The other is the
economic side--forcing railroads to once again serve the country that
birthed their existence. Thank you for the opportunity to testify.
__________
Attachments
[Mr. Arouca submitted four attachments with his prepared statement
which are retained in committee files and available at https://
docs.house.gov/meetings/PW/PW14/20240723/117530/HHRG-118-PW14-Wstate-
AroucaD-20240723.pdf]

Mr. Nehls. Thank you, Mr. Arouca.
Mr. Hynes, good to see you. You are recognized for 5
minutes.

TESTIMONY OF GREGORY HYNES, NATIONAL LEGISLATIVE DIRECTOR,
TRANSPORTATION DIVISION, INTERNATIONAL ASSOCIATION OF SHEET
METAL, AIR, RAIL AND TRANSPORTATION WORKERS (SMART-TD)

Mr. Hynes. Good afternoon, Chairman Nehls, Ranking Member
Wilson, members of the committee. Thank you for allowing me to
testify today. My name is Greg Hynes, and I am the national
legislative director for the transportation division of Sheet
Metal, Air, Rail and Transportation. SMART-TD is the largest
labor organization in American railroading.
We are extremely thankful to Chairman Nehls and Congressman
Moulton, as well as the current cosponsors, for their
leadership and willingness to prioritize safety in the railroad
industry.
And personally, Chairman Nehls, I would like to thank you
for being an honest broker throughout this process. I
appreciate it.
The disaster in East Palestine, Ohio, on February 3, 2023,
served as a wakeup call to the Nation. But for the men and
women in the ranks of America's railroad workers, it was no
surprise. The unfortunate reality is that in the accident's
wake, little has changed. Three major rail-related accidents
have warranted investigations by the NTSB in the last month.
One was a derailment resulting in a hazardous material leak in
North Dakota. Another was a fatal accident involving a young
conductor with less than 6 months' experience in Chicago. The
most recent, last Friday, was a life-altering injury resulting
in the double amputation of a conductor's limbs in Norfolk,
Virginia. These are just three of dozens of rail accidents in
the last 30 days.
During the investigation of East Palestine, the role of the
DOT-111 tank car was mentioned often. Last week in Oklahoma, a
major derailment again exposed the frailty of that car. Like an
aluminum can, the DOT-111 succumbed to the laws of physics when
poorly built trains derailed, causing its contents to spill.
Like most derailments involving mixed manifest trains, the
trains are excessively lengthy and with great weight, and the
haphazard makeup resulted in damage and a hazmat breach.
Longer, heavier trains are more difficult to stop. The heavier
a train is, the more inertia it possesses. The more weight on
the rear, the more forces come crashing in on the cars during a
derailment. Greater momentum causes greater destruction. It is
basic physics. No meaningful technology, including distributed
power units--locomotives that railroads throw in the middle to
run longer trains--changes that.
This legislation and ensuring proper inspections are being
performed so that unsafe equipment is removed from the rails
can make things safer. Carriers have cut crafts to force less
employees to perform safety inspections to cut costs. This
results in faulty and unsafe equipment getting into the system.
With defect detectors not being used to the full capacity and
short staffing, you have a recipe for disaster.
Meaningful data is needed. One solution is the Confidential
Close Call Reporting System or, as we refer to it, C3RS.
Programs such as this have been wildly successful in other
modes of transportation. Look no further than the Aviation
Safety Action Program. Today, just 28 of hundreds of U.S.
railroad properties use this program to objectively identify
where safety can improve. Two of the largest, Norfolk Southern
and BNSF, have taken steps, but on a limited scope. C3RS should
be the rule, rather than the exception. This bill does that.
Lastly, ever present is the effort by the railroads to
reduce two-person crews to just one on a freight train. Every
single day, lives are saved and accidents prevented because of
those two people aboard a freight train. Data does not exist
that a reduction in crew size would improve rail safety
whatsoever. I ask you, would you rather have two people or one
person running a train that weighs thousands of tons if
something goes wrong?
In East Palestine, the engineer, the conductor, and the
trainee took action. The coordinated efforts of the crew have
been well documented and largely credited by NS and FRA and the
rail labor community in mitigating the damage that night. If
the big railroads are given their way, and two certified
railroad professionals aren't in the locomotive during their
next major rail disaster, do we really want to see the
difference having a conductor truly makes?
The DOT recently finalized a regulation mandating two-
person crews for freight trains, and we are grateful. But
railroads still seek to subvert this commonsense regulation
with legal challenges. Congress must follow Chairman Nehls'
lead and pass the Railroad Safety Enhancement Act of 2024 to
codify this lifesaving necessity into law.
America's railroads are the greatest in the world. The
process and protocols governing them are not. Major derailments
and hazardous material releases have become common. America's
railroad workers and the communities they traverse deserve
better. SMART-TD urges Congress to act on rail safety and pass
the Railroad Safety Enhancement Act of 2024.
Thanks for the opportunity to testify, and we look forward
to answering questions of the committee.
[Mr. Hynes' prepared statement follows:]

Prepared Statement of Gregory Hynes, National Legislative Director,
Transportation Division, International Association of Sheet Metal, Air,
Rail and Transportation Workers (SMART-TD)
Good afternoon, Chairman Nehls, Ranking Member Wilson, and members
of the Committee. Thank you for allowing me the opportunity to testify
here today at this very important hearing. My name is Greg Hynes, and I
am the National Legislative Director for the Transportation Division of
the Sheet Metal, Air, and Rail Transportation Workers Association
(SMART-TD). SMART-TD is the largest labor organization in American
railroading. Nobody knows the challenges and opportunities in this
industry better than the rail workers who keep it moving every single
day, and it is my honor as a train conductor to bring their perspective
to this hearing.
First, I would like to say that SMART-TD is extremely thankful to
Chairman Nehls and Congressman Moulton for introducing H.R. 8996, the
Railroad Safety Enhancement Act of 2024, and we applaud the cosponsors
(Representatives Deluzio, LaLota, Stansbury, Sykes, Van Orden, Rulli,
D'Esposito, and Lawler) as well for their leadership and willingness to
prioritize safety in the railroad industry. We strongly believe that
this legislation, in partnership with the Railway Safety Act that has
been introduced in the Senate, will help address many of the underlying
systemic safety issues in the railroading industry.
Background on Safety Challenges in the Industry
Unfortunately, rail workers have been sounding the alarm about
these issues for many years, and all too often, our warning calls have
gone unanswered. The toxic train derailment that occurred in East
Palestine, Ohio, on February 3 of last year served as a wake-up call to
much of this nation, and we stand in solidarity with the residents of
East Palestine, Ohio; Darlington, Pennsylvania; and communities in the
surrounding areas whose lives were forever affected by the train
derailment that night.
For the men and women that fill the ranks of America's freight
trains, rail yards, and maintenance facilities, the mushroom cloud that
contrasted the Ohio winter sky was an accident long in the making. The
unfortunate reality is that today, in the wake of that disaster, very
little has changed. I want to emphasize this point: despite the Class I
rail industry coming under heavy scrutiny following the East Palestine
derailment, they have done next to nothing of consequence to change
their operating practices to make them safer. If anything, some
railroads (BNSF and Union Pacific) have doubled down on the dangerous
practices that contributed to that derailment and many others. Per the
Federal Railroad Administration's (FRA) own safety data, 2022 and 2023
were the two worst years for safety in the last decade on a per-rate
basis across the Class I railroads.

Table 1--Class I Railroads Collective Accident & Incident Data 2014-2023
--------------------------------------------------------------------------------------------------------------------------------------------------------
2014 2015 2016 2017 2018 2019 2020 2021 2022 2023
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total # of Accident/Incidents................................. 6,180 5,826 5,468 5,694 5,843 5,726 4,909 5,085 5.283 5,390
--------------------------------------------------------------------------------------------------------------------------------------------------------
RATE of Total Acc/Incs per mil train miles (higher is worse).. 10.196 10.008 10.287 10.447 10.650 11.157 11.198 11.652 12.225 12.197
--------------------------------------------------------------------------------------------------------------------------------------------------------

Every day, we see train derailments and other safety incidents
happening in rail yards and on main line tracks in communities all
across America. The unfortunate reality is that these accidents can
pose significant safety risks and disruptions for workers and residents
alike. Sometimes, they can even be deadly. Just this month, there was a
fatal accident near Chicago, Illinois, involving a young SMART-TD
conductor with less than six months of experience. The conductor was 27
years old. Just days prior to that fatality, there was a train
derailment resulting in a hazardous materials leak and fires in the
pristine lands of North Dakota (CPKC) and a double amputation in
Norfolk, VA (Norfolk Southern).
These are just some of the real-world consequences of the
railroads' reckless and callous disregard for safety. There have been
more than 1,500 train accidents since East Palestine, and the industry
is averaging about 1,000 derailments a year. It is by pure luck that
these subsequent train derailments or accidents have not risen to the
catastrophic levels of East Palestine. Given the current operating
practices across the Class I railroad industry, the unfortunate reality
is that another East Palestine could happen tomorrow in your community,
and that should honestly terrify every Member of Congress.
While these two specific incidents qualified as major rail-related
accidents that warranted investigation by the National Transportation
Safety Board (NTSB), the reality is that the majority of these
incidents are not investigated. We understand that federal safety
agencies can only stretch their resources so far, and the reality is
that the rail companies themselves must take on greater responsibility
to improve safety in the very industry that makes them so profitable.
Precision Scheduled Railroading
The Class I railroads have strayed from the traditional operating
model of an industry that focuses on service and is responsive to the
demands and needs of its customers. Instead, over the last ten years,
due to pressure from Wall Street, the Class I railroads pursued an
operating model known as ``precision scheduled railroading,'' or PSR.
Fundamentally, PSR seeks to generate the highest possible profits
through the lowest possible operating ratios (a railroad's expenses as
a percentage of revenue). Under PSR, quarterly profits are the most
essential goal over anything else, including safety. From the
perspective of railroads making money, PSR is a wild success. The Class
I railroads have achieved record profits--over $196 billion between
2015 and 2023. In nominal terms, these profits are even more than what
the railroads made at the height of their robber baron days in the 19th
century.
To achieve these profits for their shareholders' benefit, railroads
began combining freight trains. As an example, instead of operating one
unit coal train of 100 cars, rail carriers are now ``doubling-up''
trains and are operating two 100-car coal trains as one very long
train. In other words, rather than moving a train that is approximately
one mile in length and weighing 30 million pounds, railroads are
demanding that crews move trains in excess of two miles and more than
60 million pounds. However, to compound that even further, carriers are
also doubling-up manifest trains, which have historically always been
longer. Some of these combined trains extend up to nearly five miles
long and possess such disarray of loads and empties that the FRA felt
compelled to issue a warning regarding the construction of how trains
are built, as well as various independent studies have been performed,
all raising concerns for the dangerous practice.
But this just doesn't end with two trains being combined, there are
now trains being tripled-up with the promise of longer trains to come.
This is problematic, not just for the crews but also for the
communities in which these trains traverse. Very long trains break and
come apart often--very often, but no data is kept on the frequency of
these breakdowns and/or train separations. Ask any crew member how
often, and they'll tell you that it is frighteningly common. This just
doesn't impact communities, but it also affects the system and delays
service.
Long trains are heavier trains, which means they're also slower
trains. Even in the best-case scenario, they cause major delays at
crossings when moving, but when they are forced to stop, the odds of
them blocking crossing for hours, if not days, is exponentially
increased. Outside of a major derailment, there is no greater adverse
impact on the public than very long trains. The carriers will tell you
that this can't be because longer trains mean fewer trains, but what
they won't say is how these trains cause congestion on the tracks,
block other moving trains, slow the delivery of freight, and how they
have quickly become public enemy number one when it comes to the
public's view of the American freight rail system.
Need for Congressional Legislation
Let me be clear: if Congress does not pass strong rail safety
legislation that requires the railroads to act, business will continue
as usual in the industry and be detrimental to public safety. The
Railroad Safety Enhancement Act of 2024 would undeniably make the
railroading industry safer for workers like me and communities like
yours by strengthening safety requirements for trains transporting
hazardous materials.
The bill would, for the first time, direct the FRA to examine
regulating the length of freight trains with respect to trains
designated as high-hazard trains. Every Member of Congress likely gets
complaints from their constituents about long trains in their
community, especially when it comes to blocked highway-grade crossings,
which is a frequent and dangerous safety issue. Currently, there are no
federal limits on the length of a freight train; it is entirely up to
the individual railroad to determine how long the trains they run are.
The railroads have also aggressively threatened to sue any state that
tries to enact common sense limitations on train length. We have seen
trains up to four miles regularly operating, especially in more rural
areas out West. The Association of American Railroads' (AAR) own fact
sheet on train length notes that the railroads are running trains up to
14,000 feet, a 40% increase from 2010.\1\ Long trains and hazardous
material regulations are two industry safety vulnerabilities that have
real-world consequences, especially when combined.
---------------------------------------------------------------------------
\1\ https://www.aar.org/wp-content/uploads/2023/03/AAR-Train-
Length-Fact-Sheet.pdf
---------------------------------------------------------------------------
For example, just last week in Oklahoma, there was a major
derailment that exposed the frailty of the DOT-111 tank car that is
used to transport hazardous materials by rail. Like an aluminum can
being crushed, the DOT-111 succumbed to the forces of the poorly built
train, causing its contents to evacuate the tanker and spill to the
ground. Like most derailments involving mixed manifest trains, the
damage was exacerbated by the train's length, weight, and makeup. This
resulted in greater damage and a higher likelihood of hazardous
materials container breaches.
A May 2024 academic study from the Society of Risk Analysis found
that longer trains are correlated with a higher risk of derailments.
Trains with 100 rail cars had an 11% higher risk of derailment than 50-
car trains and trains with 200 rail cars had a 24% higher risk of
derailment, even taking into account the fact you would need to run
fewer trains.\2\
---------------------------------------------------------------------------
\2\ https://onlinelibrary.wiley.com/doi/10.1111/risa.14312
---------------------------------------------------------------------------
It does not take a degree in physics to understand that longer
trains are heavier trains and heavier trains are more difficult to
stop. It is also not difficult to grasp that the heavier a train is,
the more inertia it possesses. When one of these behemoths derails, it
does not stop quickly, and the more weight there is on the rear of the
train, the more weight there is to come crashing in on the other cars,
causing exponentially greater degrees of destruction. And the
unfortunate reality is that there is no meaningful technology,
including distributed power units, that is capable of changing that
equation.
We know what can happen when a long freight train derails while
carrying hazardous material in frail tank cars--we know because we saw
it happen last year in Ohio, last week in Oklahoma, and last month in
North Dakota. We have been very fortunate that none of these accidents
were deadly.
SMART-TD strongly supports the federal regulation of train length,
including clear limits on maximum train length, which we recommend
limiting to 7,500 to 8,500 feet.
The bill limits train length and increases safety rules for hazmat
trains. It also contains many other essential safety provisions,
including strengthening standards for rail car and locomotive
inspections and regulating defect detectors. Proper inspections are
vital to preventing derailments and accidents. The odds of a train
derailment dramatically increase if a rail car or locomotive has a
defect that has not been found or fixed.
Recently, railroads have eliminated entire crafts of workers from
their roles as qualified mechanical inspectors in an effort to force
employees with much less training to perform the work. To make matters
worse, railroads do not allow enough time for workers to perform
inspections, leading to rushed approvals. This combination can result
in equipment being placed into service that shouldn't be released onto
the system. Currently, there are no federal regulations to guarantee
sufficient time to perform these inspections, and the industry average
is 90 seconds per rail car. This is not nearly enough time for
qualified mechanical inspectors to properly perform their inspection
duties. With only seconds to inspect every rail car on both sides of
trains that are often miles long, inspectors are given an impossible
task and must work within a system that encourages safety oversights by
design. The legislation would help correct this egregious wrong and
ensure that workers can perform proper safety inspections with
sufficient time.
In addition to shoring up inspections, the bill would regulate the
use of wayside defect detectors. Unlike many other important safety
areas like signal systems or track maintenance that have regulations,
the federal government currently does not regulate wayside or onboard
defect detectors at all; how these important systems are deployed is
entirely up to the railroads. The lack of federal standards for the use
of wheel bearing defect detectors and the installation, inspection, and
maintenance of wayside bearing detectors has wreaked havoc in the
industry. We saw that in the East Palestine derailment, when an
overheated wheel bearing passed multiple sensors before the system
flagged it too late. Only after the East Palestine derailment did AAR
lower the industry standard for the temperature threshold that should
trigger alerts from wayside bearing detectors in tacit acknowledgment
that their previous standard was too high. This is a recipe for
disaster, as the AAR standards are not mandated nor required to be
complied with. We are glad the legislation takes steps to address it by
directing the federal government to set standards for the first time on
the installation, inspection, and maintenance of defect detectors and
require railroads to submit plans to the federal government for
approval on how they plan to deploy defect detectors on their network.
Importance of Two-Person Crew Requirements
Another concerning safety threat that is ever-present in the
railroad industry is the railroads' effort to reduce two-person crews
to just one person on board a freight train.
In the United States, a freight train can weigh up to 65,000 tons,
average well over a mile long, and contain hazardous materials like the
2.2 million carloads of chemicals the railroads transported in 2023.\3\
It is absurd to argue that such a massive piece of equipment can be
safely operated by one individual, given the many tasks for which at
least two people are needed. In fact, there is no data to support that
a reduced crew size would be as safe or safer than a two-person crew on
America's Class I railroads. This is why FRA's safety regulations are
written under the assumption that at least two crewmembers will operate
freight trains.
---------------------------------------------------------------------------
\3\ https://www.aar.org/wp-content/uploads/2020/07/AAR-Chemicals-
Fact-Sheet.pdf
---------------------------------------------------------------------------
The number and qualifications of crew members are inherently a
safety issue. Every single day, lives are saved, and accidents are
prevented because of the presence of a two-person crew. Train crews are
de facto first responders because they are the first to respond when
there is a train derailment or accident.
When the train finally came to a stop in the East Palestine
derailment, the technology stopped with it. Its job was done. Yet the
engineer, the conductor, and the trainee sprang into action. The
conductor immediately began a walking inspection, wherein he was
quickly able to identify a major accident had occurred, that fire was
present, and that danger was imminent. In doing so, he relayed
potential life-saving information to the engineer so that the engineer
could notify the dispatcher to get emergency services in motion. Then
the conductor, realizing the presence of fire presented the potential
for movement of the train--which would have exacerbated the situation
immensely--set manual brakes on the cars to prevent any unwanted
movement of the train and then separated the locomotives from the train
so that the crew could get to safety. None of that could have happened
in a timely fashion with a one-person crew, nor could it have been
prevented by technology. In fact, it was technology that was operating
the train, not the crew or, more specifically, the locomotive engineer,
while the bearing was failing and the train began to derail. It's safe
to say that if the railroads had their way and there wasn't a conductor
on board that locomotive, East Palestine would have been far worse than
the tragedy that occurred.
Having two crewmembers on a train provides the safety net needed to
prevent errors that could jeopardize safety while also helping ensure
train operations comply with important regulations. Second, crewmembers
offer more than just passive redundancy. Operating a train is a complex
and demanding job that calls on both crewmembers to work as a team and
undertake a variety of essential tasks, often simultaneously, to ensure
trains run smoothly and safely.
For example, some of a conductor's responsibilities include:
managing the train consist;
coordinating with the locomotive engineer for safe and
efficient en route operation;
interacting with dispatchers, roadway workers, and others
outside the cab;
and dealing with exceptional situations like mechanical
problems

When emergencies occur, having two crewmembers is vital since the
ability of a lone crewmember to investigate or respond to the situation
is not permitted. If a train being operated by a single crewmember were
to encounter an emergency situation, such as a highway crossing
collision with an automobile, a release of hazardous materials, or a
mechanical problem, that crewmember could not leave the engine idling
to investigate the issue. Those emergency response needs would have to
wait until another crewmember could arrive from many miles away. Should
a train break down and block a highway crossing, a second crewmember
would be needed to disconnect the train to unblock that crossing
quickly.
Expecting one crewmember to execute every required task while
anticipating all possible operating scenarios is an unacceptable risk
and is beyond irresponsible. Having a second crewmember physically on
the train in the event of an emergency quite literally could be the
difference between life and death. The additional capacity of a second
crewmember could also minimize property and environmental damage to
surrounding communities.
While two-person crews are currently the norm on Class I freight
railroads, crew size is often an issue that the railroads would like to
determine only during the collective bargaining process, not by
government regulation and oversight. That was certainly the case during
the last round of collective bargaining negotiations, where the Class I
railroads wanted to put this issue on the table. The safety of rail
workers, our communities, and this country's rail system should not be
bartered at a bargaining table. A primary safety issue like crew size
should not be open for negotiation, and it should not be something for
which unions have to give something else up--like wages--in order to
achieve.
To blindly make a staffing reduction such as this would equate to
nothing more than risk. That is why SMART-TD has been fighting since
1992 for two-person crew requirements and why States--both Democratic
and Republican states like Kansas, Arizona, Wisconsin, and Ohio--have
passed two-person crew requirements.
Confidential Close Call Reporting System (C3RS)
Additional meaningful data is needed in the railroad industry to
help improve safety. There is no more significant opportunity for the
data to be collected than through the Confidential Close Call Reporting
System, or C3RS, as we refer to it on the ballast. C3RS is a long-
standing, voluntary program through the FRA which enables workers to
confidentially report ``close call'' safety incidents through a third
party, NASA, without fear of discipline from their employer or FRA.
This setup through a third party is critical because the rail industry
has one of the highest rates of retaliation against workers who report
safety concerns. The Class I railroads actively discourage rail workers
from reporting safety concerns to the FRA by finding ways to discipline
or terminate workers they suspect of reporting safety concerns.
While the program was first conceived over 20 years ago, no Class I
railroad is currently a full participant, even though Amtrak, commuter
railroads, and several short lines actively utilize the program
successfully. Today, there are 31 railroad properties that currently
take advantage of the C3RS program. Only two of those are Class I
railroads, Norfolk Southern and BNSF--and they are participating in
one-year pilot programs that have a limited scope. For example, on the
Norfolk Southern pilot program with SMART-TD and BLET, only three
territories are participating. Yet even so, all of those territories
have the data to show their considerable safety gains.
The C3RS program provides valuable information that can be used to
improve safety. In 2019, the USDOT Volpe Center analyzed four C3RS
pilot programs that were conducted in the mid-2000s on Amtrak, New
Jersey Transit, and two Class I railroads and found that utilizing C3RS
at these sites resulted in upwards of a:
41% reduction in Human Factor derailments;
50% reduction in derailments caused by Run Through
Switches;
53% reduction in Human Factor incident costs;
18% reduction in transportation injuries; and a
39% reduction in disciplinary hearings, resulting in
$890,000 in cost savings.\4\
---------------------------------------------------------------------------
\4\ John A. Volpe National Transportation Systems Center,
``Confidential Close Call Reporting System (C3RS) Lessons Learned
Evaluation--Final Report.'' Feb. 1, 2019: https://rosap.ntl.bts.gov/
view/dot/38825

Programs such as C3RS have been wildly successful in other
industries and even in other modes of transportation. Since the
implementation of a similar program in the aviation industry, the
Aviation Safety Reporting System (ASRS), the fatality rate decreased
83% in less than a 10-year span.\5\ That is why other employers support
these programs because improved safety benefits those industries. The
railroads would similarly benefit and it speaks volumes about how
little they actually care about safety that they refuse to join a
voluntary program that they would specifically benefit from, all
because they don't want to lose any semblance of control in
disciplining their workers.
---------------------------------------------------------------------------
\5\ https://ttd.org/policy/letters-to-industry/ttd-urges-union-
pacific-to-join-federal-close-call-safety-reporting-program/
---------------------------------------------------------------------------
More than a year ago, AAR committed in a letter \6\ to Secretary
Pete Buttigieg that the Class I freight railroads would join the C3RS
program. They have yet to fulfill that commitment. We support the
intent in this legislation to mandate participation by the Class I
railroads in the C3RS program and look forward to working with the
sponsors of the legislation to perfect the language to ensure it
reflects the template Memorandum of Understanding that FRA has
developed for the program.
---------------------------------------------------------------------------
\6\ https://www.freightwaves.com/news/all-class-i-railroads-sign-
on-to-federal-close-call-reporting-program
---------------------------------------------------------------------------
Conclusion
America's railroad system is one of the greatest in the world, but
the processes and protocols that oversee it are not. The frequency of
derailments and the commonality of hazardous materials releases have
become far too common, and something has to change. America's railroad
workers and the communities in which they traverse deserve better. The
Class I railroads have shown that they won't change unless they are
forced to act. Therefore, we urge Congress to act on rail safety and
pass the Railroad Safety Enhancement Act of 2024.
We are thankful for the opportunity to testify, and we look forward
to answering questions of the Committee.

