Federal Railroad Safety Programs: Selected Issues in Proposed Reauthorization Legislation

Federal Railroad Safety Programs:
Selected Issues in Proposed
Reauthorization Legislation
Updated September 25, 2008
David Randall Peterman
Analyst in Transportation Policy
Resources, Science, and Industry Division

Federal Railroad Safety Programs: Selected Issues in
Proposed Reauthorization Legislation
Summary
The Federal Railroad Administration (FRA) is the federal agency primarily
responsible for safety in the rail industry. FRA’s safety programs were last
authorized in 1994; their authorization expired in 1998. Most measures of rail safety
have improved significantly since FRA’s last authorization, including the number of
grade crossing collisions and fatalities and the number of employee injuries and
deaths. These improvements came while the amount of both freight and passenger
rail activity on the nation’s rail infrastructure was increasing. However, the
improvements in safety measures have leveled off in recent years. Given significant
projected continued increases in freight and passenger rail activity in the coming
decade, there is concern that without additional efforts, some of the gains of the past
decade may be lost.
Among the issues that have dominated debate thus far are alleged shortcomings
in the rail hours of service statute (49 U.S.C. 21101 et seq) that limit the act’s
effectiveness in preventing fatigue among train operating crews, which may be a
contributing factor in a significant number of train accidents. A related issue is limbo
time, time that train operating crews spend on shift, but not engaged in safety-related
duties, after they have reached the limit of their shift under the rail hours of service
act, which also contributes to fatigue. Unlike the hours of service rules for other
transportation modes, the rail hours of service rules are set in law and cannot be
altered through the regulatory process. Other prominent issues have included
implementation by railroads of automated collision-prevention technology in trains,
the adequacy of FRA track inspections, and safety at highway-rail grade crossings.
The House (on October 17, 2007) and Senate (on August 1, 2008) passed
differing versions of H.R. 2095, the Federal Railroad Safety Improvement Act. On
September 24, 2008, the House agreed to the Senate amendment with an amendment
pursuant to H.Res. 1492. This amended version of H.R. 2095 incorporated another
piece of legislation, the Passenger Rail Investment and Improvement Act of 2008
(differing versions of which were previously passed by both the Senate and House
as S. 294), which reauthorizes Amtrak and federal passenger rail programs. Further
action is now up to the Senate. According to press reports and information at the
House Transportation and Infrastructure Committee’s website, the amended H.R.
2095 includes provisions that would increase the length of the minimum rest period
under the rail hours of service act and give FRA the authority to further increase the
minimum rest period through regulation, increase the number of FRA safety
inspectors, and mandate implementation of positive train control. It would also
authorize about $13 billion in funding for Amtrak and passenger rail activities, and
direct the Department of Transportation (DOT) to solicit bits to develop and operate
high-speed rail lines in 11 corridors, including the Northeast Corridor (for further
information about Amtrak reauthorization, see CRS Report RL33492, Amtrak:
Budget and Reauthorization, by John Frittelli and David Randall Peterman).
This report will be updated.

Contents
In troduction ..................................................1
Policy Context................................................2
FRA’s Role in Rail Safety.......................................3
FRA’s New Initiatives to Promote Safety.......................4
FRA’s National Rail Safety Action Plan........................4
Selected Reauthorization Issues.......................................5
Train Operator Fatigue..........................................5
Rail Hours of Service Act...................................6
Current Efforts to Address Fatigue............................8
Limbo Time..................................................9
Positive Train Control.........................................10
Track Inspections.............................................12
Highway-Rail Grade Crossing Safety.............................13
Legislative Proposals..............................................16
The Federal Railroad Safety Accountability and Improvement Act
(H.R. 1516/S. 918)........................................16
The Federal Railroad Safety Improvement Act of 2007 (H.R. 2095).....17
As Passed by the House....................................17
As Passed by the Senate....................................18
Issues in Proposed Legislation...................................19
Fatigue and Hours of Service Limits..........................19
Limbo Time.............................................21
Positive Train Control.....................................22
Track Inspections.........................................24
Grade Crossing Safety.....................................24
List of Tables
Table 1. Selected Rail-Highway Grade Crossing Safety Data,

1996 to 2006................................................13

Federal Railroad Safety Programs:
Selected Issues in Proposed
Reauthorization Legislation
Introduction
The Federal Railroad Administration (FRA) of the U.S. Department of
Transportation is the federal agency primarily responsible for promoting and
regulating the safety of the railroad industry. The FRA’s rail safety programs were
last authorized in 1994 (P.L. 103-440); that authorization expired at the end of
FY1998. FRA’s safety programs have continued to be funded through annual
appropriations bills.
Reauthorization of the FRA is taking place in a context of improvement in most
measures of rail safety. However, there continue to be around 1,000 rail-related
deaths each year. The trend of improvement in some rail safety measures, such as
train accidents and deaths in grade-crossing collisions, has leveled off in recent years,
and with forecasts of significant growth in rail traffic in the future, there is concern
over the need to make more progress in rail safety.
Several hearings have been held in the 110^th Congress in both the House and
Senate on reauthorization of FRA. An Administration proposal to reauthorize FRA
has been introduced, by request, as the Federal Railroad Safety Accountability and
Improvement Act (H.R. 1516 and S. 918). No action has been taken on this
legislation in either the House or the Senate. Representative James Oberstar,
Chairman of the House Transportation and Infrastructure Committee has introduced
a reauthorization proposal, the Federal Railroad Safety Improvement Act of 2007
(H.R. 2095). A managers’ amendment was adopted, with amendments, and was
ordered to be reported out of the Transportation and Infrastructure Committee on
June 14, 2007. The amended bill was reported by the committee on September 19,

2007, and was approved by the House of Representatives on October 17, 2007.

Senator Frank Lautenberg, Chairman of the Senate Commerce Committee’s
Subcommittee on Surface Transportation and Merchant Marine Infrastructure, Safety,
and Security, has also introduced a reauthorization proposal, the Railroad Safety
Enhancement Act of 2007 (S. 1889). A managers’ amendment was adopted and
ordered to be reported out of the Commerce Committee on September 27, 2007; the
bill was reported out on March 3, 2008. The Senate substituted S. 1889, with
amendments, for the text of H.R. 2095, and passed it by unanimous consent on
August 1, 2008.
This report describes the major issues in the debate over reauthorization of FRA
in the 110^th Congress. It also describes the major provisions of H.R. 2095 as passed
by the House and as passed by the Senate. These include changes to the rail hours

of service law, including limitations on limbo time; imposition of a deadline for the
implementation of positive train control by railroads; and new requirements for
highway-rail grade crossings.
Policy Context
The nation’s railroad sector consists of both freight rail companies and those
passenger rail systems that use the nation’s intercity rail network (i.e., both Amtrak
and commuter rail systems). The sector consists of roughly 570 freight railroads and
118 passenger, commuter, and excursion railroads. These organizations employ
around 235,000 people and operate roughly 220,000 miles of track. The vast
majority of the rail sector consists of freight railroad operations. The freight railroad
industry is divided into three classes, based on operating revenues; there are only 7
railroads in the top category, Class I, for which the threshold is roughly $320 million
in annual revenues, but those 7 railroads represent about 70% of freight rail industry
employment and own roughly 70% of total U.S. rail mileage.
The Staggers Rail Act of 1980 (P.L. 96-448) largely deregulated the freight rail
industry. Since that time, there has been extensive consolidation of the industry.
Employment has been reduced from 480,000 (1980) to 235,000 (2006), while freight
revenue ton-miles have increased from 918 million (1980) to 1.96 trillion (2006).
The miles of road operated¹ in freight service have been reduced from 177,000
(1980) to 141,000 (2005), while the number of train-miles operated has increased
from 718 million (1980) to 811 million (2006). The number of passenger-miles has
increased from 12 billion (1980) to 16 billion (2006).²
During this period, the overall safety record of the industry has shown great
improvement. Between 1980 and 1994, the annual rate of train accidents (that is, the
number of accidents divided by the number of miles traveled by trains) declined from
almost 12 accidents per million train miles to just under 4 per million train miles.
However, since 1994 the improvement has leveled off, and the rate of train accidents
has varied from 3.5 to 4.4 per million train miles since then.³ In addition to this lack
of improvement in the train accident rate, several recent serious accidents have raised
concerns about the need for further improvement in rail safety.⁴ The numbers of

¹ The total length of the freight rail network, excluding sidings and yard tracks, and not
counting whether there is more than one set of tracks. Track miles will exceed miles of road
operated.
² Association of American Railroads, Yearbook of Railroad Facts, various years.
³ Federal Railroad Administration, Railroad Safety Statistics Annual Report, various years.
⁴ These accidents included a collision between two freight trains in Macdona, Texas, in June
2004, resulting in a chlorine gas release that killed three people and caused at least forty
others to be treated for exposure; a collision between a freight train and parked rail cars in
Graniteville, South Carolina, in January 2005 that also resulted in a chlorine gas release,
killing 9 people and leading to the evacuation of over 5,000 residents; and a collision
between a commuter train and a parked car in Glendale, California, in January 2005 that
resulted in 11 deaths and over 200 injuries.

