STATEMENT OF

ROBERT S. RIVKIN
GENERAL COUNSEL
U.S. DEPARTMENT OF TRANSPORTATION

BEFORE THE

SUBCOMMITTEE ON AVIATION
COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE
HOUSE OF REPRESENTATIVES

CONCERNING

AIRLINE FEES

JULY 14, 2010

Chairman Costello, Ranking Member Petri and Members of the Subcommittee:

I am pleased to appear before the Subcommittee today to discuss the U.S. Department of Transportation’s commitment to vigorous compliance and enforcement efforts to protect the rights of airline passengers. I will emphasize steps taken by the Department to ensure that airline passengers have accurate and complete information about the full cost of the air transportation they are purchasing, including the ancillary airlines fees they must pay.

First, let me emphasize the importance Secretary LaHood and this Administration place on the rights of airline consumers.  From the start, we have carefully examined our regulatory authority to determine how best to assist airline consumers with the most serious problems they face, including lengthy tarmac delays, chronically delayed flights, and lack of consumer information on the on-time performance of flights.  We decided to add clear limits on tarmac delays, tough rules on chronically delayed flights and more disclosure to passengers than had been proposed in the prior administration’s rulemaking we inherited.  In December 2009, we took the most forceful regulatory action then available to us by issuing a rule including those provisions. 

 Recognizing that much more had to be done, after issuing our first consumer protection rule, we have now proposed more comprehensive regulatory protections.  In June we issued a Notice of Proposed Rulemaking (NPRM) to strengthen the reforms enacted by our first rule—for example, to cover foreign carriers and more U.S. airports under our tarmac delay rule—and to deal with a number of other problems, most notably inadequate denied boarding compensation, deceptive air fare advertising, and insufficient disclosure of airline ancillary fees. 

Because the topic of today’s hearing is “airline fees”, I will expand on the NPRM proposals designed to make it easier for consumers to know how much they will have to pay for airline transportation and ensure that airlines’ fee-related practices are fair.  First and foremost, the NPRM would require true full price advertising.  Under the proposal advertised prices would be required to include all mandatory taxes, fees and charges.  If the consumer has to pay the charge to fly, like a fuel surcharge, an excise tax, a travel agent service charge, or an internet ticket convenience fee, the charge would have to be included in the price presentation to each consumer.

Also, as we explain in the NPRM, we are skeptical that airlines should be allowed to label as “fares” prices that do not include numerous mandatory charges, and thus serve only to confuse or deceive consumers regarding the true full price of the ticket and to make price comparisons difficult.  We have proposed to prohibit this misleading listing of fares.

Second, we propose that airline optional fees be fully disclosed on airline websites.  By optional or ancillary fees, we mean charges for things like checking baggage or seat assignments that passengers can avoid but still fly. Our optional-fee-disclosure proposal results from what the Department feels is often a lack of clear and adequate disclosure of these fees by airlines; consumers are not always able to determine the cost of their own travel (the ticket price plus the price of additional fees for optional services) prior to purchase. 

Third, the NPRM would require more detailed and prominent disclosure for fees related to carry-on baggage and the first two pieces of checked baggage.  For example, carriers would be required to issue e-ticket confirmations to passengers that include information regarding their free baggage allowance and/or the applicable fee for a carry-on bag or the first and second checked bag on the e-ticket confirmation. By providing this information to consumers on the e-ticket confirmation, passengers will be clearly informed well before the flight date and arrival at the airport of the applicable baggage rules and charges. 

Fourth, we seek comment on the costs and benefits of requiring that two prices be provided in certain air fare advertising—the ticket price which is the full fare, including all mandatory charges, as well as that ticket price plus the cost of baggage charges that traditionally have been included in the price of the ticket, if these prices differ.   We solicit comment on whether such a requirement for a second price, if adopted, should be limited to the full fare plus the cost of baggage charges or expanded to include other optional services that traditionally have been included in the price of the ticket, such as obtaining seat assignments in advance.    

Fifth, the Department is considering requiring airlines to provide their agents and global distribution systems—that is, computerized, online airline reservations systems like Amedeus that display multiple carrier offerings—complete, accurate, and up-to-date information on ancillary fees so that internet and store-front travel agents can provide that information to consumers.

Sixth, the NPRM seeks comment on the possibility of requiring sellers of air transportation to display on their websites comparative full fare information based on the ancillary service desires of a passenger.  So if a customer wants to select a seat and check two bags on a flight from A to B on a specific date, the customer would see what the total price would be for each carrier providing the desired air transportation. 

In addition to prohibiting deceptive fee advertising and disclosure, the new proposed rule also addresses fee reimbursement.  It solicits comments on requiring carriers to reimburse passengers the fee charged to transport a bag if that bag is not timely delivered and explains that, when a flight is cancelled, carriers must refund not only the ticket price but also any optional fees charged to a passenger for that flight (e.g., baggage fees, “service charges” for use of frequent flyer miles when the flight is canceled by the carrier). 

The comment period on the NPRM is currently scheduled to close on August 9, 2010, although we have recently received a request to extend the comment period.  We have set an aggressive timeline and hope to complete our rulemaking by the end of the year.

Our wide-ranging rulemaking activities have not detracted from an expansion of our aviation compliance and enforcement work.   For example, over the past two years our Aviation Enforcement Office has conducted 16 on-site investigations at airline headquarters to measure their compliance with our existing passenger rights regulations.  Five of those investigations have already resulted in cease and desist orders assessing large airlines almost $1.2 million in civil penalties, primarily related to violations of our denied boarding compensation requirements.

The other investigations may result in similar enforcement actions.  More important perhaps than the resulting enforcement actions, these on-site visits emphasize to carriers their responsibilities and foster future compliance.

Another significant enforcement activity focuses on deceptive airline and agent fare advertising.  During the year ending June 30, 2010, the Department issued 11 cease and desist orders assessing $520,000 in civil penalties in cases involving deceptive advertising alone.  Three other orders covered deceptive advertising as well as other issues. 

In the past year we also issued our first enforcement orders related to lengthy tarmac delays.  Specifically, the Department levied a total of $175,000 in civil penalties against three carriers for their roles in causing a lengthy tarmac delay after a flight was diverted to Rochester International Airport in Minnesota due to bad weather.

For the year ending June 30, 2010, the Department issued a total of 37 cease and desist orders against airlines and agents relating to non-safety related aviation matters.  Those orders assessed close to $3.2 million in civil penalties.  Those numbers reflect a reversal from a downward trend in the prior few years. 

Before closing, I would like to thank this Committee and Congress as a whole for helping invigorate our consumer protection program.  In the past few years Congress has appropriated additional funds that have enabled us to increase our consumer protection staffing, conduct on-site investigations, and take a number of other proactive steps to support  our consumer rulemakings and to strengthen our consumer protection program overall.  We also appreciate the work of this Committee’s staff, as well as Senate Commerce Committee staff ,who have approached us for technical assistance on the Passenger Rights Legislation currently being considered by Congress.  We hope these contributions have been helpful to the Committees.

In conclusion Mr. Chairman, we believe we have a high level of appreciation for the many problems faced by airline passengers and we will continue to take aggressive and timely action to mitigate those problems in the future.  I want to assure you on behalf of Secretary LaHood and the other employees of the Department of our continuing commitment to this important work.   Thank you again for the opportunity to discuss these critical matters.  I would be happy to answer any questions you may have.

STATEMENT OF

PETER M. ROGOFF
ADMINISTRATOR
FEDERAL TRANSIT ADMINISTRATION
U.S. DEPARTMENT OF TRANSPORTATION

BEFORE THE

COMMITTEE ON BANKING, HOUSING AND URBAN AFFAIRS
U.S. SENATE

January 16, 2014

Mr. Chairman, Ranking Member Crapo, and Members of the Committee:

Thank you for inviting me to appear before you today to report on the Federal Transit Administration’s (FTA) progress toward implementing public transportation assistance programs under the Moving Ahead for Progress in the 21st Century Act, known as MAP-21. This two-year reauthorization codifies some of President Obama’s highest priorities for enhancing the safety of public transportation, strengthening our nation’s transportation infrastructure, and streamlining government to serve taxpayers’ needs more efficiently.

I want to thank the Committee for its support in passing MAP-21, which has offered an opportunity for us to work together to support transit systems across the country at a time when national ridership is on track to exceed 10 billion trips annually for the seventh year in a row. Through investment in public transportation, we spur new economic development to help build strong communities in cities, suburbs, and rural areas alike.

Progress Made Despite Fiscal Challenges

MAP-21, which took effect on October 1, 2012, authorizes $10.6 billion in Fiscal Year (FY) 2013 and $10.7 billion in FY 2014 for public transportation.  FTA has made significant progress in implementing key provisions and providing guidance to states, metropolitan planning organizations and transit agencies. We have an active and engaged legislative implementation team and an aggressive timetable in place that helps to ensure that the American people can reap the benefits associated with investing in public transportation services that improve transportation equity, provide access to jobs and services, offer an efficient alternative to congested urban traffic, and stimulate economic development in cities and communities throughout the nation.

I discuss, below, several areas where FTA has made real progress to implement MAP-21. However, I fully recognize that much work and many challenges lie ahead. Chief among these challenges are significant annual funding constraints and the potential insolvency of the Mass Transit Account of the Highway Trust Fund.

The funding constraints imposed by the full FY 2013 and the partial FY 2014 continuing resolutions, coupled with cuts imposed by sequestration—including a $5 million cut in our administrative budget—have hampered our ability to move implementation forward at an even more rapid pace. The cuts have, for instance, affected our ability to implement significant new safety authority and reduced our ability to conduct outreach and training with stakeholders.  Every budget request under my stewardship has sought additional funding to allow for additional staffing at FTA to better address our core responsibilities.  Congress has yet to provide those resources.  Moreover, in FY 2013, FTA had more than 30 New Starts projects in the pipeline, but since that time, FTA has been unable to make new funding commitments to any of those projects for the first time in roughly 20 years.  Consequently, for the first time, FTA was unable to keep its financial end of the bargain, cutting payments owed to communities with projects already under way, which potentially raises local costs as project sponsors and local governments seek to make up for the Federal government’s shortfall.

With respect to the Mass Transit Account of the Highway Trust Fund, estimates of the account’s cash balance at the time MAP-21 was enacted were assumed to be sufficient through FY 2014.  We have reason for concern as to whether this will be the case going forward. The U.S. Departments of Transportation (DOT) and Treasury are currently in the process of updating program outlay and revenue assumptions used to estimate trust fund balances as part of the President’s FY 2015 budget.  These estimates will be important in determining whether the cash balance is sufficient through the remainder of the current authorization and will provide useful information on the cash balance needed beyond FY 2014.  Once the President’s budget is transmitted to Congress, FTA and DOT will brief the Committee on the new estimates, upon request.      

Despite such challenges, we have nevertheless achieved several significant milestones for implementing MAP-21, most notably with respect to safety; state of good repair needs; the capital investment grant program; and our new Emergency Relief Program.  A summary of progress in these and other areas follows.

Safety Authority

MAP-21 gave FTA long-sought authority to establish safety criteria for all modes of public transportation and establish minimum safety standards for public transportation vehicles used in revenue operations.  Implementing the new safety provisions in MAP-21 has been among our highest priorities.  In October 2013, FTA issued an Advanced Notice of Proposed Rulemaking (ANPRM) on Safety and Transit Asset Management.  The ANPRM signals FTA’s commitment to ensure that efforts to keep transit systems in good working order go hand-in-hand with efforts to keep them safe.  FTA is now reviewing over 150 comments submitted by safety advocates, industry leaders and the general public on key topics, such as:

• Developing and implementing meaningful national, state-level, and transit agency safety plans; and
• Implementing a national transit asset management program to help transit agencies establish a systematic means for managing their assets and establishing performance measures for making improvements to the condition of their facilities, equipment, rolling stock, and infrastructure.

While Congress has yet to appropriate additional administrative funds to carry out this new area of responsibility, FTA has established a new safety office using already strained existing resources. FTA is sensitive to stakeholder concerns on this new safety oversight authority and will build a 21st century regulatory program over a period of several years only after careful consideration of comments received from our stakeholders and the public.

In May 2013, FTA made available for the first time approximately $22 million in Federal matching funds to help strengthen public transportation safety for millions of riders and transit workers nationwide. The funding notice included a proposed formula for the apportionment of those funds based on MAP-21 criteria.  During the past three months, FTA has aggressively and proactively reached out to the 30 states with state safety oversight (SSO) obligations through face-to-face meetings and one-on-one conference calls to ensure that their programs will conform with MAP-21’s new requirements, thereby positioning those states to receive a share of the $21.9 million available to carry out SSO responsibilities.  FTA expects to release these funds in the near future. 

Going forward, FTA will act as the leader, facilitator, and final regulatory authority setting minimum safety standards, and be held fundamentally accountable for the overall safety performance of the nation’s fixed-guideway rail transit systems.  To achieve these goals, FTA will concentrate on strengthening the capacity of SSOs to serve as effective day-to-day safety regulators capable of holding transit systems accountable for safe operations at the local level and ensuring they comply with minimum safety standards.

Additionally, FTA will work to adapt its comprehensive safety approach to all modes of public transportation within its safety authority. Specifically, we will work to ensure that the bus segment of public transportation, upon which millions of riders depend every day, receives the resources, tools and technical assistance it too will need to ensure the safety of the riding public. 

