Chairman Lautenberg and members of the Commerce, Science and Transportation Subcommittee on Surface Transportation and Merchant Marine Infrastructure, Safety, and Security, on behalf of the American Public Transportation Association (APTA) I thank you for this opportunity to testify on the Railroad Safety Enhancement Act of 2007.

 

Mr. Chairman, my name is David Solow.  I am the Chief Executive Officer for the Southern California Regional Rail Authority (SCRRA) or Metrolink, which provides commuter rail service in the Los Angeles, California area.  I also serve as Vice Chair for Commuter and Intercity Rail on APTA’s Executive Committee, which is the association’s policy board.  Metrolink began service in 1992. We operate service over a 500 mile network, over 7 lines, three of which are in conjunction with two different Class 1 freight railroads. We provide service to over 43,000 passengers daily at 54 stations. On a daily basis, Metrolink dispatches 145 of its trains, 26 Amtrak Intercity trains and 50 to 70 freight trains. With the extent of our operation, we regularly deal with challenges similar to those faced by commuter rail operators in communities across the nation.

 

APTA member organizations include all of the commuter rail systems which provide passenger service in communities throughout the nation.  All of these systems are regulated by the Federal Railroad Administration (FRA) and all will be affected by changes in federal rail safety laws. 

 

Ridership grew at almost every commuter rail system in the nation in 2006 and many communities are expanding or initiating new service.  Passengers took 435 million trips on commuter railroads last year, an increase of 3.2 percent over 2005.  At Metrolink, ridership grew by 5.25 percent in 2006.  New commuter rail service recently started in Nashville and Albuquerque, and more new systems are in advanced stages of development in Minneapolis, Salt Lake City, Portland, Charlotte, and Denver.  Still more communities are considering commuter rail as a way to help reduce congestion, provide mobility, and help people beat the high cost of gasoline. 

 

 

 

First and foremost, let me state for the record that rail safety is a priority for APTA commuter rail systems.  Overall, accidents in the railroad industry have declined in eight of the last ten years and the safety of rail passengers is 20 times better than for those who drive automobiles.  Second, commuter rail systems are substantially different from freight rail operations.  Commuter rail employees, unlike employees on freight railroads, almost always return to their homes each night, and they generally report for duty at an assigned place and time each day.  The peak-period nature of commuter rail service means that many employees often work split shifts during a day.  Limbo time is an important consideration in the work schedules of commuter rail employees and since current law regarding hours of service and limbo time are important considerations in collective bargaining agreements it may make sense to phase in any changes in the law as such agreements are renegotiated and renewed. 

 

Major changes in current Hours of Service (HOS) laws that substantially reduce limbo time and limit duty time are likely to force commuter rail systems to hire more crews, particularly relief crews that fill in for sick employees, and reduce the number of hours employees can work each week.  They may also result in employees having fewer opportunities to volunteer for overtime on days off.  Changes in HOS laws based on efforts to address fatigue in freight rail operations may unnecessarily impact commuter rail employees and the taxpayers who support commuter rail service. 

 

Rather than mandate specific changes in current HOS laws, APTA urges Congress to direct the FRA to study fatigue as it specifically relates to commuter rail service, utilize the Rail Safety Advisory Committee (RSAC) process for development of any proposed changes to HOS laws, and make recommendations on any proposed changes that come from that process. 

 

Commuter rail systems are public agencies that will necessarily pass on increased costs associated with HOS changes to their riders and/or state and local taxpayers.  If fare increases are required, those increases will drive riders back to commuting by automobile, thereby undermining national goals related to conserving energy, and reducing air pollution and congestion on our highways.  Commuter rail operators have an excellent safety record and current HOS law related to fatigue have ensured the safe operation of commuter rail systems around the country. 

 

Among the bill’s provisions that most affect commuter rail systems are changes in the Hours of Service (HOS) laws, including the substantial limitations on limbo time, requirements for positive train control, the potential new certification of workers, and increases in civil penalties.  We appreciate that the bill limits the disclosure of official information submitted by commuter rail systems to the federal government as part of risk analysis and reduction programs, but want to be sure that these limits effectively eliminate liability based on a commuter system’s good faith efforts to cooperate with federal authorities and improve safety and security. 