grade-crossing collisions and resulting injuries and deaths declined until 2003, but
has shown little improvement since then.
Most rail-related deaths are to pedestrians trespassing on rail lines and motorists
colliding with trains at highway rail grade crossings. While there are nearly 1,000
rail-related deaths each year, only around 20-30 rail employees are killed while on
duty each year, and railroads have lower employee injury rates than other modes of
transportation and most other major industries.
FRA classifies the causes of train accidents into five categories: human factors,
track and structures, equipment, signal and train control, and miscellaneous. Of
these, human factors and track are responsible for the majority of train accidents. ⁵
Examples of human factor causes of accidents include improperly positioning the
switches that determine which track a train will follow (the cause of the Graniteville,
SC accident), moving rail cars without checking for safe conditions in the vicinity,
and leaving rail cars in a position that blocks track. Examples of track conditions
that lead to accidents include defective joint bars (that connect one piece of rail to the
next), defective or ineffective crossties (that maintain the proper alignment of the
parallel rails that form the track), and broken or worn switches.
Without further reductions in the rate of train accidents, the number of train
accidents and resulting deaths and injuries is likely to grow, due to expected
increases in train traffic. The Department of Transportation (DOT) has estimated that
between 1998 and 2020 the amount of freight moved by rail (measured by weight)
will increase by roughly 50%.⁶ Also, many communities are interested in
establishing, or expanding already existing, commuter rail operations (which
generally operate on the freight rail network) to provide transportation alternatives
and manage congestion. Thus, the number of train miles on the nation’s freight rail
network is likely to significantly increase in the coming years. If train accident rates
do not improve, this may lead to increased numbers of accidents, injuries and deaths.
FRA’s Role in Rail Safety
FRA’s role in rail safety is threefold: to assess the safety of rail operations; to
promulgate regulations to promote cost-effective improvements in safety standards;
and to enforce compliance with federal rail safety laws and regulations. These
regulations address such topics as track condition, passenger and freight equipment,
signal and train control systems, maintenance of active warning devices at highway-
rail grade crossings, accident reporting, alcohol and drug testing, operating rules and
practices, and many others. FRA also enforces the Hazardous Materials Regulations,
prescribed by DOT’s Pipeline and Hazardous Materials Safety Administration, as
they apply to rail transportation.

⁵ For 2006, FRA estimated that track conditions were the primary cause of 36% of train
accidents and human factors were the primary cause of 35% of train accidents. FRA Safety
Statistics, Accident/Incident Overview, 2006.
⁶ Federal Highway Administration, Freight Analysis Framework, FHWA-OP-03-006,
February 2002, cited in Congressional Budget Office, Freight Rail Transportation: Long-
Term Issues, January 2006, pp. 5-6.

FRA is a relatively small agency in relation to the size of the railroad industry
it oversees. It has around 800 employees, of whom 650 are classified as safety
personnel, including around 430 inspectors (supplemented by 160 state inspectors
who work with FRA on safety oversight of railroads), to oversee an industry with
over 235,000 employees, 220,000 miles of track, 158,000 signals and switches, and
over 1.3 million freight cars and other equipment in service. Although FRA and the
state investigators conduct some 63,000 inspections each year, these inspections
cover only a small fraction of the operations of railroads each year.⁷ To make the
most of its resources, FRA focuses inspections at locations judged as likely to have
safety problems based on accident data and results of previous inspections. FRA’s
annual budget for its core safety responsibilities (that is, excluding funding for grants
to Amtrak) is roughly $200 million.
FRA’s New Initiatives to Promote Safety. FRA’s traditional approach to
safety is to regulate the design of rail structures and the behavior of rail workers, then
to use inspections to enforce compliance with the specific standards. The
Government Accountability Office (GAO) has noted that “these inspections focus on
compliance with minimum standards and are not designed to determine how well
railroads are managing safety risks throughout their systems that could lead to
acci dent s.”⁸
In response to reviews of its work by the DOT Inspector General and the Office
of Management and Budget, FRA has begun to adopt new approaches to supplement
its traditional safety program. These include efforts to target its inspections using a
more quantitative assessment of risk, as well as new initiatives that make use of risk
management approaches to improving safety. For example, FRA has implemented
a Confidential Close Call Reporting Program pilot project. This project allows
employees of participating railroads to report close calls — that is, incidents where
an accident could have occurred, but didn’t. The information on the close calls is
kept confidential, so that both employees and the participating railroads are shielded
from punishment for providing the information. A team composed of representatives
of the participating railroads, labor organizations, FRA, and the Bureau of
Transportation Statistics will review the information to identify safety problems. A
similar program has been in place in the aviation industry for many years, and has
contributed to improvements in safety there.
FRA’s National Rail Safety Action Plan. In response to concerns raised
by the accidents experienced in 2004 and early 2005, in May 2005 FRA instituted a
new safety action plan to improve rail safety. The Rail Safety Action Plan includes
initiatives to:
^!Reduce train accidents caused by human factors;

⁷ FRA estimates that its inspectors are able to inspect only about 0.2% of railroads’
operations each year, based on an estimate of the amount of activity, such as train
movements, on each U.S. railroad. Government Accountability Office, Rail Safety: The
Federal Railroad Administration is Taking Steps to Better Target Its Oversight, but
Assessments of Results Is Needed to Determine Impact, GAO-07-149, January 2007, p. 5.
⁸ Ibid., p. 5.

^!Reduce employee fatigue;
^!Improve track safety;
^!Improve hazardous materials safety and emergency preparedness;
^!Strengthen FRA’s safety compliance program; and
^!Increase highway-rail grade crossing safety.
According to GAO, FRA’s Rail Safety Action Plan provides a reasonable
framework for guiding the agency’s efforts.⁹ Since the plan was introduced relatively
recently, most of its initiatives have not yet been fully implemented, and their overall
impact on safety will probably not be known for several years. Some of the
initiatives rely on voluntary actions by railroads, such as the adoption of a worker
fatigue model to help railroads schedule the duty periods of train crews so as to
reduce worker fatigue; thus their implementation is uncertain.
GAO noted that, while FRA has goals for its safety efforts (e.g., to reduce train
accidents caused by human factors), it does not have measures of the direct results
of its inspection and enforcement programs that would show their contribution to
achieving those goals. Neither has FRA evaluated the effectiveness of its
enforcement program in achieving its goals.
Selected Reauthorization Issues
The major issues in the current reauthorization debate include addressing
employee fatigue through changes to the federal rail hours of service legislation,
implementing new train control technology that promotes safety, improving the
condition of track, and improving safety at highway-rail grade crossings.
Train Operator Fatigue
In the rail industry, which operates heavy machinery in all conditions around the
clock, the impact of employee fatigue on safety is an ever-present concern. The FRA
estimates that fatigue is at least a contributing factor in 25% of serious train accidents
that are caused by human factors. The National Transportation Safety Board (NTSB)
has identified fatigue as a factor in at least 18 rail accidents since 1984¹⁰, and notes
that, given the difficulty of identifying fatigue as a cause or contributor to accidents,
the number of accidents due to fatigue is likely to be underestimated.¹¹ NTSB has
had operator fatigue on its list of “Most Wanted Transportation Safety
Improvements” since it began keeping such a list in 1990.¹²

⁹ Ibid., p. 4.
¹⁰ Statement of Joseph H. Boardman, Administrator, Federal Railroad Administration, U.S.
Department of Transportation, Before the United States House of Representatives,
Committee on Transportation and Infrastructure, Subcommittee on Railroads, Pipelines, and
Hazardous Materials, February 13, 2007, p. 3.
¹¹ National Transportation Safety Board, Evaluation of U.S. Department of Transportation
Efforts in the 1990s to Address Operator Fatigue, NTSB/SR-99/01, 1999, p. 6.
¹² Ibid., p. 11.