Mr. Nehls. Thank you, Mr. Hynes. I thank you all for your
testimony. We will now turn to questions from the panel. I will
recognize myself for 5 minutes.
I will start by asking unanimous consent to enter the
following documents into the record: a letter from the
Association of American Railroads to Secretary Buttigieg on
March 2nd of 2023; an article entitled, ``Freight Railroads
Announce Key Safety Measures in Drive to Zero Accidents,''
dated March 8, 2023.
Without objection, so ordered.
[The information is on pages 89-92.]
Mr. Nehls. In response to East Palestine, the Association
of American Railroads, which represents the Class I railroads,
announced seven steps to reach zero incidents and zero
injuries. You can find it on their website. I have the document
that is right here.
The first step AAR listed was detector spacing. AAR stated
the industry would deploy 1,000 new hot box detectors and set a
goal of achieving a 15-mile average between detectors. Ms.
Homendy, would this average spacing have made a difference in
East Palestine?
Ms. Homendy. It would not have.
Mr. Nehls. All right. The fourth safety measure AAR
announced was that all Class I's are joining the FRA's
voluntary Confidential Close Call Reporting System. This is it.
This is the letter. They sent the letter dated March 2, 2023,
to Secretary Buttigieg.
Mr. Bose, how many Class I's are enrolled in the program,
and how many employees of those railroads are covered by the
program?
Mr. Bose. Mr. Chairman, 2 railroads have pilot programs,
approximately 1,500 craft workers from conductors, engineers,
and dispatchers.
Mr. Nehls. The letter is well over 1 year old, March of
2023, and you've got two of the six.
Chairwoman Homendy, I would like to thank you and your team
on the hard work and thorough final report. You did a great
job.
There have been some allegations about Norfolk Southern's
conduct that I would like to have addressed. I want to address
it for the record. In your opinion, was Norfolk Southern open,
honest, and transparent with your investigation?
Ms. Homendy. They were open, they were honest, and they
were transparent based on our request for information.
Was it timely? No.
Were other actions taken that were in violation of our
party regulations and our party rules? Yes.
Mr. Nehls. Mr. Hynes, one of the most contentious
provisions of the RSA you alluded to in your opening and our
legislation is the crew size mandate. Please explain why
Congress should mandate this provision, and how it contributes
to safety.
Mr. Hynes. Well, thank you. That is a great question.
The duties of a conductor are different than the duties of
an engineer. And the engineer primarily operates the train. The
conductor does anything that takes place off of the
locomotives, and things that take place in the cab. They have
different jobs. And I think it is important to point out that,
as far as grade crossing accidents go, which we have thousands
of every year, it is the conductor who gets off the train when
either a derailment happens or if a car is hit in a grade
crossing. The conductor goes back, assesses the situation,
relays that information to the engineer, and the engineer gets
emergency services underway and out there. And depending on
where they are coming from, you may have to make a separation
in the train----
Mr. Nehls [interposing]. Sure.
Mr. Hynes [continuing]. To allow emergency through----
Mr. Nehls [interposing]. Yes.
Mr. Hynes [continuing]. And you could never do that with
just one person.
Mr. Nehls. Yes, I would like to add that this new
legislation proposed in the House and Senate still preserves a
waiver to the FRA for the purposes regarding crew size.
Mr. Sloan, I think it is important to have a shipper here
to discuss rail safety and how it impacts them. For too long,
you have been excluded. You haven't really been part of this.
In terms of rail safety, what concerns do shippers have, and is
there anything we are missing?
Mr. Sloan. Thank you for the question. We have supported
the bill because I think, like I say, it provides a solid
foundation to move forward. So, I think it has largely
addressed the concerns that we have raised with the committee
and on the Senate side.
Mr. Nehls. Sure. Mr. Arouca, as mentioned in your
testimony, we all seem to agree that the railroad should be
profitable. They have got to be profitable, but they have got
to be safe. They have got to be safe. How would the proposed
legislation improve safety but not restrict a railroad's
ability to operate on time?
Mr. Arouca. Well, first and foremost, Mr. Chair, I do want
to make note that nobody has a greater interest in the success
of the railroads than the people that work for them. If the
railroads don't make money, we can't argue for better
contracts, wages, benefits, working conditions. All that goes
out the window.
Secondarily, the service critics that might be critical of
this bill are--they are just simply wrong. I mean, I am sitting
next to one of the largest rail customers in the country. I
don't think he would be supporting the legislation if he
thought it was going to completely destroy rail service for his
entire industry.
At the end of the day, for the carmen, you have two
options. You either give the carmen enough time to do their job
and inspect all these trains, or you assign more carmen to
inspect the trains. The answer is not what is currently going
on, which is just to not properly inspect them at all. That is
what I would say.
Mr. Nehls. Yes, thank you. I will yield the balance. I will
now recognize the ranking member for 5 minutes.
Ms. Wilson of Florida. Thank you, Mr. Chair.
Mr. Arouca, there are two types of Federal train
inspections: an inspection by a qualified carman, who inspects
195 points on each car, and the locomotive crew inspection that
covers only 12 points. What are some of the things that the
shorter inspection does not cover?
Mr. Arouca. Thank you, Ranking Member. Well, I brought a
little bit of a visual indication here. So, this is from--I
printed out the portions of the FRA's MP&E, or ``Motive Power
and Equipment Compliance Manual'' that the inspectors are
required to use and that our members are required to inspect
to. This is what carmen are having to inspect to. This is, as
you can see, quite a stack of paper. It cites parts 215, 231,
and 232.
This, these two pages, is what a crewmember is required to
inspect to: 12 points of inspection. They are generalized,
versus a carman has 180 different specific components where you
actually have to measure for tolerances on various parts of
those components, you have gauges and tools.
Unfortunately--and this is not to detract from our brothers
and sisters in the operating crafts, but they don't have the
time to do this. They have other tasks to do. They have to get
their freight ready to roll. The carmen are supposed to be the
ones to make sure everything is safe. It is important to have
the carmen there, making sure everything is safe.
Ms. Wilson of Florida. So, you feel that employees are
feeling pressured to rush inspections to keep the trains on
schedule?
Mr. Arouca. Oh, absolutely. One of the things that the
FRA's recent time study just showcased is how the carmen
today--even the--1 minute 30 that some people have been
floating around--or that when FRA is present that is what they
observe--that is not how the carmen are actually treated as
soon as the FRA walks out of the yard. It is down to 22 seconds
a side. You cannot inspect--you can't--you can barely
physically walk the length of a train, of a train car, in 22
seconds, let alone pay any attention to any amount of detail on
the car.
Ms. Wilson of Florida. There is a Wall Street Journal
article that actually says that Norfolk Southern's rail yard
workers were expected to inspect each railcar in 1 minute so
that the trains could leave on schedule. Do you think 1 minute
is sufficient to perform all the needed safety checks on one
railcar? I think you kind of answered that.
Mr. Arouca. Yes. Well, that is the funny thing, is that
that policy was in place, but it is not even 1 minute. I
remember Norfolk Southern's response was like, well, that is a
bit of a guideline.
Well, the FRA's study that just came out last week showed
they are not even giving them 1 minute, but 44 seconds. So, 22
seconds a side. And this is a year and a half after East
Palestine, where a lot of media has covered this issue because
our carmen are sick and tired of it. They are rushed, they
can't do the job well.
Ms. Wilson of Florida. Thank you.
Mr. Hynes, your testimony was riveting when you talked
about all the accidents that have happened since--it was--I am
stunned. How has the implementation of Precision Scheduled
Railroading impacted safety, in your estimation?
Mr. Hynes. Thank you for the question. That has been the
death knell for the railroads as far as long-term safety for
the railroad industry. When I started working for the railroad
over 30 years ago, I--they are doing things now that I never
even imagined that they would try. We would be fired if we
tried to cut the corners the way they cut corners now.
It is the modeling, the short-term modeling of operation
ratios, and lowering the operation ratio. That just becomes all
they care about. And Wall Street tells them, ``You have got to
cut crews. You have got to cut your labor, you have got to cut,
you have got to cut,'' and by doing PSR, it has made them
incredibly profitable, more profitable than ever in the history
of the world, but less safe.
And I mean, the catastrophes that we are seeing happen now
are happening far too frequently.
Ms. Wilson of Florida. Thank you.
Chair Homendy, was OxyVinyls informed that a vent and burn
was going to happen before it took place?
Ms. Homendy. A vent and burn was discussed Sunday night,
yes. There were several discussions between Norfolk Southern's
contractors and OxyVinyls.
Ms. Wilson of Florida. So, do we know what the response was
when they were told of this decision?
Ms. Homendy. According to the interviews, OxyVinyls stated
that they did not believe a polymerization or a catastrophic
chemical reaction was occurring in the tank cars, and they did
not believe a vent and burn was necessary.
Ms. Wilson of Florida. I am out of time, I yield back.
Mr. Nehls. The gentlelady yields.
Ms. Wilson of Florida. Thank you, thank you.
Mr. Nehls. I now recognize Mr. Babin for 5 minutes.
Dr. Babin. Thank you, Mr. Chairman. I appreciate it very,
very much.
Like many of you here today, I was shocked watching the
East Palestine events unfold. And I think the American people
want solutions to make sure that an event like this can never,
ever happen again.
The event was a tragedy, and I find it despicable that this
catastrophe was not taken seriously by the White House. It took
President Biden more than 1 year to go visit East Palestine.
That slow response made Americans question the competency of
the Federal Government and its capability of responding to
disasters like this. The optics of smalltown America being
devastated without getting personal attention from our Nation's
highest office did not build any confidence in this
administration.
Fortunately, President Trump and his Vice Presidential
nominee, J.D. Vance, made it very clear that this was going to
be a top priority for them moving forward. And now that we have
got an NTSB report in hand, I think that we need to focus on
concrete ways to improve rail safety, improve the
transportation of chemical goods, and rebuild American
confidence in our transportation sector. Let's use today as a
great chance to move forward on the same page.
My first couple of questions are for Mr. Jeff Sloan with
the American Chemistry Council. No doubt, following the events
in East Palestine, many Americans realized for the first time
that our rail and chemical industry work very closely together.
Mr. Sloan, would you give a very brief overview of the role
that chemical companies play in ensuring the safe
transportation of chemicals by rail?
And after that, do you believe rail is a safe way to move
hazardous chemicals, or is there a better way to move them?
Mr. Sloan. Yes, I will start with the----
Dr. Babin [interposing]. OK.
Mr. Sloan [continuing]. Second question first. Rail is the
safest way to move hazardous materials by land, and our
industry is reliant on the rail industry to deliver our
products where they are needed across the country.
I think we have a collaborative relationship with the
railroads when it comes to safety, and I think a prime example
of this would be the TRANSCAER program, which ACC cooperates
with the Class I railroads to provide hands-on training to
local emergency responders. We do this with grant funding
support from PHMSA. And so, we think this is an excellent
example of how shippers, railroads, emergency responders, and
Government officials can work together.
Dr. Babin. OK, thank you very much.
And Chairwoman Homendy, I want to say thank you for all
your hard work. This is several times that I have seen you in
just the last month or so, coming up here talking about various
transportation issues. And your good job, doing a thorough NTSB
report, your efforts are truly appreciated. My next question is
for you.
The NTSB report on East Palestine goes into great detail
identifying and explaining safety issues, as well as providing
recommendations to industry, State, local, and Federal
entities. I understand a number of the recommendations from
NTSB were meant to be handled at other levels of Government or
by the industry themselves, but can you share a few specific
recommendations on what you believe that Congress can do to
ensure that this tragedy never happens again? Thank you.
Ms. Homendy. Thank you very much, sir.
One particular example would be an aggressive phaseout of
DOT-111 tank cars. This started with a DOT-111 tank car in
flammable service, but then also expanding that to include
other hazardous materials and phasing out those DOT-111s. That
would be a tremendous improvement in rail safety overall. This
has been something that we have recommended over 17 accidents
going back to 2013. In fact, we had a study in 1991 and have
been recommending it ever since.
Here is what I will say. I know there is a lot of
discussion about whether to do rail safety improvements right
now. This committee has a critical role in improving rail
safety, and you all have done so much on a bipartisan basis
over decades. I worked for this committee for 14 years. I saw
tremendous success on safety, everything from the Motor Carrier
Safety Act in 1999, Rail Safety Improvement Act of 2008,
numerous highway and transit bills, pipeline reauthorization
bills. You have done so much to improve safety. Now is the
time, because this could occur in Texas, California, Wisconsin,
Georgia--well, it did occur in Pennsylvania, because you were
right on the border. It could occur anywhere. This is an
opportunity to improve rail safety, and I hope you will use it.
Dr. Babin. Thank you, and I will yield back.
Mr. Nehls. I don't want to say that sounds like an
endorsement of our bill, but, hey, listen.
I now recognize the co-author of the Railroad Safety
Enhancement Act, Mr. Moulton, for 5 minutes.
Mr. Moulton. Thank you very much, Mr. Chairman, and thank
you so much for your opening remarks describing this bill. I
want to associate myself with those remarks, and I am very
proud of the piece of legislation that we have put together in
cooperation with so many of the people here, so many of the
folks represented here today, including the Class I's.
At the same time, I want to be careful to disassociate
myself with some of our new colleague's remarks at the
beginning of this hearing, because, unlike his partisan attack
on the administration, this bill is truly bipartisan. And my
colleague, Chairman Nehls, has been a wonderful partner.
Unlike his vitriol against railroads, Mr. Sloan and others
have reminded us that rail is the safest way to transport
hazardous materials across the country. And so, the point of
this bill is not to wreck the railroads, but to improve their
safety and competitiveness. We want the railroads to be safer
and more competitive, and to take more trucks off the highways.
In 2023, there were 22,543 hazardous materials incidents on
our Nation's highways, compared to 297 freight rail hazmat
incidents. If that is not compelling, 22,543 on highways versus
297 on freight rail, I am not sure what is. But having said
that, we want to see 297 go to zero.
From 2012 to 2023, there have been zero railway deaths with
hazardous materials, while there have been 82 fatalities on
highways with hazmat. So, railroads are already doing pretty
well, but we want them to do better. And ultimately, we share
the goal of shifting more traffic from unsafe highways to safe
railroads. That is a large part of the goal of this bill.
Now, Mr. Bose, after the East Palestine derailment, Norfolk
Southern was attacked by an investment fund named Ancora
Holdings trying to take over the company, citing the tragedy at
East Palestine as a reason for change. Yet their primary line
of attack was that the railroad could make better returns by
implementing Precision Scheduled Railroading. This Ohio-based
family wealth fund wants a railroad of longer trains manned by
fewer personnel and less reinvestment in infrastructure to
return more short-term money annually to shareholders.
Based on the data we have today, Mr. Bose, would longer
trains, fewer personnel for operations and maintenance, and
less reinvestment in infrastructure improve railroad safety?
Mr. Bose. Congressman, thank you for the question. No.
Mr. Moulton. No, it would not. Well, in response to
Ancora's attacks, Norfolk Southern CEO Alan Shaw changed out
his chief operating officer for someone more steeped in
Precision Scheduled Railroading, and brought three Ancora
directors onto the board. That is the effect of this family
wealth fund based in Ohio, the same State where East Palestine
occurred. This is going to make things worse.
And so, the point is that railroads are safe today. We want
to make them safer. But there is work to do, because even if
you just look at how Norfolk Southern has handled things over
the last 2 years, it seems like they are moving in the opposite
direction.
Now, Chair Homendy, I was taken aback by the video you
obtained which showed that the bearing that caused the East
Palestine tragedy was on fire for miles before the train
derailed, and when it passed hot boxes it was reading 103
degrees and 115 degrees. This did not trigger an alert.
Now, this little ring on my finger measures my body
temperature all day long--it costs a couple hundred bucks--in
addition to taking much more complex measurements of my heart
rate variability, et cetera. If every wheel on a freight train
had a temperature sensor like that that transmitted directly to
the locomotive engineer to detect any unexplained rise in
temperature, would that make trains safer?
Ms. Homendy. Yes, it would make trains safer.
Mr. Moulton. Mr. Bose, would this technology, providing
constant real-time measurements directly to operating crews, be
more effective than simply having more wayside detectors?
Mr. Bose. Yes, sir.
Mr. Moulton. Mr. Sloan, would your customers benefit from
having real-time location and car health data on their
shipments and on the cars hauling them across the country?
Mr. Sloan. I mean, we believe that onboard sensors have the
potential to provide additional safety benefits, but I think
there is a lot of work still to develop them and make sure----
Mr. Moulton [interrupting]. Yes, but I am not asking you
about that. I asked them about safety. I am asking, would it
benefit your customers to know where their cars are and whether
they are healthy?
Mr. Sloan. Yes.
Mr. Moulton. Yes, right.
Mr. Arouca, would your members benefit from knowing real-
time data on the health and safety of their railcars so that
they can make appropriate repairs when they get to terminals?
Mr. Arouca. Absolutely.
Mr. Moulton. And Mr. Hynes, would this data make our trains
safer across America?
Mr. Hynes. Yes.
Mr. Moulton. This is the kind of innovation included in
this bill. This is innovation that will make railroads safer,
that will move this industry forward, that will make them more
competitive. And that is why this bill is so bipartisan, and it
is why we ought to get support not just from all the groups
represented up here, but from the Class I's, as well.
Thank you, Mr. Chairman, I yield back.
Mr. Nehls. Thank you, Mr. Moulton. It is an honor to work
with you.
I now recognize Mr. LaMalfa for 5 minutes.
Mr. LaMalfa. Thank you, Mr. Chairman.
To our panelists there, is it--how practical is it--I will
start with Ms. Homendy--every railcar has approximately eight
wheels that would be monitored under what Mr. Moulton was just
talking about with a data point on that. So, a 100-car train,
you would have 800 pieces of data coming at the engineer. Is
that practical for an engineer to be monitoring that much data
and still operate a train?
Ms. Homendy. The data would probably go to the back office.
It would not go to the engineer.
Mr. LaMalfa. All right. So, is that manageable at that kind
of distance with that many--with the amount of trains that are
running across the country, or is there something a little more
halfway in between of what we have now with the railroad-side
heat temperature monitor versus a device on every single
bearing on all the railcars?
Ms. Homendy. Hot bearing detectors are effective, but we
need more advanced technology to ensure greater safety. That
would include acoustic bearing detectors and onboard sensors.
Mr. LaMalfa. Last time we were here, we had some followup
questions afterwards with you on that where a bearing is
indicating 103 degrees, 115--burning up, obviously--is
inaccurate information. So, were you able to just find anything
more additional on that, particularly with the East Palestine
one?
Ms. Homendy. Yes. For this one it was--so, that bearing
registered at 38 degrees at milepost 79.8. We know that it was
registering at 103 degrees at just 10 miles later in Salem,
Ohio. But we also know from video that it was on fire. So, 103
degrees doesn't make sense, as you mentioned.
Mr. LaMalfa. Yes.
Ms. Homendy. And that is because it can take 30 to 60
minutes for the internal defect to result in the actual
temperature, which could have been 253 at milepost 49, but that
was the highest that would have sensed at that time.
Mr. LaMalfa. OK, thank you. Let me shift to the--coming
back to the incident, there was the vast number of agencies
that were part of the response.
My figure is 48 different agencies were involved one way or
the other at the time of or followup on that. How do you see we
can have a better job of coordinating? Maybe you don't have so
many to deal with in a short amount of time to make a key
decision. I am still bothered by the decision to burn the
material in the railcar.
Ms. Homendy. Are you referring to the vent and burn, or are
you referring to the emergency response immediately after the
derailment?
Mr. LaMalfa. Immediately after.
Ms. Homendy. So, immediately after the derailment,
emergency responders need information. They need to know what
is in those train cars to protect themselves, and they need to
know what is in there to protect communities. And that is by
getting the train consist from the railroads. By law, it is
their requirement to provide that information to emergency
responders.
It is not unknown to a railroad what their network is,
where their trains operate. They know when a derailment occurs.
We have email. Send a train consist to an incident commander.
In this case, it would have been the East Palestine Fire
Department. They were incident command. But the incident
commanders did not have access to that train consist for hours.
Meanwhile, they were getting exposed to a significant hazardous
materials release.
I will also mention radio interoperability was a big issue.
These agencies could not talk to each other, and that can
happen anywhere and is something that I hope you will address
even in this bill.
Mr. LaMalfa. How do we improve this coordination?
Ms. Homendy. I am sorry.
Mr. LaMalfa. How can we improve this coordination amongst
information on what is on the railcars and immediacy for those
emergency folks?
Ms. Homendy. I don't think AskRail is the answer. I don't,
because there are so many communities across the United States
that you may not have internet service or be able to access
anything on your phone or even know to access something on your
phone.
This is information--again, the railroads know what is
moving on their network. They know who is on their network.
They can provide that information. We email all day long. They
know when a derailment occurs. Provide the information in a
timely way to 911. It is not hard for them to do that, and they
should be held accountable for doing that.
Mr. LaMalfa. Well, they know this before the train leaves a
yard, let alone having to worry about whether there is internet
connection or not on site. What does it look like to have that
information relayed before the train even leaves its original
point and picking up that chemical?
Ms. Homendy. They have the list. They have it both in
electronic form and in paper form.
Mr. LaMalfa. So, why could that not be relayed all the way
down the line, I guess?
Ms. Homendy. It can, certainly. When they know there is a
derailment, they will provide that.
Mr. LaMalfa. Well, even without a derailment, we should
know, hey, this is going to be coming through this town at this
approximate time. Why would that be tough?
Ms. Homendy. They could. You might have an overload of
information to emergency response agencies when there isn't a
derailment that occurs.
But when there is one--and here is where I will say PHMSA
just issued a final rule that requires that information to be
provided immediately. So, perhaps the Deputy Administrator
would like to talk about their final rule.
Mr. LaMalfa. Well, the chairman might get after me on time
here. It is up to him.
Mr. Nehls. We will come back for a second round if you want
to hang out.
Mr. LaMalfa. Thank you, sir. Thank you, sir.
Mr. Nehls. I now recognize Mr. Garcia for 5 minutes.
Mr. Garcia of Illinois. Thank you, Chair and Ranking
Member, and to all of our witnesses this afternoon.
With over 7,400 miles of railroad tracks in Chicagoland and
many running through my district, the safety of the public and
rail workers is a paramount matter for me. And while rail is a
fundamental pillar of Chicago, it also presents risks to
communities.
A couple of weeks ago, we lost a Union Pacific rail
employee named Justin Pender in a tragic accident at a rail
yard in my district. Justin was only 27 years old, and was
riding a tank car when he was crushed by a passing train. My
thoughts are with his family and friends in the wake of this
tragedy.
Simply put, we must do better for our rail workers. While
we have been awaiting the NTSB East Palestine report, the
findings tell us what we already know: there is a systemic
culture of putting profits over the safety of workers and the
public.
Mr. Arouca, your testimony points to a dramatic decline in
the number of rail inspections, pressures to reduce inspection
times, and managers being docked, or evaluations based on how
many cars they tag for repairs. Can you explain how these
factors contribute to the culture that puts those profits over
safety of workers and the public?
Mr. Arouca. Thank you, Congressman, yes. There is largely a
sentiment--and as the ProPublica article and my testimony
mentioned, but also as noted in the FRA's recent letter, there
is a notable culture of harassment from managers. You are
tasked with getting something out the door as quick as
possible.
If the number of defects starts rising above a certain
threshold, whether that is found during inspections or by
actual detectors, there is a level where management says, ``No
more, we are done, no more defects.'' Well, that is not safe.
You can't not find defects anymore. That doesn't make them,
poof, go away. They are still there.
So, we have to do something to alter the processes, alter
the ways in which carmen are allowed to actually go out there
and inspect things and make sure the trains are actually
adequately checked before they head out the door.
But in a broader perspective, the PSR business model is all
about reducing dwell time at all costs. It means all types of
things are going to be shortened, whether it is your
inspections, whether it is lacing up hoses, all of the number
of actions. And I hope my friend, Mr. Hynes, will pipe in on
this, that his members are harassed to shorten their
timeframes, as well. None of that is safe. We believe these
processes need to be addressed.
Mr. Garcia of Illinois. Thank you.
Chair Homendy, although the wheel bearing that failed on
the East Palestine train was indicated in an alert, it was a
low-priority alert, and did not reflect the true condition of
the bearing.
In addition to this, NTSB indicated that railroads'
operational responses to bearing alerts is an issue in itself.
Is there a way to improve the accuracy of these alerts and, in
your opinion, are rail workers empowered to respond to alerts
in a way that minimizes risk?
Ms. Homendy. Well, in this case there was only one person
working that desk at the time. Norfolk Southern had additional
personnel. They went down to one. Now they have added more
personnel. So, having more personnel certainly could help.
With respect to our findings and our recommendations, our
biggest recommendation is to the Federal Railroad
Administration to do research on bearings, including railroad
responses to alerts, and thresholds, and spacing, and then to
develop regulations around that.
Mr. Garcia of Illinois. Are rail workers empowered to
report these things?
Ms. Homendy. Are rail workers--well, we are currently doing
a safety culture assessment of Norfolk Southern, and that is
one of the questions that we have. We have done a survey of all
of Norfolk Southern's employees, and we are looking at the
responses now. And one of the questions we have is, ``Are you
empowered? Do you feel empowered to report unsafe conditions?''
And we are going to have to evaluate that. So, it is not a
question I could answer right now, but we will return back to
you.
Mr. Garcia of Illinois. We will be looking forward, thank
you.
I yield back, Mr. Chair.
Mr. Nehls. The gentleman yields. I now recognize Mr.
Williams for 5 minutes.
Mr. Williams of New York. Thank you, Mr. Chairman--I won't
touch my microphone again--and thank you all for your very
detailed answers and response.
I am really trying to swim in the middle of all of these
facts and details, frankly, in the lens of looking at my own
community. So, we are fortunate to have a significant
investment by CSX in my district. But that, of course, also
brings the traffic and the rail lines with it. And so, the
findings of this committee and your testimony are very
important in Syracuse, New York, and central New York. And so,
that is really the context that I am trying to understand this.
It just touches a lot of families in my area.
I understand that accidents happen. And could each of you
that can answer this, what is the likelihood of a similar East