State of Good Repair and Transit Asset Management

Since 2008, FTA has staked out a leadership role in highlighting the critical need to bring the nation’s aging transit assets into a state of good repair, especially in large urban areas—and to hold transit agencies accountable for implementing a more strategic approach to managing the lifecycle of their assets. The momentum we have initiated is real, but the gains that will truly benefit the American people require sustained investment. FTA obligated $1.9 billion—about one-fifth of our share of funds under the American Recovery and Reinvestment Act of 2009—and also allocated more than $2.2 billion in discretionary bus funds over the last four years for this very purpose.  Indeed, the Administration has made increased funding for a new State of Good Repair program the centerpiece of its annual budget requests for FTA.  Congress incorporated our proposal on this essential area into MAP-21 by creating a more needs-based state-of-good-repair formula program for rail, ferry, and busway systems.  This new program will help further address our state-of-good-repair needs, so fixed guideway agencies have a predictable two-year stream of Federal funds to help them address an enormous maintenance and repair backlog that exceeds $78 billion nationwide.  By the end of FY 2013, FTA had awarded 37 formula grants funded by the State of Good Repair program for over $675.6 million.  We are working to award the remaining program funds as quickly as possible.

FTA recognizes that while a sustained Federal contribution to our state-of-good-repair needs is in the best interest of our nation’s public transportation systems, this problem cannot be solved by Federal action alone. Tackling this problem requires a concerted effort by Federal, state, and local resources in a coordinated, strategic manner. That is why FTA is establishing a national Transit Asset Management (TAM) System. The new section 5326 TAM program authorized under MAP-21 is vitally important to carrying out these infrastructure investments effectively and responsibly.

This innovative program requires all FTA funding recipients to adopt a strategic approach for managing their capital assets and be accountable for leveraging all available resources to bring their systems into a state of good repair.  FTA has sponsored a successful public dialogue with over 700 stakeholders to obtain critical input on policy implementation. Subsequently, in October 2013, FTA used the aforementioned Safety ANPRM as an appropriate vehicle for seeking public comment on its initial interpretations, proposals it is considering, and questions regarding the requirements of the national TAM System.  This includes proposed options under consideration for defining and measuring state of good repair, and the relationship among safety, transit asset management and state of good repair.  Comments we receive on the ANPRM will be very helpful to us in drafting a proposed definition of state of good repair in the future rulemaking we will issue on TAM.  

FTA will solicit comments in the Federal Register on ways to improve how asset inventories and asset conditions are reported to the National Transit Database—an important first step toward refining estimates of the nation’s transit-related state-of-good-repair backlog.  This is a very important initiative that will assist FTA in ensuring that local transit investment financed with Federal dollars are being effectively targeted on each transit agency’s greatest needs.  It will also assist us in ensuring that Federal investments are being well-managed and well-utilized.

Capital Investment Grants (New Starts/Small Starts)

Managing costs on capital investment grant projects is a key area where FTA has made strides.  Since 2009, FTA has executed 26 Full Funding Grant Agreements or Project Construction Grant Agreements for new major capital investments, and 100 percent of those projects have either been completed or are on schedule to be completed on time; 96 percent of those are also on budget.  This Administration has done its service to America's taxpayers, who expect no less than responsible stewardship of their investments.

Since MAP-21 went into effect, FTA has continued to cut red tape and bureaucracy so we can have more progress and less process related to New Starts planning.  For example, FTA recently rolled out a new tool to help project sponsors estimate transit trips on proposed projects. The new method, known as Transit STOPS (Simplified Trips-on-Project Software), will enable some communities to reduce from two years to two weeks the time needed for project sponsors to develop ridership forecasts on planned projects. This new tool may save taxpayers in communities that do not currently have travel forecasting tools as much as 1 million dollars.

In addition, in August 2013, FTA issued final policy guidance to sponsors of New Starts and Small Starts projects, which accompanies the final rule for Major Capital Investment Projects promulgated in January 2013.  The final rule adopted a more straightforward approach for measuring a proposed transit project’s cost-effectiveness; expanded the range of environmental benefits used to evaluate proposed projects; added new economic development factors to its ratings process; and streamlined the project evaluation process.  The revised ratings and evaluation criteria will better capture the full range of benefits that FTA’s transit investments provide through the New Starts/Small Starts program, while continuing an appropriate level of oversight of taxpayer dollars.  These revisions align with major purposes of MAP-21, including improving the development and delivery of capital projects and moving us toward a more performance-driven system. We appreciate the Committee’s support for this important achievement.

Public Transportation Emergency Relief Program

FTA has been very aggressive in implementing the provisions of MAP-21 in the area of emergency relief.  The President’s budget proposed in FY 2012 a new emergency relief program for FTA to parallel a similar capability in FHWA. The President proposed this program to strengthen the agency’s authority to provide disaster assistance to transit agencies in the wake of major natural disasters and other emergencies.  The program was authorized by Congress in MAP-21.

The authorization of this new program arrived just in time for Hurricane Sandy, which, based on the extent of storm damage, was the worst public transit disaster in the history of the United States.  Hurricane Sandy devastated transportation systems in the hardest-hit parts of New York and New Jersey—which together include three of the twenty largest transit operators in the nation and represent nearly 40 percent of our nation’s transit ridership—and triggered a very rapid implementation path for the program.  The Disaster Relief Appropriations Act of 2013 appropriated $10.9 billion for the Emergency Relief Program for recovery, relief, and resiliency efforts in areas affected by Hurricane Sandy.  Unfortunately, this amount was almost immediately reduced by $545 million as part of sequestration.  FTA is allocating the remaining $10.4 billion in multiple tiers for response, recovery, and rebuilding; for locally prioritized resiliency projects; and for competitively selected resiliency work.

FTA allocated to the hardest-hit transit agencies a total of $5.7 billion for critical Sandy recovery and resiliency work in a span of approximately 16 weeks, beginning one week after President Obama signed the Disaster Relief Appropriations Act.  Funds were allocated to the New York Metropolitan Transit Authority (MTA), the Port Authority Trans-Hudson Corp. (PATH), New Jersey Transit (NJT), the Southeastern Pennsylvania Transportation Authority (SEPTA), and others for expenses incurred while preparing for and recovering from Hurricane Sandy.

On December 23, 2013, FTA announced the availability of approximately $3 billion in Disaster Relief appropriations to strengthen the resiliency of public transportation systems affected by Hurricane Sandy.  FTA will award the funds on a competitive basis first and foremost for projects that protect critical transit infrastructure from being damaged or destroyed by future natural disasters. Our goal is to advance the best regionally coordinated projects, so taxpayers will not have to pay to restore the same transit services a second or third time.

While FTA has been extraordinarily successful in responsibly and rapidly responding to the needs triggered by Hurricane Sandy, an important note of caution is in order.  At present, FTA has only those emergency relief funds that Congress made available exclusively for Hurricane Sandy.  The President’s FY 2013 and 2014 budget requests each sought $25 million to capitalize the Emergency Relief Program for disasters throughout the country.  Congress did not appropriate those funds in FY 2013, and the Consolidated Appropriations Act, 2014, currently under consideration, likewise does not include funding for the program.   In the future, I strongly encourage Congress to appropriate the amount requested so, when the next disaster strikes and takes public transportation systems offline, FTA will be in a position to respond immediately.

FTA has made an extraordinary effort to make emergency relief and recovery funding available as expeditiously as possible, to ensure that millions of riders have access to the transit services they depend on. To that end, FTA issued an interim final rule in March 2013 that established eligible activities, processes, and procedures for applying for grants.  After considering comments, FTA anticipates publishing a final rule.

Urbanized Area Formula Grants

The largest of FTA’s grant programs, this program provides grants to urbanized areas to support public transportation.  Funding is distributed by formula based on the level of transit service provision, population, and other factors.  MAP-21 provides total funding of $4.9 billion in FY2013 and $5 billion in FY 2014. The program remains largely unchanged with a few exceptions.  Job access and reverse commute activities providing services to low-income individuals to access jobs have been consolidated into this program and are now an eligible expense.  MAP-21 expanded eligibility for operating expenses for systems with 100 or fewer buses in urbanized areas with populations of 200,000 or more.  Operating assistance remains an eligible activity for small urbanized areas. 

Rural Transportation Service

The Administration recognizes that public transportation in rural areas functions not as a luxury but as a lifeline for low-income working families, seniors, veterans, individuals with disabilities, tribal residents, and others.  Many people living in rural and tribal communities can ill-afford to travel considerable distances to work, medical appointments and other destinations.  It is not surprising that, given these constraints, demand for public transportation in these areas has been rising.  Thanks in large part to recent Federal investments in rural transit, there are now more than 1,400 operators in rural areas, providing more than 140 million rural transit trips each year.  FTA anticipates that demand for rural service will continue to rise and, as a result, we will continue to need legislation and policy solutions to deliver transportation solutions that rural America needs.

MAP-21 provides $1.2 billion in funds for rural communities and Indian reservations over the next two years.  It increases rural area formula funds by 29 percent, from $465 million to $600 million.  (Under MAP-21, urbanized area formula funds increased by 6 percent over the prior authorization, SAFETEA-LU.)  Funding increased for rural areas because we recognize that public transportation in these areas is urgently needed, especially for residents who do not have access to personal vehicles.  Public transportation is important for providing links between workers and rural area employers, and encouraging rural economic development.  Further, public transportation in rural areas can provide links to urban areas and provide access to opportunities found in those areas.  For example, the VelociRFTA Bus Rapid Transit (BRT) line serving the Roaring Forks Valley, which just opened last September, is the first rural BRT line in the nation.  It allows commuters from Glenwood Springs and surrounding communities to reach employers in Aspen, about 40 miles away, in an hour. That is roughly half the time the trip takes by regular bus service. FTA committed nearly $25 million to the $46.2 million project through its Very Small Starts Capital Investment Grant program.

Tribal Transit Program

The Administration understands that access to reliable, affordable transportation is a high priority for Indian tribes.  We want to ensure that every American Indian or Alaskan native who needs a ride to earn a paycheck, attend school, see the doctor, or buy groceries has that opportunity to do so. 

MAP-21 doubles the funds available for the Tribal Transit program from $15 million in FY 2012 to $30 million in FY 2013 and FY 2014.  Under MAP-21, $25 million of the $30 million available for the program is distributed by formula.  The remaining $5 million is provided for a discretionary grant program, and we encourage Indian tribes to apply for this funding as well.  This resource will improve tribal public transportation in tribal areas throughout the United States.  Tribal Transit program funds may be awarded for capital, operating, planning, job access and reverse commute projects, and administrative assistance for rural and tribal public transit services and rural intercity bus service.

MAP-21 states that Indian tribes providing public transportation shall be apportioned funds consistent with formula factors that include vehicle revenue miles and the number of low-income individuals residing on tribal lands.  Funds apportioned pursuant to the formula will provide Indian tribes operating public transportation with a steady and predictable stream of funding.  FTA has actively reached out to tribal and rural stakeholders to discuss the impact of proposed program changes and funding priorities and considered comments before finalizing a formula allocation methodology published in the Federal Register on May 9, 2013.  This Notice also established the framework and guidance for the Tribal Transit Program and terms and conditions for the formula and discretionary programs.  FTA’s outreach with the tribes continued through the fall of 2013, with the delivery of three tribal transit workshops designed to provide hands-on training and technical assistance with the new program structure and applicable FTA requirements.

Bus and Bus Facilities Program

MAP-21 followed the Administration’s request to fold the discretionary bus program into a formula program.  This capital program provides funding to replace, rehabilitate, and purchase buses and related equipment, and to construct bus-related facilities. MAP-21 authorized $422 million in FY 2013 and $428 million in FY 2014.  Each fiscal year, each state will be allocated $1.25 million and each territory (including the District of Columbia and Puerto Rico) will receive $500,000.  The remaining funds will be distributed by formula.  Funds are available to designated recipients and States that operate or allocate funding to fixed-route bus operators.  Eligible subrecipients include public agencies or private nonprofit organizations engaged in public transportation, including those providing services open to a segment of the general public, as defined by age, disability, or low income.  We have heard from our stakeholders, primarily states and recipients in small urbanized areas and rural areas, that the funding under this program is insufficient to meet rural bus acquisitions due to replacement or expansion needs. 

Formula Grants for the Enhanced Mobility of Seniors and Individuals with Disabilities

The Enhanced Mobility of Seniors and Individuals with Disabilities program provides formula funding to increase the mobility of seniors and persons with disabilities.  MAP-21 merges the former New Freedom program, which provided grants for services that went above and beyond the requirements of the Americans with Disabilities Act (ADA), with this program.  Projects selected for funding must be included in a locally developed, coordinated public transit-human services transportation plan; and the competitive selection process, which was required under the former New Freedom program, is now optional. 

A portion of program funds may be used for public transportation projects that exceed the requirements of the ADA; public transportation projects that improve access to fixed-route service and decrease reliance by individuals with disabilities on complementary paratransit (a comparable service to public transportation required by the ADA for individuals with disabilities who are unable to use fixed-route transportation systems); or alternatives to public transportation that assist seniors and individuals with disabilities.

Coordinated Transportation

Senior and medical transportation is vitally important to the nation’s growing senior population and citizens suffering debilitating illnesses and chronic diseases.  For example, in South Dakota, 14.6 percent of the population is 65 or older and this segment of the population is projected to grow to 23.1 percent by 2030.  We need to support seniors who want to continue living in communities they call home.  This requires human services policies and programs that work for the traveling public, including seniors, individuals with disabilities, and all those seeking medical care.  Moreover, transportation services focused on these populations are often fragmented, underutilized, or difficult to navigate, and can be costly because of inconsistent, duplicative, and often restrictive Federal and state program rules and regulations. And, in some cases, narrowly focused programs leave service gaps and the available transportation services are simply not able to meet certain needs.  We are working to determine how best to integrate the full range of mobility needs, which include ADA paratransit, transportation for seniors, and medical transport programs, with public transportation operations and plans.  This means focusing on the customer and coordinating the best solutions with public and private operators and volunteer programs in the mix, as well as coordinating with other Federal agencies that fund transportation for these targeted populations. 