Rail Hours of Service Act. Congress enacted legislation in 1907 to limit the
amount of time certain rail workers, such as train operating personnel and signalmen,
can work at one stretch, and to specify the minimum amount of rest they must be
provided before reporting for work again.¹³ These limits are enacted in law¹⁴, unlike
the hours of service limits for workers in other transportation modes, which are set
through the regulatory process. Therefore, unlike for other modes, the rail hours of
service limits cannot be changed by DOT through the regulatory process. The rail
hours of service law has not been substantially changed since 1969.
Under the current law, train operating crews and signalmen can work a
maximum of 12 hours, after which they must be given at least 10 hours rest.
However, if they work less than 12 hours they are only required to be given 8 hours¹⁵
of rest. Under these rules, a train crew worker can work 432 hours a month. This
compares to a maximum work schedule of 100 hours in a month for a commercial
pilot, 260 hours in a month for commercial truck drivers, and 360 hours in a month
for licensed maritime workers aboard vessels under 100 tons when at sea.¹⁶
Most rail workers do not work anywhere near the theoretical maximum of 432
hours. According to Association of American Railroads (AAR) data from several
railroads collected in 1998-1999, the average work schedule for train, engine, and
yard employees was in the range of 125 to 175 hours a month, with 17% working
more than 200 hours in a month.¹⁷ Fewer than 1% worked more than 300 hours in
a month.
Both FRA and the NTSB have testified that the current rail hours of service
regime is antiquated and does not reflect current understanding of the causes of, and

¹³ The Rail Hours of Service Act regulates the maximum time that can be worked by
employees engaged in or connected with the movement of a train, including locomotive
engineers, conductors, signalmen, and dispatchers. Maintenance of way workers (who
maintain and repair track and other structures), carmen (who inspect and repair rail cars),
other shop crafts, and contractors who perform signal duties are not covered by the act and
thus are not limited in the amount of time they can work.
¹⁴ At 49 USC 21101 through 21108.
¹⁵ In emergencies, all of these employees can be required to work up to an additional 4 hours
per shift.
¹⁶ National Transportation Safety Board, Evaluation of U.S. Department of Transportation
Efforts in the 1990s to Address Operator Fatigue, NTSB/SR-99/01, 1999, p. 2. Revisions
to the hours of service rules for commercial truck drivers in 2005 lowered the maximum to
240 hours in a month (James Brunkenhoefer, United Transportation Union, testimony before
the House Committee on Transportation and Infrastructure Subcommittee on Railroads,
Pipelines, and Hazardous Materials, February 13, 2007, p. 8).
¹⁷ Edward R. Hamberger, President & Chief Executive Officer, Association of American
Railroads, Before the United States House of Representatives, Committee on Transportation
and Infrastructure, Subcommittee on Railroads, Pipelines, and Hazardous Materials, Hearing
on Fatigue in the Rail Industry, February 13, 2007, p. 7. AAR noted that according to recent
analysis, the average hours worked per year for train and engine employees increased “only
slightly” between 1998-1999 and 2005, and thus they believe the percentages cited are still
valid.

effective countermeasures for, fatigue. The FRA has testified that “the limitations
in [the time that can be worked under the hours of service law], although ordinarily
observed, do not seem adequate to effectively control fatigue.”¹⁸ The NTSB has
made several recommendations to DOT over the years to change the rail hours of
service act, but DOT has not been able to respond to these recommendations because
the rules are set in the statutes. Among the issues that have been raised regarding the
shortcomings of the current hours of service rule are inadequate rest periods and
schedules that conflict with circadian rhythms.
Inadequate rest periods. While workers are required to have at least eight
hours off duty between shifts, that means that the worker has eight hours to commute
home, enjoy any leisure time, take care of any personal tasks that need to be done,
rest, then commute back to the work site. Moreover, the employee may not know
whether they will have to return to work in 8 hours or whether they will have a longer
period to rest. If they are called to return to work in 8 hours, the call to report to
work, which is required by labor agreements to come early enough to give the
employee time to get to work, may come as much as 2 hours in advance of the time
to report to work, which could be only 6 hours after the employee left work at the end
of their previous shift. Thus a worker could, even under ideal circumstances away
from the job, have as little as 5 to 6 hours of undisturbed rest before returning to
work.
The difficulties created by the relatively short length of the minimum off-duty
period set by the hours of service act can be exacerbated by the uncertainty of rail
employee work schedules. It may be difficult for rail employees to make effective
use of their available rest time between shifts, because when they leave work at the
end of a shift train crews do not always know when they will next have to report to
work. The FRA has testified that crews of freight trains rarely have predictable work
schedules. The United Transportation Union has testified that the majority of train
crews are subject to call with little notice.¹⁹ This uncertainty makes it difficult for
train crews to know how to make the best use of their off-duty time.
This uncertainty of employee’s work schedules is due in part to labor
agreements which affect the work scheduling practices of railroads. These
agreements prioritize the availability of employees for work based on factors such as
seniority. Employees who are called to report to work when they feel they have not
had adequate rest can decline the call, but may face disciplinary action if they do so.
Conflict with circadian rhythms. Researchers have learned that human
beings, like most mammals, sleep and wake in a cycle approximately 24 hours in

¹⁸ Statement of Joseph H. Boardman, Administrator, Federal Railroad Administration, U.S.
Department of Transportation, Before the United States House of Representatives,
Committee on Transportation and Infrastructure, Subcommittee on Railroads, Pipelines, and
Hazardous Materials, Hearing on the Reauthorization of the Federal Rail Safety Program,
January 30, 2007, p. 5.
¹⁹ Testimony of James M. Brunkenhoefer, National Legislative Director, United
Transportation Union, before the United States House of Representatives, Committee on
Transportation and Infrastructure, Subcommittee on Railroads, Pipelines, and Hazardous
Materials, Hearing on Fatigue in the Railroad Industry, February 13, 2007, p. 5.

length, known as a circadian rhythm. Rapid changes in a person’s circadian pattern
of sleep and wakefulness disrupt many physiological functions and may impair their
performance. The work schedules permitted under the current hours of service rule
may in certain instances conflict with employee’s circadian rhythms, making it more
difficult for them to get adequate rest. Under the current regulations, rail workers can
work 8 hours and rest 8 hours, and maintain that schedule indefinitely. Thus, one day
they might be resting from midnight to 8 a.m., the next day from 4 p.m. to midnight,
the next day from 8 a.m. to 4 p.m., and the next day back to midnight to 8 a.m., a
“backward-rotating” schedule that never allows the workers to establish a circadian
rhythm.
Current Efforts to Address Fatigue. FRA has adapted a model developed
by researchers working with the U.S. military that can estimate the degree of fatigue
likely to be experienced by a person, based on such factors as the time of day, the
amount of sleep they last got, when that sleep occurred, and how long the person has
been awake since then. FRA has tested this model against a record of crew work
schedules and found that it is useful in predicting when an employee may be fatigued
to the point of increased risk of contributing to an accident. FRA is encouraging rail
companies to use this model to inform their crew scheduling practices. FRA is also
encouraging and supporting efforts to address sleep disorders among rail employees.
Railroads and rail labor have cooperated in efforts to address fatigue. For
example, the BNSF Railway Company provides train crews 14 hours of undisturbed
rest after working 8 hours. CSX Transportation provides a 10-hour period of²⁰
undisturbed rest, as well as fixed work-rest schedules in some locations.
However, efforts by rail management and rail labor to address fatigue issues
have often achieved limited success. Factors that have constrained the success of the
various initiatives include the variability in demand for rail services, which can
increase the need for rail labor more quickly than employees can be added, staffing
and retention issues that have affected the supply of rail labor, and provisions in
collective bargaining agreements which may make a fatigue management practice
mandatory in one location and optional in another, even within the same railroad.
According to rail labor representatives, programs to provide more predictable work²¹
schedules are currently covering no more than 2% of affected employees. Also,
even successful voluntary programs are subject to being changed or eliminated as
conditions change in the industry.
A more fundamental difficulty facing efforts to address fatigue is that both rail
managers and rail workers have incentives to maintain the status quo regarding rail
hours of service. For managers, the current system allows more flexibility in

²⁰ Federal Railroad Administration, U.S. Department of Transportation, Section-by-Section
Analysis of The Federal Railroad Safety Accountability and Improvement Act, available at
[ h t t p : / / www.f r a .dot .gov/ Downl o a d s / C ounsel/legi slation/Section-By-SectionAnalysis.pdf],
p. 33.
²¹ Joint Statement of the Teamsters Rail Conference and the United Transportation Union,
U.S. House of Representatives, Committee on Transportation and Infrastructure,
Subcommittee on Railroads, Pipelines, and Hazardous Materials, Hearing on
Reauthorization of the Federal Rail Safety Program, May 8, 2007, p. 7.

scheduling employees for work than any likely alternative; for workers, the current
system provides the opportunity to work more hours (and thus, earn more income)
than any likely alternative. For these reasons, voluntary efforts to address fatigue are
likely to face much resistance.
Another difficulty in attempting to address fatigue is the degree to which the
current hours of service regime has become intertwined with the contractual
arrangements that have been negotiated over decades by rail labor and management.
These labor agreements, resulting from collective bargaining, often include
provisions that affect how often, and under what circumstances, employees can work.
Changes in the hours of service regime may affect the impact of these provisions, and
thus upset the balance of interests achieved through long negotiation.
Limbo Time
Limbo time refers to a situation where a train operating crew has reached the
limit of the amount of time it is allowed to work at one stretch under the hours of
service law (12 hours), but has not yet reached the location where it is to be released
from duty. In such a situation the crew is required to stop the train and not engage
in safety-related duties, but it is not allowed to leave the train until a replacement
crew arrives, at which time the original crew can be transported to a final release
point. The time the crew spends being transported to its final release point is neither
on-duty time for purposes of the hours of service law (and so not a violation of the
hours of service law) nor off-duty time (and so does not count against the amount of
off-duty time the crew is required to be given in order to rest after their shift); hence,
“limbo” time. The train crews are generally paid for limbo time, but there is concern
about its impact on employee fatigue: the minimum rest period currently required
after a 12-hour shift may not be sufficient to recover from a shift that was more than

12 hours long — in some cases much more — due to the addition of limbo time.