Palestine-type accident, chemical car derailment, fire
happening in my district in the lines in my community?
Mr. Bose. Congressman, it is hard to answer that exactly. I
will say this: Fortunately/unfortunately, we have learned a lot
from East Palestine. I think the railroad industry has learned
a lot not to repeat again the things that did or did not happen
there.
Mr. Williams of New York. Anyone else? I would appreciate
just any other context.
And that is, by the way, very helpful, Mr. Bose.
Ms. Homendy. Well, I appreciate that, except the NTSB has
investigated numerous rail accidents over decades, where we
have issued recommendations that we have repeated and repeated
and repeated, with zero action by the railroads, by some
regulators.
And so, yes, I can't quantify a likelihood for number, but
could it occur in your district? It could occur in any of your
districts. And we will be there. But again, we will probably
have additional recommendations that we have issued previously.
Mr. Williams of New York. As a followup to that, are there
any recommendations coming out of this particular accident that
have been implemented widely, and that should give my community
more confidence in the rail, based on the recommendations?
I understand that perhaps over decades many haven't, but in
this case, it sounds like there have been a lot of
recommendations that have been implemented. Can you comment on
those?
Ms. Homendy. The Deputy Administrator might want to now
take the time to talk about the final rule.
Mr. Brown. Well, the Congressman from California's earlier
comments about providing information to first responders in the
event of an incident, that is something that Congress directed
us to do. But in talking to the firefighters and first
responders--and to echo the Chairwoman's comments earlier--they
didn't have access to the train consist until after they
arrived on scene, well after they arrived on scene. And so,
what we are requiring is that the railroads that have that
information at all times, get it to the 911 call centers, get
it to your first responders so they have that information and
are able to respond.
The other thing that Congress has paid attention and
multiple bills that this committee has introduced to phase out
the DOT-111s, which the NTSB Chair also emphasized, is
critically at issue and can significantly reduce the likelihood
of a major incident occurring in your district. And so, phasing
that out, that is something that our agency proposed requiring
more than 10 years ago, but requires Congress taking action.
Ms. Homendy. If I could just add----
Mr. Williams of New York [interposing]. Please.
Ms. Homendy [continuing]. We issued 34 new safety
recommendations as a result of this investigation. None of them
have been implemented. Several of them have been reiterated,
and we have requested over decades to be addressed.
Mr. Bose. Congressman, FRA is going to take those
recommendations that NTSB has put forward, and we will accept
those recommendations and have already started action on that.
One area where congressional legislation will be extremely
helpful--and bills like the one the chairman and Congressman
Moulton introduced, and the ranking member--is an increase in
fines for violations of rail safety regulations.
Mr. Williams of New York. Often Congress may be a bit of an
accusatory body, but occasionally we are a deliberative body.
And so, your comments are well received, and timely, and
appreciated. So, thank you.
Mr. Nehls. The gentleman yields. I now recognize Mr.
Deluzio, who is an original cosponsor.
Mr. Deluzio. Thank you, Mr. Chair, and thank you for
calling this hearing and for the good collaboration of work on
this legislation, which, as I hope folks can see, is quite
bipartisan, is bicameral, and we ought to get it passed. This
should not be a partisan fight. This should not be one that we
cannot come together to pass.
I was very encouraged to hear from my counterpart across
the border in Ohio, Mr. Rulli, who represents the people of
East Palestine. Of course, I represent the folks on the
Pennsylvania side impacted by that derailment. I hope for the
American people who have been watching, they understand that
the Federal Representatives who represent those communities,
who could be any of our communities, are in the fight for rail
safety for as long as it takes.
What I have said all along--and I know I am not alone--is
that I refuse to let my constituents be treated like collateral
damage in the way of railroad profits. And the commonsense
measures that we are debating today, I think, will go a long
way toward making sure that they are never treated that way
ever again. The risks in my district are not hypothetical, and
they are not hypothetical, I think, for many others.
I commissioned a congressional research report about my
district. Ninety-five percent of my constituents live within 5
miles of the tracks. Nearly half live within 1 mile. This could
happen elsewhere in my district. It could happen in plenty of
other parts of the country, as well.
Now, it has been nearly a year and a half since this
derailment. One of the lines that I and others have been told
for a long time was that the railroads could take care of this
themselves, they would operate more safely. Let's look at the
data. According to FRA data, earlier this year in 2023--well,
that is--the derailment happened in the first part of 2023--we
saw derailments increase 13\1/2\ percent.
I introduced the Railway Safety Act last March. It is one
of those bills--I think maybe the only--that both former
President Trump and President Biden have supported. It has got
bipartisan support. We are now building from it in this
legislation. We have got new momentum, finally, to get
legislation passed.
Chair Homendy, in the final NTSB report, you recommended
establishing regulations on bearing defect detection systems.
That is in the Railroad Safety Enhancement Act, is it not?
Ms. Homendy. Yes.
Mr. Deluzio. You recommended improving local preparedness
for hazardous materials being transported through communities
like mine that happens when trains are properly designated as
high hazard. That is in our legislation, isn't it?
Ms. Homendy. Yes. I might have some technical request on
that to further improve it, but great job.
Mr. Deluzio. And that is the hope for us, to have a markup
where we can make some of those changes and do it. Thank you.
Mr. Arouca, you discussed--and Mr. Hynes, as well--industry
average time for qualified mechanical inspectors to perform
their inspections. Not enough time. We need to make sure
workers have sufficient time to perform proper safety
inspections. That is in our legislation.
Mr. Hynes, you talked about advocating for two-person crew
minimums, and what can happen if there were to be one person on
those trains. That is in our legislation.
My point is, we have got to pass the darn bill. There are
provisions in here that will keep folks safer, that will make
rail safer, that would give us the ability to not just protect
communities, but move things more safely on the rails.
My constituents saw a toxic fireball fly over their houses
after this derailment, one that shouldn't have happened. My
constituents, our neighbors in Ohio are worried about the
health of their families, worried about their drinking water,
the air they breathe, the land they grow their crops on. And
Congress has yet to pass rail safety legislation. We are
finally seeing momentum.
I will ask a very simple question down the line. It is one
I asked Secretary Buttigieg when he was here, as well. Chair
Homendy, do you trust the big railroads to regulate themselves?
Ms. Homendy. I do not.
Mr. Bose. No.
Mr. Brown. No.
Mr. Sloan. I am not sure I am qualified to answer that.
Mr. Deluzio. Fair enough.
Mr. Arouca?
Mr. Arouca. Can I use a curse word to say--no, no,
absolutely not.
Mr. Hynes. I am not sure I heard the question right
because----
Mr. Deluzio [interrupting]. Do you trust the----
Mr. Hynes [continuing]. I can't hear because I am a
railroader.
Mr. Deluzio. Mr. Hynes, do you trust the railroads to
regulate themselves?
Mr. Hynes. Do I what?
Mr. Deluzio. Do you trust the railroads to regulate
themselves?
Mr. Hynes. Absolutely not, and we have a 150-year record to
look at.
Mr. Deluzio. I think I agree.
With that, Mr. Chair, I yield back.
Mr. Nehls. The gentleman yields. I now recognize Mr. Fong
for 5 minutes.
Go ahead.
Mr. Fong. Thank you, Mr. Chair. I just have a quick
question, and this is certainly an important hearing as we
learn the lessons of what happened with this derailment.
To the Federal Rail Administrator, I represent the city of
Tehachapi, which is in the mountains of California. And in
recent years, there have been multiple derailments in the area.
And I have heard that local authorities in my community have
not received notification about these derailments in a timely
manner. To improve communication between local authorities and
the railroads, what is being done to let the local authorities
know about local derailments when they occur?
And what is the standard practice when derailments do
occur, the notification?
Mr. Bose. Congressman, in terms of notification on a
derailment, the railroad company is responsible for
communicating that to the National Response Center. And
depending on the level of the derailment, FRA dispatches
investigators to the site. Obviously, emergency responders,
local folks are alerted to that.
As we have talked about, depending on the type of material
that is on the train, there is supposed to be advance
notification of the type of material that is on the train so
that emergency responders in the area, the State, have an idea
of that.
Mr. Fong. So, is it dependent on the material?
So, I do understand that with something that is highly
flammable, they are required to notify the State's Emergency
Response Commission. But in any other instances, is there like
a certain turnaround time they have to do it in, or is it just
up to the----
Mr. Brown [interrupting]. If I can just jump in here
because last month, we finalized new requirements that, if the
emergency responders are deployed to respond to a hazardous
materials-related derailment, then they are required to notify
immediately via the 911 call centers, and they are also
required to update the real-time AskRail electronically and
communicate that information to the first responders. And they
are required to keep paper copies, as well, so that first
responders can access that.
Mr. Fong. If it is nonhazardous materials, are there
specific guidelines?
Mr. Brown. I've got to defer to others because we only deal
with the hazardous materials.
Mr. Bose. It depends on the level of derailment.
Mr. Fong. Can you spell that out? What are the shades of
derailment?
Mr. Bose. Well, it depends on the number of cars derailed.
Derailments can happen of all types in nature. There can be
multiple cars involved, so, it depends on the number of cars
involved. Again, it depends on the type of material on board,
if there is a roadway involved, right, and a grade crossing
involved that--and then, obviously, if there are houses nearby
and schools and hospitals.
So, again, it depends on the situation. But if it is a
populated area, there should be automatic notification.
Mr. Fong. OK. So, to improve the notification, the local
community should work with the railroad.
Mr. Bose. Yes.
Mr. Fong. OK, thank you. I yield back.
Mr. Nehls. The gentleman yields. I now recognize Mr.
Johnson for 5 minutes.
Mr. Johnson of Georgia. Thank you, Mr. Chairman, and thank
you, Ranking Member, for convening this essential hearing. And
thank you to the witnesses for your testimony today.
The United States is renowned for having one of the most
extensive rail networks in the world. However, this distinction
comes with an equally immense responsibility to ensure the
safety and efficiency of our rail system. Tragically, the
recent incident in East Palestine stands as a stark reminder of
the devastating consequences of falling short of our
obligations. This disaster wreaked havoc on the environment and
placed countless lives at grave risk.
While we have made some strides to elevate our safety
measures through historic investments in the Bipartisan
Infrastructure Law, the number of rail incidents in 2023
surpassed those in 2022, showing that the issue is not
improving. It is clear that much more work needs to be done to
address the vulnerabilities in our railroads. We must take
decisive action to guarantee a safe, reliable, and robust
freight and passenger rail network for our communities that
truly lives up to its extensive reputation.
Mr. Arouca, in your testimony you mentioned that the
Transportation Communications Union Brotherhood of Railway
Carmen Division represents approximately 10,000 carmen
nationwide. These skilled workers conduct thorough inspections
to ensure compliance with safety standards, but face time
pressures that impact their ability to prioritize safety
effectively. Can you please elaborate on some of the most
critical safety components that are often neglected due to time
pressures?
Mr. Arouca. Sure, thank you, Congressman.
One of the problems that you are looking for, the big key
components, you are looking at the wheels, broken wheels, thin
flanges--so, that is the little part of the steel wheel that
keeps the train on the track. You're obviously looking--as
germane to this hearing--at bearings, which do have a visual
indication when they are failing. There is flung grease all
across the trucks and components. You are looking at the actual
couplers, pins, all the safety appliances that make sure that
Mr. Hynes' members can safely operate the train so when they
are out there delivering freight, they don't fall off a ladder
or a sill or can use a handbrake.
So, there are a whole number of components that the carmen
are trained to inspect, but they don't have enough time to ever
actually get to. Most of the time--or most, but some of the
time, the railroads are putting our guys on ATVs, and having
them drive along the side of a train. How much of a detailed
inspection does that provide for? It's just insane.
Mr. Johnson of Georgia. How does the inability to perform
full inspections specifically impact the safety and well-being
of railroad workers?
Mr. Arouca. Well, it is pretty dejecting when you are
trained to do something.
As our Carmen President Grissom likes to say, this is the
only career that he has ever heard of where they hire you to do
a job, and then they fire you once you try to do it. It is a
very strange thing. But that is detailed throughout a lot of
the articles that have been written about the carmen, and that
is why I am here today trying to get Congress to pass this
legislation and improve the lives of my carmen so they can keep
the trains a little bit safer.
Mr. Bose. Congressman, if I could jump in there, in terms
of inspections, qualified mechanical inspections are the gold
standard of inspections. There are certain situations where
other crafts--Mr. Hynes, who is at the table, represents
conductors--there are certain crafts that can do inspections,
but they should be done on a limited, limited basis in special
circumstances. That should not be the norm in terms of
inspections.
Mr. Arouca. If I could actually follow up on that, what we
have been referring to as the loophole, the appendix D
loophole, is this part of the regulation, the predeparture
inspection that allows for a conductor to be able to go and
inspect a train, inspect a set of cars, but that is designed
for when you are out in the network picking up freight.
These regs were written in the 1980s. They have been maybe
minorly updated here or there, but they were written when there
were 33 Class I's. There are now six. In that era, when you had
33, you were getting inspections by carmen at every single
interchange. Now, we don't have that many interchanges anymore.
So, it is a whole different process. There is a whole different
operation out there. We have got to improve inspections, and
this legislation would do that.
Mr. Johnson of Georgia. Thank you, and I yield back.
Mr. Nehls. The gentleman yields. I now recognize Mr. Van
Orden, who is also an original sponsor in this legislation.
Mr. Van Orden. Thank you, Mr. Chairman. I would like all
the people on the panel who work for the Class I railroads to
stand up, please.
Let the record reflect that no one stood up because they
didn't bother to show up, even though they were invited to this
hearing. BNSF, Union Pacific, and Canadian National were all
invited to this hearing, and they are not here, and that is
shameful. That is not OK.
I represent a little town called De Soto, Wisconsin. We had
record flooding last April. I called the BNSF railroad on the
21st of April. I said, ``I am distinctly uncomfortable with the
conditions of the tracks due to the scouring that is taking
place due to the flooding of the Mississippi River.''
And the BNSF railroad essentially patted me on the head on
the phone and said, ``Don't worry, Mr. Congressman. We have
been doing this for 100 years, we know what the hell we are
doing.'' And 6 days later, on the 27th, there were several
railcars full of paint and batteries floating down the
Mississippi River that almost hit a lock and dam, which would
have caused potentially a catastrophic cascading effect that
could wipe out hundreds and hundreds of millions of dollars'
worth of wetland restoration.
Needless to say, we don't have the best relationship at
this point.
Class I railroads have to understand one thing: They are
not an entity unto their own. And they have gotten out of
control, and they are irresponsible. They are not receptive to
any type of input that I have seen, and it has got to stop.
I am a retired Navy SEAL senior chief, and what that means
is SEALs don't go anywhere without a swim buddy. And for them
to tell you dudes that you are going to have one guy on a
train, nope, that is a nonstarter. So, that is just foolish for
them to argue that they are going to have one person on these
trains. And I don't have a beef with the union guys, and I am a
Republican. You need two people on those trains. That is
unacceptable, and it is silly.
I want to thank Mr. Bose and Ms. Homendy for being so
responsive when that happened. You guys are Johnny on the spot,
or Janie on the spot, and I appreciate that greatly.
So, ma'am, I am going to ask you. Has anyone been fired,
reassigned, counseled, or demoted due to the massive and
preventable errors that took place in East Palestine?
Ms. Homendy. Not that I am aware of, but I might not be
aware.
Mr. Van Orden. OK. Mr. Bose, you are FRA.
Mr. Bose. I am not aware of any.
Mr. Van Orden. Has anyone quit in shame? Anybody? Anybody?
I don't think so, all right.
Ma'am, you have repeatedly stated that your agency has
repeatedly given very specific safety recommendations to the
railroads, and that they are blowing you off. Is that correct?
Ms. Homendy. We currently have 17 open rail safety
recommendations to Norfolk Southern alone. We have eight to all
Class I railroads, and several of them have been open for many
years. Overall, we have 215 open rail safety recommendations,
many of which have been ignored.
Mr. Van Orden. OK, so, the railroads, by ignoring your
safety recommendations, are putting these men's [indicating
witness panel] colleagues at risk, along with the vast majority
of my constituents.
So, my grandkids, four of them, live about three blocks
away from the railroad tracks in Prairie du Chien. And I want
to be super clear, I love the railroads. And if you don't love
the railroads, you don't live in Prairie, because we have
trains going through all the time. And the only difference
between East Palestine and what took place in De Soto, which is
right up the tracks, is they weren't hauling POL at the time.
And so, that would have been my grandkids' house, essentially.
So, we have to come to a place where these railroads
understand that they must be responsive to your agencies. And
do you have any type of recourse when they blow you off?
Ms. Homendy. We do not. FRA has enforcement authority,
however.
Mr. Van Orden. And what does that mean, sir?
Mr. Bose. Congressman, that means that when we find
violations or noncompliance with our regulations, we issue
fines, and we settle those fines. They have an ability to
object, and we reach a settlement.
Mr. Van Orden. Would you, sir, do me a favor when this is
over? Will you get me a list of those fines that you have
levied?
Mr. Bose. Yes, sir. When we complete the process, we
absolutely will.
Mr. Van Orden. Thank you. I would love to see----
Ms. Homendy [interrupting]. The settlement--the fines,
though, that you issue are settled. They can be settled for
pennies on the dollar.
Mr. Van Orden. Right, that is kind of what I am getting at.
I want to see the actual numbers that you submitted and what
they actually paid, because we are not doing this anymore. The
railroads need to be put in check, and that is what we are here
to do.
And I want to thank Chairman Nehls for his leadership on
this bill. I am very happy to be an original cosponsor, and
also the original for H.R. 4085, the Rail Inspector Safety Act,
which came from a direct recommendation from you, ma'am. So,
keep up the good work, I appreciate it.
I yield back.
Mr. Arouca. If I could say one thing to the Congressman----
Mr. Van Orden [interrupting]. It will be up to the
chairman, sir; my time has expired.
Mr. Nehls. Go ahead, sir. Answer his question if you want.
Mr. Arouca. No, I just wanted to say thank you for bringing
up the issue repeatedly now on the need for more FRA inspectors
out in the field. We need more cops on the beat, and we need
them to be more efficient.
One of the things I mentioned in my testimony is the
laborious nature of writing a violation for one single
violation. If you look through the FRA's MP&E study, you will
see, for whatever it was, 1,400 defects found, 47 violations--
every single one of those defects is technically a violation.
It just takes the inspector out of the field and into an office
to write a mountain of paperwork, and it takes them away from
where they are needed: out in the field.
Why don't we have something that is like, you know, for a
police officer: writing a ticket, writing a parking ticket,
writing a speeding ticket to make the entire thing much more
efficient and also give some teeth to the cops that need to be
out there?
Mr. Van Orden. Right on.
Mr. Nehls. Thank you.
Mr. Van Orden. Thank you, sir.
Mr. Nehls. The gentleman yields. I now recognize Mrs.
Foushee for 5 minutes.
Mrs. Foushee. Thank you, Mr. Chairman, and thank you to the
panelists here today. We appreciate you being here.
The NTSB report found that 25 percent of the cars on the
train that derailed in East Palestine contained defects, even
though Federal regulations require that a train's brakes must
have no defects before it is allowed to depart. Unfortunately,
a recent FRA study on freight railcar inspection times found
that inspection times averaged a shockingly low 22 seconds per
side for each railcar that--over 14 percent of the brakes are
defective while the train is operating.
Administrator Bose, why are railroads allowed to operate
trains that don't meet Federal safety standards?
And what consequences should railroads face for dispatching
trains that don't meet safety standards?
Mr. Bose. Congresswoman, thank you for the question.
First of all, railroads are expected to have inspection,
testing, and maintenance programs to ensure compliance with FRA
regulations. FRA monitors for compliance with Federal safety
requirements, and we pursue enforcement action when necessary,
and so, we do issue civil penalties any time we find
noncompliance.
Mrs. Foushee. Mr. Arouca, I have been made aware that new
digital inspection portals utilizing AI are being tested by a
number of railroads and third parties. In your testimony, you
acknowledge that this technology has the capacity to improve
rail safety and increase the effectiveness of inspections, if
used properly. Where does your union stand on these
technologies, and would they help minimize the risk of
accidents like the one that occurred in East Palestine?
Mr. Arouca. Thank you, Congresswoman, yes.
As mentioned in my testimony, there are a number of
technologies out there that exist that the railroads are either
lightly deploying or testing or using improperly, such as these
digital inspection portals. These are big camera rings. They
have high-speed cameras that capture hundreds, thousands of
images per second, and then use machine vision and machine
learning to actually try to identify defects.
What we would like to see in the industry is that that
information be given directly to a carman in the yard as the
train is coming in so that they have--imagine an iPad on your
wrist, and you are sitting there saying, ``I've got defects in
cars 1, 10, 28,'' et cetera. Unfortunately, that is not what is
happening right now. The camera rings that are deployed are
being used to discipline the carman after the fact, so, after
the train departs.
So, in essence, what I am trying to get across is they are
simultaneously restricting down the time our carmen can
actually inspect these cars, and then they are disciplining
them on the back end using these fancy tools. Even the
companies that built these things are telling the railroads
this is not how it is meant to be deployed. So, we would like
to see some improvements there. Contrary to what some folks
think, labor unions are not against technology, we just it to
be used correctly. So, we want to have access to that defect
detector network data--sorry, that type of data and imaging,
but also the rest of the data that the defect detectors catch
throughout the country.
Lastly, I will say the mechanical desks at these railroads
are wholly--are very, very short-staffed, with the exception, I
think, of the one that you visited, Chair Nehls, in Homewood. I
would say they are doing quite good. Everybody else has one guy
looking at the entire network's defect detectors, one guy.
Streams of emails coming in saying, hot box here, kip reader
impact there, or looking at this imaging. It is not a realistic
concept to expect one individual at any one point to be looking
at an entire nation--sorry, or at least an entire network of
defect detectors.
Mrs. Foushee. So, as you just touched on, this technology
is currently unregulated.
Mr. Arouca. Yes.
Mrs. Foushee. And unfortunately, disasters like East
Palestine are a result of allowing the railroads to self-
regulate.
There is currently no requirement for where this AI-
enhanced technology should be deployed, or how it is used, or
who should be interpreting the data. As this technology
continues to develop and be implemented, what types of
regulations or safeguards should be put in place to ensure that
the railroads are maximizing the effectiveness of this
technology, and thereby increasing rail safety outcomes? Just a
followup on what you just----
Mr. Arouca [interposing]. Sure.
Mrs. Foushee [continuing]. Gave to us.
Mr. Arouca. Oh, thank you. So, two things.
One of the things that--and with all defect detectors, we
don't believe you should be allowed to turn them off when they
are inconvenient, first and foremost.
Secondly, with regards to these fancy camera portals, we
think that the imaging is best placed in the hands of the
people that know what to do with it. So, the qualified
mechanical inspector, which is the regulatory term for a
carman, these guys spend their entire lives looking at defects
on railcars. If they were able to have this brandnew, amazing
AI-driven technology placed directly in their hands, they would
be much more effective, efficient, and they would make the
entire network safer. But we have to have regulations or laws
to make that so.
Mrs. Foushee. Thank you, Mr. Chairman, I yield back.
Mr. Nehls. The gentlelady yields. I now recognize Mr.
Johnson for 5 minutes.
Mr. Johnson of South Dakota. Thank you, Mr. Chairman.
East Palestine, obviously, was a tragedy. And in the wake
of tragedies, so many of us feel the need to just--we have got
to do something. And of course, all decisions have trade-offs.
That is one of the rules of the universe. And all regulations
impose costs on consumers. And so, rather than just do
something, obviously we want to move forward with prudence and
with wisdom. We want to make sure that that which we do
actually improves life for society.
And so, I want to spend a little time thinking about what
is the right path forward, Chair Homendy, for you. Thirty-four
recommendations on what I think most people think is a pretty
good piece of work that you all did, most of them don't deal
with legislative action. Of course, some do. How would you
prioritize? Which of the legislative approaches would you most
highly prioritize?
Ms. Homendy. For legislation?
Mr. Johnson of South Dakota. Yes.
Ms. Homendy. I would defer that to you all, as the
legislative body. But there are many recommendations that we
have issued over a number of years.
One in particular on DOT-111 tank cars--and I would say
that there was an accident in Lesterville, South Dakota,
involving DOT-111 tank cars in 2015, and here we have
recommended doing something about it since 1991, and no action
has been taken. So, that is one. But we have additional areas
we would recommend that action be taken.
Mr. Johnson of South Dakota. So, specifically among the 34
recommendations, I mean, related to legislative activity, which
of those would you most highly prioritize?
Ms. Homendy. An aggressive phaseout of the DOT-111 tank
cars is in there. An expansion of a phaseout of DOT-111 tank
cars in all hazardous materials service.
Locomotive recorders, similar to action taken by this
committee for the FAA bill for recorders, we would recommend
that here since no action has been taken.
And there are a number of areas.
Mr. Johnson of South Dakota. So, what--I mean, what was--a
couple of things that were not in the report is limiting train
lengths and two-man crews, two-person crews. They were not
included why?
Ms. Homendy. The cause of this derailment was a failed
bearing. It was a 9,300-foot train, and it wasn't a factor in
the derailment.
Mr. Johnson of South Dakota. Yes, just were not directly
involved in the tragedy.
Ms. Homendy. Correct.
Mr. Johnson of South Dakota. Yes, got you.
So, Administrator Bose, turning to you, as the Chair just
mentioned, overheated bearings that created an axle separation,
have we seen railroads install wayside detectors since this
tragedy?
Mr. Bose. They have been installing wayside detectors.
Mr. Johnson of South Dakota. Do we have a sense of what
kind of pace that installation moves at?
Mr. Bose. In Norfolk Southern's case, it sped up and they
have deployed more of them. In other railroads' cases--it is
railroad by railroad, but the technology with detectors, and
the space between detectors, the distance between detectors is
something that the railroad companies are paying attention to.
And Congressman, one more part of that, it is not just
deploying. It is the training around that, the maintenance, the
operation. And then, when the information comes in, to have it
properly resourced at the desk level, and then disseminating