MAP-21 continues the requirement that, to the maximum extent feasible, FTA should coordinate activities funded under the Enhanced Mobility program with similar transportation activities provided by other Federal agencies. 

Significant Rulemakings and New Guidance Activities

MAP-21changes require FTA to issue a number of rulemakings and guidance documents—a reflection of the law’s many new and innovative programs, initiatives, and requirements.  FTA has worked diligently to advance several rulemakings, and to issue proposed new guidance, engaging thousands of stakeholders in the process.  Our accomplishments in this area in 2013 include the following:

• FTA is currently evaluating comments received on our ANPRM on Safety and Transit Asset Management. This was the first segment of a significant rulemaking related to FTA’s new safety authority under MAP-21, and the input we received will greatly inform our proposed regulations in the coming year.
• FTA issued proposed guidance to assist grantees in implementing the Enhanced Mobility for Seniors and Individuals with Disabilities Program—a new program under MAP-21 that consolidates the New Freedom Program and the Elderly Individuals and Individuals with Disabilities Program. 
• FTA issued proposed guidance to assist recipients in their implementation of the Urbanized Area Formula Program, which changed under MAP-21.  Final guidance is available for public inspection today and will be published in the Federal Register tomorrow.
• FTA issued proposed guidance to assist recipients in their implementation of the Rural Area Formula Program.  The purpose of the proposed guidance is to provide potential recipients with updated instructions on program administration and the grant application process brought about by MAP-21 changes.
• FTA issued proposed guidance on the application of a new provision regarding corridor preservation for future transit projects.  MAP–21 amended a previously existing provision such that FTA can now, under certain conditions, assist in the acquisition of right-of-way for corridor preservation before the environmental review process for any transit project that eventually will use that right-of-way and permit corridor preservation with local funds for a transit project that could later receive FTA financial assistance. 

FTA also co-sponsored several important inter-agency proposals under MAP-21.

• FTA and the Federal Highway Administration (FHWA) jointly published a final rule that amends their joint procedures that implement the National Environmental Policy Act (NEPA) by creating a new categorical exclusion (CE) for emergency actions as required by Section 1315 of MAP-21. The final rule modifies the existing lists of FHWA and FTA CEs and expands the existing CE for emergencies.
• FTA and FHWA jointly published an important final rule streamlining the environmental review process under NEPA that a proposed transit project seeking Federal funds must undergo. The rule established ten new CEs defined specifically for transit projects. CEs significantly expedite FTA’s environmental review of projects that have been shown to have little environmental impact while preserving critical community input on how planned transit projects affect the local environment.  These NEPA revisions, like the New Starts changes, are closely aligned with the MAP-21 policy goals of accelerating the development and delivery of capital transportation projects.
• FTA and FHWA jointly issued another final rule, adding new categorical exclusions for projects within an existing operational right-of-way and projects receiving limited Federal funding for purposes of improving project delivery.  The final rule was published on January 13, 2014.
• FTA and FHWA jointly issued proposed guidance on implementation of MAP-21 provisions that requires public transportation providers to be represented as part of each metropolitan planning organization (MPO) by the end of FY 2014.
• FHWA and FTA jointly issued interim guidance on implementing Section 1319 of the MAP-21, which provides for the preparation of a Final Environmental Impact Statement (FEIS) by attaching errata sheets to the Draft Environmental Impact Statement (DEIS) if certain conditions are met, and requires, to the maximum extent practicable, that the lead agency will develop a single document that combines the FEIS and Record of Decision (ROD), except under certain circumstances.
• FTA, FHWA, and the Federal Railroad Administration (FRA) issued proposed regulations for the Surface Transportation Project Delivery Program, which MAP-21 converted from a pilot to a permanent program.  MAP-21 changes also helped to accelerate project delivery by allowing the Secretary to assign, and for states to assume, the Federal responsibilities for the review of highway, transit, rail and multi-modal projects under NEPA and responsibilities for environmental review, consultation or other action required under any Federal environmental law pertaining to the review.

Conclusion

MAP-21 offers an important opportunity to recalibrate the way our government evaluates and invests in our federally funded public transportation infrastructure. From a transit perspective, the law’s major provisions enable FTA to focus limited resources on strategic investments and policies that will result in a better and safer riding experience for millions of Americans, while repairing and modernizing transit systems for generations to come.   I look forward to working with this Committee toward reauthorization.

Mr. Chairman, this concludes my testimony and I am happy to answer any questions you may have.

STATEMENT OF

THE HONORABLE DAVID L. STRICKLAND
ADMINISTRATOR,
NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION

BEFORE THE

COMMITTEE ON ENERGY AND COMMERCE
SUBCOMMITEE ON COMMERCE, TRADE, AND CONSUMER PROTECTION
U.S. HOUSE OF REPRESENTATIVES

Hearing on

NHTSA OVERSIGHT: THE ROAD AHEAD

March 11, 2010

Chairman Rush, Ranking Member Whitfield, and Members of the Committee:

Thank you for the opportunity to appear before you today to discuss the Department of Transportation’s vision for the future of the National Highway Traffic Safety Administration (NHTSA) and its important safety programs.

Safety is the Department’s highest priority. NHTSA’s safety programs are an integral part of addressing that priority. Over the last two years we have seen a dramatic reduction in the overall number of highway deaths. In 2008, we had the lowest highway fatality rate ever recorded and the lowest number of fatalities since 1961. Based on early projections, we expect to see similar reductions in 2009. Still, the loss of over 37,000 people in traffic-related crashes in a single year, as occurred in 2008, represents a serious public health problem to our nation.

One of the first questions I asked when I became the Administrator of NHTSA is whether our current statutory authority—drafted largely in the 1960s and 1970s—is sufficient to address the modern automobile and the global automotive marketplace. I have asked our legal and program staffs to take a very close look at the scope and effectiveness of those authorities and make recommendations about how they may be improved. I look forward to working with this committee on how NHTSA’s ability to perform its mission might be strengthened through legislation.

An Overview of NHTSA and its Mission

NHTSA is not a large agency. We currently have 632 positions. The President’s budget for fiscal year 2011 requests funds for an additional 66 positions to help strengthen our ability to address the enormous safety mission that this agency faces.

NHTSA’s safety programs address both the behavioral and vehicle aspects of highway safety. Human behavior is by far the leading cause of highway crashes and deaths. This is why our programs place such a heavy emphasis on reducing drunk and drugged driving, encouraging seat belt use at all times, and underscoring the dangers of distracted driving. Secretary LaHood has sparked an important international dialogue on the subject of distracted driving, which we estimate contributes to about 6,000 deaths a year in the United States alone. Funding for the grant programs to states to conduct educational and enforcement efforts to address these behavioral problems is absolutely essential for the safety of drivers and their passengers. These programs have demonstrated enormous successes over the years in driving down the number of deaths involving alcohol and driving up the percentages of vehicle occupants who wear seat belts. For example, in the years 2000 through 2009 the percentage of people who used seatbelts rose from 71 percent to 84 percent. We are just beginning our efforts on the distraction issue, but we believe an effective program to reduce distracted driving can also yield enormous safety benefits.

Our vehicle safety program is also extremely important. Our research and rulemaking priorities are focused on finding the areas of highest risk where new or amended vehicle standards can make a significant impact on reducing the death toll on our nation’s highways. NHTSA regulation of occupant crash protection has resulted in significant improvements in the crashworthiness of today’s vehicles. These standards have saved many thousands of lives and prevented countless injuries. NHTSA has also used its vehicle crash ratings to motivate vehicle manufacturers to voluntarily improve the safety of their vehicles above the federal standards. This New Car Assessment Program (NCAP), known generally as the government’s 5-star safety rating program, has been an overwhelming success in driving improvements in vehicle safety. NHTSA was the first vehicle safety agency in the world to implement such a program. Today, these programs have been implemented around the world.

Even though fatal crashes resulting from a vehicle problem are relatively rare by comparison to such crashes caused by human factors, we must do everything we can to find and eliminate those causes. Moreover, the emergence of crash avoidance technologies in vehicles offers significant promise for reducing crashes related to driver error. For example, electronic stability control, which is being rapidly phased into the new vehicle fleet, will be required by NHTSA in all new passenger vehicles manufactured on or after September 1, 2011. This technology will significantly reduce fatalities that result from loss of control, including deadly rollover crashes. The agency estimates that when this technology is fully implemented into the fleet it could save up to 10,000 lives a year. Other technologies are now being developed and deployed into the fleet that also have the potential to reduce crashes, reduce injuries, and save lives. Technologies such as lane departure warning, forward collision warning, and crash imminent braking are now beginning to be offered in some new vehicles. One area we are looking at very closely is brake override, a system that ensures that a brake application will supersede a conflicting throttle application in certain circumstances. Manufacturers are equipping many of their vehicles with this feature, but there is not currently any standardization with regard to the conditions under which this feature will work or precisely how it will work. If our review indicates that requiring this feature could substantially reduce the most dangerous kinds of sudden acceleration, we will strongly consider a rulemaking to require it.

NHTSA’s vehicle safety enforcement program has two major components: ensuring compliance with NHTSA standards and conducting defects investigations. The Office of Vehicle Safety Compliance tests new vehicles and equipment to determine whether they meet the applicable Federal Motor Vehicle Safety Standards (FMVSS). Manufacturers must certify that their products meet those standards. If the vehicles or equipment do not comply, manufacturers must recall them and provide a remedy to the consumer.

The Office of Defects Investigation (ODI) has a different mission. ODI searches through consumer complaints, manufacturer data, and other sources for information that might indicate a defect trend. Where it can find a possible defect trend, it investigates. If NHTSA can demonstrate that a defect exists and that it poses an unreasonable safety risk, the agency can order a recall. I will explain this process more fully below.

NHTSA’s Programs for Informing the Public of Safety Issues

A central element of NHTSA’s mission is getting timely information to the public on highway safety issues. This requires collecting solid data in the first place. NHTSA’s National Center for Statistics and Analysis is the assembler and primary analyst of our safety data. That office maintains several national data bases and produces detailed and prompt analyses of the data to support public educational efforts, rulemaking, research, and enforcement.

In close collaboration with our program offices and data analysts, our communications office organizes and implements public awareness campaigns and paid advertising to support program efforts targeting the leading causes of crashes and encouraging use of the most important safety measures. These include the public campaigns to discourage drunk driving (“Over the Limit, Under Arrest”) and to encourage seat belt use (“Click It or Ticket”). More recently, the agency has mounted efforts related to distracted driving. We launched a government website-- www.distraction.gov--with comprehensive information on distracted driving.

In the vehicle safety area, the agency issues safety advisories on some of the most important issues, including notable recalls. NHTSA’s most well known program for providing vehicle safety information to the public is the NCAP program, which tests new vehicles and provides the results on a public website (www.safercar.gov). These “star ratings” are known to many consumers and used by many manufacturers to emphasize their products’ safety. The program has helped inform consumers and motivate manufacturers to continually improve various safety features. NHTSA will soon launch a revised NCAP program to help push manufacturers to a new level of safety.

Important information on NHTSA’s vehicle safety enforcement activities is also readily available to the public, also on www.safercar.gov. Consumers can find on the website information on recalls that might apply to their vehicles or vehicle equipment. In fact, over the last two years NHTSA has initiated a subscription service that allows consumers to sign up for immediate email alerts on recalls that affect their vehicles, child seats, or tires. Consumers who sign up do not have to rely on media reports or await official notification from the manufacturer to learn about recalls that may affect their safety. We are hoping that this new tool will help increase the percentage of consumers who have recall repairs done. We are concerned that many consumers ignore recall notices, leaving themselves and others unnecessarily exposed to safety risks.

The website also contains information concerning all open and closed safety defect investigations. Consumers who experience what they believe are safety problems with their vehicles or vehicle equipment may write to us or file complaints on the website or through NHTSA’s telephone hotline. We review every complaint and analyze available data constantly to identify potential safety problems early. These complaints provide the most important data NHTSA’s defect investigations staff have for deciding what emerging problems may warrant investigation. NHTSA is considering ways of making the online complaint form more user friendly as a way of encouraging more people to provide us information. We are also looking for ways to enhance the program’s outreach to the public to increase awareness of the defects investigation program and the complaint process.

NHTSA’s Defects Investigation and Recall Process

As previously mentioned, NHTSA’s vehicle safety enforcement program has two major elements: (1) ensuring compliance with the safety standards, and (2) investigating possible safety defects in vehicles and vehicle equipment. While the compliance program rests on a large body of detailed standards (the FMVSS) developed over the last four decades, the defects investigation program rests on a single statutory standard, i.e., the presence of a defect that creates an “unreasonable risk” to safety.

Manufacturers have a duty to inform NHTSA of defects that create an unreasonable risk to safety and to then initiate a recall to remedy the defect. In many situations, however, the presence of a defect and/or its relationship to safety risk is not readily apparent. Where data suggest that a defect exists and it presents an unreasonable risk but manufacturers have not made such a determination and initiated a recall, it is up to NHTSA to determine whether a defect exists and demonstrate that the defect creates an unreasonable risk.

NHTSA’s defects investigation office, ODI, has a staff of 57 people. Of those, 14 people screen complaints and data for possible defect trends and 22 people actually conduct defect investigations. Their goal is to find possible defect trends that may indicate significant safety risks in particular makes, models, and model years; determine whether those trends create an unreasonable safety risk and are being caused by a defect that ODI can demonstrate; and, if so, persuade—or require--the manufacturer to conduct a recall. The remainder of the staff performs other important functions, such as tracking the hundreds of recalls that occur each year. That entails monitoring quarterly reports on completion rates, ensuring the scope of the recalls is correct, and compiling information on recalls for the public.