Limbo time was created in 1969 amendments to the rail hours of service law.
Prior to that change, the time the original crew spent being transported to its final
release point was considered off-duty (rest) time. Rail labor requested that the
transportation time be considered as on-duty time, but railroads objected that that
change would create increased scheduling difficulties for them, since they would
have to arrange to stop the trains even further from the pre-arranged destination and
have the original crew spend more time being transported to its release point. Limbo
time was created to ensure that train crews’ off-duty period did not begin until they
were truly off duty so that they had the opportunity to rest during their rest period,
while still providing railroads operational flexibility without endangering safety.
FRA has also interpreted the time the original crew spends waiting with the train for
the arrival of transportation to its final release point as limbo time, an interpretation
that has been upheld by the Supreme Court. FRA has expressed concern about
employees being held on trains for long periods of time while awaiting the arrival of
transportation, in the absence of any valid emergency that would justify such long
waits.²²

²² Federal Railroad Administration, Department of Transportation, “Decision of the United
(continued...)

Changing conditions in the rail industry since 1969 have increased the scale of
the limbo time issue. In the 1960s, the industry consisted of many mid-sized
companies operating in relatively small regions, and railroads typically had
employees stationed every few dozen miles who could be sent to pick up train crews
whose shifts had expired. Since then there has been significant consolidation in the
rail industry, which is now dominated by a few major companies whose operations
span much larger territories. The average distance covered by a train crew during a
shift is now much greater, and there may be few or even no intermediate locations
from which transportation can be dispatched to pick up a crew whose shift has
expired.
Industry-wide statistics on limbo time are not available, so the full extent of
limbo time is not known, nor can an increase in the incidence of limbo time be
documented industry-wide. The Brotherhood of Locomotive Engineers and Trainmen
(BLET) recently presented data on limbo time for train crews at one Class I railroad
indicating that the incidence of limbo time at that railroad was increasing. Over the
six-year period 2001-2006, the number of crews whose work tours exceeded 14
hours, indicating at least 2 hours of limbo time, increased from between 32,000-
33,000 a year in 2001 and 2002 to between 75,000-80,000 in 2005 and 2006. Those
crews whose work tours exceeded 15 hours rose from around 12,000 a year in 2001
and 2002 to between 35,000-38,000 a year in 2005 and 2006.²³ The BLET figures
show that on 1,003 occasions crews at that Class I railroad spent at least 8 hours in
limbo, resulting in a shift lasting at least 20 hours. The NTSB investigation of the
Macdona, Texas accident found that the engineer on the Union Pacific train that
struck the BNSF train had one shift earlier that month that had lasted 22 hours: 10
hours of limbo time after a 12-hour shift.²⁴
Positive Train Control
Fatigue is not entirely preventable, no matter the countermeasures. Researchers
have found, for example, that human performance is impaired during the early
morning hours (roughly 3-6 a.m.), regardless of how well-rested the worker. Thus
there is interest in technologies that can reduce the opportunities for human error

²² (...continued)
States Supreme Court Concerning an Agency Interpretation of the Federal Hours of Service
Law; Change in Agency Interpretation; Enforcement Policy Regarding Violations of Laws
as Previously Interpreted,” Federal Register, vol. 61, no. 89, Tuesday, May 7, 1996, pp.

20494-20495.

²³ Testimony of Thomas A. Pontolillo, Director of Regulatory Affairs, Brotherhood of
Locomotive Engineers and Trainmen, before the United States House of Representatives,
Committee on Transportation and Infrastructure, Subcommittee on Railroads, Pipelines, and
Hazardous Materials, Hearing on Fatigue in the Railroad Industry, February 13, 2007,
Exhibit BLET-1.
²⁴ National Transportation Safety Board, Collision of Union Pacific Railroad Train
MHOTU-23 With BNSF Railway Company Train MEAP-TUL-126-D With Subsequent
Derailment and Hazardous Materials Release, Macdona, Texas, June 28, 2004, Railroad
Accident Report NTSB/RAR-06/03, 2006, p. 38.

resulting from fatigue or other factors to create safety problems. One such
technology is positive train control.
Positive train control (PTC) refers to technology that is capable of preventing
collisions between trains, derailments resulting from trains traveling too fast for
conditions, and injuries to roadway workers (e.g., maintenance-of-way workers,
bridge workers, signal maintainers), as well as potentially limiting the consequences
of hijackings and runaway trains. PTC can serve as a backup system able to
intervene when a train crew operates a train improperly or fails to comply with
signals. Examples of PTC systems vary widely in complexity and sophistication
based on the level of automation they implement and the degree of control they are
capable of assuming.
PTC has been on the NTSB’s Most Wanted Transportation Safety
Improvements list since the list was established in 1990.²⁵ In its review of the
Macdona, Texas accident, the NTSB noted that “[b]oard accident investigations over
the past three decades have shown that the most effective way to prevent train-to-
train collisions is through the use of a positive train control (PTC) system that will
automatically assume some control of a train when the train crew does not comply
with signal indications.”²⁶
Congress has also been interested in PTC. Since 1992, Congress has on several
occasions requested information from FRA about the costs and benefits of PTC and
the status of PTC deployment. Since 1994, Congress has provided approximately
$40 million to FRA to support development, testing, and deployment of PTC
prototype systems in Illinois, Alaska, and among the Eastern railroads.
In 1997 FRA asked the Rail Safety Advisory Committee to examine PTC. The
Advisory Committee concluded that the safety benefit of PTC to railroads did not
justify the significant costs of deploying such systems. It estimated that PTC
deployment on the Class I railroads would cost from $1.2 billion to $7.8 billion over
20 years, depending on the sophistication of the system, while over the same period
the estimated safety benefit from avoided accidents ranged from around $500 million
to $850 million, again depending on the sophistication of the system.²⁷ FRA
subsequently issued a regulation establishing a performance standard for PTC
(finalized in 2005), but has not required railroads to implement PTC. FRA noted in
its 2005 Final Rule on PTC standards that PTC systems offer nonsafety benefits,
including substantial public benefits, although the total value of these benefits is

²⁵ National Transportation Safety Board, Most Wanted Transportation Safety Improvements,
Railroad Issue Areas, “Implement Positive Train Control Systems,” available at
[http://www.ntsb.gov/recs/most wanted/positive_train.htm] .
²⁶ National Transportation Safety Board, Collision of Union Pacific Railroad Train
MHOTU-23 With BNSF Railway Company Train MEAP-TUL-126-D With Subsequent
Derailment and Hazardous Materials Release, Macdona, Texas, June 28, 2004, Railroad
Accident Report NTSB/RAR-06/03, 2006, p. 55.
²⁷ Federal Railroad Administration, Department of Transportation, “Standards for
Development and Use of Processor-Based Signal and Train Control Systems; Final Rule,”
Federal Register, vol. 70, no. 43, March 7, 2005, p. 11053.

subject to debate. FRA concluded that mandating the implementation of PTC
systems could not be justified based on “normal cost/benefit principles relying on
direct railroad safety benefits.”²⁸ FRA encourages railroads to voluntarily deploy
PTC.
In 2006 the NTSB observed that it was encouraged that FRA had adopted
performance standards for PTC in 2005 and that PTC pilot projects are underway at
various railroads, but noted that the 2004 Macdona, Texas accident was “another in
a long series of railroad accidents that could have been prevented had there been a
PTC system in place at the accident location.”²⁹
Track Inspections
In 2006, defective track was the leading cause of train accidents. Frequently the
defect causes a derailment. The number of derailments has risen from 1,816 (1996)
to 2,138 (2006). For example, on March 12, 2007, a CSX train derailed in upstate
New York. There had been several previous derailments in the area, and the FRA
initiated an audit of CSX track in New York state. The audit found 78 track defects
and one serious violation. FRA has announced that it will extend the audit to other
railroads’ tracks in New York state.³⁰
To make better use of its limited inspection resources, FRA has begun to target
its inspections to those sites deemed likely to have problems, based on quantitative
analysis of risk factors and past inspections. Some types of track defects are difficult
to detect by visual inspection, so FRA has acquired technology that can improve its
track inspections. It has recently introduced two new automated track geometry
inspection vehicles, which measure the width between rails, whether the rails are
level, and whether the shape of each rail complies with federal standards intended to
prevent derailments. This brings the track geometry inspection fleet to five. FRA
expects that these new vehicles will enable it to triple the amount of track it inspects
each year by automated means, to nearly 100,000 miles.³¹ FRA has also acquired a
vehicle-mounted joint-bar inspection system that can detect subtle visual cracks in
joint bars that are often missed by traditional visual inspection. Broken joint bars are
a leading cause of accidents due to track conditions.