that information in a timely manner. And the thresholds, the
thresholds are important on what set off alerts.
Mr. Johnson of South Dakota. So, one of the NTSB
recommendations was for the FRA to further investigate bearing
defect detection systems. Is it the FRA's intention to do so?
And where are we at?
Mr. Bose. Congressman, yes, and we are.
Mr. Johnson of South Dakota. Any additional detail you
could provide?
Mr. Bose. We have been working on that through the Railroad
Safety Advisory Committee, a committee that we reinvigorated
under this administration, a body where consensus drives the
day. And we are hopeful that there can be a productive product
that comes out of that.
There is a range of detectors, right? We are talking about
hot bearing detectors----
Mr. Johnson of South Dakota [interrupting]. So--but what--I
think we are trying to get at a timeline here. I mean, I
understand the body, but, I mean, are we looking at 3 months, 6
months, 10 months?
Mr. Bose. Well, I can't commit to an exact timeframe. We
are moving expeditiously on it.
Let me tell you something else, Congressman. You are
talking about regulations. We have proposed five regulations in
recent years. Four of them are in litigation or have petitions
for reconsideration. So, when you talk about the industry, you
talk about timing, you talk about regulations, you need to
build in the opposition that we get from the industry when we
try to do productive things.
Mr. Johnson of South Dakota. Mr. Chair, I yield back.
Mr. Nehls. Thank you. I now recognize Mr. Menendez, 5
minutes.
Mr. Menendez. Thank you, Chairman. Thank you to our
witnesses today for their testimonies, which provide an honest
and sobering insight into the state of rail safety today in
America.
The derailment in East Palestine a year and a half ago
forced thousands of residents to evacuate. Unfortunately, an
event like that can happen at any time, anywhere. I believe
that is why so many of our colleagues from across the country
care so deeply about how we move forward.
Railroads operating high-hazard flammable trains, or HHFTs,
are required to inform State emergency response officials of
the frequency of HHFTs traveling through their States, and
develop spill response plans. However, the train that derailed
in East Palestine did not fit the definition of an HHFT.
Instead, it was classified as a general merchandise train,
meaning it was not subject to the same regulations as HHFTs. We
know that general merchandise trains sometimes carry hazardous
materials of various kinds, and we saw firsthand the kind of
damage that they can cause.
Chair Homendy, do general merchandise trains that carry
hazardous materials pose a risk to people or the environment?
Ms. Homendy. Yes.
Mr. Menendez. Could expanding the scope of hazardous
materials subject to increased safety regulations prevent
future tragedies like the one in East Palestine?
Ms. Homendy. I am sorry, can you repeat that?
Mr. Menendez. Of course. Could expanding the scope of
hazardous materials subject to increased safety regulations
prevent future tragedies like the one in East Palestine?
Ms. Homendy. Absolutely.
Mr. Menendez. How can we ensure that State and local
emergency response officials are informed and prepared to
handle hazardous materials traveling through their States, even
if that train is classified as a general merchandise train?
Ms. Homendy. They need to be prepared. They need
information on what is going through their communities, which
we have recommendations on and PHMSA has done some work on
recently. And they need gear, they need radio interoperability,
and they need training.
Mr. Menendez. And the training, I think, is probably one of
the largest items, because it depends on the community that you
are involved in, it is ideally not something that you are
dealing with frequently, if ever. So, ensuring that as your
members move through and retire and you have new members
brought on board, they have to have access to that training to
ensure that at any given moment they are prepared to handle
that situation.
Ms. Homendy. That's right.
Mr. Menendez. Mr. Arouca, your testimony goes into detail
about the FRA's investigation of Class I safety inspection
practices, and how the FRA's findings align with alarms that
your members have been sounding for years. In contrast, many
Class I's claim that safety is their number-one priority. Let's
take them at their word. How can we ensure that if, in fact,
safety is their number-one priority, that they stay committed
to that, despite whether there is a change in administrations,
whether time has faded the pain of what happened in East
Palestine--which it never should--how can we work together to
ensure that we are always creating the safest-in-class
experience for not just the operators, but the communities that
they operate through?
Mr. Arouca. Thank you, Congressman. That is a big question.
Laws, first and foremost, statute. Passing this legislation
would be a huge step in the right direction. Regulations can
always be challenged, waived, amended. It is a little bit more
cemented in permanence when you pass a law to say this is how
it has got to be from now on. So, first and foremost, I would
say pass this bill, the Senate bill, or Chair Nehls' bill.
We have a lot of things that we can do in this industry to
improve. In a large sense, the railroads need to be compelled
to get there. As we all kind of--or most of us mentioned
earlier, the railroads don't do things on their own accord. You
have to drag them into the future. It is a weird industry
practice, but it has long been that way.
Whether it is defect detectors, new inspection systems, new
technologies that are being tested and we have seen, we see all
the time, but somehow aren't really making it into the industry
that could make things wildly safer. We need to get there, and
we need legislation like this to help push the industry in the
right direction, both for the benefit of my members who work
them, but also every single community that our trains roll
through, because none of us want to see another East Palestine
or a Lac-Megantic, God forbid. We need to have a safety first
mindset. And right now, in the PSR era, it is safety last.
Mr. Menendez. Yes. Listen, I agree with you completely.
And what I know about laws is that they can be made
stronger and they could also be made weaker. And that is why I
think it is important that we commit ourselves to an ideal, an
ideal of keeping our community safe, keeping your workers safe,
and ensuring that safety is our number-one priority. Not after
a tragedy, but every single day now and moving forward.
Thank you, and I yield back.
Mr. Nehls. The gentleman yields. I now recognize Mr. Yakym
for 5 minutes.
Mr. Yakym. Thank you, Mr. Chairman, and thank you to all of
our witnesses for being here today.
Chair Homendy, I want to say publicly to you what I said
privately during your recent briefing to us, and that is simply
a thank you for your detailed and thorough investigation on the
East Palestine incident.
Ms. Homendy. Thank you.
Mr. Yakym. I am glad that we are having this hearing on the
East Palestine derailment, but I want to commend the chairman
in particular for holding this hearing at the right time, and
that is after the investigations have been complete and the
reports have been published, rather than beforehand, as many
called for. It is better to have all of the facts than to rely
on speculation and educated guesses. And now that we do have
the facts and the reports in hand, I want to revisit some of
the initial assertions.
On multiple occasions in the weeks after the derailment,
Transportation Secretary Pete Buttigieg connected the
derailment to the withdrawal by the previous administration of
an electronically controlled pneumatic, or ECP, braking rule,
arguing for the rule's return in the wake of the derailment.
Chair Homendy, you tweeted early on in your investigation
that withdrawing this rule had no bearing on the East Palestine
derailment. Did anything in your investigation change that
assessment?
Ms. Homendy. What I stated was ECP brakes had no bearing on
this investigation and what happened in East Palestine.
Mr. Yakym. Thank you. In fact, you went so far as to label
Secretary Buttigieg's assertion on the withdrawal of the ECP
rule as ``misinformation.'' Yet even after this admonition,
Secretary Buttigieg continued to insist that this was a policy
change needed to prevent another derailment like what we saw in
East Palestine.
Chair Homendy, does it make your job easier or harder when
someone in a position of authority, like the Transportation
Secretary, presses forward in making an initial snap--maybe
political, misleading--policy perception, even after being
fact-checked, as you did publicly?
Ms. Homendy. Well, actually, at the time I was agreeing
with him because he was talking about improving rail safety,
and he was talking about ECP brakes because people brought up
that the DOT should implement the rule on ECP brakes, and they
didn't have the regulatory authority. And I was agreeing with
him on that.
Mr. Yakym. So, in your public tweet on February 16th of
2023, you say that, ``Some are saying that ECP braking rule, if
implemented, would have prevented this derailment. This is
false, and here is why.'' You then went on to say, ``That leads
me to my last point: Anyone speculating about what happened,
didn't happen, or should have happened is misleading a
suffering community. Please stop misinformation.''
So, are you----
Ms. Homendy [interrupting]. I wasn't referring to the
Secretary.
Mr. Yakym. OK, very good. And then can you also talk
about--earlier you talked about the need to phase out the DOT-
111 tank cars. Do you believe that there is manufacturing
capacity to meet an earlier deadline, should that be
accelerated?
Ms. Homendy. I am not an expert on the manufacturing
capacity, but FRA has looked--and PHMSA have looked--at the
manufacturing capacity for DOT-111 tank cars and whether they
can be replaced.
Mr. Yakym. And is there anyone else that would like to
comment on the manufacturing capacity? Because I think
sometimes what we tend to do in Government is we issue these
mandates to phase out or phase in certain things, but we don't
always look at the manufacturing capacity to make sure that the
markets have the ability to comply. Is there anyone that would
like to comment on that?
Mr. Sloan. If I could weigh in, I think the railcar
industry has indicated that there is potential capacity to
accelerate the deadline for finishing the phaseout of DOT-111
cars for flammable liquids, potentially up to 1 year earlier.
So, we think that is the best data that is available right now.
Mr. Yakym. Great, thank you.
And Mr. Chairman, I yield back.
Mr. Nehls. Thank you. I now recognize Mrs. Sykes, who I
believe is an original sponsor of this legislation.
Mrs. Sykes. Thank you, Mr. Chairman. Yes, I am. And I also
want to say thank you to you and Ranking Member Wilson for
holding this hearing today and allowing me to join you.
It has, as you all know, been over 1 year since the Norfolk
Southern train derailment completely upended the East Palestine
community, a community that borders my district. And after more
than 1 year of empty excuses and several requests from my
offices and pleas from the people of East Palestine, we finally
have a hearing on rail safety.
However, I am disappointed to see today that the witness
table is missing a representative from Norfolk Southern, the
entity responsible for bringing us together today.
Last month, the National Transportation Safety Board held a
hearing to share the findings, probable cause, and policy
recommendations from their year-and-a-half-long investigation
into the derailment. This investigation confirmed that the
probable cause of the derailment was a defective wheel bearing
that was overheated. NTSB also provided detailed policy
recommendations on how to address rail safety and close
regulation gaps.
And thank you for that, Chair Homendy. I want to make sure
I take a moment to thank you and your team.
While I was excited to hear that NTSB was successful in
finding the root cause of this disastrous derailment, I was
particularly disturbed with the contents of Chairwoman
Homendy's closing remarks at the board hearing. The
Chairwoman's remarks detail a startling pattern of manipulation
and destruction of investigation evidence, dishonesty towards
investigators, and disregard for basic investigatory ethics
that raise serious questions about the motives behind Norfolk
Southern's actions during and after the derailment.
Chairwoman Homendy, could you please detail some of the
unusual behavior that was exhibited by Norfolk Southern during
your investigation?
And have you ever witnessed anything like this before on
your investigations?
Ms. Homendy. We have not. This was unprecedented. Norfolk
Southern, while open and transparent in providing us
information we requested when we requested it, many times
delayed providing our investigators who are here today timely
access to that information. I had to call them about issuing
subpoenas if we didn't get timely information.
They manufactured evidence that had nothing to do with this
derailment, and tried to include it in the record of our
investigation. When our investigator in charge told them ``no''
three times--he is here today--they went around our
investigator in charge and tried to get our general counsel to
approve that, who also denied them.
Then they came to five Presidential appointees, including
me, asking us to overrule our investigator in charge, and
direct him to include evidence that was actually not evidence
from this derailment in our investigation.
And I could continue on, but it was unprecedented. Alan
Shaw apologized, and has committed to not have Norfolk Southern
do that again, because we had 11 open investigations involving
Norfolk Southern. Four of those are still open, including a
safety culture investigation. So, we still have to work with
them, but his commitment will be taken seriously. And if I
sense that we go back to what occurred in East Palestine, I am
going to hold them accountable.
Mrs. Sykes. Thank you, Madam Chairwoman, and hopefully,
this committee will do so, as well. It is clear that, through
your investigation, additional questions have been raised about
the actions of Norfolk Southern. And it is imperative that the
American people have the opportunity to hear from Alan Shaw,
president and CEO of Norfolk Southern, and for him to apologize
on behalf of his company to the American people, and
specifically the folks of East Palestine.
So, I do hope, Mr. Chair, that Mr. Shaw will be called
before the full Transportation and Infrastructure Committee to
answer questions regarding the derailment in East Palestine and
Norfolk Southern's participation in the NTSB investigation in
the future. And we do have a letter to request that, which has
been sent to the chairman of the full committee.
We must additionally assure that rail corporations are
fully held accountable for their actions that damage innocent
communities and their lives. Across the political spectrum, we
all agree on this--from the Biden-Harris administration and
previous--commonsense rail safety is a priority. And continuing
with efforts to honor the will of the people and pass rail
safety legislation, I am glad to partner with Chairman Nehls,
Representatives Moulton, Deluzio, and others on the Railroad
Safety Enhancement Act, and this will help do many of those
things that we have talked about in the Rail Safety Act, as
well as the RAIL Act.
But one provision that is not in this act but was in the
RAIL Act was the requirement of the safety placards on the
train cars, which we heard an awful lot about.
I know I am short on time, and maybe I will submit this in
writing. But Madam Chairwoman, I do want to take any extra
seconds they allow me to say thank you again to your team for
being steadfast, unwilling to waver, and standing up for the
people of northeast Ohio. From the bottom of my heart and on
behalf of Ohio's 13th Congressional District, I say thank you.
Ms. Homendy. Thank you so much, and thank you for your
leadership on safety.
Mr. Nehls. The gentlelady yields. I now recognize Mr.
Molinaro for 5 minutes.
Mr. Molinaro. Thank you, Mr. Chairman. I want to thank all
of you for being here today, and certainly thank the chair for
his leadership on this issue in today's hearing.
Obviously, many of us all watched what occurred in East
Palestine thinking, what if it was our communities? Not to
diminish, obviously, the impact on those citizens and their
communities, but those of us who represent cities, towns,
villages with similar rail traffic all stood in horror and with
great concern. I represent Binghamton, New York, and was not
only concerned, but alarmed. Could this happen in our
neighborhood?
The disaster in East Palestine, as we noted and you all
acknowledged, was caused by a number of issues. My colleagues
have gone through a good number of them today. One that
frightened me in the aftermath, and still concerns me today, is
the lack of communication and coordination between layers of
Government's response and, of course, the company itself.
Chair Homendy, first, thank you and the NTSB for a
tremendous amount of work. And I, too, appreciate the
chairman's commitment to getting this information, the report,
done, the investigation completed, and then moving forward. I
want to speak directly to the controlled burn and what NTSB
found. Could you speak to the timeline for communication for
deciding when the controlled burn should have occurred as
briefly as you could?
Ms. Homendy. That was a decision not by NTSB.
Mr. Molinaro. Of course, no, no.
Ms. Homendy. Yes----
Mr. Molinaro [interrupting]. No, but in your report----
Ms. Homendy [continuing]. Conversations--from our
investigation, and conversations related to the vent and burn
from Norfolk Southern and its contractors and OxyVinyls, the
shipper began around the 4th, February 4, February 5. OxyVinyls
was on scene on the 5th, and already on the 5th, Norfolk
Southern had begun to bring equipment in, planning a vent and
burn before incident command or the Governor had even signed
off.
Mr. Molinaro. So, Norfolk Southern makes the determination
that that is the likely outcome. When and who finally made the
decision to move forward with the controlled burn?
Ms. Homendy. The information was provided to the incident
commander, and the incident commander is a fire chief of East
Palestine. But you make your decisions based on complete
information. And unfortunately, Norfolk Southern withheld
critical information from both him and the Governor that could
have led to a safer decision.
Mr. Molinaro. Having spent 30 years involved with local
emergency response as a member of my volunteer fire department,
and the last 12 years in emergency management, I know that the
incident commander makes the decision. But I--clearly, it is
clear to us that that individual was forced into making a
decision absent some information.
But do we believe that that individual--I understand that
is officially the responsibility. Do we believe that individual
made that decision, or was expected to make that decision?
Ms. Homendy. The individual did make the decision. However,
at the time, there was a false sense of urgency that Norfolk
Southern and its contractors created. You can see it throughout
the documentation. You can see it in news releases that were
issued that were just not factually correct based on
temperatures that were already falling and stabilizing----
Mr. Molinaro [interposing]. Right.
Ms. Homendy [continuing]. On those tank cars.
Unfortunately, they were misled in their decisionmaking.
And in the end, Norfolk Southern gave the incident
commander and the Governor 13 minutes to make that final
decision, and the incident commander had asked to go through
the information over and over again, and finally had to make
the decision. But it was based on inaccurate, incomplete
information.
Mr. Molinaro. Well, going back to the founding of this
Nation, emergency response is supposed to be led by emergency
responders and no one else.
In your report, you further speak to the lack of
information and resource sharing at the emergency response
level, whether or not those first responders have the adequate
information to immediately respond, right, to the incident to
begin with, and then information available to them to make
choices on the ground. Can you touch on NTSB's recommendations
for ensuring first responders have greater access to and are
prepared to respond to incidents of this nature?
Ms. Homendy. Yes. We have issued recommendations for a
number of years regarding train consist information for
emergency responders, which the Pipeline and Hazardous
Materials Safety Administration already issued a final rule on.
But in addition to that, we saw a need to highlight in our
recommendations training, especially for volunteer firefighters
and radio interoperability, which was a big issue for
responders.
Mr. Molinaro. Thank you, Chair.
Thank you, Mr. Chairman. I know I am over time, I just want
to say since 9/11 of 2001, we have talked about
interoperability and shared communication, and we have failed
significantly even since. And it is a problem that really
hamstrings emergency response. God bless them. Thank you.
Mr. Nehls. The gentleman yields. I now recognize Ms. Titus
for 5 minutes.
Ms. Titus. Thank you, Mr. Chairman. Thank you for letting
me sit in on this committee.
Across the country, we have seen trains just grow in
length. It is amazing to me. Now Class I railroads are running
trains that can be up to 4 miles long.
Mr. Hynes, I wonder if you would comment on it. Are those
trains less safe?
And does SMART 113 support the Federal Government having a
larger role to play in the regulation of these trains,
especially those that are carrying hazardous waste or hazardous
material?
Mr. Hynes. Well, I think anybody who has been blocked by a
train can say that a 4-mile-long train is a problem for obvious
reasons. They cut cities in half, especially rural communities.
When one of these trains is stopped in that city, that town is
cut in half. Emergency vehicles, you are having a heart attack
and need to get to the hospital, it is on the other side of the
train? Oh, well.
So, as far as just how obvious it is that it is a bad idea,
it creates so much more force because the trains are so much
heavier, and they are longer. And the railroads think that if
they put some distributive power in the middle of the train,
that we are good to go. But what they don't report on, and what
is not collected is how often these knuckles break, and the
knuckles that hold the cars together, and the drawbars get
pulled out. And this happens regularly.
Another thing that would--you're required to have two
people to change a knuckle. You have to have an engineer, you
have to have a conductor, a lot of this stuff. But it is just
so strange to me that they just want bigger and bigger. Instead
of running two trains, they are combining them into one train
just by connecting them, or even three trains or more.
So--and the derailment numbers don't go down. Even though
they are running fewer trains, they are longer trains, and the
derailment numbers don't go down. So, I mean, it is not a good
idea for so many reasons. I don't want to burn up all your
time, but----
Ms. Titus [interrupting]. That is all right.
Ms. Homendy. Congresswoman?
Ms. Titus [continuing]. It is an important----
Ms. Homendy [interrupting]. Congresswoman?
Ms. Titus. Yes?
Ms. Homendy. May I add? We investigated a terrible tragedy
involving two UP trains, a standing train and a moving train in
Granite Canyon, Wyoming, in 2018, and found the length of the
train was an issue. It lost braking capabilities, emergency
braking capabilities. As it crested a hill and went down and
descended 13 miles, it was increasing in speed. All the while,
the traincrews were trying to get braking back and put on the
emergency braking. In the end, the train hit 55 miles an hour
and slammed right into a UP standing train, and the locomotive
engineer and conductor both died.
And we found in that that--one of our findings was the
length of that train was a factor, and it was 103 cars.
Mr. Bose. Congresswoman, as you know, there is no Federal
regulation that restricts train length. At FRA under my watch,
we made sure to collect data about train length so that the
process is more transparent and we have data available to take
action on that.
Now, having said that, we are not waiting for the data to
come in. We issued a safety advisory on train length. We have
also issued a safety advisory on the makeup of trains because
that also factors into this. So, we are taking the action that
we can under the authorities that we have to address this
situation, but communities are experiencing this, and we are
not sitting idly by.
Ms. Titus. OK. But you wouldn't oppose Federal regulation
or legislation to help you in that effort?
Mr. Bose. Based on data that we are gathering right now, it
is something we should definitely take a look at.
Ms. Titus. Yes, I think so. As you said, Mr. Hynes, it is
so obvious that it is kind of--you don't need the data and the
explanation, but it is there to support that conclusion.
Well, speaking of regulation, I know that the FRA finalized
an important rule, and it has been mentioned before about the
two-man crew. And I think these things kind of go together. And
I have been pushing for a two-men crew for several years now.
And I know that a rule was finished, and it is somewhere in
limbo out there. And I know in the legislation we want to see a
two-man crew. It is a bipartisan issue.
Administrator, would you comment on that, where that
stands?
Mr. Bose. Yes, Congresswoman, thank you for asking that
question. I am proud to be the Administrator that got a final
rule done on minimum crew size. It is a significant step
forward for safety in the railroad industry. As you know,
without that rule, railroads could go to one person or below
without that rule in place. So, it is an important step
forward.
I also know--we have been talking about East Palestine. I
am confident in saying the community, the people who represent
East Palestine, are much better knowing that there was more
than one person on that crew.
Ms. Titus. Thank you.
Thank you, Mr. Chairman.
Mr. Nehls. The gentlelady yields. I now recognize Mr.
D'Esposito, an original sponsor of the legislation.
Mr. D'Esposito. Well, thank you, Mr. Chairman.
Mr. Arouca, throughout your testimony, you mentioned that
carmen are under intense pressure to perform inspections
quickly, often having to choose which components to inspect due
to time constraints. With up to 15 percent of railcars found to
contain an FRA defect, how does limiting inspection time affect
safety of the rail system as a whole?
Mr. Arouca. Well, I would say--well, thank you for the
question, Congressman. I would say much of what I have talked
about today, which is that you can't put a time constraint on
safety, if you do that, people are going to miss things, no
matter who is actually inspecting the cars.
But it is also important to make sure that the right person
is inspecting the cars. I am not sure if you were here earlier,
I printed off this. These are the regulations that the carmen
are held to, or the standards that the carmen are held to. And
these are the other crews. It is night and day, the amount they
have to inspect to, the level, the regulatory standard. If you
harass anybody to inspect too fast, they are going to miss
things.
Mr. D'Esposito. Right.
Mr. Arouca. So, it is kind of obvious.
Mr. D'Esposito. And now, if I missed it I apologize, but
can you discuss or share with us any specific instances where
inadequate inspection time has possibly led to an accident or a
near-miss?
Mr. Arouca. Oh, that would be hard for me to disclose
because of the confidential nature of those things for my
members. But I assure you I have plenty of stories, but I
wouldn't want to really talk about them.
Mr. D'Esposito. And now, can you describe what the effect
of limiting the inspection time has on the workers and the
morale?
Mr. Arouca. Oh, it is incredibly depressing. As I mentioned
earlier, imagine being hired to do a job and then being told
not to do it. It is very insulting. You train all your life for
this thing, you spend 3 years, 732 working days, to go from an
apprentice carman to a journeyman. And then, when you get
there, they say, ``If you find defects, we are going to
discipline you. No more defects, no more defects.'' You get a
target on your back. And it is not necessarily for finding a
defect that they are going to discipline you. It is for
everything else. Your shoe is untied.
I mean, I have heard of guys getting written up for
changing their hat over to a safety helmet. I mean, wiping
their safety glasses. Really, just petty stuff. But that is
what happens when you get a target on your back, when you don't
fall in line.
Mr. D'Esposito. All right. And now you also mentioned in
your testimony that FRA conducted a study that found that when
inspectors were present, carmen averaged 1 minute and 44
seconds per car inspection. However, when inspectors were not
present, carmen were only given about 44 seconds per car to
inspect. What measures do you think could be implemented to
ensure consistent safety practices?
Mr. Arouca. Well, you could pass this law that would make
it illegal to enforce any kind of time constraint upon the
carmen. As I have said before, you can't put a time constraint
on safety.
But I will also note in the FRA study there were remarks
from specific FRA inspectors in there where they talked about
how one--this FRA inspector walked behind a carman doing his
job. They found a whole bunch of defects--10, 17, whatever--
combined between the two of them in one train. And then he
looks at the FRA inspector, pulls up the records of that
railroad in the previous 24 hours. They had only found three
the whole day. It is just not realistic. It is not the truth.
So, something is going on. And I would really--this type of
legislation has been a long time coming.
Mr. Bose. Congressman, if I could just step in as the FRA
Administrator, when Mr. Arouca is talking about what the
railroad from his information did, that is absolutely
unacceptable. Any time FRA sees that a railroad is gaming the
system, is gaming the inspection process that we have, the
oversight that we have, we are going to take action on that.
There was a railroad that found out about our safety
culture assessment and the questions that we were going to ask
in that assessment. As soon as we found out, we withdrew that
safety culture assessment of that railroad, and made it clear
that is unacceptable.
Mr. D'Esposito. My time is expired, Mr. Chairman. I yield
back.
Mr. Nehls. Thank you.
The gentleman yields. Are there any further questions from
any members of the subcommittee that have not been recognized?
Seeing none, we have votes here you can see on the screen,
so, this concludes our hearing for today. I want to thank each
and every one of you for being here. I thought this was a very
productive meeting.
And this subcommittee stands adjourned.
[Whereupon, at 4:42 p.m., the subcommittee was adjourned.]