The defects investigation process begins with the screening of incoming information for evidence of possible defect trends. Complaints from consumers are the primary source of information. NHTSA receives over 30,000 complaints a year and reviews each one promptly. Although NHTSA staff make direct contact with some complainants to obtain additional information when it appears quite useful, they cannot contact every complainant. Screeners also look at technical service bulletins issued by manufacturers, reports of foreign recalls, and supplemental information such as occasional reports from insurance companies and information available on the Internet. Also, members of the public may file petitions asking NHTSA to investigate and order a recall on a particular matter. The agency carefully reviews each petition before making a decision on whether to grant or deny it. If granted, a formal investigation is opened.

Another important source of information is Early Warning Reporting (EWR) data submitted quarterly by manufacturers of vehicles, tires, and child seats. For light vehicle manufacturers, the data include counts of property damage claims, warranty reports, consumer complaints, and field reports. These aggregate data are broken down by make, model, and model year and by component category (e.g., steering, braking, engine, speed control). Manufacturers must also submit brief reports on each claim against the company for death or injury allegedly related to a possible vehicle defect. The volume of the data received is enormous. NHTSA uses sophisticated data mining techniques to identify in the data any trends that may be evidence of safety defects.

Those who screen the EWR information and those who screen the other sources are in constant communication. When patterns emerge from any source, the screeners look very carefully at what may be behind the patterns. Where there is possible evidence of a defect trend, the screening staff recommends that the appropriate investigating division consider opening an investigation. ODI staff meets regularly to determine which recommendations warrant opening an investigation and which may warrant continued monitoring. Considerations in choosing what to investigate include the preliminary evidence on the frequency and severity of the problem and the available investigative resources.

An investigation begins with a preliminary evaluation. This often entails detailed interviews with complainants, requesting relevant information from the manufacturer, and analysis to determine whether there is sufficient evidence either to seek a recall or continue to a more in-depth investigation. The next stage is the engineering analysis, which involves gathering additional information from consumers and the manufacturer, perhaps some testing of vehicles or equipment or surveys of peer vehicle experience, and in-depth analysis of the underlying problem.

If, at any stage, ODI staff believes they have enough information to demonstrate both a specific defect and that it creates an unreasonable risk to safety, they can then push the manufacturer to conduct a recall. Where the manufacturer resists, ODI management and NHTSA counsel confer to determine the best course of action. If the agency decides it can meet its burden, it tells the manufacturer it expects a recall to occur. Where the manufacturer is not persuaded by NHTSA to undertake a recall voluntarily, NHTSA may issue an order requiring that the manufacturer conduct the recall. First, however, NHTSA must provide the manufacturer an opportunity for a hearing. Then, if the agency concludes that a recall should occur and issues an order, the manufacturer can resist the order. In that case, in order to prevail, NHTSA must go to court and prove that a defect exists and that it creates an unreasonable safety risk. All of this means that NHTSA must remain mindful of its burden of proving its case as it selects matters for investigation, completes the investigation, and moves to the formal process of requiring a recall. If ODI cannot establish that a safety-related defect exists, it must move on to other potential subjects for investigation.

We believe the defects program has functioned extremely well over the years in identifying defects that create unreasonable risks and ensuring that recalls occur in those situations. The result has been thousands of recalls involving hundreds of millions of vehicles and items of motor vehicle equipment (such as child seats), which have helped to protect millions of consumers from the safety hazards they might otherwise have faced. We take our responsibility to protect consumers very seriously and will continue to ensure that manufacturers fulfill their obligations to identify and remedy safety defects in vehicles and equipment.

I hope my testimony has given the committee a useful overview of the breadth of NHTSA’s mission, its dedication to achievement of that mission, and the challenges that the agency faces.

Thank you and I look forward to answering your questions.

STATEMENT OF

THE HONORABLE DAVID L. STRICKLAND
ADMINISTRATOR,
NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION

BEFORE THE

COMMITTEE ON ENERGY AND COMMERCE
SUBCOMMITEE ON COMMERCE, TRADE, AND CONSUMER PROTECTION
U.S. HOUSE OF REPRESENTATIVES

Hearing on

Committee Draft of The Motor Vehicle Safety Act of 2010

May 6, 2010

Chairman Rush, Ranking Member Whitfield, and Members of the Committee:

Thank you for the opportunity to appear before you today to discuss legislative proposals to strengthen the authority of the National Highway Traffic Safety Administration (NHTSA) and to address many issues raised by the recent Toyota recalls. I applaud the committee members and their staff for working so hard to understand these issues and for reflecting that understanding in the committee draft of “The Motor Vehicle Safety Act of 2010.”

Status of NHTSA’s Activities Related to Toyota Recalls

Before I speak to some of the proposed measures in the draft legislation, allow me to briefly summarize the current status of NHTSA’s activities related to the Toyota recalls. As you know, we initiated three separate actions in February: a timeliness query (TQ) related to the pedal entrapment recall; a TQ related to the “sticky pedal” recall; and a recall query (RQ) looking at whether those two recalls were sufficient in scope and whether there are other matters related to unintended acceleration in Toyota vehicles that should have been addressed by the company. On April 19, Toyota agreed to pay $16,375,000 in civil penalties in connection with the sticky pedal TQ. This is the maximum penalty available under current law. NHTSA believed the penalty was warranted due to the company’s failure to inform the agency in a timely way about the safety defect involved in that recall.

We are continuing to review the large number of documents submitted by Toyota in response to the pedal entrapment TQ. We have not reached a decision yet on whether the facts of that case warrant a civil penalty. We have recently begun to review the huge volume of documents received in response to the RQ. The documents are so numerous that we have entered into an agreement with the Department of Justice to help us categorize and analyze the documents. That task will take some time.

At the same time we have undertaken two important reviews of issues related to unintended acceleration. The first is a review of the electronic throttle control (ETC) system in Toyota vehicles. This review entails in-depth research into the design, function, and safety measures associated with that system, including all of its electronic components and software. The National Aeronautics and Space Administration (NASA) is assisting us in this effort, which is well underway. NASA brings its great expertise in electronic control systems, forensic analysis, and fail-safe design to the project. NASA’s expertise is being complemented by specific automotive electronics and safety systems expertise from both inside and outside of NHTSA. The team is working to identify any possible failure modes in the ETC system that can lead to unintended acceleration and that involve conditions that can realistically be expected to occur in consumers’ use of these vehicles. We are planning to complete this review of the ETC system by the end of August, but that will depend on just how quickly the necessary testing and analysis can be done. If we do find such possible failure modes that might explain any of the unintended acceleration events reported to NHTSA, we will open a defect investigation.

The second review will be conducted by an independent panel of experts chosen by the National Academy of Sciences. This group will study the broad subject of unintended acceleration and electronic control systems across the automotive industry. They will look at subjects such as electronic vehicle control systems’ design and reliability (including hardware and software issues), electromagnetic compatibility and electromagnetic interference, existing relevant design and testing standards, human factors and the possibility of human error, and mechanical failure. The panel will make recommendations to NHTSA on research, rulemaking, and enforcement activities and the personnel, infrastructure, and financial resources required for NHTSA to help ensure the future safety of ETC systems and other electronic control functions. NAS has begun the process of identifying panel members, and we have been informed that the panel will be established by July and will complete its work within 15 months. We think this group’s work comes at a very opportune moment, not only to provide advice to the agency on the unintended acceleration issue, but also to provide such advice on the range of electronics issues that might affect motor vehicle safety as new electronic crash avoidance and other technologies rapidly proliferate in the vehicle fleet.

Legislative Proposals

We very much appreciate the provisions in the committee draft that would enhance NHTSA’s vehicle safety authority. If enacted, these measures would significantly increase the agency’s leverage in dealing with recalcitrant manufacturers in situations where we think recalls are necessary or where the manufacturer has not been totally forthcoming on possible defects or noncompliance issues. As illustrated by our recent penalty action against Toyota, the current maximum penalty is not a very significant sum of money for a major corporation and, accordingly, does not present much of a deterrent.

The addition of imminent hazard authority would bring NHTSA’s authority into line with that provided to many safety and health agencies. If the threat to human life is truly imminent, the agency needs to act quickly and not be slowed down by a lengthy procedural process. Of course, the draft bill would ensure that a manufacturer facing a recall order issued under this authority would have the opportunity for prompt and thorough review in the court of appeals. This important aspect of the draft legislation retains the manufacturer’s right to judicial review but situates that review directly in the appellate courts. Current law requires NHTSA to bring an action in district court to enforce a recall order and to prove its case in a trial de novo. The manufacturer could further challenge a district court decision in the appellate courts. Meanwhile, the vehicles or unsafe equipment would still be in use by consumers who remain exposed to all of the dangers associated with the defect or noncompliance. We think the balance struck by the committee greatly enhances the protection of consumers. Of course, we understand the need to use such extraordinary authority very judiciously, and would use it only in those situations where the hazard was truly imminent and the manufacturer unwilling to cooperate.

We believe the committee draft’s rulemaking provisions correctly identify the major areas where new or revised standards may have a beneficial effect on reducing the frequency or severity of unintended acceleration. In many of these areas the agency has already begun to increase its understanding of the subject and possible regulatory options, and we expect to learn a great deal more from the two reviews discussed earlier. Of course, to get to the point where we can propose well-conceived and fully researched new standards will, in most cases, take a great deal more work. These rulemakings would be additions to NHTSA’s already ambitious regulatory agenda, which includes many other high priority safety and fuel economy topics. The possibility exists that our ability to achieve the deadlines set for us in the proposed legislation may be constrained by circumstances. In light of these issues, we look forward to working with the committee to help ensure that the deadlines contained in the legislation are achievable.

The draft would also require NHTSA to improve the accessibility of the information on its publicly available safety databases. We will be very happy to do so and we have several ideas on how to make our recall and investigations data more user friendly. We appreciate the fact that the committee draft would give us some time for this project because significant changes to such large and publicly used databases require great care in planning and execution. While we surely share the view that our databases can be improved, I must add that even in their current state they are among the most outstanding consumer safety databases in government.

Thank you and I would be happy to answer any questions.

STATEMENT OF

THE HONORABLE DAVID L. STRICKLAND
ADMINISTRATOR
NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION

BEFORE THE

COMMITTEE ON COMMERCE, SCIENCE AND TRANSPORTATION
U.S. SENATE

Hearing on

S. 3302, The Motor Vehicle Safety Act of 2010

May 19, 2010

Chairman Rockefeller, Ranking Member Hutchison, and Members of the Committee:

Thank you for the opportunity to appear before you today to discuss legislative proposals to strengthen the authority of the National Highway Traffic Safety Administration (NHTSA) and to address many issues raised by the recent Toyota recalls. I applaud the committee members and their staff for working so hard to understand these issues and for reflecting that understanding in S. 3302, “The Motor Vehicle Safety Act of 2010.”

Status of NHTSA’s Activities Related to Toyota Recalls

Before I speak to some of the proposed measures in the bill, allow me to briefly summarize the current status of NHTSA’s activities related to the Toyota recalls. As you know, we initiated three separate actions in February: a timeliness query (TQ) related to the pedal entrapment recall; a TQ related to the “sticky pedal” recall; and a recall query (RQ) looking at whether those two recalls were sufficient in scope and whether there are other matters related to unintended acceleration in Toyota vehicles that should have been addressed by the company. On April 19, Toyota agreed to pay $16,375,000 in civil penalties in connection with the sticky pedal TQ. This is the maximum penalty available under current law. NHTSA believed the penalty was warranted due to the company’s failure to inform the agency in a timely way about the safety defect involved in that recall.

We are continuing to review the large number of documents submitted by Toyota in response to the pedal entrapment TQ. We have not reached a decision yet on whether the facts of that case warrant a civil penalty. We have recently begun to review the huge volume of documents received in response to the RQ. The documents are so numerous that we have entered into an agreement with the Department of Justice to help us categorize and analyze the documents. That task will take some time.

At the same time we have undertaken two important reviews of issues related to unintended acceleration. The first is a review of the electronic throttle control (ETC) system in Toyota vehicles. This review entails in-depth research into the design, function, and safety measures associated with that system, including all of its electronic components and software. The National Aeronautics and Space Administration (NASA) is assisting us in this effort, which is well underway. NASA brings its great expertise in electronic control systems, forensic analysis, and fail-safe design to the project. NASA’s expertise is being complemented by specific automotive electronics and safety systems expertise from both inside and outside of NHTSA. The team is working to identify any possible failure modes in the ETC system that can lead to unintended acceleration and that involve conditions that can realistically be expected to occur in consumers’ use of these vehicles. We are hoping to complete this review of the ETC system by the end of August, but that will depend on just how quickly the necessary testing and analysis can be done. If we do find such possible failure modes that might explain any of the unintended acceleration events reported to NHTSA, we will open a defect investigation.

The second review will be conducted by an independent panel of experts chosen by the National Academy of Sciences (NAS). This group will study the broad subject of unintended acceleration and electronic control systems across the automotive industry. They will look at subjects such as electronic vehicle control systems’ design and reliability (including hardware and software issues), electromagnetic compatibility and electromagnetic interference, existing relevant design and testing standards, human factors and the possibility of human error, and mechanical failure. The panel will make recommendations to NHTSA on research, rulemaking, and enforcement activities and the personnel, infrastructure, and financial resources required for NHTSA to help ensure the future safety of ETC systems and other electronic control functions. NAS has begun the process of identifying panel members, and we have been informed that the panel will be established by July and will complete its work within 15 months. We think this group’s work comes at a very opportune moment, not only to provide advice to the agency on the unintended acceleration issue, but also to provide such advice on the range of electronics issues that might affect motor vehicle safety as new electronic crash avoidance and other technologies rapidly proliferate in the vehicle fleet.