²⁸ Ibid.
²⁹ Ibid., p. 56. Although the investigation of the September 12, 2008, collision between a
commuter train and a freight train at Chatsworth, California (northwest of Los Angeles), has
just begun, preliminary information suggests that it may be another example of a collision
that could have been prevented by positive train control. At least 25 people were killed and

125 injured in the collision, making it the deadliest U.S. train crash in 15 years.

³⁰ Press Release, Office of Public Affairs, U.S. Department of Transportation, “Federal
Railroad Administrator Releases Results of Track Inspections on CSX and Outlines Next
Rail Safety Actions during Visit to Rochester, New York,” April 18, 2007.
³¹ Press Release, Office of Public Affairs, U.S. Department of Transportation, “FRA
Launches Two New Automated Inspection Vehicles to Detect Track Flaws; 100,000 Miles
of Track to be Federally Inspected Each Year,” May 16, 2007.

Highway-Rail Grade Crossing Safety
Collisions between trains and highway vehicles are the second-leading cause of
rail-related fatalities, after trespassing. These collisions occur primarily at places
where roads cross railroad tracks at the same level, or “at grade.” There are some
240,000 such crossings, of which roughly 150,000 are public crossings (where the
railroad tracks are crossed by a public road). The remaining 90,000 or so crossings
are known as private crossings, where the railroad tracks are crossed by, for example,
driveways or farm roads.
The number of collisions and fatalities at grade crossings has been reduced
significantly over the past few decades, even as the amount of both train and highway
traffic has significantly increased. Since the FRA was last authorized, train miles
traveled have increased by 24% (from 655 million miles in 1994 to 810 million miles
in 2006), while road vehicle miles traveled have increased by 26% (from 2.3 trillion
miles in 1994 to 2.9 trillion miles on 2006). Meanwhile, the collisions at grade
crossings decreased by 42% (from 4,979 in 1994 to 2,908 in 2006) However, the
trend of improvement has leveled off in recent years. Given the progress that has
been made in reducing fatalities at grade crossings over the past decade, some have
questioned whether additional Congressional action is needed. On the other hand,
highly visible crashes such as the Glendale, California incident³² bring calls for
additional efforts to improve safety at grade crossings.
Table 1. Selected Rail-Highway Grade Crossing Safety Data,
1996 to 2006
1996-2000 2001-2005
Annual Average Annual Average2006
Collisions 3,724 3,081 2,918
Fatalities 441 368 368
Inj uries 1,414 1,057 1,010
^Source:^Fe^d^e^r^a^l^Raⁱ^l^r^o^a^d^A^d^mⁱⁿⁱ^st^r^a^tⁱ^o^{n Sa}^fe^t^y^d^a^t^a^b^a^se^;^a^nnua^l^a^v^e^r^a^g^e^c^a^l^c^u^l^a^tⁱ^o^{ns b}^y^CRS.
All public crossings are required to have warning devices. In most cases these
are passive devices: crossbuck signs and pavement markings that warn motorists that
they are approaching a railroad crossing, but do not indicate to motorists whether a
train is approaching or not. However, train operators are required to sound the
locomotive’s horn as they approach any crossing.³³

³² On January 26, 2005, in Glendale, a city within the metropolitan area of Los Angeles, a
man parked a passenger vehicle on tracks used by commuter rail trains. A commuter train
hit the car and derailed, striking a second commuter train and causing it to derail. Eleven
passengers dies in the crash.
³³ Unless a community has created a quiet zone where the sounding of train horns has been
(continued...)

Approximately 63,000 of the roughly 150,000 public crossings have been
equipped with automated warning devices, such as warning lights and crossbars, that
warn motorists if a train is approaching. These devices are installed by state and
local transportation agencies; once installed, railroads are responsible for maintaining
these devices and ensuring their proper functioning. These devices can be relatively
expensive and generally must compete with other transportation improvements for
funding.
The Federal Highway Administration has a Grade-Crossing Hazard Elimination
Program that provides $220 million annually to states for safety improvements to
grade crossings.³⁴ The eligibility of crossings for safety improvement funding is
based on their risk, with the most dangerous crossings given priority. Most of the
crossings in urban areas have been provided with automated warning devices. The
provision of automated warning devices to the more than 80,000 public rail-highway
crossings that do not have conventional automated warning devices is constrained by
both the costs of the devices and by concern on the part of public authorities that
increasing the protection provided to motorists at one crossing could be used in
lawsuits to argue the inadequacy of protection provided at other crossings in the
area.³⁵
Another method of reducing grade crossing accidents is to eliminate the grade
crossing. In some cases this is done by elevating the road or rail crossing, but this is
a very expensive option. Most often this is done by closing the road where it crosses
the railroad tracks. In 1994, FRA set a goal of reducing the-then 280,000 public and
private grade crossings by 25% (to 210,000). That goal has not been achieved,
though some 30,000 crossings have been closed since then. FRA encourages states
and communities to close grade crossings based on the safety benefits. Communities
are often reluctant to close grade crossings because of the inconvenience resulting
from reducing the number of places where railroad tracks can be crossed.
FRA also supports Operation Lifesaver, a national nonprofit railroad safety
education program which attempts to reduce grade-crossing accidents by educating
the public about the dangers of grade crossings and encouraging safe driving
behavior at grade crossings. Operation Lifesaver programs in 49 states (and the
District of Columbia) use volunteer trainers to make some 30,000 presentations a
year to the public, as well as offering training for groups such as commercial truck
drivers, school bus drivers, and emergency personnel, and providing public service
announcements.

³³ (...continued)
banned in exchange for grade crossing safety improvements that compensate for the absence
of the horn’s warning.
³⁴ Authorized in SAFETEA-LU (P.L. 109-59), this formula program is funded from the
Highway Trust Account because the primary beneficiaries of grade crossing safety
improvements are automobiles and trucks rather than the 100-ton rail vehicles.
³⁵ Federal Railroad Administration, Section-by-Section Analysis of the Federal Railroad
Safety Accountability and Improvement Act, p. 12.

Fewer than 1% of grade crossing collisions are investigated by FRA each year.³⁶
Most of the information FRA relies on for analysis of grade crossing collisions comes
from accident reports submitted by the railroads. According to the reports, many of
these collisions result from incautious behavior on the part of motorists. The DOT
Inspector General has recommended that FRA supplement the accident reports
submitted by railroads with independent sources of information, such as police
reports, event data recorders, and eyewitness accounts, in order to better evaluate the
causes of collisions and the extent of railroads’ compliance with safety regulations.³⁷
In response to this recommendation, FRA instituted a pilot study to assess the
benefits and costs of analyzing information about crossing collisions from
independent sources. The results of that study had not been made public as of late
July 2007.
The DOT’s Inspector General has recommended several other steps FRA could
take in order to further reduce grade crossing collisions and fatalities. These include
ensuring that railroads comply with the requirement to promptly report serious grade
crossing collisions, so that the collisions can be investigated; increasing FRA’s
involvement in grade crossing collision investigations;³⁸ requiring railroads to clear
obstructions (such as vegetation) near crossings to make it easier for motorists to see
oncoming trains;³⁹ requiring railroads and states to provide updated information on
grade crossings and the types of warning devices installed at each crossing;⁴⁰ and
requiring states with the most grade crossings and most accidents to develop plans
for identifying and remediating the most dangerous crossings.

³⁶ Statement of Kurt W. Hyde, Assistant Inspector General for Surface and Maritime
Programs, U.S. Department of Transportation, Before the United States Senate Committee
on Commerce, Science, and Transportation Subcommittee on Surface Transportation and
Merchant Marine Infrastructure, Safety, and Security, “Actions Needed to Further Improve
Railroad Safety,” CC-2007-060, May 22, 2007, p. 5.
³⁷ Ibid.
³⁸ FRA relies largely on railroads’ own accident reports for analysis of most collisions;
FRA’s 18 grade crossing investigators are able to investigate only around 1% of the roughly

3,000 annual collisions.