Submissions for the Record

----------

Letter of March 2, 2023, to Hon. Pete Buttigieg, Secretary of
Transportation, U.S. Department of Transportation, from Ian Jefferies,
President and Chief Executive Officer, Association of American
Railroads, Submitted for the Record by Hon. Troy E. Nehls
March 2, 2023.
The Honorable Pete Buttigieg,
Secretary of Transportation,
U.S. Department of Transportation, West Building--1200 New Jersey Ave.,
SE, Washington, DC 20590.
Dear Secretary Buttigieg:
I am writing on behalf of the freight rail industry to inform you
that all seven Class I railroads have agreed to join FRA's voluntary
Confidential Close Call Reporting System (C3RS), as requested in your
February 27, 2023 letter to the Class I CEOs. The industry absolutely
shares your commitment to establishing effective mechanisms to help
prevent future accidents like the derailment in East Palestine. You
will hear from each of the railroads individually in response to your
letter as well. I write to provide important history and context
regarding railroad use of close call reporting, hopefully to pave the
way for working with you, FRA, and our employees to develop an even
better system.
It was two Class I railroads--Union Pacific and Canadian Pacific--
that actually initiated the first C3RS pilot programs with FRA in 2007.
All Class I railroads have longstanding programs in place that allow
employees to provide confidential feedback on safety issues. These
programs range from establishing and using anonymous reporting hotlines
to processes that incorporate peer review teams and root cause
analysis, much like C3RS. The railroads value receiving this type of
close call information in a timely manner because it allows them to act
quickly and proactively to address safety issues before they lead to an
accident. The Class I railroads expect to continue to operate these
internal confidential reporting programs in addition to their voluntary
participation in C3RS.
As you know, some railroads currently participate in FRA's C3RS
program while others that formerly participated dropped out of the
program because it was viewed as less effective than their existing
programs. We want to work with FRA to make the C3RS program better and
more effective. In that spirit, we are identifying certain aspects of
the current FRA program that have historically led to railroads
declining to participate in favor of their own internal programs. We
believe these matters can and should be improved. Our interest is in
seeing a streamlined process that maintains important confidentialities
for both reporting employees and carriers while also efficiently
sharing high quality safety information so that railroads can quickly
take appropriate action to address legitimate safety issues. More
specifically, areas for improvement include:
Quality of reporting: The information provided by
employees is currently routed through NASA's reporting system. As noted
by the U.S. Government Accountability Office (GAO), often the
information received is insufficient for railroads to act on because it
does not contain enough detail to develop practical corrective
actions.\1\ NASA staff, who are understandably not familiar with
railroading, face difficulties with gathering the needed additional
information. We believe these issues can be easily addressed.
---------------------------------------------------------------------------
\1\ GAO Report, ``Better Communication of Safety Information Could
Improve the Close Call System,'' pg. 20-21. https://www.gao.gov/assets/
gao-23-105287.pdf

Speed of reporting: Feedback on a close call that did not
result in an accident takes a long time to reach the railroad. Indeed,
NASA's procedure requires it to wait at least 30 days before it reports
to the railroads, which makes a quick response impossible. This too,
---------------------------------------------------------------------------
should be addressed.

Confidentiality. There are concerns that FRA may have not
always kept close-call reporting data confidential. Protocols that
protect the confidentiality of the information will ensure continued
and robust participation. The Federal Aviation Administration has such
protocols in its Aviation Safety Reporting Program (ASPR), and we
believe similar protocols should be adopted by FRA.

Addressing repeated unsafe conduct: Typically, the person
reporting a close call is exempt from the internal disciplinary process
that would otherwise apply in the case of a violation of safety rules.
AAR recognizes that protection as a necessary feature of the program in
the vast majority of circumstances. However, in the rare situation in
which an employee is misusing the system to prevent his or her unsafe
decisions or actions from being addressed by the railroad, the program
should permit the railroad to address that repeated misconduct with the
employee. This is needed for the safety of the railroad, its other
employees, and the public.

Sharing of information: To the extent the information
collected by the program is useful in improving safety practices and
policies, it should be shared with the wider industry and in a timely
fashion. GAO has made this recommendation and AAR agrees.

As you know, FRA had already scheduled a Railroad Safety Advisory
Committee (RSAC) Meeting for March 14, 2023 to address this program.
AAR's members look forward to participating in that meeting to provide
their perspectives on the opportunities and challenges related to close
call reporting.
We are committed to continuing the 20-year trend of continuous
safety improvements in the rail industry. We look forward to working
with you and with FRA on these critical issues.
Sincerely,
Ian Jefferies,
President and Chief Executive Officer, Association of American
Railroads.

Press Release of March 8, 2023, entitled ``Freight Railroads Announce
Key Safety Measures in Drive to Zero Accidents,'' from the Association
of American Railroads, Submitted for the Record by Hon. Troy E. Nehls
Freight Railroads Announce Key Safety Measures in Drive to Zero
Accidents
Industry to install approximately 1,000 new detectors, expand support
for first responders and initiate actions based on preliminary
NTSB advisory
Washington, DC, March 8, 2023.--The freight rail industry today is
announcing an initial set of steps it is taking in its drive toward a
future with zero incidents and zero injuries--one where what happened
in East Palestine never happens again. The industry believes that the
February 3rd derailment and its aftermath require railroads and freight
shippers alike to lead with actions that restore trust and that will
make a difference in the march toward zero.
1. Detectors--Spacing: The industry has long recognized the risk
posed by hot bearings and voluntarily installed thousands of hot
bearing detectors (HBDs) across the railroad network. The railroads
have also voluntarily installed acoustic bearing detectors, which can
ascertain potential problems from the noise created by bearings that
are starting to fail. For over three decades, the Class I railroads
have voluntarily spaced HBDs no more than forty miles apart on key
routes, which are routes over which commodities that are particularly
hazardous travel. In recent years, all the Class I railroads have
reduced their HBD spacing significantly below the 40-mile criterion.
All Class I railroads have now agreed to go further and are immediately
beginning to install additional HBDs across their key routes, with the
goal of achieving average spacing of 15 miles, except if the route is
equipped with acoustic bearing detection capability or other similar
technology. This will amount to the deployment of approximately 1,000
new HBDs. A route containing acoustic bearing detection capability or
other similar technology shall maintain maximum HBD spacing not to
exceed 20 miles where practical due to terrain and operating
conditions. Inoperative HBDs on key routes will generate critical
incident tickets and be prioritized for dispatch and repair without
undue delay.

2. Detectors--New Action Threshold: The Class I railroads commit
to stopping trains and inspecting bearings whenever the temperature
reading from an HBD exceeds 170+ above ambient temperature. This action
establishes a new industry standard for stopping trains and inspecting
bearings.

3. Detectors--Shared Trending Analysis: Analysis of trending data
from multiple HBDs can reveal a bearing problem before an absolute
temperature threshold is reached. While HBDs have been in use for a
long time, it is relatively recently that software and data processing
have led to the ability to proactively identify bearings that have not
yet exceeded absolute temperature thresholds but that, based on HBD
trending data, may become problematic and should be addressed. Each
Class I railroad now uses trending analysis, but there are a variety of
approaches employed by the Class I railroads to accomplish this goal.
The Class I railroads are reviewing the trending analyses programs each
uses and have targeted March 31 to arrive at recommendations regarding
the use of trending analyses.

4. Confidential Close Call Reporting System (C3RS): As outlined in
a recent letter to the U.S. Department of Transportation (USDOT), all
seven Class I railroads are joining the FRA's voluntary program to
supplement their own programs for confidential reporting of safety
issues.

5. Training: In 2023, the railroads will train roughly 20,000
first responders in local communities across the country on accident
mitigation. In addition, the industry will facilitate the training of
2,000 first responders at the Security and Emergency Response Training
Center (SERTC) facility in Colorado, which includes enhanced scenario
planning and training at a new facility. SERTC's world-renowned program
offers an immersive experience with full-scale training scenarios that
prepare first responders for real-world surface transportation
emergencies. SERTC is a member of the National Domestic Preparedness
Consortium (NDPC), which fully funds local, state, tribal and
territorial first responders to attend any of SERTC's DHS/FEMA-
certified courses.

6. AskRail: The industry is expanding its efforts to get the
AskRail app (which provides real-time information about the contents of
every car in a train and the safe handling of those contents in the
event of an accident) into the hands of every first responder by
directly targeting emergency communication centers to promote broader
access versus relying solely on individual downloads. Railroads are
also targeting all 50 state fire associations. If successful, these
measures should dramatically increase the number of first responders
that have access to AskRail, with a goal of doubling the number of
first responders who have access to the tool by the end of 2023.

7. Tank Car Improvement: Following a safety advisory from the NTSB
raising the ``potential for certain manway assemblies with aluminum
protective housing covers to melt when exposed to extreme heat as
experienced in a pool fire situation,'' the AAR's Tank Car Committee is
accelerating the work of a dedicated task force that has been
investigating the use of heat-resistant gaskets for tanks transporting
flammable liquid. The task force, comprised of railroads, equipment
owners and tank car manufacturers, will expand its scope to consider
all fire performance improvements to service equipment.

``Healthy railroads are essential to the U.S. economy, and
consistently and reliably safe operations are essential to healthy
railroads,'' said Association of American Railroads (AAR) President and
CEO Ian Jefferies. ``Our long history of voluntarily employing safety
measures that go above and beyond federal requirements proves our
belief in that principle. While we will continue to follow the National
Transportation Safety Board's ongoing investigation in Ohio closely and
recognize its deliberate, methodical, and fact-based approach,
railroads are committed to taking appropriate steps now.''
Last week AAR released data showing that railroads are very safe
and getting safer. This is especially true for hazardous material
transportation, where the accident rate is down 78 percent since 2000.
Mainline accidents are down 44 percent in that same period.
``Rail is indisputably the safest way to move dangerous
commodities,'' added Jefferies. ``Yet we fully appreciate that these
data do not comfort the residents of East Palestine and that public
trust must be restored through action. Until we achieve our goal of
zero, we will maintain our fierce commitment to getting there.''
While participating in public policy discussions, railroads
encourage policymakers to take an objective, data-driven approach.
Policy actions taken reflexively that are not likely to achieve
meaningful safety benefits could have a wide range of unintended
economic and environmental consequences and a negative impact on the
safe movement of all goods, including hazmat.
Congress and the USDOT can play a key role in the meantime in
promoting both SERTC and AskRail, including through expanded outreach
to states and counties. An all-the-above approach is needed.

Letter of July 23, 2024, to Hon. Troy E. Nehls, Chairman, and Hon.
Frederica S. Wilson, Ranking Member, Subcommittee on Railroads,
Pipelines, and Hazardous Materials, from Eric Brock, Chairman and Chief
Executive Officer, Ondas Networks Inc., Submitted for the Record by
Hon. Troy E. Nehls
July 23, 2024.
The Honorable Troy Nehls,
Chairman,
Subcommittee on Railroads, Pipelines and Hazardous Materials, House
Committee on Transportation and Infrastructure, U.S. House of
Representatives, Washington, DC 20515.
The Honorable Frederica Wilson,
Ranking Member,
Subcommittee on Railroads, Pipelines and Hazardous Materials, House
Committee on Transportation and Infrastructure, U.S. House of
Representatives, Washington, DC 20515.
Dear Chairman Nehls and Ranking Member Wilson:
On behalf of Ondas Networks, I am pleased to submit this statement
for the record of the Subcommittee's July 23, 2024, hearing titled
``Examining the State of Rail Safety in the Aftermath of the Derailment
in East Palestine, Ohio.''
Ondas Networks is a wireless communications provider of private
wireless data solutions, and a developer of software-based wireless
broadband technology for commercial and government markets. We are an
American company, creating American jobs and proudly produce our
critical wireless systems in the United States. Our customers include
railroads, utilities, oil and gas, transportation, aviation (including
drone operators) and government entities whose demands span a wide
range of mission critical applications. Success with introducing our
technology into the U.S. rail sector has allowed us to expand and
export into international markets.
We appreciate the opportunity to highlight the critical importance
to rail safety of the ongoing upgrade of railroad communications
technology platforms.
Introduction
While rail continues to be the safest mode of transportation in the
U.S., the derailment in East Palestine, Ohio highlights that there is
still work to be done.
Currently, much of the rail industry still utilizes legacy wireless
communications technology. This limits opportunities to provide real-
time tracking, data analytics, and predictive maintenance.
Transitioning to new standardized communications technologies will
allow railroads to access higher-bandwidth software applications that
will improve the safety of rail operations.
Ondas Networks has worked in partnership with the Nation's rail
industry to enhance safety and reliability of the U.S. surface
transportation network by providing advanced wireless network
technology solutions to the railroad sector.
We have developed a robust, secure wireless connectivity platform
specifically tailored for operators of critical infrastructure such as
freight and passenger railroads. This wireless radio platform, known as
FullMAX, leverages software-defined network technology to effectively
connect the extensive base of existing technology and systems deployed
across the rail network, ensuring safe and dependable train operations
nationwide. This FullMAX technology utilizes the IEEE 802.16
(``dot16'') industrial private wireless networking standard and
supports a transition to a standards-based approach.
Utilizing standards-based technologies like dot16 will enhance the
resilience and efficiency of the nation's critical rail infrastructure
and operations, allowing for the deployment of cutting-edge
capabilities and promoting flexibility, scalability and competition in
railroad operations.
Private Wireless Networks
Both freight and passenger railroads depend on private wireless
networks to manage a variety of mission-critical operations, ranging
from wayside signaling and crossing systems to onboard train operations
and vital voice communications. These specialized networks span four
key frequency bands--900 MHz, 450 MHz, 220 MHz, and 160 MHz--critical
for seamless operation over the large, often isolated areas that
railroads cover, where public cellular networks fail to reach. The
ability of these private networks to support essential applications
like track authorities, train control, and safety systems demands them
to be highly reliable and capable of low-latency communication.
The legacy networks face increasing demands for additional data
capacity and growing cybersecurity threats. Dot16 significantly
improves data capacity through enhanced network utilization of the
existing infrastructure. Dot16 networks also provide modern
cybersecurity capabilities ensuring high network availability and
integrity.
The 900 MHz Network
The rail industry is poised to undergo significant communications
upgrades beginning with their 900 MHz wireless network. In May 2020,
the FCC approved a reconfiguration of the 900 MHz frequency band, which
was intended to support broadband network upgrades across various
critical industries. As part of this initiative, the FCC and the
Association of American Railroads (AAR) agreed to decommission the
legacy 900 MHz network by September 2025 and in exchange, the FCC
allotted new, greenfield licensed 900 MHz spectrum to the AAR.
This newly allocated spectrum is earmarked for developing a modern,
mission-critical wireless network that will replace the outdated
technology currently in use. A dot16 enabled 900 MHz network will offer
up to 37.5x the data capacity of the legacy 900 MHz network. Further,
this data capacity increase is crucial as it promises enhanced railroad
safety functionalities that the current network cannot support. With
the new 900 MHz radio frequencies being allocated to the AAR in 2020,
the railroads are required to utilize this new spectrum for a deployed
network by April 2026. The capabilities of the updated network support
new and higher bandwidth applications including:
defect detectors,
hazard detectors,
vital control point communications,
continuous monitoring of highway grade crossing
equipment, and
support the implementation of redundant paths for
Positive Train Control (PTC) base station backhaul

These improvements will substantially improve the safety and
reliability of railroad operations, marking a significant leap in
communications technology for the industry.
Collaboration on New, Standards-Based Wireless Technology
Ondas Networks has worked closely with the rail industry to develop
a dot16-enabled software-defined wireless technology. This upgrade will
improve network capacities by setting a new open standard in the
operation of rail networks, encouraging innovation in the vendor
ecosystem and improving rail safety and productivity through the
adoption of modern technological advancements.
Ondas Network's software-defined wireless technology is tailored to
meet the stringent mission-critical demands necessary for wide-area and
nationwide industrial operations. This technology conforms to the IEEE
802.16 industrial wireless standard, allowing private networks to adopt
this specification to offer not only secure and reliable coverage over
extensive areas but also to significantly enhance data capacity.
In developing this technology, we are collaborating closely with
the AAR, including key members like MxV Rail and the AAR's Wireless
Communications Committee (WCC) and Amtrak. Ondas Networks has played a
pivotal role in promoting the advancement of the dot16 wireless
standard across essential sectors including rail, utilities and oil &
gas. We have also made a significant private investment in developing,
commercializing, and evolving the 802.16 capabilities, and are fully
committed to achieving broad deployment readiness as railroads
modernize their communications networks.
Progress in this area was underscored in March 2023 when the WCC
conveyed to the rail vendor community that the newly reconfigured 900
MHz network would employ the dot16 wireless standard upon its rollout.
This decision followed comprehensive validation and testing conducted
by MxV Rail, ensuring that the new network meets rigorous performance
and reliability standards. In addition, we are developing with a
partner a radio to support the Positive Train Control (PTC) system for
Amtrak, which provides the Northeast Corridor (NEC) with a roadmap
opportunity to upgrade legacy networks to the dot16 wireless standard.
Transition to the 900 MHz Rail Safety Network
Ondas Networks is excited to support the AAR and its members in the
nationwide rollout of the advanced 900 MHz network. This network
transformation marks a pivotal shift from the current single
application legacy 900 MHz system to a more robust and technologically
advanced system, which includes the migration of essential functions
such as Centralized Traffic Control (CTC) and provides significant
capacity for additional new safety applications.
Freight rail operators have shown a strong commitment to migrating
the legacy 900 MHz network, as evidenced by their planned $110 million
investment to ensure the transition meets the FCC's September 2025
deadline, detailed in the AAR's April 2024 Comments submitted to the
FCC. Additionally, the AAR has already allocated $2 million towards
testing and validating this cutting-edge 802.16 technology.
Ondas Networks, along with its partner Siemens Mobility Inc, is
fully engaged with the rail industry to support this transition and has
established partnerships with rail operators. The technology exists and
has been validated by the rail industry. However, meeting the FCC's
September 2025 deadline will not be easy given the current pace of the
transition. We look forward to working with our partners in the rail
industry to implement this critical technology.
Conclusion
Thank you for holding this important railroad safety hearing. Ondas
Networks would be happy to address any questions you may have regarding
the rail industry's transition to modern communications technology and
the important safety benefits this technology can provide.
Sincerely,
Eric Brock,
Chairman & CEO, Ondas Networks Inc.

Letter of July 26, 2024, to Hon. Sam Graves, Chairman, and Hon. Rick
Larsen, Ranking Member, Committee on Transportation and Infrastructure,
and Hon. Troy E. Nehls, Chairman, Subcommittee on Railroads, Pipelines,
and Hazardous Materials, from Rob Benedict, Vice President,
Petrochemicals and Midstream, American Fuel & Petrochemical
Manufacturers, Submitted for the Record by Hon. Sam Graves
July 26, 2024.
The Honorable Sam Graves,
Chair,
Committee on Transportation and Infrastructure, United States House of
Representatives, Washington, DC 20515.
The Honorable Richard Ray Larsen,
Ranking Member,
Committee on Transportation and Infrastructure, United States House of
Representatives, Washington, DC 20515.
The Honorable Troy Nehls,
Chair,
Subcommittee on Railroads, Pipelines, and Hazardous Materials, United
States House of Representatives, Washington, DC 20515.