Legislative Proposals

We very much appreciate the provisions in the bill that would enhance NHTSA’s vehicle safety authority. If enacted, these measures would significantly increase the agency’s leverage in dealing with recalcitrant manufacturers in situations where we think recalls are necessary or where the manufacturer has not been totally forthcoming on possible defects or noncompliance issues. As illustrated by our recent penalty action against Toyota, the current maximum penalty is not a very significant sum of money for a major corporation and, accordingly, does not present much of a deterrent.

The addition of imminent hazard authority would bring NHTSA’s authority into line with that provided to many safety and health agencies. If the threat to human life is truly imminent, the agency needs to act quickly and not be slowed down by a lengthy procedural process. Of course, we understand the need to use such extraordinary authority very judiciously, and would use it only in those situations where the hazard was truly imminent and the manufacturer unwilling to cooperate.

However, as drafted, the imminent hazard provision (section 202) stops short of giving NHTSA full recall order authority in these situations. The bill would permit NHTSA to order manufacturers to notify “purchasers” (we think this should be “owners, purchasers, and dealers”) that the vehicle or equipment poses an imminent safety hazard and provide the purchaser “with information explaining the safety risk and actions the purchasers can take to reduce the risk.” Such notification does not constitute a recall, which consists of both notification to the owners and the provision of a remedy for the noncompliance or defect. We would like to work with the committee to ensure that the legislation provides consumers with an actual remedy in the face of an imminent hazard.

Of course, the bill would ensure that a manufacturer facing a recall order issued under this authority would have the opportunity for prompt and thorough review in the court of appeals. This important aspect of the draft legislation retains the manufacturer’s right to judicial review of a recall order but situates that review directly in the appellate courts. Current law requires NHTSA to bring an action in district court to enforce a recall order and to prove its case in a trial de novo. The manufacturer could further challenge a district court decision in the appellate courts. Meanwhile, the vehicles or unsafe equipment would still be in use by consumers who remain exposed to all of the dangers associated with the defect or noncompliance. We think the balance struck by the committee greatly enhances the protection of consumers.

We believe the bill’s rulemaking provisions correctly identify the major areas where new or revised standards may have a beneficial effect on reducing the frequency or severity of unintended acceleration. In many of these areas the agency has already begun to increase its understanding of the subject and possible regulatory options, and we expect to learn a great deal more from the two reviews discussed earlier. Of course, to get to the point where we can propose well-conceived and fully researched new safety standards will, in most cases, take a great deal more work. These rulemakings would be additions to NHTSA’s already ambitious regulatory agenda, which includes many other high priority safety and fuel economy topics. The possibility exists that our ability to achieve the deadlines set for us in the proposed legislation may be constrained by circumstances. In light of these issues, we look forward to working with the committee to help ensure that the deadlines contained in the legislation are achievable.

Some of the rulemaking provisions contain language that we believe would not preserve sufficient substantive flexibility for NHTSA in determining the best way to devise standards that accomplish the bill’s purposes. For example, the event data recorder (EDR) provision (section 107) contains very specific time periods during which data would have to be recorded under the new rule. NHTSA needs the flexibility to determine what parameters are technologically feasible and would best serve the provision’s purpose. Similarly, that section’s prohibition on permitting EDRs to record or transmit vehicle location may be disruptive to advanced crash notification systems that can provide emergency responders with precise location information. NHTSA needs the discretion to balance the competing interests of privacy and automatic notification of emergency responders.

The bill would also require NHTSA to improve the accessibility of the information on its publicly available safety databases. We will be very happy to do so and we have several ideas on how to make our recall and investigations data more user friendly. We appreciate the fact that the bill would give us some time for this project because significant changes to such large and publicly used databases require great care in planning and execution. While we surely share the view that our databases can be improved, I must add that even in their current state they are among the most outstanding consumer safety databases in government.

The bill also includes what this Administration believes are extremely important whistleblower protections (section 306) for employees of motor vehicle manufacturers, part suppliers, and dealerships. The safety of our vehicles is better ensured when the workers who manufacture, supply, or sell them feel they can come forward with safety concerns without retaliation. NHTSA has, on rare occasions, received reliable information from whistleblowers and, of course, has not revealed their identities. However, we believe that NHTSA is not the appropriate agency to administer whistleblower protection provisions. Additionally, the diversion of administrative resources that would be required to carry out section 306 could detract from achievement of NHTSA’s safety mission. We encourage the committee to contact the Department of Labor (DOL) for technical assistance on this section. DOL already administers five other whistleblower statutes relating to the transportation sector.

This Administration’s appointees are subject to the most stringent ethical standards ever applied within the Executive branch. We are certainly supportive of strengthening ethical standards applicable to career employees where the need exists. However, the anti-revolving door provision (section 308) in the bill raises several concerns. The provision’s prohibitions on post-NHTSA employment would extend for 36 months, longer than any comparable provisions. More important, the bill would cover providing advice to a manufacturer, not just serving in a representational role. This, too, is far more stringent than comparable post-employment provisions, which are focused on working in a representational capacity after leaving the government. This restriction could cause NHTSA significant difficulties in recruiting or retaining the kind of highly skilled employees that the bill indicates (in section 101) that the agency needs to employ in greater numbers. Moreover, we believe this feature might have the effect of denying the public the safety benefit that could be gained by a company’s learning from former government employees how best to comply with, not evade responsibility for, the safety laws. This is increasingly important as manufacturers from around the world, unfamiliar with this country’s vehicle safety laws, export vehicles and equipment to our market. We would like to work with the committee to find effective, but not unduly burdensome, ways to address these issues.

Thank you and I would be happy to answer any questions.

STATEMENT OF

THE HONORABLE DAVID L. STRICKLAND
ADMINISTRATOR
NATIONAL HIGHWAY TRAFFIC SAFETY ADMINISTRATION

BEFORE THE

COMMITTEE ON ENERGY AND COMMERCE
SUBCOMMITEE ON OVERSIGHT AND INVESTIGATIONS
U.S. HOUSE OF REPRESENTATIVES

Hearing on

UPDATE ON TOYOTA AND NHTSA’S RESPONSE TO THE PROBLEM OF SUDDEN UNINTENDED ACCELERATION 

May 20, 2010

Chairman Stupak, Ranking Member Walden and Members of the Committee:

I appreciate the opportunity to provide the committee an update on the activities of the National Highway Traffic Safety Administration (NHTSA) concerning unintended acceleration incidents involving Toyota vehicles. Since Secretary LaHood testified before this committee on this subject in February, NHTSA has been very active.

Last week, Secretary LaHood and I traveled to Japan to meet with officials of the Japanese government and Toyota. We have a very good working relationship with our counterparts in the Japanese government and had a productive meeting with them. Our meeting with Toyota provided another opportunity to emphasize to the company’s leadership the importance of making the safety of its vehicles the company’s highest priority. The company has recently made changes in its organization and processes that are designed to ensure that Toyota officials here in the United States have a direct role in making vehicle recall decisions for the company. We reinforced with Toyota officials, including Chairman Toyoda himself, that the value of these organizational changes will be determined by the company’s future safety actions.

As you know, we initiated three separate actions in February: a timeliness query (TQ) related to the pedal entrapment recall; a TQ related to the “sticky pedal” recall; and a recall query (RQ) looking at whether those two recalls were sufficient in scope and whether there are other matters related to unintended acceleration in Toyota vehicles that should have been addressed by the company. On April 19, Toyota agreed to pay $16,375,000 in civil penalties in connection with the sticky pedal TQ. This is the maximum penalty available under current law. NHTSA believed the penalty was warranted due to the company’s failure to inform the agency in a timely way about the safety defect involved in that recall.

We are continuing to review the large number of documents submitted by Toyota in response to the pedal entrapment TQ. We have not reached a decision yet on whether the facts of that case warrant a civil penalty. We have recently begun to review the huge volume of documents received in response to the RQ. The documents are so numerous that we have entered into an agreement with the Department of Justice to help us categorize and analyze the documents. That task will take some time.

At the same time we have undertaken two important reviews related to unintended acceleration. The first is a review of the electronic throttle control (ETC) system in Toyota vehicles. This review entails in-depth research into the design, function, and safety measures associated with that system, including all of its electronic components and software. The National Aeronautics and Space Administration (NASA) is assisting us in this effort, which is well underway. NASA brings its great expertise in electronic control systems, forensic analysis, and fail-safe design to the project. NASA’s expertise is being complemented by specific automotive electronics and safety systems expertise from both inside and outside of NHTSA. The team is working to identify any vulnerabilities and possible failure modes in the ETC system that can lead to unintended acceleration and that involve conditions that can realistically be expected to occur in consumers’ use of these vehicles. However, as is typical in any review of the design and operation of very complex systems, we and our partners on this project are finding the search for possible flaws quite time consuming. We are hoping to complete this review of the ETC system by the end of August, but that will depend on just how quickly the necessary analysis and testing can be done. If we do find such possible failure modes that might explain any of the unintended acceleration events reported to NHTSA, we will open a defect investigation.

The second review will be conducted by an independent panel of experts chosen by the National Academy of Sciences. This group will study the broad subject of unintended acceleration and electronic control systems across the automotive industry. They will look at subjects such as electronic vehicle control systems’ design and reliability (including hardware and software issues), electromagnetic compatibility and electromagnetic interference, existing relevant design and testing standards, human factors and the possibility of human error, and mechanical failure. The panel will make recommendations to NHTSA on research, rulemaking, and enforcement activities and the personnel, infrastructure, and financial resources required for NHTSA to help ensure the future safety of ETC systems and other electronic vehicle control functions. NAS has begun the process of identifying panel members, and we have been informed that the panel will be established by July and will complete its work within 15 months. We think this group’s work comes at a very opportune moment, not only to provide advice to the agency on the unintended acceleration issue, but also to provide such advice on the range of electronics issues that might affect motor vehicle safety as new electronic crash avoidance and other technologies rapidly proliferate in the vehicle fleet.

The major recalls that Toyota has initiated concerning unintended acceleration involved two distinct issues, pedal entrapment by floor mats and “sticky” pedals resulting from a particular defective pedal. Some consumers who have had their vehicles repaired under these recalls have complained to NHTSA about incidents of unintended acceleration occurring after the repairs. NHTSA has spoken to nearly a hundred vehicle owners and inspected a number of vehicles involved in these incidents. We have found just a few instances where a dealer apparently performed a recall remedy incorrectly and have worked with Toyota to ensure corrections were made. We have not found evidence that properly performed recall repairs did not address the problem they were intended to address. That is, we have not seen pedal entrapment in a vehicle that has had the correct pedal entrapment repair or a sticky pedal in a vehicle that has had the correct repair. Nor have we yet found evidence from these recent vehicle inspections that gives us the basis for opening a new defect investigation of unintended acceleration in these vehicles. We will continue to look for such evidence through field inspections, review of incoming complaints and early warning data and, of course, the comprehensive review of Toyota’s ETC system discussed above.

Pressure applied by NHTSA has been instrumental in bringing about all of the recalls Toyota has undertaken thus far to address unintended acceleration. We will go wherever the evidence leads us to address the root causes of this phenomenon, including additional investigations and recalls if necessary. Toyota’s recently revamped approach to its recall responsibilities will hopefully result in the company’s being very proactive in addressing the unintended acceleration issue wherever it sees opportunities for improvement.

Of course, we are working with this committee and the Senate Commerce Committee on legislative proposals that would address the unintended acceleration issue across the industry through various requirements for new standards. The legislation would also give NHTSA enhanced authority to address situations where manufacturers are reluctant to perform necessary safety recalls or not completely truthful in submitting information to the agency.

Thank you and I look forward to answering your questions.

Statement of

The Honorable David Strickland
Administrator,
National Highway Traffic Safety Administration

Committee on Commerce, Science, and Transportation
Subcommittee on Consumer Protection, Product Safety, and Insurance
United States Senate

September 28, 2010

 Mr. Chairman, members of the Committee, it is a great pleasure to be back in familiar surroundings to talk with you today about SAFETEA-LU.  Just as previous authorizations have structured NHTSA’s safety programs in the past – by establishing grant programs, funding research areas, and highlighting key issues -  the next authorization will shape Federal and States safety programs for years to come.  Therefore, I am very pleased to be invited to share my thoughts on SAFETEA-LU and its results. 

Secretary LaHood recently released data showing that in 2009, the Nation continued to make dramatic progress in motor vehicle safety.  Fatalities fell almost 10 percent between 2008 and 2009, and injuries declined by more than 5 percent.  Fatalities fell in 41 States, the District of Columbia, and Puerto Rico.  Many factors help account for this broad-based, nationwide improvement.  Secretary LaHood has been focused on safety since his first day in office, and his example and persistence have inspired me and all of NHTSA to redouble our efforts to fight unsafe driving behaviors.  Our State and local partners, who are in the field every day, enforcing traffic laws, training new drivers, developing local outreach campaigns, and otherwise promoting safety, are obviously crucial in the progress we have seen.  But part of the progress is attributable to Congress, for I believe that the grants, research, and other programs authorized by SAFETEA-LU played an important role in the significant reduction in highway fatalities.

As the chart (behind me? See last page) shows, almost all the safety indicators we monitor indicate that safety has improved since the passage of SAFETEA-LU.   Overall, both the number and the rate of traffic fatalities have fallen by about 21 percent between 2004 and 2009.  Some of the other rows in the chart suggest why the number may be falling: seat belt use is up by 5 percent, and child passenger restraint use among occupants 8 years old or younger is up by 6 percent. 