 

While this bill does not directly address current federal pre-emption of rail safety laws, APTA strongly supports preservation of federal pre-emption in the case of rail safety laws.  We believe that federal pre-emption provides necessary consistency and prevents the application of inconsistent standards at the state or local level that would produce an unworkable regulatory patchwork for commuter rail systems.  APTA supports the position of the Association of American Railroads on pre-emption since this issue affects all railroads equally.  

 

 

The bill makes several important changes in Hours of Service (HOS) laws and limbo time that may adversely impact commuter rail systems without reducing fatigue or improving safety.  In general, APTA believes that commuter rail systems should be grandfathered under existing law subject to FRA review of HOS laws as they specifically relate to commuter rail systems, with any changes in HOS laws based on FRA recommendations developed under the Rail Safety Advisory Committee (RSAC) process that provides for industry and labor input and collaboration. 

 

APTA believes that the increase in off duty time from 8 hours to 10 hours during the prior 24 hours is unnecessary for commuter rail employees.  We believe that our excellent safety record proves that the current requirement that a commuter rail employee has had at least 8 consecutive hours off duty during the prior 24 hours ensures that fatigue does not affect safety, especially since commuter rail employees can almost always spend their off duty hours in their own homes.  The fact that commuter rail employees are generally scheduled to work regular daily shifts, and that they often have the opportunity for an interim rest period of at least 4 hours between shifts, at rest facilities, should all be factors considered before any change in the minimum daily off duty period is contemplated for commuter rail employees, either by legislation or regulations. 

 

The change in the draft Senate bill that would prohibit communications with employees during their daily off duty time would also make it more difficult to call in on call employees to cover for employees who call in sick or do not report for work, but we appreciate that the bill permits the Secretary to waive prohibitions on communications for commuter and intercity passenger railroads under certain conditions.  We urge the committee to consider a specific waiver of these prohibitions on communications for commuter railroads, subject to an FRA study, with any recommendations developed under the RSAC process. 

 

APTA also has concerns about provisions in the draft bill that significantly reduce the permissible use of limbo time.  The bill changes current law which now considers time spent in deadhead transportation from a duty assignment to the place of final release to be neither time on duty nor time off duty – so-called limbo time.  The use of limbo time for commuter rail employees returning from duty assignments, especially those employees filling in for sick employees, and the impact of this limbo time on fatigue, should be studied by the FRA and considered in the RSAC process before any changes are made.  Once again, the fact that commuter rail employees have rest time during the day, off duty time at home, and working conditions different from freight rail employees should be considered and fully reviewed before any changes are made.  We also note that the bill essentially permits up to 30 hours of limbo time per employee per month in certain circumstances during the year after the bill’s enactment, and authority for the Secretary to issues regulations allowing a maximum of 20 hours of limbo time per employee per month under such conditions within two years of the bill’s enactment. 

 

We also recognize that the bill provides a number of exceptions, based on weather, accidents, major equipment failures, and other specific conditions, when deadhead time returning from a duty assignment to a place of final release may be considered limbo time.  While we appreciate these specific exceptions and a limited use of limbo time each month, we suggest that the bill at least preserve the full 30 hours of limbo time per employee per month subject to an FRA/RSAC process to review the use of limbo time by commuter rail systems. 

 

We note that the bill changes HOS law by requiring that an employee has had at least 24 consecutive hours off in the past consecutive 7 days.  We also appreciate that the bill permits the Secretary to waive this requirement if a collective bargaining agreement provides a different arrangement which provides an equivalent level of safety and protection against fatigue for affected employees.  We believe that employees will want to take advantage of this ability to have this issue considered in collective bargaining agreements and we hope that an efficient process for such waivers can be established. 

 

Finally, if significant changes to HOS laws for commuter rail employees remain in this legislation, we urge the committee to allow a two year phase in period to give the industry sufficient time to hire, train, and qualify new employees.  In today’s very tight job market, we need time to build up the required workforce. 