RE: Examining the State of Rail Safety in the Aftermath of the
Derailment in East Palestine, Ohio

Dear Chair Graves, Ranking Member Larsen and Subcommittee Chair
Nehls:
The derailment of a Norfolk Southern freight rail train on February
3rd, 2023, was devastating to the community of East Palestine, Ohio.
The fallout and ongoing remediation have left a lasting impression on
the community and the nation. This derailment has led to bipartisan
calls to address the root causes and contributing factors that led to
this accident to ensure no community faces such a preventable disaster
again.
American Fuel & Petrochemical Manufacturers (``AFPM'') is a trade
association representing the United States refining, petrochemical, and
midstream energy infrastructure industries. AFPM members make the fuels
and petrochemicals that make modern life possible and keep America
moving. To produce these essential goods and bring them to market, AFPM
members depend on safe and efficient rail transportation to move their
feedstocks and products to and from refineries and petrochemical
facilities. More than two and half million carloads of fuel and
petrochemical feedstocks and products--including crude oil, natural gas
liquids, refined products, petrochemicals and plastics--move by rail
every year. AFPM members prioritize the safety of our people,
communities and products above everything else, and that includes the
safety of our products in rail transit. As freight rail shippers, we
have made significant investments to support and improve the safety and
efficiency of the rail transportation system.\1\
---------------------------------------------------------------------------
\1\ Read more about AFPM's commitment to rail safety: https://
www.afpm.org/newsroom/blog/transporting-fuels-and-chemicals-rail-what-
afpm-members-do-keep-rail-shipments-safe.
---------------------------------------------------------------------------
Rail safety is a shared responsibility that includes railroads,
rail shippers, emergency responders and the regulatory agencies
responsible for oversight. The primary goal of rail safety policy is to
reduce or eliminate the risk of a derailment from occurring in the
first place. In the absence of preventing a derailment, effective rail
safety policies should also aim to mitigate the consequences of a
derailment and aid in the emergency response for a derailment.
AFPM appreciates the time and attention the Committee on
Transportation and Infrastructure and Subcommittee on Railroads,
Pipelines, and Hazardous Materials is devoting to the issue of rail
safety in the wake of the East Palestine derailment. We share the
Committee's goals of advancing transportation safety and protecting
human health and the environment. AFPM believes the following policies
and principles, would most effectively improve rail safety and begin to
address the specific failure points that led to the catastrophic
derailment in East Palestine. We look forward to on-going collaboration
on rail safety improvements.
Wayside Detectors
Wayside detectors are a valuable diagnostic tool for the rail
industry. These detectors collect real-time information on the health
of passing rail cars and transmit the data back to railroad personnel
who can use this information to identify potential rail safety issues
and intervene to mitigate them before they escalate to the point where
derailment or other incidents could occur. Installing more wayside
detectors across freight rail routes that frequently transport
hazardous materials would improve the frequency of real-time data
transmissions and could also enhance safety warning systems by helping
to identify escalating problems early, enabling immediate response
measures and hopefully the prevention of rail incidents.
Currently there are no federal standards on placement of wayside
detectors or protocols that dictate what constitutes a rail emergency
that would warrant slowing or stopping a train. Class I railroads have
differing protocols of what constitutes an emergency and placement of
wayside detector is left up to them. In recent reports on the East
Palestine derailment both the Federal Railroad Administration and the
National Transportation Safety Board (``NTSB'') noted that consistent
standards for wayside detectors could enhance safety warning systems by
helping to identify escalating problems early, enabling immediate
response measures and hopefully the prevention of derailments.\2\
Specifically, NTSB noted in its' final report that ``regulatory
requirements for the installation, inspection, and maintenance of
wayside bearing defect detectors would protect the reliability of these
devices and improve the safety of railroad operations.'' \3\ AFPM
strongly believes more wayside detectors with clear protocols around
the location, maintenance and railroads response to emergency scenario
would not only ``improve the safety of railroad operations'' but they
could prevent derailments from occurring in the first place.
---------------------------------------------------------------------------
\2\ See Federal Railroad Administration Accident Investigation
Summary Report HQ-2023-1813. See also National Transportation Safety
Board report for Norfolk Southern Railway Derailment and Hazardous
Materials Released June 25, 2024, Railroad Investigation Report RIR-24-
05.
\3\ Id. page 182.
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Telematics on Tank Cars
Telematics devices placed on tank cars and other rolling rail stock
can provide valuable safety information and be used by rail shippers to
identify when tank car ``wear and tear'' can reach the point of
failure. They offer an early indicator for when rail cars may need
service, and this can prevent critical failures. While telematics are
most commonly thought of as a way for car owners to monitor the
location of their rail cars, they can also provide valuable safety
information on the condition and health of rail cars. For example,
telematics can aid in proper loading of a tank car, indicate proper
use, or misuse, of handbrakes, notify rail car owners of collisions or
tank car derailments, provide acoustic emissions data that can help
identify defective bearings, and sensors can detect tampering or
opening of a tank car among other things. When paired with information
from wayside detectors these technologies can provide a more thorough
line of sight on potential rail safety issues and allow rail shippers
and railroads to implement steps to prevent derailments.
Currently, some AFPM members voluntarily employ telematics to
ascertain the disposition and condition of their tank cars once they
are handed off to railroads. AFPM supports the use of telematics, as
well as efforts to increase their use and improve their safety
features. The proposed telematics pilot program in the ``Railroad
Safety Enhancement Act'' would go a long way to further develop these
technologies and ensure the safe transport of goods and better response
in case of a derailment.
Tank Car Standards
AFPM members are committed to tank car safety and have been at the
forefront of tank car retrofitting and replacement of DOT-111 tank cars
even prior to government regulation.\4\ In May 2015, the United States
Department of Transportation (``US DOT'') adopted a tiered tank car
phase out schedule for flammable liquids in ``high-hazard flammable
trains'' after extensive analysis on tank car fleet make up, shop
capacity, and the economics that go into a phase out and turn-over of
an entire rail fleet.\5\ In December 2015 Congress updated, reaffirmed,
and expanded the tiered phase-out schedule with the passage of the
``Fixing America's Surface Transportation Act'' (``FAST Act'').\6\ The
FAST Act requires that all DOT-111 tank cars be phased out for use in
transporting flammable liquids and that DOT-111 cars in flammable
liquid service be upgraded or replaced with the DOT-117 standard tank
car by May 2029 (extendable to 2031 if there is insufficient
retrofitting capability).\7\
---------------------------------------------------------------------------
\4\ As part of a longstanding commitment to safety, AFPM members
made an enormous capital investments starting as early as October 2011,
estimated in billions to date, in tank cars upgrades meeting industry
standards prior to federal government action. This effort was supported
by US DOT and Canadian Transport Ministry as part of the Association of
American Railroads Tank Car Committee.
\5\ See 80 FR 26644, ``Hazardous Materials: Enhanced Tank Car
Standards and Operational Controls for High-Hazard Flammable Trains''
Final Rule, published May 8, 2015.
\6\ See Public Law 114-94, ``Fixing America's Surface
Transportation Act'' signed December 4, 2015.
\7\ See 81 FR 53935, ``Hazardous Materials: FAST Act Requirements
for Flammable Liquids and Rail Tank Cars'' Final Rule, published August
15, 2016.
---------------------------------------------------------------------------
To ensure adequate tank car shop capacity to complete all needed
retrofits, Section 7304 of the FAST Act, requires the Bureau of
Transportation Statistics (``BTS'') to release an annual report on
``Fleet Composition of Rail Tank Cars Carrying Class 3 Flammable
Liquids.'' \8\ Per the BTS, all flammable tank cars in service are
currently in compliance with scheduled deadlines and this report
ensures that future phase-outs are feasible given tank car
manufacturing rates. This report helps inform policy makers about fleet
turnover progress and the FAST Act requires the US DOT secretary to use
this report to potentially extend deadlines if tank car shop capacity
is insufficient.
---------------------------------------------------------------------------
\8\ See Fleet Composition of Rail Tank Cars Carrying Flammable
Liquids: 2023 Report.
---------------------------------------------------------------------------
Following the East Palestine derailment, the ``Railway Safety Act
of 2023'' and ``Railroad Safety Enhancement Act'' proposed expediating
this requirement to phase out DOT-111 tank cars to December 31, 2027
(extendable to December 31, 2028, if there is insufficient retrofitting
capability).\9\ Ensuring that flammable liquids are being transported
safely is of the utmost importance. However, industry is constrained by
the availability of DOT-117 tank cars, the manufacturing capacity to
produce new cars and the capacity of shops to retrofit the DOT-111 tank
cars currently in service. Further expediting the timeline without
assurance of shop capacity could result in a deficit of tank cars in
flammable liquid service.
---------------------------------------------------------------------------
\9\ See S.576, ``Railway Safety Act of 2023'' introduced March 1
2023. See also HR. 8896, ``Railroad Safety Enhancement Act of 2024''
introduced July 11, 2024.
---------------------------------------------------------------------------
Numerous types of critical flammable liquid materials are moved via
rail in DOT-111 tank cars as currently authorized until May 2029.\10\
Flammable liquids essential to the refining and petrochemical
industries would be negatively impacted by a timeline that is not
feasible and achievable. This would include fuels, products and
byproducts of the refining and petrochemical manufacturing processes
such as gasoline, diesel, jet fuel, naphtha, benzene, methanol,
petroleum lubes, heating oil, xylene, styrene, petroleum distillates,
octanes, etc. that are frequently moved by rail. A rail car shortage
brought about by accelerated, unachievable tank car phase out schedules
could shut down refiners and petrochemical manufacturers, raising the
prices of fuels and petrochemicals.
---------------------------------------------------------------------------
\10\ For example, in 2022 over 865,000 Flammable liquid tank car
shipments were made in the United States and Canada. See Tank Car
Resource Center--Tank Car 101
---------------------------------------------------------------------------
AFPM has very real concerns that further expediting of the timeline
could cause a tank car shortage and have a detrimental impact on
numerous supply chains. If Congress is to move forward with a further
expedited phaseout timeline, it must be supported by data on shop
capacity, current tank car backlog, the competition for shop space and
tank car materials with concurrent retrofits of other fleets, and lead
times needed to secure raw materials to build or retrofit tank
cars.\11\ Any change in the phase out timeline must be modifiable by
the US DOT Secretary based on reliable data (AFPM recommends using the
existing BTS report as opposed to commissioning new studies which would
take valuable time and resources) to ensure industry has adequate time
to comply and that the timeline will not negatively impact the economy.
---------------------------------------------------------------------------
\11\ Currently AFPM members report there is a 10-12-month backlog
on procuring new tank cars.
---------------------------------------------------------------------------
AFPM would also like to raise a related issue for the Committee and
Subcommittee's attention regarding the tank car phase out timeline. On
May 23, 2024, the Department of Justice lodged a proposed Consent
Decree (``CD'') with the United States District Court for the Northern
District of Ohio in the lawsuit entitled ``State of Ohio and United
States of America v. Norfolk Southern Railway Company, et al'' (Case
No. 4:23-cv-00517).\12\ The proposed CD settles claims brought by the
United States under sections 309 and 311 of the Clean Water Act, 42
U.S.C. 1311 and 1321 and sections 107 and 113 of Comprehensive
Environmental Response, Compensation, and Liability Act, 42 U.S.C. 9607
and 9613, against NS related to the train derailment in East Palestine,
Ohio.
---------------------------------------------------------------------------
\12\ See 89 FR 50635, ``Notice of Lodging of Proposed Consent
Decree Under the Comprehensive Environmental Response, Compensation,
and Liability Act and the Clean Water Act'' Notice; Document No. 2024-
13065, published June 14, 2024. See also ``Proposed Consent Decree''
Case: 4:23-cv-00517-JRA Document Number: 138-1 Filed May 23, 2024.
---------------------------------------------------------------------------
Despite being issued under the United States Environmental
Protection Agency (``US EPA'') authorities, the proposed CD would
require several rail safety related changes, including requiring
Norfolk Southern to phase-out DOT-111 tank cars in flammable liquid
service only 180 days after the finalization of the decree. The
proposed CD would also require Norfolk Southern to create a ``Customer
Tank Car Replacement Plan'' within 90 days after the finalization to
encourage customers, through ``financial incentives'', to use
alternative tank cars. AFPM has significant concerns with these, and
other, elements of the proposed CD that address rail safety issues.
AFPM highlights for the Committee and Subcommittee that the proposed
CD:
Imposes provisions beyond US EPA's authority related to
rail safety and rail competition that are solely regulated under the US
DOT and Surface Transportation Board authority.
Is not the appropriate venue for rail safety provisions
and such efforts must go through the appropriate legislative or
regulatory process through the relevant committees or agencies.
Undermines Congressional authorities and disregards
completed and in-progress Congressional rail safety efforts.
Imposes obligations and burdens on third parties (namely
rail shippers and tank car manufacturers) that are not party to the CD.
Will result in negative economic impacts for consumers
and is not in the public interest.
Perpetuates and condones the railroad preferred strategy
of shifting blame, liability and cost of compliance of safety efforts
to rail shippers.
Conclusion
AFPM thanks the Committee and Subcommittee for its time and
consideration of all stakeholder viewpoints on this important effort to
improve rail safety. AFPM emphasizes the need for maintaining a safe
and efficient rail network for the energy and petrochemical industries
and the U.S. economy. AFPM shares Congress's desire to prevent an event
like what happened in East Palestine from ever happening again. We urge
Congress to be guided by the facts and data and pursue policies that
prioritize eliminating derailments. AFPM and our members appreciate
your consideration of our perspective and priorities to bolster rail
safety and look forward to working together in a productive manner to
bolster rail safety.
Sincerely,
Rob Benedict,
Vice President, Petrochemicals and Midstream,
American Fuel & Petrochemical Manufacturers.

Statement of Ian Jefferies, President and Chief Executive Officer,
Association of American Railroads, Submitted for the Record by Hon. Sam
Graves
Introduction
The Association of American Railroads (AAR) freight railroad
members account for the vast majority of railroad mileage, employees,
and freight traffic in Canada, Mexico, and the United States. For
freight railroads, safety is not an option, it's an imperative. Given
the critical importance of this topic, it is surprising and concerning
that I was not invited to testify in person. Despite this, our
commitment to taking focused, data-driven steps to prevent accidents
remains unwavering. I appreciate the opportunity to address you in
writing and stand ready to answer any questions the Committee might
have at any time in the future.
Every rail accident is one too many, and railroads aim to eliminate
accidents altogether. The accident in East Palestine, Ohio, last year
demonstrated the importance of reaffirming our commitment to keeping
our employees, our communities, and our customers safe.
Railroads will continue to learn from accidents and take meaningful
actions to enhance safety through good-faith, cooperative efforts with
policymakers, suppliers, customers, and rail employees; sustained
private investment in infrastructure, equipment, and safety
technologies; the modernization of operating and maintenance practices;
effective employee training; the continuous strengthening of a true
safety-first culture; and steadfast adherence to pertinent laws and
regulations.
FRA Safety Data Point to Overall Rail Safety Improvements
Data from the Federal Railroad Administration (FRA) indicate that,
for the rail industry as a whole, progress on safety has been
substantial: the train accident rate in 2023 was down 22 percent from
2000; the grade crossing collision rate was down 25 percent; and the
employee injury rate fell 48 percent. For Class I railroads, the
employee injury rate in 2023 was the lowest ever. Derailments on all
railroads combined were down 26 percent from 2000 to 2023 and
collisions were down 54 percent. Mainline accidents, potentially the
most serious, were down 40 percent over this period. For Class I
railroads, the mainline accident rate in 2023 was the lowest ever.

According to data from the Bureau of Labor Statistics, in 2022 (the
most recent year available), railroads had 2.1 reportable injuries per
100 full-time equivalent employees. That's a lower employee injury rate
than most other major industries, including trucking, airlines,
agriculture, manufacturing, construction, and even far lower than
grocery stores.
Safety extends to hazardous materials. More than 99.99% of rail
hazmat shipments reach their destination without a release caused by a
train accident.
These safety improvements are driven by sustained investment in
infrastructure, safety technologies, and the modernization of operating
and maintenance practices. The strong safety culture of the railroad,
which permeates everything our workers do, allows us to operate with
the highest level of safety awareness.
Railroads Safely Move Large Amounts of Hazardous Materials Every Day
Most commodities carried by rail are not dangerous, but in a
typical year, U.S. railroads transport approximately two million
carloads of hazardous materials. Ethanol, crude oil, and propane make
up the highest volume of hazardous material carried by rail, but other
hazmat products that are indispensable to our nation's economy, health,
and standard of living are also moved by rail.
Railroads are the safest mode for transporting hazardous materials.
Rail hazmat accident rates--accidents that result in hazmat releases as
a percentage of total hazmat carloads--fell 75 percent from 2000 to
2023. In 2023, there were 12 train accidents that involved the release
of hazardous materials, with 35 hazmat carloads releasing their
contents.\1\ In 2022, there were 14 train accidents that involved the
release of hazardous materials, with 19 hazmat carloads releasing their
contents. According to the Bureau of Transportation Statistics, the
last fatality caused by hazardous materials transported by rail in the
United States occurred more than a decade ago. That safety record
compares very favorably to hazardous materials moved on highways.\2\
---------------------------------------------------------------------------
\1\ An accident involving hazmat can lead to the release of product
from more than one railcar.
\2\ https://www.bts.gov/content/hazardous-materials-fatalities-
injuries-accidents-and-property-damage-data

The rail industry will not rest until it can eliminate all
accidents and will continue to meaningfully boost safety, prepare
communities, and make them whole following an incident.
Railroads want all our shipments to travel safely, and they have
consistently taken steps to make hazmat transportation safer and hazmat
accident training, response, and mitigation more effective:
Training:
Railroads help communities develop and evaluate emergency
response plans. They also provide training to thousands of emergency
responders each year--35,500 responders in 2023 and 24,000 responders
to date in 2024--through our own efforts and through the Transportation
Community Awareness and Emergency Response Program (TRANSCAER). In
addition, since the East Palestine accident, approximately 2,800 first
responders received specialized training through the rail industry's
Security and Emergency Response Training Center (SERTC) in Pueblo,
Colorado.

Railroads provide hazmat awareness training to all
employees who are involved in hazmat transportation. Employees
responsible for emergency hazmat response efforts receive far more in-
depth training.
Response:
In the aftermath of an accident, emergency responders
take the lead and work closely with railroads and local, state, and
federal officials to ensure proper community protection. Railroads
reimburse local authorities for the costs associated with this
response. Major railroads also have teams devoted to emergency
response, as well as hazmat response contractors and environmental
consultants, on call 24/7.

The AskRail app allows emergency responders to input the
identification number of a particular rail car and immediately
determine the commodity contained in that car, its hazard class,
emergency response information associated with the commodity, the train
consist, and other information. Following the East Palestine accident,
the industry worked to dramatically expand access to AskRail through
extended outreach efforts with CHEMTREC and CANUTEC emergency call
centers, as well as with dispatchers in Emergency Communications
Centers (ECC) across the country. Today, AskRail is available to more
than 2.3 million first responders across the United States and Canada,
and more than 220 ECCs across the nation have been fully onboarded and
dozens of others are in the onboarding process.

Railroads provide detailed information to emergency
response agencies on hazardous materials moving through their cities
and towns with appropriate security protections to ensure the right
information gets to the right people at the right time.

Railroads equip train dispatchers and crews with
information about hazmat on individual trains and detailed emergency
response information in addition to contact lists for local emergency
responders along a train's route.
Mitigation
Railroads have invested more than $23 billion a year, on
average, in recent years on capital expenditures, maintenance, and
technology like wayside detection equipment, track geometry technology,
and positive train control.

Around half of all hazardous materials, and nearly all
Toxic Inhalation Hazard materials, are transported in tank cars. All
but a tiny fraction of the 437,000 tank cars in the North American rail
car fleet are owned by rail customers and leasing companies, not by
railroads. While tank cars built today are vastly improved over earlier
generations, with higher grade steel, better thermal protection,
improved valves and fittings, and other improvements, railroads have
pushed DOT, Congress, and rail customers and suppliers for years to
speed up the deployment of newer, safer tank cars across the network.

Railroads work closely with chemical producers through
CHEMTREC, a 24/7 resource for emergency responders that provides access
to experts and assists in the mitigation of hazmat incidents.

Railroads and several federal agencies jointly developed
the Rail Corridor Risk Management System (RCRMS), a sophisticated
statistical routing model that incorporates 27 risk factors (including
hazmat volume, trip length, and population density along the route) to
aid railroads in identifying the safest and most secure rail routes for
transporting high risk hazardous materials.

Railroads provide services (e.g., lodging, food) to those
displaced by rail hazmat accidents and establish assistance centers and
claims teams to assess and meet the needs of displaced community
members.

After an initial emergency response is complete, railroads have a
less visible, but vital two-fold mission: making things right and
taking action to prevent another incident. Railroads work to make
communities affected by an accident whole, including taking care of
affected individuals' immediate needs and partnering with federal and
state agencies and independent experts to address any long-term
environmental or health impacts. In addition, when accidents occur,
railroads assess our operations and apply the lessons learned to drive
safety enhancements.
Using Technology to Identify and Address Safety Defects
Research, data, and years of experience have proven that a layered
approach combining our highly trained, experienced workforce with new
technology can identify potential problems before they cause an
accident and improves safety outcomes. Noteworthy technological
initiatives include:
Brake system technology that makes it easier and more
efficient to identify and repair issues with brakes.
Voluntary deployment and continued expansion of the
national network of more than 15,000 various trackside detectors--
including hot bearing detectors and acoustic bearing detectors--to
identify equipment defects, many of which cannot be seen by the naked
eye or on stationary trains.
Automated Track Inspections complement manual inspections
and enable more precise identification of track defects, a leading
cause of train derailments, by evaluating each foot of track.

Collecting and analyzing data allows railroads to track the health
of rail equipment, find patterns that can predict when repairs are
needed, manage our equipment and infrastructure, and create new
standards to make America's safe rail network even safer.
The rail industry is entering an exciting new era of innovation.
Promising advances being tested today include the use of artificial
intelligence to better understand and analyze data generated by the
industry's growing network of detectors and inspection technologies;
GPS-equipped on-board sensors to monitor the real-time status,
location, and condition of individual rail cars to improve equipment
tracking and proactive safety efforts; increasingly sophisticated
imaging systems to monitor track and equipment across the rail network,
allowing workers to remotely analyze conditions and proactively address
safety issues; and electro-magnetic field imaging that could
revolutionize rail surface defect detection, helping determine when
maintenance is needed to keep rail infrastructure in top-notch
condition.
Railroads' Response to the NTSB's East Palestine Accident Report
Railroads have taken steps to further improve safety and respond to
the February 2023 derailment in East Palestine, Ohio. Concurrently, the
National Transportation Safety Board (NTSB) undertook its investigation
and, in Summer 2024, released its report and recommendations to
identify the causes of the accident and make recommendations to prevent
future accidents.
Since NTSB released its recommendations, the industry has
collaborated to review the findings and take concrete action. The NTSB
made three recommendations to AAR regarding data collection for bearing
failures, tank car standards, and the definition of key train. In
response, AAR has taken the following steps:
1. Develop a database of bearing failures and replacements and
make it available to railroads, regulators, and investigators to help
determine and address failure risk factors.

AAR Actions: The rail industry tracks rail car equipment
repairs and replacements, including its wheels and bearings, through an
existing shared electronic records system. Railroads also have an
active program to tear down failed bearings and report the information
gathered. Those tear down reports are shared with an AAR Committee made
up of railroads and rail suppliers who review the information to
identify any systemic issues, which enables railroads and car owners to
take proactive steps to prevent future accidents. These Committee
meetings have been, and will continue to be, open to the FRA.

2. Revise the Manual of Standards and Recommended Practices, M-
1002, Specifications for Tank Cars, to establish criteria and
procedures for manufacturers of tank car service equipment to
demonstrate compatibility of pressure relief devices and other
Association of American Railroads-approved service equipment with
intended ladings.

AAR Actions: AAR is establishing requirements for manufacturers
to demonstrate compatibility of tank car devices with the commodities
those cars transport (lading).

3. Revise the definition of key train in Circular OT-55 to
designate as a key train any train containing tank cars transporting
hazardous materials that do not meet the DOT117 standard.

AAR Actions: AAR and its members are conducting a data-driven
analysis around expanding the key train definition.

Beyond the recommendations explicitly made to the AAR, railroads
have been reviewing recommendations NTSB made to other parties and
federal agencies:
Inward Facing Cameras: Railroads voluntarily deployed
inward facing cameras several years ago, and they are now ubiquitous on
Class 1 locomotives. The industry stands ready to constructively engage
with FRA as it acts on NTSB's recommendation to establish appropriate
standards.

Vent and Burn Procedures: Railroads have convened a
working group, which includes the FRA, to review and update current
vent and burn procedures.

Wayside Detectors: For decades, railroads voluntarily
deployed tens of thousands of wayside detectors across the network.
Following the East Palestine accident, the industry worked together to
standardize and lower temperature thresholds and add thousands more
detectors to the network. The industry stands ready to actively engage
with FRA should it undertake the research recommended by NTSB.

Safer Tank Cars: the freight rail industry has long
supported, and will continue to support, accelerating the timeline for
removing DOT-111 tank cars from service as quickly as possible.