However, you will notice that there is one indicator that is moving in the wrong direction, motorcycle fatalities.  Between 2004 and 2009, the number of motorcycle riders killed increased from just over 4,200 to almost 4,462, an 11 percent increase.  The number of motorcycle fatalities did fall between 2008 and 2009, the first time we have seen a decrease in more than a decade.  We need to work to build on last year’s progress.  The most important step we could take would be to assure that all riders wear a DOT-compliant helmet, which are 37 percent effective in reducing fatalities.  We estimate that helmets prevented over 1,800 fatalities in 2008, and that more than 800 additional fatalities could have been avoided if all riders wore helmets.  NHTSA will actively work with Congress to promote helmet use. 

This chart demonstrates that overall, the programs Congress created in SAFETEA-LU, and the tools that were provided to NHTSA, had the intended effect.  The Nation has enjoyed sixteen (16) consecutive quarters of reduction in highway crash fatalities, an unprecedented occurrence. Aside from the admittedly important exception of motorcyclists, the data are moving in the correct direction: belt use is up, alcohol impaired fatalities are down, and overall fatalities and injuries are falling. 

It is important to acknowledge that this progress may be partly attributable to the economic downturn the country continues to suffer through.  While overall traffic has increased, we believe discretionary travel may have fallen.  Data suggests these trips are higher risk than daily commuting trips.  So as the economy improves, crashes may increase somewhat.  That makes it all the more important that we continue to promote programs that work, and continue to modify and revise our approach to further enhance safety.  Therefore, I would like to spend a minute discussing why that is, what we think worked in SAFETEA-LU. 

First, SAFETEA-LU established the Section 406 Safety Belt Incentive program.  This program provided a sizeable incentive for States to adopt primary belt laws, and fourteen (14) States have either adopted new primary belt laws (PBLs), or upgraded existing laws because of this incentive.  Another seven (7) States qualified for Section 406 grants by achieving two consecutive years of eighty-five percent (85%) observed safety belt usage. Enactment of a primary safety belt use law   is one of the most important safety countermeasures available.   States enacting primary belt laws typically see about a 10 percent increase in belt use, and belts have been shown to be about 50 percent effective in reducing fatalities, still the single most important piece of safety equipment in a vehicle.   The Section 406 incentive program clearly had a positive effect in increasing safety belt usage across the Nation and contributing to the reduction in highway fatalities through the authorization period.

In addition, 18 States enacted new booster seat laws, up from the 5 States and DC that had such laws in 2006.  These laws are crucial in protecting our youngest and most vulnerable citizens. 

The Section 410 Impaired Driving Countermeasure Program made approximately $650 million in grants available to the States from 2006-2010.  During the same period, alcohol-related fatalities on the Nation’s highways declined by seventeen percent (17%) from 13,099 to 10,839.   This reduction reflects the hard work of the agency, States and communities, law enforcement agencies across the nation, and the non-governmental organizations that work so hard to prevent impaired driving crashes.

Congress also provided in SAFETEA-LU, $29 million each year to fund high visibility enforcement campaigns to support law enforcement efforts on-the-ground to reduce impaired driving and increase safety belt use.  These funds are used to place paid advertising to educate the public about the “Over the Limit.  Under Arrest., impaired driving national crackdown, and the Click It or Ticket, national safety belt usage mobilization.   High visibility enforcement is a very successful model for achieving highway safety behavior modification and our national enforcement campaigns, particularly Click It or Ticket, have become a part of the national lexicon.  We are piloting this approach for dealing with distracted driving in Hartford and Syracuse, and the early results look very promising.

SAFETEA-LU also had some special emphasis areas including annual funding for older driver safety and for law enforcement training on police pursuits.  The older driver program has resulted in the creation of a variety of programs aimed at older drivers, particularly related to improving the scientific basis of driver licensing decisions through the development and promotion of driver fitness medical guidelines. During the authorization period, fatalities involving drivers age 65 and older dropped by 16% even while the population of older drivers continued to increase.  While older individuals exhibit safer behavior – in fatal crashes, they are less likely to be alcohol impaired and more likely to be buckled – too many older citizens continue to die in fatal crashes.  NHTSA has also worked with law enforcement organizations to develop vehicular pursuit training, which helps promote the safety of public, the violator, and the officer.  NHTSA and the International Association of Directors of Law Enforcement Standards and Training (IADLEST) have partnered to develop and provide a comprehensive pursuit policy program.   Over 400 instructors have been trained, and workshops are in progress which, among other components, encourage law enforcement agencies to analyze current pursuit policies and training requirements.

Apart from safety countermeasure programs, SAFETEA-LU continued a grant program structure with multiple grant programs addressing individual countermeasures such as impaired driving, occupant protection, motorcycle safety, child and booster seats, data improvement, and the highway safety formula grant program.  These multiple grants often come with different application deadlines, different State matching requirements, and different types of eligibility requirements.  While providing maximum flexibility to States to qualify for grant funding during a fiscal year, and ably advancing programmatic objectives in each area, these multiple application and matching requirements create resource administration problems for the States, as well as the Department of Transportation. In SAFETEA-LU, Congress directed the DOT to consolidate grant applications, by establishing a process whereby States could apply for all grants with a single application.  Unfortunately, the Department was unable to meet this mandate, due to the large number of grant programs and the wide variation in grant criteria.  In particular, some grants depend on States passing a certain law to be eligible for a grant that year.   The potential to qualify for different grants at different points of the fiscal year makes establishing a consolidated grant application impossible.

We look forward to a fruitful dialogue with the Committee and our State and non-governmental partners on potential methods for dealing with the administrative as well as programmatic requirements of our national highway safety program.  NHTSA has worked with, and will continue to work with, other US DOT agencies that have a role in improving highway safety within the Department.  That includes RITA regarding the ITS Program; FMCSA regarding commercial vehicle safety; and FHWA regarding the roadway infrastructure design and operations, as well as for the Strategic Highway Research Program (SHRP2).

SAFETEA-LU has been a very successful piece of legislation.  The Committee, the Congress, the multiple constituencies with an interest in the transportation program and we at the Department can look back on SAFETEA-LU and know that it helped our Nation make significant strides in improving highway safety.

We can be proud of what has been accomplished but also recognize that so much more needs to be done.  Clearly, even with the lowest absolute fatality number since 1950 and the lowest fatality rate number in our Nation’s history, more than 33,000 fatalities a year on our highways is not a number that we can accept.  We need to renew our commitment to finding new and better ways to reach those difficult to reach populations to change their behavior, to make vehicles safer, to develop new technologies to improve our safety margin, so that we can continue to make steady progress in reducing this preventable epidemic of roadway crashes.

We must also anticipate new areas for fruitful effort, such as initiatives to address driver distraction, to address issues before they become serious, national problems. 

Under the leadership of Secretary LaHood, the Department looks forward to working with this Committee to address the highway safety challenges of today and into the future.  I appreciate the opportunity to be with you today and will be happy to try to answer any questions you may have.

SAFETEA-LU Safety Performance Indicators

Testimony of

Joseph C. Szabo
FRA Administrator

before

House Committee on Transportation and Infrastructure
Subcommittee on Railroads, Pipelines, and Hazardous Materials

Chicago, IL

April 20, 2010
9:30 AM

Thank you Chairwoman Brown, Chairman Oberstar and Ranking Member Mica for inviting me to update your committee on the President’s program of investments in high-speed and intercity passenger rail service.

The last year has seen a dramatic change in our nation’s view on transportation and specifically the growth and development of passenger rail systems throughout this country.

Less than two years ago, a Federal partner for the states to develop high-speed rail did not exist. Congress began to focus on the development of high-speed rail corridors with the passage of the Passenger Rail Investment and Improvement Act of 2008 (PRIIA). President Obama advocated for the $8 billion provided in the American Recovery and Reinvestment Act of 2009 (Recovery Act) for the largest single national investment ever in passenger rail.

There are some that believe that only investments yielding 200 mph service will yield benefits. The facts show otherwise. The Federal Railroad Administration (FRA) views high-speed and intercity passenger rail service in the context of the transportation markets served and the needs of the passengers rather than as a race to see how fast a piece of equipment can move. FRA also believes that trip times between stops, rather than speed, is a critical factor in developing viable high speed rail corridors.

I visited Maine just a few weeks ago where the successful service from Boston to Portland operates at a maximum speed of 79 mph and where we have allocated High Speed Intercity Passenger Rail Program (HSIPR) funding to extend this service further to Brunswick, a coastal community adjusting to the loss of a major military facility.

The existing service has already demonstrated that reliable, on time service not only attracts passengers, it attracts commercial development in and around the stations. In Portland, Durham, New Hampshire and other stations along the line you can see the power of transit oriented development, in growth of business – and jobs – around the stations. The attraction of the expanded service we will fund can already be seen on the ground in Freeport and Brunswick – the two stops that will be part of the extended service. One station has been built and the other is in final design. These stations will link up to proposed new bus service and connect towns in the region, furthering the President’s livable communities initiative. Since our announcement, vacant buildings have been bought and being renovated for new uses and other investments in commercial development in the vicinity of the stations is underway.

Just as important, this project will ultimately link northern New England to Boston and the rest of the Northeast Corridor. This is the kind of enthusiasm and smart planning that we see across the country.

We anticipated this type of reaction. It is for that reason that our Vision for High-Speed Rail in America published just over a year ago had a comprehensive vision for passenger rail ranging from stand alone tracks with trains running a speeds of 150 to 200 mph (Express High-Speed Rail); speeds in the 125-150 mph range (Regional High-Speed Rail); upgrades to existing railroads with speeds of 110 to 125 mph (Emerging High-Speed Rail); to significant improvements to traditional 79 mph service (Improved Intercity Passenger Rail). This means that there are opportunities to fund customized rail systems that work for different markets and regions. Regions will have the opportunity to seek funding for projects that meets their specific transportation needs. This is certainly not a one-size-fits-all endeavor. Those that have taken the time to experience rail service in Europe and Japan will recognize this in the successful passenger rail systems overseas that have also taken a similar comprehensive approach. This approach needs to include rigorous planning to ensure funds are focused on projects that maximize benefits to transportation networks and overall economic performance.

Support for this program was evident in the numerous applications received by the Department of Transportation (USDOT) following the President’s announcement. 259 applications worth $57 billion came in for the $8 billion made available in the Recovery Act.

We received a variety of applications, varying tremendously in size and scope. We worked hard to quickly review these proposals, while ensuring that we allocated the Recovery Act funding to the projects posed to deliver the most benefits relative to their investment costs. Less than a year later the President announced that 31 states plus the District of Columbia will receive grants. This includes major investments in California and Florida, the only two states to apply for help standing up brand new Express High-Speed Rail systems. In rough terms approximately 45 percent of the funds will go for Express High-Speed Rail, 40 percent for Regional or Emerging High-Speed Rail and 15 percent for projects to benefit intercity passenger rail that can be under construction quickly.

Over time, our goal is for a number of regional routes to link cities and regions together, creating a seamless network that offers Americans a real transportation alternative. This will reduce congestion that everyone expects will grow worse in the coming decades.

For example, here in the Midwest, $1.1 billion will go toward improvements on the corridor between Chicago and St. Louis, which will allow passenger rail service to operate at speeds of up to 110 mph. These higher speeds, coupled with improvements resulting in increased on-time performance, will decrease travel time from Chicago to St. Louis to 4 hours -- 30 percent faster than current rail service, and 10 percent faster than driving between the two cities. Other enhancements to track and infrastructure will undoubtedly help Chicago’s freight rail system as well.

We are also excited about the job creation prospects of our program. Buy America is about more than US assembly of foreign components – it is about developing the entire supply chain so it can be built in the USA. We know that American workers have the capacity to manufacture – not just assemble – materials, components and finished products that will be necessary to build the infrastructure and new rail cars that will be needed to run on these lines. Many companies headquartered in the U.S. and companies with headquarters elsewhere have expressed their interest in participating in this new program.

To sustain the momentum and ensure that jobs can be created in the near term, we have also implemented a “Fast Track” program. We are already coordinating with states on those projects that are ready-to-go, and move them out quickly so construction can start this year. We hope to be announcing final grant agreements through this program in the coming weeks. By comparison, it took the Federal government three years to get the first dollar out the door when the national highway system was being developed.

We have seen real progress both in the states and among the transportation community in terms of getting this initiative off the ground. President Obama is committed to transparency. Long-serving USDOT staff say the HSIPR program is one of the most transparent in the Department’s history.

We have worked hard to maintain strong relationships with states and stakeholders. Since the beginning of the application process we have held biweekly conference calls with state DOT CEOs, with dozens of participants on each call. We also organized eight regional meetings with state DOTs and other stakeholders. We held individual, in-person meetings with Governors and legislators from across the country. This unprecedented back and forth between states was tremendously helpful as we thought about how to make this program a success.

We have also forged strong partnerships with rail and transportation associations and stakeholder groups. In fact, the American Association of State Highway and Transportation Officials recently commended FRA’s outreach efforts as well as our dedication to implement the Administration’s ambitious agenda.

In short, we are upbeat and confident that this program will make important contributions to America’s transportation landscape. We look forward to working with Congress to help make America’s passenger rail system the best in world.

Thank you.