³⁹ 13 states have such requirements. At least 87 people died between 2001 and 2005 as a
result of collisions where FRA determined that the ability of the motorists to look down the
track was limited by vegetation growth at the crossings.
⁴⁰ FRA’s Grade Crossing Inventory database is the only nationwide source of information
on grade crossings; but it has not received reports on every crossing, and a recent review of
the Inventory found that data on the average train and motor vehicle traffic through each
crossing were around 11 years old, on average. Federal Railroad Administration, Section-
by-Section Analysis of the Federal Railroad Safety Accountability and Improvement Act, p.
8, available at [http://www.fra.dot.gov/Downloads/Counsel/legislation/Section-By-Section
Analysis.pdf].

Legislative Proposals
Several hearings have been held in both the House and Senate during the 110^th
Congress on rail safety reauthorization issues. Several bills have been introduced and
are under consideration in both houses.
^!An Administration proposal to reauthorize FRA has been
introduced, by request, as the Federal Railroad Safety Accountability
and Improvement Act (H.R. 1516 and S. 918). No action has been
taken on this legislation in either in the House or the Senate.
^!Representative James Oberstar, Chairman of the House
Transportation and Infrastructure Committee, has introduced a
reauthorization proposal, the Federal Railroad Safety Improvement
Act of 2007 (H.R. 2095). A managers’ amendment was adopted by
the full committee, with amendments, by the Transportation and
Infrastructure Committee on June 14, 2007; the amended bill was
reported on September 19, 2007. An amendment in the nature of a
substitute was adopted by the House on October 17, 2007.
^!Senator Frank Lautenberg, Chairman of the Senate Commerce
Committee’s Subcommittee on Surface Transportation and
Merchant Marine Infrastructure, Safety, and Security, has introduced
a reauthorization proposal, the Railroad Safety Enhancement Act of
2007 (S. 1889). A managers’ amendment was adopted by the full
committee and was ordered to be reported out of the Commerce
Committee on September 27, 2007; it was reported on March 3,
2008, and with some further changes was passed, as an amended
version of H.R. 2095, on August 1, 2008.
Summaries of the contents of these bills, and an analysis of selected issues, follow.
The Federal Railroad Safety Accountability
and Improvement Act (H.R. 1516/S. 918)
The Administration’s reauthorization proposal (H.R. 1516/S. 918) included few
significant changes to FRA’s safety program. It did propose to convert the rail hours
of service law to a regulation which DOT could amend through the regulatory
process. It also proposed to create a safety risk reduction program within FRA to
augment FRA’s traditional regulatory approach to safety, which focuses on catching
mistakes on the part of railroads. The safety risk reduction program would promote
improvements in the processes railroads use in order to eliminate the causes of
mistakes. The Administration asserted that this approach would maximize the safety
results obtained with FRA’s limited resources, but that to implement the program,
FRA would have to acquire new skills and adopt new ways of thinking. The
Administration also proposed to allow FRA to monitor the radio communications of
railroads without their consent, in order to determine whether safety rules are being
followed and for investigating accidents. The Administration observed that allowing
FRA to monitor these communications without the knowledge of railroads and their
employees would provide a more accurate picture of the degree of compliance with
safety rules. No action has been taken on this legislation in either the House or the

Senate, and it appears likely that Congress will focus on other legislation in the FRA
reauthorization debate.
The Federal Railroad Safety Improvement Act
of 2007 (H.R. 2095)
As Passed by the House. The Federal Railroad Safety Improvement Act
of 2007 (H.R. 2095) was introduced by Representative James Oberstar, Chairman of
the House Committee on Transportation and Infrastructure. A managers’ amendment
was marked up and ordered to be reported, with amendments, by the Transportation
and Infrastructure Committee on June 14, 2007, and was reported on September 19,
2007. An amended version was adopted by the House on October 17, 2007, by a
vote of 377-38.
H.R. 2095 would make significant changes to a number of FRA’s safety
programs. FRA would be renamed the Federal Railroad Safety Administration
(FRSA). It would make several changes to address the issue of employee fatigue: it
would increase the minimum rest period length under the rail hours of service act
from 8 to 10 hours, and would authorize FRSA to further increase the length of that
minimum rest period through regulation; it would phase in a limit of 10 hours on the
amount of limbo time an employee could accrue each month (not including any
limbo time caused by delays unforeseeable at the time the employee left a designated
terminal); it would require that employees accruing limbo time on a shift be given
additional rest time after that shift equal to the amount of limbo time accrued; and it
would require railroads to develop fatigue management plans in consultation with rail
labor unions It would also require railroads to set minimum training standards for
employees, to address concerns that employees are not being provided adequate
training.
The bill would increase the number of safety inspectors from the current level
of approximately 430 to 800. It would require Class I railroads to implement positive
train control by December 2014, though DOT could extend that deadline through
waivers. The bill would require safety improvements at grade crossings, such as
posting of toll-free telephone numbers to notify railroads of emergency situations at
grade crossings and requiring railroads to remove visual obstructions (such as
vegetation) near grade crossings. It would also direct FRA to provide model
legislation to state and local governments regarding safety at grade crossings. The
bill would establish new civil penalties, and increase existing penalties, for failure
to comply with federal safety regulations.
The bill would authorize a total of $1.1 billion over four years (FY2008-
FY2011) for FRA’s safety programs. Currently FRA receives around $200 million
annually for its safety & operations and research & development accounts. The bill
would also authorize three new grant programs: for Operation Lifesaver ($1.5 million
annually); for deployment of positive train control systems (such sums as may be
necessary); and for emergency improvements to grade crossings (such sums as may
be necessary). The bill would also authorize $18 million for the construction of a
tunnel at the Transportation Technology Center in Pueblo, Colorado, for safety and

security training. It also requires the NTSB to assist the families of passengers
involved in rail accidents that result in fatalities.
The bill also requires DOT to issue regulations requiring that, in nonsignaled
territory (i.e., areas where there are no signals along the track to inform train
operators of track conditions or the approach of other trains), railroads must either
install position indicators on track switches on main lines or operate trains at speeds
that will allow train employees to observe, and stop in advance of, misaligned
switches.⁴¹ In October of 2006 FRA issued a notice of proposed rulemaking on,
among other issues, preventing misaligned switches in nonsignaled territory.
Amendments added during House consideration include (1) a provision that
mechanical and brake inspections of rail cars that are performed in Mexico will not
be regarded as satisfying U.S. standards unless the Secretary of Transportation
certifies that the inspection standards and procedures are comparable to U.S.
inspections and that FRA is allowed to perform onsite inspections to ensure
compliance; and (2) a provision allowing state and local governments to regulate
solid waste rail transfer facilities.
The Administration has stated its opposition to several of the provisions of the
bill.⁴² These include the hours of service provisions, which it terms “overly
prescriptive,” several of the mandated FRA rulemakings, and the mandated adoption
of positive train control.
As Passed by the Senate. H.R. 2095, as passed by the Senate, reflects
much of the substance of S. 1889, the Railroad Safety Enhancement Act of 2007.
The Senate struck the text of H.R. 2095, as passed by the House, and substituted
much of S. 1889, with some changes. This bill was passed by the Senate by
unanimous consent on August 1, 2008.
S. 1889 was introduced by Senator Frank Lautenberg, Chairman of the Senate
Commerce Committee’s Subcommittee on Surface Transportation and Merchant
Marine Infrastructure, Safety, and Security, on July 26, 2007. The committee
approved an amended bill on September 27, 2007, and ordered it to be reported. The
bill was reported on March 3, 2008, and a version of the bill was substituted as an
amendment to H.R. 2095, with additional changes, when it was passed by the Senate.
H.R. 2095, as passed by the Senate, authorizes $1.5 billion for FRA over six
years (FY2008-2013), create two new grant programs (for rail safety technology and
for rail safety infrastructure improvements), directs FRA to increase its labor force
by 150 safety personnel over the period 2008-2013, and require railroads to

⁴¹ Between January and October 2005 there were nine serious train crashes resulting in 10
deaths and more than 600 people injured due to misaligned switches in nonsignaled
territory, resulting from rail employees failing to follow proper procedures. This led FRA
to issue an emergency order in October of 2005 requiring railroads to retrain employees on
switch-operating procedures and take other measures to control the problem.
⁴² Office of Management and Budget, Statement of Administration Policy on H.R. 2095,
October 10, 2007.