Despite allegations to the contrary, railroads have repeatedly
engaged with policymakers to explore how a data-driven approach could
improve safety outcomes while mitigating unintended consequences. Any
legislative effort that purports to respond to the East Palestine
accident must be laser focused on data-driven, performance-based
policies that will prevent similar accidents from happening in the
future, and the railroads stand ready to work with this Committee on
developing that response.
Policymakers Have a Crucial Role
To promote a safer rail network, policymakers and regulators must
work with the rail industry to develop regulations that emphasize
innovation and adaptability and ensure that the rail industry remains a
safe, efficient, and vital component of America's infrastructure and
economy, now and in the future.
A successful rail safety regulatory framework should:
Promote equal consideration and opportunities to develop,
test, and deploy new technology across all modes of transportation.
Use performance-based regulations to encourage investment
in cost-effective, innovative solutions that enhance safety and
efficiency.
Base regulations on solid data and sound science.
Encourage innovation and avoid ``locking in'' existing
technologies and processes.
Ensure transparency and engage in meaningful dialogue
with industry stakeholders and the public.
Assess the benefits of regulations against their costs,
considering the overall regulatory burden.
Encourage waivers and pilot programs that allow for the
demonstration of new safety technologies and practices and pave the
wave for industry adoption when proven to successfully enhance safety
Conclusion
Our nation's freight railroads share this committee's and the
public's urgency in augmenting the safety of all rail transportation.
Railroads are committed to continuing our work with local, state, and
federal officials, our employees, our customers, our communities, our
suppliers, and other stakeholders to identify additional safety
enhancing steps that will make our nation's rail network safer.

Statement of Joanne F. Casey, President and Chief Executive Officer,
Intermodal Association of North America, Submitted for the Record by
Hon. Sam Graves
On behalf of the Intermodal Association of North America (IANA),
thank you Subcommittee Chair Nehls, Ranking Member Wilson, and
Subcommittee Members for convening this hearing to discuss rail safety.
The intermodal industry holds paramount the core value of safety and
dedicates significant time and resources to the pursuit of safety
advancement.
As the only transportation trade association that represents the
combined interests of intermodal freight providers and customers, IANA
represents more than 1,000 corporate members, including railroads,
ocean carriers, ports, intermodal truckers and over-the-road highway
carriers, intermodal marketing and logistic companies, and suppliers to
the industry. IANA's associate (non-voting) members include shippers
(defined as the beneficial owners of the freight to be shipped),
academic institutions, government entities, and non-profit trade
associations.
Unlike single transportation modes, intermodal freight supply
chains are comprised of distinct service providers that work in concert
to complete intermodal movements. Each link is a vital component of the
overall intermodal supply chain and must operate safely, seamlessly,
and efficiently to uphold systemwide performance and productivity
levels. Railroad operators are one such critical service provider in
the interconnected intermodal supply chain.
Safety drives the intermodal industry, and we are pleased to report
that across the board, rail safety continues to improve due to a high
level of private investment, a well-trained workforce, and a commitment
to ongoing research and development. According to the Federal Railroad
Administration (FRA), total train accidents declined 22 percent between
2000 and 2023 and mainline accidents decreased 40 percent in that same
period. Notably for the topic of this hearing, hazmat incidents
decreased 75 percent in this timeframe.
Over 99.99 percent of rail hazmat shipments reach their destination
without a release caused by a train accident. While the industry
strives for a perfect record, I encourage members of this committee to
bear this performance history in mind when considering regulatory
changes that may have unintended consequences, such as shifting hazmat
shipments to alternative means of transport with a higher incident
rate.
Any changes to the regulations governing rail, and likewise any
mode, must be founded in credible research rather than assumption. At a
minimum, this research must: 1) show that new regulations would yield a
safety improvement; and 2) contemplate downstream consequences of said
regulation. While factor 2 is complex, it is essential in an
environment where beneficial cargo owners evaluate several factors--
such as cost, reliability, and velocity--when selecting a mode of
transport.
IANA's membership is troubled by instances of legislation and
rulemakings that are not upheld by research. For example, despite the
lack of evidence supporting improved safety, both the FRA and Congress
are moving to mandate minimum staffing requirements for freight rail
operators. FRA stated in 2009 \1\, 2016 \2\, and 2019 \3\ that incident
data does not support a train crew staffing regulation. Likewise, in
2015, the National Transportation Safety Board (NTSB) stated, ``there
is insufficient data to demonstrate that accidents are avoided by
having a second qualified person in the cab.'' \4\
---------------------------------------------------------------------------
\1\ Denial of BLET Petition on RCO and Other Single-Person
Operations. Nov. 10, 2009. Federal Railroad Administration.
\2\ Notice of Proposed Rulemaking. March 15, 2016. Federal Railroad
Administration. https://www.federalregister.gov/documents/2016/03/15/
2016-05553/train-crew-staffing
\3\ Notice of Proposed Rulemaking Withdrawal: Train Crew Staffing.
May 29, 2019. Federal Railroad Administration. https://
www.federalregister.gov/documents/2019/05/29/2019-11088/train-crew-
staffing
\4\ Derailment of Amtrak Passenger Train 188 Philadelphia,
Pennsylvania. May 12, 2015. National Transportation Safety Board.
https://ntsb.gov/investigations/AccidentReports/Reports/RAR1602.pdf
---------------------------------------------------------------------------
New burdens on the railroad industry that are not directly linked
to safety improvements will adversely impact the industry's ability to
make critical investments in safety technologies as well as other
innovations necessary to remain competitive and to address customer
needs.
It is worth highlighting that the rail industry has demonstrated
its ongoing commitment to safety by implementing or initiating research
on several of the NTSB recommendations following the derailment in East
Palestine, Ohio. For example, in recent months, they have banded
together to establish standards and reduce temperature thresholds on
wayside detectors as well as add thousands more detectors to the
network. Additionally, the railroads are prepared to work with the FRA
on any research in this area.
IANA is dedicated to safety across all modes. Our members live and
work in communities with significant freight movement. To continue
pursuing exemplary safety outcomes across all modes, IANA has an active
Intermodal Safety Committee that reviews best practices and incidents
occurring in the transport of intermodal freight. IANA would be pleased
to serve as a resource to this committee.
Thank you for your time and your leadership in support of
intermodal goods movement and its related issues. IANA looks forward to
working with you and would welcome the opportunity to further engage
with your offices. If you or your staff have any questions, please do
not hesitate to contact me.

Testimony of Alan Shaw, President and Chief Executive Officer, Norfolk
Southern Corporation, Hearing of April 18, 2023, Before the Ohio Senate
Select Committee on Rail Safety, Submitted for the Record by Hon.
Michael A. Rulli
Chair Reineke, Vice Chair Rulli, Ranking Member Antonio, and
distinguished members of the Committee, thank you for the opportunity
to appear today to discuss the train derailment in East Palestine,
Ohio.
My name is Alan Shaw, and I have been the President and CEO of
Norfolk Southern since May 2022.
Today, I will share information with you about our progress
cleaning the derailment site, assisting families whose lives were
disrupted, and investing in the community. I will also discuss how we
are making Norfolk Southern and the railroad industry safer through our
own initiatives, collaboration with others in the industry, and
engagement with lawmakers and other stakeholders. As we move this work
forward, we are grateful for the leadership shown by Governor DeWine,
Lt. Governor Husted, and Attorney General Yost and their teams from the
beginning, and we look forward to continuing our close working
relationship to make it right for the people of Ohio.
I am deeply sorry for the impact this derailment has had on the
people in the region. I am determined to make it right.
We are making progress every day as we clean the site safely,
thoroughly, and with urgency. Working under the Unilateral
Administrative Order from the U.S. Environmental Protection Agency
(U.S. EPA), we have submitted a long-term plan that will guide our
comprehensive testing program for the community. That testing is
informed by science and regulatory standards. And we will continue to
transparently share the results of our ongoing testing. Agencies at the
state and federal level--including the U.S. EPA, the Ohio Environmental
Protection Agency (Ohio EPA), and the Pennsylvania Department of
Environmental Protection (DEP)--are monitoring the air and water
quality in the impacted region. We are encouraged that they have
reported to date that both the air and drinking water are safe.
I recognize that financial assistance cannot change what happened,
but it is an important part of doing the right thing. To date, we have
committed to reimbursements and investments of more than $30 million in
total, including by helping more than 7,600 families through our Family
Assistance Center. This is just a start. We are currently working
toward a final resolution with Attorney General Yost and relevant
stakeholders to establish three new funds to address healthcare,
property values, and water protection in East Palestine and the
surrounding communities. We also have launched a community website,
NSMakingItRight.com, to provide the latest information to residents of
East Palestine and the surrounding communities.
I would like to express my profound admiration for the first
responders from Ohio, Pennsylvania, and West Virginia who responded to
the derailment. I've had the opportunity to thank many of them
personally for their heroism, including at an appreciation event we
held in East Palestine last week. Making first responders whole has
been a particular area of focus, and we have already pledged and paid
millions to reimburse local fire departments for costs associated with
the emergency response and clean-up.
I want to be clear: this financial assistance is just a down
payment. I was on the ground in East Palestine soon after the accident,
and I've been back almost every week since. I've met with community
leaders, business owners, school officials, clergy, families, farmers,
and others to begin to identify ways we can invest in the future
prosperity of the residents in the area and support the long-term needs
of its people.
We have hundreds of Norfolk Southern employees and contractors
working in East Palestine seven days a week to address the community's
needs, and we will be on the ground until our work is complete. A
number of these employees and contractors are proud Ohioans, and I am
proud that our ties to Ohio run deep. Over 2,700 Norfolk Southern
employees call Ohio home, and we invest heavily in the state. Last
year, our capital investments in the state totaled $214 million. We
served almost 1,500 companies in Ohio last year across the agriculture,
auto, steel, consumer, and coal industries, among others. We handled
more than 450,000 cars in that time loaded with their freight,
representing billions of dollars of our country's GDP supporting the
Ohio economy, and it underscores the key role Ohio plays as a
manufacturing powerhouse and a critical crossroad of our supply chain.
We will continue to invest in the future of Ohio, just as we have
always done.
We are also committed to learning from this accident and to working
with public officials and industry to make railroads even safer. In the
meantime, we have already launched a series of immediate steps to
enhance safety, based on the facts in the National Transportation
Safety Board (NTSB) preliminary report. We look forward to cooperating
with the NTSB as it continues its investigation into the root cause of
the accident as well as its wider investigation.
I. Our Commitment to Remediation and Monitoring
I appreciate each of the many opportunities I've had to meet with
residents of East Palestine and the surrounding areas, and their
feedback has informed our approach. Norfolk Southern is working around
the clock to remediate the remaining issues and monitor for any impact
on public health and the environment. We continue to work in close
coordination with federal, state, and local regulators and others to
conduct environmental monitoring and to develop and carry out near-term
and longer-term clean-up activities. The remediation plan and each step
of our longer-term efforts will be implemented at the direction of the
U.S. EPA pursuant to the Agency's Unilateral Administrative Order. We
also appreciate the Ohio EPA's important work that it has been doing on
the ground--both in monitoring of the area and in communicating with
residents--and we look forward to maintaining open communication with,
and listening to the experts at, Ohio EPA as cleanup efforts continue.
Norfolk Southern personnel arrived on-scene shortly after the
accident, and we have been there ever since. We have worked to be
transparent and cooperative with the various local, state, and federal
stakeholders involved from the early hours of Unified Command through
today. Following the accident, our specialists have remained on-
location, assisted by expert derailment and environmental contractors.
And we are making significant progress. These teams have contained,
diverted, and treated affected portions of nearby waterways, flushed
nearly a mile of surface waterways, and are capturing rainwater within
the contaminated areas for temporary storage and disposal. To date, we
have recovered and transported more than 12.3 million gallons of
potentially affected water from the site for disposal at EPA-approved
facilities.
We are working to safely remove affected soil, and our crews have
removed more than 25,000 tons from the site. We are actively removing
waste to facilities specifically engineered and permitted to safely
handle this type of material. Last week, we completed excavation of the
impacted soil beneath the removed south track, a major milestone in the
remediation process, and we will complete the track restoration in the
coming days.
We continue to listen to the experts and cooperate with state,
federal, and local government agencies. The air monitoring to date has
shown the air is safe to breathe. And the monitoring of the area's
public drinking water and private water wells by state and local
authorities and Norfolk Southern shows that the water is safe to drink
and there are no harmful levels of substances related to the
derailment. We are committed to continuing this monitoring for as long
as necessary.
II. Our Commitment to the Community
I want the people of East Palestine and the surrounding communities
to know that Norfolk Southern and I are deeply committed to them. As
indicated above, we have already made an initial investment of over $30
million. Our financial support so far includes:
More than $13 million in support to more than 7,600
families through our Family Assistance Center;
Nearly $5 million in reimbursements and support to the
East Palestine Fire Department and other area first responders for
equipment used in the derailment response;
A $1 million fund available immediately to East Palestine
community leaders to identify where donations can do the most good;
Another $1 million fund to support the immediate needs of
the East Palestine community, overseen by a Norfolk Southern craft
railroader who lives in East Palestine and has been hired to serve as a
community liaison, reporting directly to my office;
$300,000 to the East Palestine City School District to
support the district's academics, athletics, extracurricular
activities, and long-term contingency planning regarding the impacts of
the derailment;
$250,000 donation to The Way Station, an Ohio-based
nonprofit delivering aid to the East Palestine community, to help
establish a larger, permanent location in the area and hire additional
staff, including a social worker;
Funding and coordination of cleaning and air monitoring
services for the East Palestine Elementary and High Schools;
Donations intended to help local organizations thrive,
including $33,000 to the Columbiana & Mahoning Beekeepers Association
and $15,000 to the East Palestine Area Historical Society;
$50,000 for business advancement to support local
businesses in the area; and
$65,000 to the East Palestine Youth Sports Association to
allow children to play in sports leagues for free for the year.

We are listening closely to concerns from the community about
whether there could be long-term impacts from the derailment, and we
are working towards a final resolution with Attorney General Yost and
relevant stakeholders on these issues. Many residents are worried about
what they will do if health impacts related to the derailment are
discovered years from now. To date, environmental monitoring continues
to show the air and drinking water are safe. To provide an additional
level of assurance, we are committed to a solution that addresses long-
term health risks through the creation of a healthcare fund.
We also know residents are worried about their home values. While
we are working with local leaders on investments to support the
community's long-term prosperity, we understand these concerns. We are
committed to working with all relevant stakeholders to provide tailored
protection for home sellers if their property loses value due to the
impact of the derailment.
We have heard the community's interest in programs that protect
drinking water over the long term. We are prepared to work with
stakeholders toward that goal as well.
We appreciate the leadership of Attorney General Yost on these
issues, and we are committed to working with the Attorney General and
his team to finalize the details of these programs and put those funds
in place for the long term.
Because we know it is important to keep the community informed,
NSMakingItRight.com is updated regularly with information about
remediation, monitoring, financial assistance, and investments in the
community. Again, this is all a down payment. We are listening to your
concerns, and we are committed to making this right.
III. Our Focus on Safety
Rail is one of the safest modes of transporting hazardous
materials. From 2021 to 2022, our train accidents in Ohio dropped by
roughly 40 percent, and our employee injuries in Ohio have been
declining each year since 2018. We recognize, however, that we need to
continue working to improve railway safety. The morning after the
derailment, I spoke to NTSB Chair Jennifer Homendy and pledged the full
cooperation of Norfolk Southern in the NTSB's investigation. The NTSB's
preliminary report released in February reflected that the Norfolk
Southern crew was operating the train within our protocols and below
the speed limit established by federal law. The wayside detectors
installed on the track to identify overheated axles operated properly,
and the crew took the appropriate action when they received the alarm.
We will analyze and address the NTSB's investigation results when
they are available, but we are not waiting to act. We are committed to
learning from this accident and working with public officials and
industry to make railroads even safer. We have already launched a
series of immediate steps to enhance safety, based on the facts in the
NTSB's preliminary report.
As an initial step--and focusing on what we can do on our own--we
are making our network of early-warning sensors stronger. Shortly after
the derailment, I instructed my team to immediately look at steps we
can take to improve safety further, and we are taking the following
actions:
Enhancing the hot bearing detector network;
Piloting next-generation hot bearing detectors;
Deploying more acoustic bearing detectors;
Accelerating our Digital Train Inspection program; and
Improving practices, alongside industry partners, for hot
bearing detectors.

We currently spend more than $1 billion a year on technologies,
equipment, and infrastructure to support safety, and another $1 billion
per year on ongoing operations in support of safety. But the safety
mechanisms in place did not prevent this accident. Every employee at
Norfolk Southern is focused on learning from this incident and working
with the entire freight rail industry to make changes.
We are committed to helping our first responders prepare for
incidents when they do happen. For years prior to the East Palestine
derailment, Norfolk Southern funded training for emergency responders.
In 2015, Norfolk Southern launched ``Operation Awareness & Response''
with the goal of strengthening relationships with state and local first
responders across our network through new training opportunities, and
full-scale exercises.
In March, we announced a new regional training facility in Ohio,
which offers free training to first responders in Pennsylvania, Ohio,
and West Virginia. The first safety classes were held at our yard in
Bellevue, Ohio, just west of Cleveland, and over the past six weeks we
held eight classes. In total, we trained over 300 first responders from
Pennsylvania, Ohio, and West Virginia. In addition, the Norfolk
Southern Safety Train will be in Cincinnati this week to offer similar
training to over 110 first responders already registered there. We will
have three more stops in Ohio with our dedicated Safety Train as it
makes more than a dozen stops across our 22-state network in 2023. We
are working cooperatively with the state of Ohio to establish a
dedicated facility in the future. Every year, Norfolk Southern
voluntarily trains between four and five thousand first responders
throughout the states we serve.
In addressing issues going forward, Norfolk Southern views an
industry-wide comprehensive approach--one that includes railcar owners,
car manufacturers, leasing companies, equipment makers, and the
railroad companies--as essential in helping to improve safety as the
rail industry continues to provide the logistical infrastructure that
enables the U.S. economy to grow. It's going to take all of us--and
we're eager to help lead that effort.
IV. Charting a New Course
Since becoming CEO, I have made reliable and resilient service our
goal. And we work every day to improve safety, service for our
customers, and the quality of life for our front-line railroaders. To
describe how we are doing that, I would like to provide some important
context on the new strategy we announced for Norfolk Southern at the
end of last year.
In the weeks since the derailment there have been a number of
questions about an industry operating approach called precision
scheduled railroading (PSR). There are five principles of PSR: operate
safely, develop people, provide service, control costs, and optimize
assets. These are sound principles one might find in any industry with
an operational focus.
In recent years, however, PSR has become associated with a singular
focus on cost-cutting to drive a low operating ratio, which is a common
industry measure for efficiency. It is here that Norfolk Southern has
approached things differently from others in the industry and charted a
new course. In a significant departure from the railroad industry's
recent past, we deliberately moved away from a singular focus on
operating ratio. Instead, we are taking a more balanced approach to
service, productivity, and growth.
As just one example of what our strategy means in practice, instead
of furloughing workers during periodic economic downturns, we intend to
use the opportunity to invest in our workforce and provide additional
training. When we do that, it makes us a more resilient company that is
better able to serve our customers, and it creates more career
opportunities for our craft railroaders. We hired craft railroaders
aggressively throughout 2022 and continue to do so this year.
Our new strategy goes hand-in-hand with our increased focus on
culture and employee engagement, with an emphasis on transparency and
collaboration. I know that when Norfolk Southern is successful, it is
because our craft colleagues are getting the job done for our customers
and the U.S. economy. I have spent countless hours in the field in the
11 months I have served as CEO, thanking our front-line railroaders for
their service and listening to their ideas on how to make Norfolk
Southern better.
We are committed to enhancing quality of life and work
predictability for our craft employees, who are the key to our success.
When we completed the recent round of national labor negotiations, with
a historic and well-deserved 24 percent pay increase, I committed
immediately to begin negotiations at the local level on quality-of-life
issues like paid sick leave. We did what we said we were going to do
and have already reached agreements on paid sick leave with ten of our
unions.
V. Our Commitment to Industry & Legislative Action
We support legislative efforts to enhance the safety of the freight
rail industry. We are committed to working with our fellow industry
leaders to make the railroad industry a safer place. We recognize and
appreciate the efforts of both state and federal lawmakers in proposing
new legislation to create a safer rail industry. Pending legislation in
Congress includes measures with the potential to enhance safety and
improve outcomes for our industry, our customers, and the communities
we serve.
We support provisions in this legislation that call for more
industry-funded training for first responders, and we are not waiting
for legislation to move this forward. We have already announced the
expansion of our existing training programs and the creation of a new
regional training center in Ohio, to serve first responders in Ohio,
Pennsylvania and West Virginia.
We support the principle that first responders need accurate real-
time information on the contents of trains moving through their
communities and instruction on the safe handling of those contents in
the event of an accident. We intend to take a leading role getting the
AskRail safety application into the hands of every first responder who
needs access. In this area specifically, the details of legislation
matter as policymakers balance safety enhancements with national
security concerns.
We support triennial reviews of regulations for rail car
inspections and standards for freight car safety, because regular
reviews drive good regulatory policy and outcomes.
We support the Federal Railroad Administration's (FRA) Confidential
Close Call Reporting System (C3RS). Norfolk Southern participates in
the C3RS Working Group that is part of the Department of
Transportation's Railroad Safety Advisory Committee.
We support accelerating the phaseout of older tank car models,
research into advanced tank car design, and additional funding for
research and development on next-generation early-warning sensor
technologies.
There are other aspects of the proposed legislation that we support
in principle. Establishing performance standards, maintenance
standards, and alert thresholds for safety sensors is one example. We
have already committed to work with the industry to develop additional
data-based best practices in these areas, and we welcome constructive
discussion with stakeholders to craft effective and practical
legislation.
There are also areas in which we believe Congress could go further
with safety legislation. We encourage even stricter standards for tank
car design. There are significant opportunities for advanced technology
to enhance rail safety, and we encourage Congress to consider
additional research into on-board rail car defect detection technology.
We support increasing fines and penalties for persons found
tampering with railroad facilities and safety equipment, such as grade
crossing warning devices, wayside detectors, or signal boxes. We
support codifying and enhancing the FRA's confidential close car
reporting system. And we support new requirements to ensure utility
installations in railroads rights-of-way are conducted safely.
We look forward to continuing to engage with relevant stakeholders
on these important issues as we all work to improve safety in the
freight rail industry.
VI. Conclusion
Finally, Chair Reineke, Vice Chair Rulli, Ranking Member Antonio,
and members of the Committee, I want to state again how deeply sorry we
are for the impact of this derailment on East Palestine and the
surrounding communities. We are making progress in the recovery and
know our work is not yet done. On behalf of the more than 19,700 hard-
working employees of Norfolk Southern, I pledge that we won't be
finished until we make it right. Thank you for the opportunity to
testify before you today, and I look forward to your questions.

Appendix

----------

Questions to Hon. Jennifer L. Homendy, Chair, National Transportation
Safety Board, from Hon. Rick Larsen

Question 1. In your view, what effect has the reduction in the
number of rail workers over the last several years had on rail safety?
Answer. The NTSB is currently conducting a special investigation of
Norfolk Southern's (NS's) safety culture as a result of recent
investigations involving the railroad:
On December 8, 2021, an employee for National Salvage and
Service Corporation assigned to work with a Norfolk Southern work team
replacing track was killed when the operator of a spike machine
reversed direction and struck the employee in Reed, Pennsylvania.
On December 13, 2022, a Norfolk Southern trainee
conductor was killed, and another conductor was injured, when the lead
locomotive of a Norfolk Southern freight train struck a steel angle
iron protruding from a gondola car on another Norfolk Southern freight
train that was stopped on an adjacent track in Bessemer, Alabama.
On February 3, 2023, a Norfolk Southern freight train
carrying hazardous materials derailed in East Palestine, Ohio. The
derailment resulted in a significant fire and hazardous materials
release.
On March 4, 2023, a 2.55-mile-long Norfolk Southern
freight train derailed near Springfield, Ohio.
On March 7, 2023, a Norfolk Southern employee was killed
during a movement in Cleveland, Ohio.
On July 19, 2024, a Norfolk Southern employee was struck
by free rolling equipment during humping operations at Lambert's Point,
resulting in amputation.
On August 23, 2024, a Norfolk Southern employee was
seriously injured when he was struck by rolling equipment during the
process of coupling empty coal cars on the track at Lambert's Point
Yard.