WRITTEN STATEMENT OF

THE HONORABLE JOSEPH C. SZABO,
ADMINISTRATOR, FEDERAL RAILROAD ADMINISTRATION,
U.S. DEPARTMENT OF TRANSPORTATION

BEFORE THE

Subcommittee on Surface Transportation and
Merchant Marine Infrastructure, Safety, and Security
COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION,
U.S. SENATE

“Enhancing Our Rail Safety:  Current Challenges for Passenger and Freight Rail”

March 6, 2014

Mr. Chairman, Ranking Member, and Members of the Subcommittee, thank you for the opportunity to appear before you today, on behalf of Secretary Foxx, to discuss the safety of our Nation’s railroads.  Rail is a particularly safe mode of transportation, and one that American passengers and shippers are choosing more than ever before.  Today, I will first give an overview of the railroad industry’s safety record and the Federal Railroad Administration’s (FRA) safety program, including our implementation of the Rail Safety Improvement Act of 2008.  Then, I will discuss the U.S. Department of Transportation’s (DOT) actions in response to recent accidents and present FRA’s vision to drive the next generation of rail safety. 

FRA’s mission is to enable the safe, reliable, and efficient movement of people and goods for a strong America, now and in the future.  We are a data-driven agency.  Every regulation, safety advisory and emergency order we issue is based on facts and sound research using advanced statistical methods and modeling.  We closely monitor data and trends to identify, reduce, and eliminate risks.

Two straight years of record-breaking safety performance, along with significant reductions in all types of accidents since 2008, are strong evidence that FRA’s approach to oversight and enforcement is effective.   

The Railroad Industry’s Safety Record and FRA’s Safety Program

FRA’s top priority is safety, and fiscal year (FY) 2012 was the safest year on record, with preliminary data from FY 2013 indicating it will be even better than FY 2012’s record.

Since FY 2004:

• Total train accidents have declined by 47 percent.
• Total derailments have declined by 47 percent.
• Total highway-rail grade crossing accidents have declined by 35 percent.

These safety improvements resulted in 13-percent fewer fatalities overall (895 fatalities to 779 fatalities – 95 percent of which are trespassing or grade crossing related), 59-percent fewer employee fatalities, and 9-percent fewer injuries (9,367 injuries to 8,534 injuries) over 10 years.  These improvements are impressive in their own right, but especially if you consider the regulatory workload that FRA received from the Rail Safety Improvement Act of 2008 (RSIA) and passenger and freight rail’s growth during this same time.

• Amtrak set new ridership records in 10 of the last 11 years,
• Rail was the fastest-growing mode of public transportation, and
• Intermodal freight traffic surged toward a new record.

RSIA mandated that FRA, as the Secretary’s designee, complete an unprecedented 42 tasks, including final rules, guidance documents, model State laws, studies, and reports as well three types of annual reports and hundreds of periodic accident reporting audits. 

Thirty of the 42 tasks are complete, and the rest are in the pipeline progressing towards completion.  Appendix 1 lists the rulemakings, non-periodic reports and studies, guidance, and model State laws that FRA has completed as of February 26, 2014.

The chart and table below illustrate a decade of safety improvement.

Ten-year Downward Trend for Train Accident Reductions (FY04-FY13) 

*Fiscal Year Representing Absolute Numbers

Ten-year Railroad Safety Trends by Accident/Incident Cause
*Accident/Incident, Train Accident, and Highway-Rail Incident Numbers Normalized by Million Train-Miles for Fiscal Year, Non-Accident Hazmat Releases Normalized by 200 Million Hazmat Ton-Miles for Fiscal Year
 

Response to Accidents

As we use data and research to drive continuous safety improvement, we learn from every accident.  FRA investigators focus on identifying an accident’s root causes so we can further eliminate risk and take appropriate enforcement action. This is one more facet of our comprehensive approach to rail safety.

The Department, including FRA, has responded aggressively to recent accidents that have received widespread attention.

Metro-North Commuter Railroad Company[1]

As a result of several accidents on Metro-North Commuter Railroad Company (Metro-North), FRA issued Emergency Order 29 and Safety Advisory 2013-08 on December 11, 2013.

• Emergency Order 29 required Metro-North to take immediate action to prevent excessive train speeds by identifying and prioritizing high-risk areas, modifying its existing signal system to ensure speed limits are obeyed, and ensuring a higher level of engagement and communication among operating crewmembers in higher risk locations.  To date, FRA has not identified any instances of noncompliance with Emergency Order 29.
• Safety Advisory 2013-08 helps ensure that all railroads adhere to Federal regulations regarding maximum authorized train speed limits through training, operational testing, and train crewmember communication. 

On December 16, 15 days after a fatal accident in New York, FRA commenced Operation Deep Dive, a comprehensive, multi-disciplinary safety assessment of Metro-North where technical and human factors experts are reviewing safety-critical procedures and processes, including operations, mechanical and engineering. The Federal Transit Administration is participating with FRA to ensure investments in Metro-North are properly prioritized to improve safety.

The rail safety team is assessing the following:

•Track, signal and rolling stock maintenance, inspection and repair practices;

•Protection for employees working on rail infrastructure, locomotives and rail cars;

•Communication between mechanical and transportation departments at maintenance facilities;

•Operation control center procedures and rail traffic controller training;

•Compliance with Federal hours of service regulations, including fatigue management programs;

•Evaluating results of operational data to measure efficiency of employees’ execution and comprehension of all applicable Federal rail safety regulations;

•Locomotive engineer oversight;

•Engineer and conductor certification; and

•Operating crew medical requirements.

Operation Deep Dive ended February 14, 2014 and FRA will present a report of its findings within 30 days afterwards.  FRA will meet with Metro-North to discuss the findings and appropriate remedial actions. Additionally, FRA will discuss best practices and lessons learned from Operation Deep Dive with other commuter rail chief executive officers (CEOs) through the American Public Transportation Association.

Rail Accidents involving Crude Oil

Crude oil transportation by rail rose quickly because of increasing production in the Bakken region of North Dakota.   FRA is paying close attention to that region, and accident rates in North Dakota have fallen over the past three years, even with increased traffic.

In response to recent train accidents in the United States and Canada involving tank cars carrying crude oil, DOT, including FRA and the Pipeline and Hazardous Materials Safety Administration (PHMSA), has taken action on multiple fronts to mitigate risks and ensure the safe transportation of crude oil, ethanol, and other hazardous materials by rail. FRA and PHMSA have related but distinct responsibilities in managing the risk from the transportation of hazardous materials. PHMSA produces regulations pertaining to the transportation of hazardous materials by rail, which are primarily enforced by FRA’s safety staff, while FRA’s staff also acts to enforce comprehensive safety regulations for rail transportation.

On January 16^th, oil industry representatives and rail industry CEOs met with the Secretary and heads of PHMSA, the Federal Motor Carrier Safety Administration, and FRA in a “Call to Action.” The CEOs were asked to develop specific plans to immediately improve the safety of crude oil shipments, and recommendations on how to improve safety over the long term. After analyzing their plans and suggestions, on February 20, 2014, Secretary Foxx sent a letter to the Association of American Railroads (AAR) with a list of actions to be voluntarily taken immediately by industry to dramatically improve the safety of railroads transporting crude oil and the communities they move through.  AAR President and CEO Edward Hamberger signed the agreement that same day, and individual railroads are signing on subsequently.  The letter from Secretary Foxx listed eight commitments:

1. By July 1, subscribers will apply HAZMAT routing analysis to trains with 20 or more tank cars loaded with petroleum crude oil (Key Crude Oil Trains).  The routing analysis utilizes a computer model to analyze 27 risk factors to determine the safest and most secure route for the product to travel.
2. By July 1, subscribers will adhere to a speed restriction of 50 mph for all Key Crude Oil Trains, and 40mph in high-threat urban areas if they are using a DOT 111 tank car.
3. By April 1, subscribers will equip all Key Crude Oil Trains on main track with distributive power locomotives or an operative two-way telemetry end of train device to achieve benefits in braking speed and substantially reducing the kinetic energy in trains to prevent pile ups.
4. Effective March 25, subscribers will perform at least one internal rail inspection and two track geometry inspections more than is required by current regulations every calendar year on Key Crude Oil Train routes.
5. By July 1, subscribers will begin installing wayside defective bearing detectors every 40 miles on Key Crude Oil Train routes to prevent equipment-caused accidents.
6. Subscribers will develop an inventory of emergency response resources along Key Crude Oil Train routes.  This information will be provided to DOT and emergency responders upon request.
7. Subscribers will provide $5 million to develop and provide training on hazardous material transportation and fund training for emergency responders through the end of 2014.  Comprehensive training will occur at the Transportation Technology Center, Inc. facility in Colorado with a training program fully developed by July 1.
8. Subscribers will continue to work with communities on Key Crude Oil Train routes to address location-specific concerns.

A copy of the full agreement is included with this testimony. This agreement is an important step in improving the safety of crude oil transportation by rail. FRA will continue to use its regulatory authority to address this issue and act accordingly to maintain public safety and confidence.

Here is a summary of other DOT actions in response to accidents involving crude oil and other hazardous materials.

Order and Advisories

FRA issued Emergency Order 28, and both FRA and PHMSA issued safety advisories, held public hearings, and notified shippers and carriers of the critical importance of public safety when transporting hazardous materials.

• FRA’s emergency order addresses unattended trains, train securement, the use of locks, communication between train crews and dispatchers, and daily safety briefings for railroad employees and was published August 7, 2013.
• A joint FRA-PHMSA safety advisory on related issues was also published August 7, 2013.
• A joint FRA-PHMSA follow-up safety advisory was published November 20, 2013.

Rulemakings

In addition to the emergency order and safety advisories, FRA is updating applicable rail safety regulations, and as PHMSA will describe in more detail, FRA is collaborating with PHMSA on a rulemaking that addresses DOT Specification 111 tank cars.  All rulemakings are subject to extensive study and analysis.

But tank cars are only one part of the chain of delivery, and we must identify and evaluate all of the risks associated with bulk movements of hazardous material, such as ethanol and crude oil, and then work to eliminate those risks.

• On August 28, 2013, FRA and PHMSA held a public meeting with industry stakeholders to solicit input for a comprehensive review of the Hazardous Materials Regulations applicable to rail.  PHMSA and FRA are collaborating to address comments received at the public meeting.
• On August 29, 2013, FRA convened an emergency session of the RSAC.  During the emergency RSAC meeting, participants established three collaborative working groups to formulate new rulemaking recommendations regarding (1) transportation of hazardous materials by rail, (2) appropriate train crew sizes, and (3) train securement procedures.  These working groups are meeting on a regular basis and we expect formal recommendations for consideration by April 1, 2014. 

Operation Classification (the “ Blitz”)

In August 2013, PHMSA, supported by FRA, launched Operation Classification, which involves joint activities at all transportation phases to investigate how shippers and carriers are classifying crude oil and what actions they are taking to understand the characteristics of the material.  The operations have primarily targeted shipments from the Bakken region and consisted of unannounced spot inspections, data collection, and sampling as well as verifying compliance with Federal safety regulations.  Operation Classification is nearing completion.

As I have described, rail safety is at an all-time best. Yet, these accidents illustrate why we can never be complacent.

Our Vision for the Next Generation of Rail Safety

Continuous safety improvement requires a comprehensive strategy designed to eliminate risk. Here is FRA’s strategy, founded on three pillars:

1. Continuing a rigorous regulatory and inspection program based on strategic use of data;
2. Advancing proactive approaches for early identification and reduction of risk; and
3. Capital investments, and robust research and development.

Pillar I. Continuing a rigorous regulatory and inspection program

As stated previously, FRA’s approach to rail safety has led to unprecedented safety improvements. We will continue this framework for safety oversight and enforcement and improve it. Data driven analysis will continue to guide workforce planning and inspection activities.

FRA’s regulatory program improves safety by developing rules based on facts, incident and accident causation analysis, comparison of alternative mitigation measures, and cost-beneficial solutions.   FRA rulemaking considers current and future industry capabilities, compliance burden and cost, and other economic and social realities.  Within this context, FRA will continue to attempt to meet statutory milestones with its available resources.

State rail inspectors are a force multiplier for FRA’s compliance and enforcement efforts.  The State Rail Safety Participation Program consists of States employing safety inspectors in the five rail safety inspection disciplines. State programs conduct planned, routine compliance inspections; and may undertake additional investigative and surveillance activities consistent with overall program needs and individual State capabilities. FRA provides on-the-job training to State inspectors. We invite additional state participation in this important program and view it as an opportunity to improve oversight in key states and regions.

Focus Areas

Safety overall has improved; however, accidents related to human error and track defects account for more than two-thirds of all train accidents, and trespassing and highway-rail grade crossing incidents account for approximately 95 percent of all rail-related fatalities. We will allocate resources and work with partners, such as Operation Lifesaver, to make improvements in these challenging areas. The following rulemakings, reports, guidance documents, and other actions are important milestones that will guide our work in these areas:

Human Factors

• Final rule to advance nationwide implementation of positive train control (PTC) systems (which prevent overspeed derailments, train-to-train collisions, and other types of accidents often caused by human error) by defining statutory terms and the essential functionalities of PTC systems.  FRA also issued two other rules designed to reduce some of the costs of PTC implementation,. PTC systems are a technology that promotes safety improvement through the reduction of certain human-factor-related incidents and will complement FRA’s other safety efforts, such as implementation of safety Risk Reduction Programs (RRP) and crash energy management.

• Final rule requiring a railroad to have a formal program for certifying train conductors. This will raise the bar of professionalism and ensure that only those persons who meet minimum Federal safety standards serve as conductors.
• Proposed rule that would enhance safety by mandating that certain railroads (each Class I railroad, intercity passenger railroad, and commuter railroad) have a Critical Incident Stress Plan that may help mitigate the long-term negative effects of critical incidents upon railroad employees and the impact of performing safety-sensitive duties in the days following such incidents when the associated stress may hinder their ability to perform such duties safely.
• Final rule on the hours of service of passenger train employees.  This rule draws on detailed research into the causes of train operator fatigue and analysis of thousands of operator work patterns.  FRA also published in the FederalRegister three lengthy, detailed statements of agency policy and interpretation to clarify the hours of service laws as amended by RSIA.
• An FRA-led industry-wide initiative to combat the dangers of electronic device distraction in the railroad workplace as well as an emergency order and then a final rule prohibiting distracted operation of trains.
• A proposed rule that would establish minimum training standards for each class or craft of safety-related employee and contractor.  The rule would require the qualification and documentation of the proficiency of such employees on their knowledge and ability to comply with Federal railroad safety laws and regulations and the employing railroad company’s rules and procedures implementing those laws and regulations. A final rule on minimum training standards and plans is under development.