implement positive train control technology by the end of 2018. It directs FRA to
issue regulations regarding rail employee training, and includes provisions promoting
safety at highway-rail grade crossings. The bill would increase the minimum amount
of uninterrupted rest time and limit the amount of limbo time that can be accrued by
rail employees under the rail hours of service statute, and would authorize DOT to
amend the rail hours of service limits through the regulatory process. The bill would
also allow FRA to monitor the radio communications of railroads without their
consent, in order to determine whether safety rules are being followed and for
investigating accidents.
Issues in Proposed Legislation
Fatigue and Hours of Service Limits. In H.R. 1516/S. 918, the
Administration proposed to give the FRA authority to completely revise the rail
hours of service laws through the regulatory process. In acknowledgment of the
variety of working conditions within the rail industry, the Administration proposed
to allow DOT to authorize and enforce compliance with fatigue management plans
proposed by railroads as an alternative to compliance with an hours of service
regulation, provided FRA judged that those plans provided a level of safety equal to
or better than that provided by the regulation.
H.R. 2095, as passed by the House, would increase the minimum off-duty
period under the rail hours of service law, and would give the DOT authority to
further increase the minimum off-duty period, or decrease the maximum on-duty
period, by regulation. It would also require railroads to submit to DOT fatigue
management plans designed to reduce employee fatigue and the likelihood of
accidents and injuries caused by fatigue. The bill would also amend the hours of
service law to increase the current minimum off-duty period from eight hours to 10
hours, with a minimum of one 24-hour rest period every seven days,⁴³ thereby
reducing the maximum amount of time that could be worked in a week from the
current level of 100 hours to 78 hours. The bill would also require that an
employee’s minimum rest time be undisturbed; that is, it would bar a rail company
from communicating with a train employee in any manner that would disturb the
employee’s rest during the minimum rest period (except for emergencies).
H.R. 2095, as passed by the Senate, would make similar changes. Significant
differences from the changes proposed by the House include
^!requiring 48 consecutive hours off duty for employees after working
six consecutive days, unless a collective bargaining agreement
allows for working seven consecutive days, in which case employees
must then be given 72 consecutive hours off duty;
^!capping the total on-duty and limbo time an employee could accrue
at 276 hours per month;

⁴³ DOT would be allowed to waive the requirement of the minimum of one 24-hour rest
period every seven days if a collective bargaining agreement provides an alternative
arrangement that is equally safe.

^!giving DOT the authority to approve alternate hours of service plans
jointly developed by rail labor and management that will not
adversely affect rail safety;
^!allowing DOT to waive the prohibition on communicating with a
train employee during the minimum rest period for commuter or
intercity passenger rail carriers if necessary in order to maintain
efficient operations and on-time performance; and
^!directing DOT to regulate hours of service for commuter rail and
intercity passenger rail train employees (such requirements may vary
from those prescribed in the bill).
FRA testified against the provisions of these bills that would amend the hours
of service limits. Acknowledging the frustrations that the issue has produced and the
desires of some Members of Congress to provide quick relief, FRA asserted that
hours of service issues are complicated and need to be addressed within the overall
context of fatigue prevention and management. Consequently, FRA urged that it be
given the authority to completely revise the hours of service law through regulations
based on the current scientific understanding of fatigue.⁴⁴ Both the House and Senate
version of H.R. 2095 allow FRA to regulate hours of service, but not to increase the
on-duty time or reduce the off-duty requirements prescribed in the bill (except for
commuter and intercity passenger rail train employees).
In a Statement of Administration Policy, the Administration opposed the hours
of service provision of the House-passed H.R. 2095 as being overly prescriptive, and
expressed concern that the new limits on hours of service, in combination with the
limits on limbo time also included in the bill, would
tend to increase railroads’ need to hire additional operating employees at a time
when retirements and resignations are making it increasingly difficult for
railroads to have a full complement of workers, thereby aggravating potential
service disruptions and the safety problems that can come with large numbers of⁴⁵
new, relatively inexperienced employees.
AAR supported a revision of the hours of service law to reflect current scientific
understanding of fatigue. AAR contended that rail companies do not want workers
who are too tired to properly perform their duties, and are making efforts to address
fatigue. AAR testified that, generally speaking, railroads do not object to the
provision of these bills that increase the minimum rest time from 8 to 10 hours, and
that bar nonemergency communications from rail companies during the minimum
rest period. However, AAR did object to the provision requiring that employees

⁴⁴ Testimony of Joseph H. Boardman, Administrator, Federal Railroad Administration, U.S.
Department of Transportation, before the United States House of Representatives,
Committee on Transportation and Infrastructure, Subcommittee on Railroads, Pipelines, and
Hazardous Materials, Hearing on Reauthorization of the Federal Rail Safety Program, May
8, 2007, pp. 4-5; and before the United States Senate Committee on Commerce, Science, and
Transportation, Subcommittee on Surface Transportation and Merchant Marine
Infrastructure, Safety, and Security, July 26, 2007, pp. 3-4.
⁴⁵ Office of Management and Budget, Statement of Administration Policy on H.R. 2095,
October 10, 2007.

subject to hours of service limits have at least 24 consecutive hours off duty every
seven days as being inconsistent with railroad work schedules. AAR requested that
period be extended by one day, to require that employees receive 24 consecutive
hours off duty every eight days (with an exception for signal employees). And while
not objecting to the requirement that railroads prepare fatigue management plans,
AAR did request some changes to the specifics of that requirement, including that the
plans should only apply to those employees who are subject to the hours of service
law. AAR supported the limitation of total hours worked by an employee (including
limbo time) to 276 hours per month, as proposed in the Senate-passed H.R. 2095.
Rail labor organizations also support a revision of the hours of service regime.
They support the provisions these bills that would amend the current rail hours of
service regime to ensure that an employee was undisturbed during their minimum
rest period, and to require rail companies to develop fatigue management plans in
consultation with employees.
Limbo Time. The Administration bill did not propose any direct change
(though it is possible that limbo time would be affected as a result of the regulatory
process of revising the hours of service regime, which the Administration proposed).
The House-passed version of H.R. 2095, which as introduced would have eliminated
limbo time, limits the amount of limbo time an employee can accrue to 10 hours per
month (not including limbo time caused by delays that were unforeseeable at the time
an employee left a designated terminal), phased in over a period of two years after
enactment of the legislation. The Senate-passed version of H.R. 2095 would limit
limbo time to a maximum of three hours per day (not including limbo time caused
by delays that were unforeseeable when an employee left a designated terminal),
while allowing employees to elect additional off-duty time equal to the amount of
limbo time incurred during their shift. The Senate bill’s overall limit of 276 hours
of work by an employee each month includes limbo time in calculating the total
hours worked.
The Administration objected to the limbo time provision of the House-passed
H.R. 2095, contending that “there is nothing inherently unsafe about a crew being left
on a train so long as the crew is relieved of duties and given adequate rest time.”⁴⁶
While the FRA is concerned about the impact of limbo time on employee
fatigue, the FRA Administrator objected that reclassifying limbo time as on-duty time
would:
shift the law from a safety frame of reference to a “fair labor standards” frame
of reference, force carriers to reduce the length of many assignments to avoid the
possibility of “violations” under circumstances where safety could not be
seriously compromised, and ensure that any further reforms would be very costly⁴⁷

indeed.
⁴⁶ Office of Management and Budget, Statement of Administration Policy on H.R. 2095,
October 10, 2007.
⁴⁷ Testimony of Joseph H. Boardman, Administrator, Federal Railroad Administration, U.S.
(continued...)

The FRA Administrator urged instead that, given the complications of hours of
service issues, and the need to consider them within the context of fatigue prevention
and management, the FRA be given the authority to develop hours of service
regulations based on a scientific understanding of fatigue.
The AAR contends that eliminating limbo time by reclassifying it as on-duty
time would create “intractable scheduling problems” for railroads and result in
increased costs that would be passed on to rail shippers. The railroads propose
instead to address the safety-related fatigue implications of limbo time by providing
additional time off to employees who have accrued at least one hour of limbo time.
Also, the railroads propose a monthly maximum of 276 on-duty hours for train
operating employees; limbo time would count toward that monthly maximum, even
though it would not be considered on-duty time in any particular instance.⁴⁸ Failing
that approach, the railroads would support providing FRA with the authority to deal
with the issue through regulating rail hours of service.
Rail labor groups support the elimination of limbo time by reclassifying it as on-
duty time. They argue that the Supreme Court decision classifying the time the
original crew spends waiting for transportation as limbo time promotes the type of
abuse — failing to get the crews to their final release point as soon as possible — that
the 1969 amendment to the hours of service act was intended to remedy.⁴⁹ James
Brunkenhoefer, the United Transportation Union’s National legislative Director,
asserted that the limit of 10 hours per month on limbo time would effectively
eliminate limbo time, because of the difficulty railroads would have in keeping track
of the remaining limbo time for two separate members of a train crew.⁵⁰
Positive Train Control. The Administration bill did not address PTC. The
House-passed H.R. 2095 would require each Class I railroad to submit to DOT,
within 12 months of passage of the bill, a plan for implementing a PTC system by
December 31, 2014. The Secretary would be permitted to extend the implementation
deadline by up to 24 months. The Secretary would be required to review the

⁴⁷ (...continued)
Department of Transportation, before the United States House of Representatives,
Committee on Transportation and Infrastructure, Subcommittee on Railroads, Pipelines, and
Hazardous Materials, Hearing on Reauthorization of the Federal Rail Safety Program, May

8, 2007, p. 5.