As part of the special investigation, the NTSB is also reviewing
the October 8, 2022, Norfolk Southern derailment in Sandusky, Ohio.
As part of that special investigation, the NTSB's Office of
Railroad, Pipeline, and Hazardous Materials Investigations, in
collaboration with the Office of Research and Engineering, are
currently examining accident and injury rates, financial data, and
workforce trends over the past 10-12 years using publicly available
data from NS and the other Class I railroads. The data was retrieved
from the Federal Railroad Administration (FRA), Surface Transportation
Board (STB), and Railroad Retirement Board. The public docket for the
investigative hearing into the East Palestine accident includes
information on key employment trends at NS over the previous 10 years,
as provided by NS to the STB. I have attached the exhibits for your
review.
In examining this data, staff are evaluating, among other things,
how NS's safety outcomes (such as accident and injuries) have changed
over time; how NS's changes in safety outcomes compare to changes in
safety outcomes at all other Class I railroads; whether NS experienced
changes in key organizational factors, such as workforce size, number
of employee working hours, and operating expenditures and revenue; and
whether changing trends in organizational factors at NS correspond to
changes in safety outcomes.
Staff are also examining the results of an NTSB survey of the
safety culture at NS. Once those are complete, staff will work to
correlate the safety data with the survey data and NTSB's accident
investigation data to determine and evaluate any safety trends.
We plan to be able to deliver the full report in March 2025.
However, we have investigated other rail accidents in recent years
where rail workforce cuts or increased workloads for rail employees
were discussed in the report, investigative materials, or in the public
Board meeting.
In our investigation of a 2019 collision of two CSX freight trains
in Carey, Ohio, we determined the probable cause of the collision was
the failure of the striking train's engineer to respond to the signal
indications requiring him to slow and stop the train because of his
impairment due to the effects of alcohol.\1\ Contributing to the
collision was the design of the positive train control (PTC) system,
which allowed continued operation in restricted mode on the main track.
---------------------------------------------------------------------------
\1\ National Transportation Safety Board. Collision of Two CSX
Transportation Freight Trains, Carey, Ohio, August 12, 2019. NTSB:
Washington, DC 2020; Rpt. No. RAR 20/03.
---------------------------------------------------------------------------
Among the conclusions from the investigation, we found that CSX
Transportation's drug- and alcohol-testing programs, the shortcomings
of which were also documented in the FRA's audits of the programs,
failed to deter the striking train engineer's illegal use of marijuana
and consumption of alcohol, which impaired his performance while on
duty and operating the train. Specifically, the striking engineer had
not been randomly tested for drugs since 2009. In a May 2019 audit, the
FRA indicated concern that, overall, CSX's alcohol- and drug-testing
program was not functioning at an acceptable level of compliance and
efficiency resulting CSX conducting drug testing for only 19 percent of
its train service workforce. FRA auditors observed numerous instances
where CSX field managers were unavailable to schedule testing or did
not schedule testing to ensure that random selections were completed.
In its response to the audit, CSX attributed the non-compliance to
``organizational changes'' and vendor challenges in 2017 and 2018. The
organizational changes had prompted the consolidation of Occupational
Health and Operations Safety staff to manage drug and alcohol program
compliance.
In addition, we found that CSX Transportation's PTC training
program did not include particular emphasis on using restricted mode
specific to its limitations enforcing restrictive signal aspects,
encroachment into an established work zone, and movement through an
improperly lined switch. Adequate training and managerial oversight are
essential for ensuring that rules and procedures for safely operating
PTC systems in restricted mode are followed correctly.
During the Board meeting to consider the Carey report, Vice Chair
Bruce Landsberg and I questioned investigators regarding CSX's
organizational changes impacting safety in its drug and alcohol testing
program and its PTC training. A partial transcript of the discussion is
attached. It is important to note that CSX's organizational changes
were not included in the findings, probable cause, or recommendations
adopted by the Board in the final report.
In addition, our investigation of a 2021 derailment of an Amtrak
train near Joplin, Montana determined that the accident was caused, in
part, by deteriorating track conditions on the BNSF Railway track.\2\
---------------------------------------------------------------------------
\2\ NTSB. Derailment of Amtrak Passenger Train 7 on BNSF Railway
Track, Joplin, Montana, September 25, 2021. NTSB: Washington, DC 2023;
Rpt. No. RIR 23/08.
---------------------------------------------------------------------------
In the 30 days prior to the derailment, we found that the BNSF
track inspector was responsible for inspecting an average of 73 miles
of track a day. In his interview with investigators, he stated that he
had been ``covering four positions most of the summer.'' When asked how
he kept up with required inspections, he stated he worked seven-day
weeks, 16-hour days.
On the day of his last inspection of the track at the accident
location--two days before the derailment occurred--he was responsible
for inspecting 126.8 miles of track, which matched the most miles to be
inspected during that 30-day period.
Although we did not find that the accident occurred due to a
reduction in the number of inspectors, Our final report details the
safety issues with the BNSF track inspector's workload due to vacancies
in positions:

``Railroads need to ensure that inspection territory
assignments are sized to allow sufficient time for quality
track inspections. Allowing one track inspector to be
responsible for such an extensive amount of track results in
reduced performance proficiency.

As outlined in 49 CFR Part 213, Subpart F, the FRA has
inspection frequency requirements that vary by track type.
Track carrying regularly scheduled passenger trains must be
inspected twice weekly. Generally, these inspections can be
made while traversing the track in a vehicle. The track
inspector reported spending many hours per week inspecting
track in a hi-rail vehicle to meet the requirements. He
described how a typical work week over the summer was largely
structured around how he would navigate his hi-rail vehicle to
meet the inspection intervals. Records show that the track
inspector had driven his hi-rail vehicle over the portion of
track where the accident occurred twice in the week of the
accident, meeting the federally mandated minimum inspection
frequency requirement for that section of track.

The track inspector had not completed a walking inspection of
the derailment curve since the fall of 2020. Walking
inspections are critical to developing a deep understanding of
the state of the track--beyond what can be achieved through hi-
rail inspections or automated systems. Had the track inspector
performed a recent walking inspection at the derailment curve,
he likely would have identified the deterioration and pumping
action at the two low rail bolted replacement rail joints. With
this information, we found that he might have advised BNSF that
safety-critical repairs be implemented, which may have
prevented the derailment.

Generally, track inspectors decide when to conduct walking
inspections. Through training and experience, they know when it
is necessary to pause a hi-rail inspection, get out of the
vehicle, and inspect the track on foot. Automated systems are
enhancements to the overall inspection program for guiding and
focusing the visual inspection process. Over time, track
inspectors become familiar with problematic areas of track, may
complete minor repairs themselves, and advise their supervisors
when major repair work is necessary.

The derailment curve was located on a portion of track that
required greater scrutiny. The track inspector was aware of the
replacement rail joints in the curve, had concerns about them,
and believed it would have been beneficial to have them
``welded up''--in other words, removed. On September 23, 2021,
the track inspector conducted a hi-rail inspection with a
roadmaster through the derailment curve. He indicated his
concerns about the replacement rail joints in the curve to the
roadmaster, but they did not exit the vehicle and conduct a
walking inspection. The most likely reason that the track
inspector did not perform a walking inspection of the
derailment curve in about a year is that he did not have time.
In comparison to hi-rail inspections, walking inspections are
time intensive and the track inspector was already pushing the
limit of hours that could be physically worked in a week just
to meet the FRA minimum inspection requirements for the
hundreds of track miles he was responsible for inspecting. The
NTSB concluded that the track inspector likely could not
perform a required walking inspection of the derailment curve
due to his assigned workload to inspect an excessive amount of
track.

In the month before the accident, the track inspector routinely
worked long hours, often more than 12 hours at a time.
Generally, except for emergencies, a railroad carrier and its
officers and agents may not require or allow train, signal, and
dispatching service employees to remain on duty for more than
12 consecutive hours. However, track inspectors are not
included in this regulation. Accordingly, the hours worked by
the track inspector did not violate any federal safety
regulations. Nonetheless, given his safety-critical role, his
work schedule is concerning from a fatigue risk-management
perspective because of the possibility of reduced performance
proficiency. Safety would be improved by limiting the hours
that can be worked by track inspectors. Moreover, a new FRA
regulation on Fatigue Risk Management Programs (FRMP) should
lead to railroads implementing fatigue risk-management policies
that go above and beyond what is required by the hours-of-
service (HOS) regulations.

BNSF had not mitigated the potential effects on performance
associated with working an excessively demanding schedule for
employees responsible for inspecting and maintaining railroad
tracks. BNSF has stated that it ``monitors the hours worked''
by its team members very closely ``to ensure that employees are
receiving an adequate amount of time to rest and adjusts work
assignments accordingly.'' The hours worked by the track
inspector were excessive. It is concerning that BNSF asserts
that his hours were being monitored ``very closely'' as this
suggests that his hours were considered to be acceptable. An
organization with a positive safety culture would not allow a
safety-critical employee to routinely work more than 12 hours
in a day. BNSF currently has no rules or policies that limit
the hours that their track inspectors can work. The NTSB
concluded that BNSF's lack of proactive management controls to
prohibit work assignments likely to cause fatigue and workload
risks for safety-related employees is an indication of a
shortcoming in its safety culture.'' (pages 50-52).

Questions to Hon. Jennifer L. Homendy, Chair, National Transportation
Safety Board, from Hon. Frederica S. Wilson

Question 1. What is the status of your safety culture review of
Norfolk Southern? What have you learned from this data, and how do they
compare to other railroads?
Answer. As part of our special investigation into Norfolk
Southern's (NS's) safety culture, we surveyed 19,795 NS employees about
the company's safety culture. The survey was open from April 3, 2024,
to May 2, 2024, and we received a 22-percent response rate, which is
considered an acceptable response rate to support a meaningful
assessment. We are using the survey results in conjunction with
analysis from data gathered from the Surface Transportation Board and
the Federal Railroad Administration safety databases to develop
meaningful findings. Although NS is the focus of our special
investigation, we will be able to make some comparisons with other
railroads as part of our analysis. We are not yet at a point where we
can make complete and meaningful conclusions but should have the report
ready in 2025.
As part of our accident investigations, we regularly consider if
and how the safety culture of any entity contributed to an accident and
over the years have investigated rail accidents where unsafe operating
practices resulted from poor safety culture and safety management. The
NTSB has long recommended the implementation of safety management
systems (SMS) in all modes of transportation. The Rail Safety
Improvement Act of 2008 (P.L. 110-432) required each Class I railroad
to develop and implement a risk reduction program (also referred to as
a SMS). In 2012, we recommended that FRA require that SMS and the
associated key principles (including top-down ownership and policies,
analysis of operational incidents and accidents, hazard identification
and risk management, prevention and mitigation programs, and continuous
evaluation and improvement programs) be incorporated into railroads'
risk reduction programs.\3\ FRA issued the Risk Reduction Program (RRP)
final rule on February 18, 2020, which includes the key principles
recommended. We have since recommended that the FRA review all
railroads' RRP plans to ensure effectiveness and safety. However, to
date, FRA has not issued the guidance to railroads for implementation
of their RRP nor started auditing these programs.
---------------------------------------------------------------------------
\3\ NTSB Safety Recommendation R-12-3.
---------------------------------------------------------------------------
__________
Attachment 1

Agency/Organization: NTSB
Title: Norfolk Southern Key Employment Trends
Docket ID: DCA23HR001
_______________________________________________________________________

__________
Attachment 2
NTSB Board Meeting: Collision of Two CSX Transportation Freight Trains
September 15, 2020
The following is a partial transcript from the September 15, 2020,
NTSB Board meeting concerning the August 12, 2019, collision of two CSX
Transportation freight trains.\1\ The exchanges begin at 54:58 of the
video.
---------------------------------------------------------------------------
\1\ Video is available on NTSB's YouTube page.

LANDSBERG: What about CSX's management? What are they doing about
this?
STAFF: CSX provided us with some materials. We know that we haven't
gotten everything from CSX, but there's a rather comprehensive audit
from 2019 that identified a lot of CSX problems. Again, mainly around
local management and implementation of these test programs.
CSX has been going through a number of organizational changes
recently. They've also seen a reduction in person power in their mid-
level manager ranks. And so, we don't have a report from CSX on how
they're going to address the latest 2019 audit findings.

* * * * *

HOMENDY: (FRA) did do a 2016 audit and 2019 audit of CSX and their
drug testing program and a number of other things, and part of the
audit said that the inspections themselves indicated a number of
failures. One of which was, CSX failed to test after a qualifying
event, meaning something happened and they were required to test. And,
in this one, and in addition to that, they also found the substance
abuse professional follow-up testing plan for a certain employee to
have 10 alcohol and drug tests in the first year, six alcohol tests in
the second year, eight alcohol tests in the third year, five alcohol
tests in fourth, and seven the fifth. None of that was followed up on
and out of the 36 total tests that employee was supposed to have CSX
gave them five. So, what I want to talk about is what's going on with
CSX. So, what is precision scheduled railroading?

* * * * *

STAFF: Okay, precision railroading was a new method of railroading
that most railroads incorporated to streamline their operations. They
got rid of a lot of yards, a lot of middle managers. They cut down on
personnel to save money, but they were streamlining. The main objective
was to instead of taking rail cars to yards and switching them out and
making them wait till the train was big enough, they kept the train
moving by going from main point to main point instead of waysides in
between.
HOMENDY: And let me sum it up in one sentence, it's a fancy term
for doing more with less, for railroads.
STAFF: Yes, ma'am.
HOMENDY: And so, CSX responded to FRA's 2019 audit plan and said,
due to organizational changes, in a number of areas, that's what caused
these deficiencies in their drug and alcohol program. And they referred
to organizational changes that stemmed back to 2017 and 2018, which was
when Hunter Harrison took over CSX and implemented precision scheduled
railroading, correct?
STAFF: Yes, ma'am.
HOMENDY: In fact, FRA on a phone call conversation with me said
that a lot was going on with precision scheduled railroading, and the
very reason why people were not following up on scheduling random drug
and alcohol test is because people were sending emails within CSX that
somebody was not receiving because they were fired, is that right?
STAFF: Yes, that's correct.
HOMENDY: That's correct. So, precision scheduled railroading, and
let me just go over what happened in these two years. They slashed jobs
in the first two years alone after CSX implemented precision scheduled
railroading, the carrier fired 22% of its equipment maintenance
workers, 16% of its train crews, 11% of its maintenance of way
employees, numerous road foremen, which are required for training. They
reduced maintenance, closed repair shops and yards, cut train frequency
to combine them into longer trains. I actually have a consist, which
shows that a train is 4.5 miles long. In this case, the westbound train
was two miles long. Hunter Harrison essentially squeezed the life out
of this railroad. For what? To return billions of dollars to a hedge
fund and the shareholders and in return it created safety issues. So
would you agree that precision scheduled railroading impacts safety.
STAFF: Absolutely, and you can look at that from the training
perspective. The fact that the initial PTC training was set up to meet
the 2015 deadline. Here we have five years that have gone by and just
looking at it through a safety management lens, where is the feedback
loop? Where is the data from the field that is showing that it's
effective? And you know, when you mention the road foreman positions
that have been cut. That's the key component to the 217 efficiency test
program that would give you your feedback on if training is actually
effective and working.
HOMENDY: Correct. And in this case, one of the train crews, I can't
remember if it was eastbound or westbound, said he wasn't even
efficiency tested.
STAFF: Exactly, exactly.

Questions to Hon. Amit Bose, Administrator, Federal Railroad
Administration, from Hon. Rick Larsen

Question 1. After the derailment, all the Class I (one) railroads
committed to joining the Confidential Close Call Reporting System
(C3RS). Since then, only a few railroads have begun pilot programs,
covering a small percentage of their workforce.
Question 1.a. What is the cause of these delays?
Question 1.b. What safety benefits would we see from full C3RS
participation?
Answer to 1.a. & 1.b. FRA's Confidential Close Call Reporting
System (C3RS) is a common-sense program that encourages employees to
report close calls by protecting workers from railroad discipline and
revocation of certificates when they file covered events. Research has
shown that this program works to reduce collisions, injuries, and
deaths because the protection from reprisal encourages workers to
report events they may not otherwise report or report in such detail,
and because the railroad, working with workers covered by the program,
develops corrective actions intended to mitigate and prevent
reoccurrence of close calls. Currently, 31 private railroads
participate in C3RS, covering tens of thousands of railroad employees.
Shortly following the Norfolk Southern derailment in East
Palestine, Secretary Buttigieg called on the Class I railroads to join
C3RS. Each Class I committed to adopting C3RS.
On February 2024, NS, SMART-TD, BLET, and FRA entered into a 12-
month pilot of the program, covering about 1,000 crew members in
Atlanta, GA; Elkhart, IN; and Roanoke, VA. In June 2024, ATDA and BNSF
entered into pilot for 650 train dispatchers working on BNSF's system.
And in August 2024, ATDA and NS entered into a pilot, allowing
approximately 300 dispatchers to begin reporting close calls
confidentially and without fear of discipline or de-certification. We
commend those unions and railroads for finding agreement. We know other
workers at those railroads and other Class I railroads also stand to
benefit from the program, and FRA continues pressing the issue and
expects the Class I railroads will make good on their commitment.
Among the benefits of the program are the corrective actions put in
place in response to reports filed by workers. In July 2024, FRA issued
a C3RS Newsletter \1\ highlighting a number of corrective actions
freight and passenger railroads have implemented in response to C3RS
reports filed by workers across crafts, such as:
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\1\ Risk Mitigation Success Stories--C3RS Newsletter No. 1, FRA
(dot.gov)
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Engineering workers' job briefings were amended to
include a section detailing ``portable derails installed'' following
C3RS reports where temporary derails were left in place at the
conclusion of work leading to potential safety threats.
Following a C3RS report involving positive train control
(PTC) that resulted in an activation in the middle of an interlocking
instead of before it, a programming issue related to PTC at dual-
control switches within an interlocking was identified and corrected.
Following a C3RS report that involved a mechanical
employee who left a blue flag on a track after releasing it to the
yardmaster, the mechanical department re-engineered procedures for
applying and releasing blue flags.
After several C3RS reports citing confusion and
distraction regarding bulletin orders, a Peer Review Team created a
sub-committee to review the makeup and design of the bulletin order
document. The result was a streamlining of daily bulletin orders
removing some items and moving others in order to make it easier to
read and identify emergent items.

FRA is taking an active approach to promoting the C3RS program with
Class I Railroads. For example, FRA has held meetings with each of the
Class I railroads, as well with rail labor, to advance the program. FRA
has also held a series of Railroad Safety Advisory Committee (RSAC)
meetings to consider ways of facilitating C3RS participation. To date
the relevant RSAC working group has met 6 times, most recently on March
21, 2024. Additionally, I have spoken with each Class I CEO to
encourage their railroad's participation in C3RS. I also sent a letter
to each Class I CEO on August 21, 2023, where, among other vital calls
for increased safety, I reiterated the Secretary's call for all Class I
railroads to join C3RS.
C3RS can play an important role in reducing risk across the
railroad operating environment, and we expect the Class Is to make good
on their commitment to join the program.

Questions to Hon. Amit Bose, Administrator, Federal Railroad
Administration, from Hon. Steve Cohen

Question 1. The East Palestine derailment was caused, at least in
part, by excessive heat buildup in the wheel bearings on some of the
cars. A lot of new technology is being developed in the context of rail
electrification, including bearing heat monitoring systems that are
mounted directly on rail car undercarriages.
Is FRA exploring the potential advantages of these systems compared
to the traditional method of spacing detectors along rail lines?

Question 2. Certain railroad electrification vehicles are
originally designed and have been built to offer continuous monitoring
of rail car wheel bearing temperatures on every bogie.
Question 2.a. What are the safety advantages of this technology,
and how it could improve current rail safety?
Question 2.b. Is FRA testing this technology to determine its
applicability to the nation's rail and freight transportation system?
Answer to 1, 2.a., & 2.b. Private railroad companies, railcar
owners, and shippers share responsibility for freight railroad safety.
Specifically, under Title 49 Code of Federal Regulations (CFR) Part
215, railroads are responsible for freight railroad safety whenever
railcars are in service. As such, railroads employ wayside detection
and visual inspections to ensure railcars are safe for transport. Most
freight railcars are not owned by the transporting railroad. Wayside
monitoring technology provides alerts and inspection data for condition
metrics of railcars in transit by a railroad. While further testing and
evaluation is necessary, onboard continuous monitoring has the
potential to provide early warning of component degradation.
FRA supports technological advancement through research and
funding. FRA's R&D program identifies and develops emerging
technologies for the rail industry to adopt voluntarily and focuses on
filling gaps in research not taken on by industry itself. FRA's Office
of Research, Development, and Technology is preparing to investigate
on-board, wayside, and manual inspection techniques to evaluate the
potential benefits of each in detection of degraded rolling stock
components, including wheel bearings. In fiscal year 2025, subject to
availability of funding, FRA will further study on-board and wayside
detection technologies and methods. Additionally, FRA will be preparing
a detailed plan to procure and install various wayside technologies at
its Transportation Technology Center (TTC) in Pueblo, Colorado, which
will support the evaluation of existing and potential wayside and on-
board automated inspection and defect detector technologies, in
addition to recommended practices, voluntary industry technical
standards, and railroad safety data. The effort is part of FRA's
overall mission to promote railroad safety.

Questions to Tristan H. Brown, Deputy Administrator, Pipeline and
Hazardous Materials Safety Administration, from Hon. Rick Larsen

Question 1. One of the NTSB's recommendations was to establish a
tank car replacement schedule to ensure all tank cars meet or exceed
DOT-117 standards. What legislative authority does PHMSA need to update
the current schedule?
Answer. Federal hazardous materials transportation law (Hazardous
Materials Transportation Act; 49 U.S.C. 5101 et seq.) at 49 U.S.C. 5103
gives the Secretary of Transportation general authority to establish
regulations for the safe and secure transportation of hazardous
materials in commerce, including the authority to set the standards for
hazardous materials packagings, including rail tank cars.\1\ The
Secretary delegated this authority to PHMSA in 49 CFR 1.97(b).\2\ In
2015, as part of PHMSA's High Hazard Flammable Train Rule, PHMSA
finalized requirements to phase out DOT-111 rail cars carrying
hazardous materials under its general statutory authorities. However,
Congress superseded this with a lengthier phase-out schedule for DOT-
111 tank cars in flammable liquid service in paragraph (b) of Section
7304 of the FAST Act \3\. As noted in the hearing, Secretary Buttigieg
expressed support for bipartisan legislation accelerating the current
May 1, 2029, end date for DOT-111s in flammable liquid service. In
order to establish an accelerated tank car replacement schedule for the
DOT-111 cars covered by the FAST Act phase-out schedule, PHMSA would
require assistance from Congress in amending or updating that schedule.
For tank cars not covered by the FAST Act, i.e., all cars that are not
in Class 3 flammable liquid service, legislation that establishes
Congress' intent would help avoid a similar scenario that occurred in
2015 where PHMSA implemented strong new rail safety requirements and
Congress nearly immediately superseded PHMSA's actions. Therefore,
PHMSA welcomes additional clarity from Congress to respond to NTSB's
recommendations. For example, Congress could direct PHMSA to require
the phase-out of the DOT-111 specification tank car and create a new,
superior general service tank car specification that is predicated on
the DOT-117 specification for flammable liquid service (e.g.,
corrosive, combustible, and oxidizing materials).
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\1\ https://www.govinfo.gov/content/pkg/USCODE-2011-title49/pdf/
USCODE-2011-title49-subtitleIII-chap51-sec5103.pdf
\2\ https://www.ecfr.gov/current/title-49/section-1.97
\3\ https://www.congress.gov/114/plaws/publ94/PLAW-114publ94.pdf

Question 2. Do you need legislative authority to revise the
definition of a High-Hazard Flammable Train?
Answer. Yes. ``High Hazard Flammable Train'' (HHFT) is defined in
Section 7302 of the FAST Act \4\ as ``a single train transporting 20 or
more tank cars loaded with a Class 3 flammable liquid in a continuous
block or a single train transporting 35 or more tank cars loaded with a
Class 3 flammable liquid throughout the train consist.'' Any expansion
or revision of that definition of ``High Hazard Flammable Train'' would
require additional authority from Congress.
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\4\ https://www.congress.gov/114/plaws/publ94/PLAW-114publ94.pdf
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As stated above, PHMSA has general authority to establish
regulations for the safe and secure transportation of hazardous
materials in commerce, including the authority to set the standards for
hazardous materials packagings, including rail tank cars. Therefore,
PHMSA's general authority would allow it to issue regulations and
implement regulatory requirements on a larger set of newly-designated
High-Hazard Trains that cover other types of trains, e.g. those
carrying flammable gases, combustible liquids, explosives, poison-by-
inhalation material, and other hazardous materials, and such
regulations could take into account differences in tank car
survivability--as recommended by the NTSB.\5\ However, PHMSA would
welcome additional clarity from Congress in these areas.
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\5\ See NTSB Safety Recommendation R-24-14.
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