 

 

We note that the bill requires each Class 1 railroad, railroads with an inadequate safety record, and intercity and commuter rail systems to develop safety risk reduction programs, and that these programs must include as part of the required technology implementation plan a schedule for implementation of a positive train control system by December 31, 2018.  While APTA’s commuter railroad system members want to consider the implementation of positive train control systems and other signal systems that improve safety and enhance the efficiency of running commuter rail trains and freight trains in mixed operational environments, we urge the Congress to provide as much flexibility in the type of systems used and their implementation.  We also remain very concerned about the inter-operability of such systems with various freight and commuter rail systems sharing multiple railroad trackage such as is the case in Washington, D.C., Chicago, and Los Angeles.  As public agencies, while supportive of PTC generally, we remain concerned about the substantial cost and support federal assistance for implementation costs.  In addition to cost concerns, we want to be sure that different trains from different railroads are able to respond to signal systems on different railroads in a consistent and predictable manner.    

 

 

APTA commuter rail systems applaud the committee for the inclusion of prohibitions on the public disclosure of required railroad safety analyses records, but we want to be sure that such provisions adequately protect commuter railroads which submit such information from increased liability as a result of their cooperation.  For instance, we hope that the prohibitions on the disclosure of such information also prevent the release of information collected under Title II of the bill, which requires the submission of certain information on grade crossings for the development of a national grade crossing inventory. 

 

 

We appreciate the committee’s efforts to improve safety at highway-rail grade crossings.  We also appreciate the bill’s directive that the Secretary evaluate and review current local, state, and federal laws regarding trespassing on railroad property, vandalisms affecting safety, and violations of warning signs for development of model prevention strategies and laws at the state and local level.  As noted earlier, we hope that any information on grade crossings and related safety reviews collected under this title is subject to prohibitions on the public disclosure of required safety information included under Title I.  We have also been supportive of the $220 million in Federal Highway Administration funding that is authorized annually under SAFETEA-LU for grade crossing safety and support efforts to see that those funds are fully used to improve safety at highway railroad grade crossings. 

 

 

The bill directs the Secretary to issue regulations within one year of the bill’s enactment requiring railroads, railroad carrier contractors, and subcontractors to develop training plans for crafts and classes of employees.  It also directs the Secretary to submit recommendations to Congress on whether certification of certain crafts or classes of railroad employees, contractor employees, and subcontractor employees is necessary to reduce accidents and improve safety.  APTA urges Congress to involve the commuter rail industry in the process used to develop regulations for the development of training plans and in the process used to determine whether certification is beneficial. 

 

We also appreciate that the bill directs DOT to study and report on the safest, most efficient and cost effective way to deal with efforts to minimize safety risks associated with platform gaps as required under the Americans with Disabilities Act.  We urge Congress to ensure that the commuter rail industry has an opportunity to participate in the study and to make comments on any proposed recommendations. 

 

Finally, while we note that this issue is not covered by the bill, we would like to be sure that transit police have the same flexibility as railroad police to cross state lines to protect commuter rail equipment, facilities, and operations.  In the case of New Jersey Transit, their railroad police are part of the agency’s transit police, with jurisdiction over bus, light rail, and commuter railroads, and as a result are not classified as railroad police with such authority. 

 

 

We thank the committee for this opportunity to testify on the draft version of the Railroad Safety Enhancement Act of 2007.  We want to express our willingness, on behalf of the American Public Transportation Association (APTA), and particularly its commuter railroad systems, to work with the committee, and the Congress, as it develops rail safety legislation that affects commuter rail systems in the United States. 

 

We strongly believe, as reflected by the development and expansion of commuter rail systems in communities across the nation, that the public wants and supports commuter rail service.  Commuter rail systems offer an attractive alternative for commuters who want an alternative to driving to and from work on a daily basis.  These commuters help to reduce traffic congestion and energy consumption, they help make our highways work more efficiently for those who must drive, they reduce their own commuting costs, and they often experience a better quality of life.  We are happy to try and answer any questions that members of the committee may have.