⁴⁸ Testimony of Edward R. Hamberger, President & Chief Executive Officer, Association
of American Railroads, before the United States House of Representatives, Committee on
Transportation and Infrastructure, Subcommittee on Railroads, Pipelines, and Hazardous
Materials, Hearing on the Reauthorization of the Federal Rail Safety Program, May 8, 2007,
pp. 5-6.
⁴⁹ Joint Statement of the Teamsters Rail Conference and the United Transportation Union
before the U.S. House of Representatives Committee on Transportation and Infrastructure
Subcommittee on Railroads, Pipelines, and Hazardous Materials, Hearing on Railroad
Safety Authorization, May 8, 2007, p. 6.
⁵⁰ Quoted in the United Transportation Union’s June 18, 2007 “Washington Update,”
available at [http://www.utu.org/worksite/detail_news.cfm?ArticleID=36089].

railroads’ compliance with their plans, and issue a report to the pertinent
Congressional committees by December 31, 2011 on the status of PTC
implementation. No penalty is provided in the event that railroads do not comply
with this requirement. The House-passed H.R. 2095 also includes a grant program
to support deployment of train control technologies; no specific level of funding was
authorized for this program.
The Senate-passed H.R. 2095 requires that each railroad that has inadequate
safety performance (as determined by the DOT Secretary) submit a risk reduction
plan, which shall include a schedule for implementing a PTC system by December
31, 2018, though the Secretary can set an earlier deadline. Again, no penalty is
provided for noncompliance. The bill also creates a safety technology grant program,
which provides a 50% match for the implementation of train control technologies;
the program would be funded at $10 million annually.
The Administration has objected that mandating implementation of PTC by an
“arbitrary” deadline is premature, contending that the safety benefits have not yet
been shown to justify the costs, and that the technology is not yet proven. If
Congress decides to mandate the implementation, the Administration requested that
the Secretary of Transportation be given greater flexibility to guide implementation
to promote safety and avoid disruptions to commerce.⁵¹
AAR has testified that railroads are committed to the deployment of positive
train control technology where it makes sense (e.g., on high-density main lines, not
low-density branch lines) and on a schedule based on available funds. In light of the
variety of train control systems and their differing advantages and disadvantages,
which railroads are still evaluating, AAR objected to setting a fixed deadline for
deployment at this stage. AAR did support having railroads provide FRA with an
implementation plan for PTC within 12 months of the act, suggesting that a firmer
implementation timetable might be established at that point.⁵²
The Brotherhood of Railroad Signalmen testified in support of the requirement
for deployment of PTC in House-passed H.R. 2095⁵³, and the Brotherhood of
Locomotive Engineers and Trainmen testified in support of the provision on PTC
deployment in Senate-passed H.R. 2095.⁵⁴ Testimony from other rail labor groups

⁵¹ Office of Management and Budget, Statement of Administration Policy on H.R. 2095,
October 10, 2007.
⁵² Statement of Edward R. Hamberger, President & Chief Executive Officer, Association of
American Railroads, before the U.S. House of Representatives Committee on Transportation
and Infrastructure, Subcommittee on Railroads, Pipelines, and Hazardous Materials,
Hearing on the Reauthorization of the Federal Rail Safety Program, May 8, 2007, pps. 10-

11.

⁵³ Testimony of W. Dan Pickett, International President, Brotherhood of Railroad
Signalment, Before the United States House of Representatives Committee on
Transportation and Infrastructure Subcommittee on Railroads, Pipelines, and Hazardous
Materials, Hearing on Rail Safety Legislation, May 8, 2007, p. 4.
⁵⁴ The provision was in S. 1889 at the time of the testimony. Testimony of John P. Tolman,
(continued...)

did not comment on the PTC requirements. Rail labor is wary of PTC’s implications
for the issue of train operating crew size. Technology has enabled railroads to
increase worker productivity, reducing the average train crew size from 4-5 persons
to 2-3 persons in recent decades. There is concern on the part of rail labor that
railroads would like to reduce the size of the train operating crew to one person,
which would be feasible with PTC. The Brotherhood of Locomotive Engineers and
Trainmen has generally expressed support for PTC as a supplement to “existing
methods of train control.”⁵⁵
Track Inspections. The Administration bill did not propose any specific
initiatives for track inspection. House-passed H.R. 2095 would require FRA to
increase its number of rail inspectors from the current figure of approximately 440
to at least 800 by 2012. FRA’s rail safety inspectors are divided into five areas of
expertise; the legislation does not specify how many inspectors should be added to
each of the five groups. The bill would also direct FRA to purchase 6 Gage Restraint
Measurement System vehicles and 5 track geometry vehicles, so that one of each type
of vehicle can be deployed in each of FRA’s eight regions. Senate-passed H.R. 2095
requires FRA to increase the number of safety-related FRA employees by 150 over
six years, to purchase Gage Restraint Measurement System vehicles and other track
safety inspection vehicles as needed, and requires DOT to conduct a study to
determine whether current track inspection practices and remedial action
requirements should be changed.
Representatives of rail labor testified in support of the proposed increase in the
number of FRA safety inspectors. AAR testified that railroad companies do not see
a need for an increase in the number of FRA safety inspectors.⁵⁶ FRA has noted that
traditional visual inspections are not always able to identify subtle track flaws, and
that they have acquired automated tracks inspection equipment that can identify flaws
that human inspectors often miss, and can inspect track at a much faster rate than
could be done by human inspectors.
Grade Crossing Safety. The Administration bill proposed requiring an
update of FRA’s grade crossing inventory. It also included provisions intended to
encourage the development of new technologies to prevent accidents at rail crossings,
and would protect suppliers, state and local governments, and railroads from tort

⁵⁴ (...continued)
Vice President and National Legislative Representative, Brotherhood of Locomotive
Engineers and Trainmen, before the United States Senate Committee on Commerce,
Science, and Transportation, Subcommittee on Surface Transportation and Merchant Marine
Infrastructure, Safety, and Security, July 26, 2007, p. 2.
⁵⁵ National Legislative Office, Brotherhood of Locomotive Engineers and Trainmen, “Issue:
Crew Size,” 2007 fact sheet, available at [http://www.bletdc.org/legislation/facts/
crew_size/].
⁵⁶ Statement of Edward R. Hamberger, President & Chief Executive Officer, Association of
American Railroads, before the U.S. House of Representatives Committee on Transportation
and Infrastructure, Subcommittee on Railroads, Pipelines, and Hazardous Materials,
Hearing on the Reauthorization of the Federal Rail Safety Program, May 8, 2007, p. 17.

liability for the use of such systems, if installed and maintained according to FRA’s
guidelines.
The House-passed H.R. 2095 would
^!require railroads to provide toll-free telephone numbers, to be posted
at each grade crossing, to receive reports of malfunctioning safety
devices and of highway vehicles blocking a crossing, in order to alert
train crews and public safety officials;
^!require railroads to remove visual obstructions (such as vegetation)
that might obscure a motorist’s or pedestrian’s view of an oncoming
train;
^!require DOT to develop model legislation providing civil or criminal
penalties, or both, for violations of grade crossing warning signals
by motorists;
^!require that the FRA’s inventory of grade crossings be updated every
four years;
^!authorize DOT to buy and distribute small promotional items to
increase awareness of grade crossing safety issues;
^!authorize $1.5 million annually for grants to Operation Lifesaver, a
nonprofit organization promoting awareness of risks at grade
crossings; and
^!authorize a grant program for emergency grade crossings
improvements (no specific level of funding was authorized).
The Senate-passed H.R. 2095 includes similar grade crossing safety
improvements (its grade crossing safety improvement grant program is authorized at
$500,000 annually).
Representatives of rail labor testified in support of these provisions, except for
the Administration’s proposal providing protection from tort liability for new grade
crossing protection technologies. AAR testified in favor of these provisions, while
requesting that the provisions of the regulations governing the removal of visual
obstructions should specify the distance to be kept clear and should preempt state and
local laws to provide uniformity nationwide.
The provision of toll-free numbers for notification of emergency conditions at
grade crossings has been of interest to Congress for some time. In 1994, Congress
directed FRA to conduct a pilot program of the effectiveness of such a program; the
results of that study, published in 2006, found that such programs provide safety
benefits. FRA and NTSB have urged railroads to provide toll-free numbers at each
grade crossing. As of 2006, approximately 50% of all crossings are included in an
emergency notification system.⁵⁷ Many states already require railroads to remove
visual obstructions near grade crossings, but the requirements are not uniform. The
Highway-Rail Grade Crossing Hazard Elimination formula program currently
provides $220 million annually to states for safety improvements at grade crossings.

⁵⁷ Federal Railroad Administration, Pilot Programs for Emergency Notification Systems at
Highway-Rail Grade Crossings, May 2006, p. 2.