Track Safety

• Final rule to Improve Rail Inspections. Requires the use of performance-based rail inspection methods that focus on maintaining low rail failure rates per mile of track and generally results in more frequent testing; provides a four-hour period to verify that certain less serious suspected defects exist in a rail section once track owners learn that the rail contains an indication of those defects; requires that rail inspectors are properly qualified to operate rail flaw detection equipment and interpret test results; and establishes an annual maximum allowable rate of rail defects and rail failures between inspections for each designated inspection segment of track.  These changes are intended to reduce the risk of derailments caused by rail failures by improving the accuracy of rail inspections and shortening the time that latent, undetected rail flaws remain in track.
• Vehicle/Track Interaction Safety Standards.  The final rule was based on research into vehicle/track interaction, and it promotes the safe interaction of rail vehicles with the track over which they operate under a variety of conditions at speeds up to 220 mph.  The rule also adds flexibility for safely permitting high cant deficiency train operations[2] through curves at more conventional speeds so that both freight and passenger trains may better sustain maximum allowable speeds through curved track.
• New Technology to Improve Track Safety.  Through our research and development program we are about to bring to market new technology for avoiding track buckles (sun-kinks).  The device measures the neutral temperature of rail and warns the railroad when track maintenance is required to avoid track buckling.  We are also developing technology to predict rail temperature variations.  This provides railroads information needed to decide the extent and duration of slow orders to reduce safety risk on hot days.

Grade Crossing Safety and Trespass Prevention

• Standards requiring railroads to establish and maintain toll-free “1-800” emergency notification systems by which the public can telephone the proper railroad about a stalled vehicle or other safety problem at a specifically identified grade crossing. 
• Regulations requiring 10 States to issue State-specific action plans to improve safety at highway-rail grade crossings. 
• Model State laws on highway users’ sight distance at passively signed crossings and on highway motorists’ violations of grade crossing warning devices. 
• A proposed rule specifying the types of information that railroads would have to report to the Department’s National Crossing Inventory. 
• A five-year strategy to improve highway-rail grade crossing safety, including an audit every two years of Class I railroads’ highway-rail grade crossing accident reports to ensure that these railroads are accurately reporting these incidents. Resources permitting, FRA will conduct such audits every five years on other railroads. 
• Guidance addressing pedestrian safety at or near passenger rail stations,
• An FRA-released smartphone application with grade crossing information.

Pillar II.       Advancing proactive approaches to reduce risk

Continuous safety improvement requires a multi-faceted approach.  The next level of safety will come from advancing proactive safety-based programs that analyze risks, identify hazards, and put in place customized plans to eliminate those risks. 

• Risk Reduction Programs (RRP) and System Safety Programs (SSP) that help identify accident precursors so that corrective action can be taken in advance.  We will issue a final rule before the end of 2014 to require passenger railroads to develop and implement SSPs.  A notice of proposed rulemaking that would require freight railroads to establish RRPs is currently under development.  Both are designed to require railroads to develop and implement systematic risk-based approaches to ensuring continuous safety improvement.
• Confidential Close Call Reporting System (C³RS), a voluntary and non-punitive program for railroads and their employees to report close calls.  Results from one C³RS pilot site indicate nearly a 70-percent reduction in certain accidents.  C³RS helps develop a positive and proactive safety culture, using detailed data far beyond what is obtained during accident investigations.  The magnitude of the information provided from proactive programs like C³RS in comparison to traditional data from accidents and injuries is illustrated below:

Programs like Confidential Close Calls Reporting allow us to gather data beforean accident occurs and to develop risk mitigation strategies well in advance.

Pillar III. Capital investments, including robust research and development

As you know, portions of two important rail laws expired at the end of FY 2013:  RSIA and the Passenger Rail Investment and Improvement Act of 2008 (PRIIA).  The President’s FY 2014 budget for FRA laid out a comprehensive, multi-year reauthorization blueprint for moving forward.  The fundamental goal of this proposal is to develop a coordinated approach to enhancing the Nation’s rail system–an integrated strategy that addresses safety and passenger and freight service improvements.  This new approach reflects the complex reality of how rail works in the United States–most track is privately-owned and carries a mix of passenger and freight trains.  Safety is improved not just through regulations and inspections but also through capital investments and research and development.

For example, chokepoints often hinder the efficient movement of intercity passenger, commuter, and freight trains, while the elimination of grade crossings with strategic placement of overpasses and underpasses enhances rail, vehicular, and pedestrian safety. 

FRA’s reauthorization proposal’s key priorities include the following:

• Modernizing our rail infrastructure.  Past generations of Americans invested heavily in building the infrastructure we rely on today.  Most segments of the Northeast Corridor were built more than a century ago.  Maintaining and modernizing these assets will lower long-term costs and result in a safer, more efficient and reliable rail system. 
• Meeting the growing market demand. With 100 million more Americans expected by 2050, the national transportation system must be prepared to handle substantial increases in the movement of people and goods.  Given the existing capacity constraints on other modes, rail will play an increasingly vital role in balancing America’s transportation system by accommodating this growth, resulting in public benefits such as reduced reliance on foreign oil, reduced air pollution, increased safety, and more travel options.  The budget incorporates market-based investments in building or improving passenger rail corridors, eliminating rail chokepoints, adding freight capacity, and conducting comprehensive planning.
• Successfully implementing PTC.  The mandated deadline of December 2015 will likely not be reached by many railroads.  Commuter rail operations are cash-strapped and unable to attain certain necessities for implementation, such as communications spectrum.  FRA’s budget proposes grants for those commuter railroads and research and development for new technologies to improve rail safety.  FRA’s August 2012 Report to Congress “Positive Train Control:  Implementation Status, Issues, and Impacts” summarized the major technical and programmatic challenges and obstacles associated with PTC implementation that FRA had identified so far. [3] Subsequent to the report’s submission, a new issue regarding PTC communications towers deployment arose under the jurisdiction of the Federal Communications Commission.
• Promoting innovation.  FRA’s vision is for the domestic rail industry to be again world-leading.  We want U.S. companies to develop patents for state-of-the-art rail technology, to supply rail operators throughout the world, and to employ the best engineers and railway workers.  The United States should be exporting intellectual capital and rail products, not importing them.
• Mitigating rail’s impacts on communities.  Improving quality of life by eliminating grade crossings, sealing corridors, reducing noise impacts, and including safety enhancements that allow for service improvements and economic growth.
• Research and Development.  Implementing new technology will be a key driver for future safety improvement. Here are a few examples of important research:
  • Track inspection technologies that detect defects before they become failures in service.
  • Computer modeling capabilities to improve understanding of vehicle/track interaction, wheel and rail profiles, and contact conditions.
  • Autonomous recording methods to provide more frequent and cost-effective measurements of track condition.
  • Research to develop new methods for monitoring difficult-to-detect safety issues such as longitudinal rail force, ballast lateral restraint, and ballast condition.
  • High-speed rail research and development, which has identified several key risk factors for corridors shared by passenger and freight operations.  Research to understand these risks and mitigate them is ongoing.
  • Research on new technologies for improving grade crossing safety.  One project that has significant potential is implementation of Intelligent Transportation Systems at grade crossings.  FRA is also conducting human-factors research to understand the behavior of highway users when they approach grade crossings.  This research is expected to lead to recommendations for improved signage and warning systems.  FRA will consider the benefits and costs, and feasible alternatives, for any recommendation.
  • A research and development program to achieve reliable, long life from concrete ties.  The program involves freight railroads, Amtrak, manufacturers, and universities.
  • The National Cooperative Rail Research Program, which enhances the development of technical skills for a capable workforce to design and operate the next generation of safe railroads.

The Need for Predictable Funding

An overarching issue that runs across all of these priorities is the need for sustained and predictable Federal funding for rail programs, similar to the treatment of other modes of transportation.  Congress has for decades funded highway infrastructure and safety, transit, and aviation programs through multi-year authorizations that provide guaranteed funding.  This enables States, local governments, and other stakeholders to plan and make large-scale infrastructure investments on a year-to-year basis.  Likewise, internationally, other major rail systems have been planned and developed through a predictable multi-year funding program. 

Conclusion

Thank you for the opportunity to testify and answer your questions today.  Safety is FRA’s number one priority, and we appreciate your attention and focus on such an important issue for the American public.  Our vision for the next generation of rail safety balances a comprehensive and effective regulatory framework with innovative, proactive ideas and capital investment, including critical research and development.  We look forward to working with this Committee to improve our programs and make the American rail network as safe, reliable, and efficient as possible.  I will be happy to respond to your questions.# # #

Appendix 1

FRA Rulemakings Completed as of March 5, 2014, that Were Mandated, Explicitly or Implicitly, by RSIA[4]

1. To specify the essential functionalities of mandated PTC systems, define related statutory terms, and identify additional lines for implementation. (Sec. 104).[5] 
2. To establish substantive hours of service requirements for passenger train employees.  (Sec. 108(d)). 
3. To update existing hours of service recordkeeping regulations.  (Sec.108(f)).
4. To require State-specific action plans from certain States to improve safety at highway-rail grade crossings.  (Sec. 202). 
5. To require toll-free telephone emergency notification numbers for reporting problems at public and private highway-rail grade crossings.  (Sec. 205).   
6. Increase the ordinary maximum and aggravated maximum civil penalties per violation for rail safety violations to $25,000 and $100,000, respectively. (Sec. 302). 
7. On prohibition of individuals from performing safety-sensitive functions in the railroad industry for a violation of hazardous materials transportation law. (Sec. 305).
8.  On procedures for emergency waivers. (Sec. 308). 
9. To require the certification of conductors. (Sec. 402). 
10. On the results of FRA’s study of track inspection intervals and other track issues.  (Sec. 403(c)).
11. On concrete ties. (Sec. 403(d)). 
12. To require owners of railroad bridges to implement programs for inspection, maintenance, and management of those structures. (Sec. 417). 
13. On camp cars used as railroad employee sleeping quarters. (Sec. 420). 
14. Amending regulations of the Office of the Secretary of Transportation to provide that the Secretary delegates to the Administrator of FRA the responsibility to carry out the Secretary’s responsibilities under RSIA. 

Completed RSIA-Mandated Guidance and Model State Laws[6]

1. Guidance on pedestrian safety at or near rail passenger stations.  (Sec. 201). 
2. Guidance for the administration of the authority to buy items of nominal value and distribute them to the public as part of a crossing safety or railroad trespass prevention program.  (Sec. 208(c)). 
3. Model State law on highway users’ sight distances at passively signed highway-rail grade crossings.  (Sec. 203). 
4. Model State law on motorists’ violations of grade crossing warning devices. (Sec. 208). 

Completed RSIA-Mandated Non-periodic Reports or Studies

1. Report to Congress on DOT’s long-term (minimum 5-year) strategy for improving rail safety, including annual plans and schedules for achieving specified statutory goals, to be submitted with the President’s annual budget. (Sec. 102).  
2. Report to Congress on the progress of railroads’ implementation of PTC.  (Sec. 104).  
3. Conduct study to evaluate whether it is in the public interest to withhold from discovery or admission, in certain judicial proceedings for damages, the reports and data compiled to implement, etc., a required risk reduction program.  (Sec. 109). 
4. Evaluate and review current local, State, and Federal laws regarding trespassing on railroad property, vandalism affecting railroad safety, and violations of highway-rail grade crossing warning devices.  (Sec. 208(a)).
5. Report to Congress on the results of DOT research about track inspection intervals, etc. (Sec. 403(a)-(b)).
6. Conduct study of methods to improve or correct passenger station platform gaps (Sec. 404). 
7. Report to Congress detailing the results of DOT research about use of personal electronic devices in the locomotive cab by safety-related railroad employees. (Sec. 405).
8. Report to Congress on DOT research about the effects of repealing a provision exempting Consolidated Rail Corporation, etc., from certain labor-related laws (45 U.S.C. § 797j).  (Sec. 408). 
9. Report to Congress on the results of DOT research about exposure of railroad employees and others to radiation.  (Sec. 411). 
10. Report to Congress on DOT study on the expected safety effects of reducing inspection frequency of diesel-electric locomotives in limited service by railroad museums.  (Sec. 415). 
11. Report to Congress on model plans and recommendations, to be developed through a task force to be established by DOT, to help railroads respond to passenger rail accidents. (Sec. 503).                                                                                                                         

Appendix 2

Metro-North Commuter Railroad Company (Metro-North) is the second largest commuter railroad in the nation, with an annual ridership of 82,953,628.[7] It is a subsidiary agency of the Metropolitan Transportation Authority, a New York State Authority.

• Three main lines, the Hudson, Harlem, and New Haven Lines, branch northward out of Grand Central Terminal, located in mid-town Manhattan, into suburban New York and Connecticut.   Metro-North maintains the equipment and infrastructure and operates and controls the trains on these lines.
• Amtrak operates on the Hudson Line, between Spuyten Duyvil and Poughkeepsie, and on the New Haven Line, between New Rochelle and New Haven.
• The West of Hudson Service, the Port Jervis and the Pascack Valley Lines, operates from New Jersey Transit Rail Operations' (NJ Transit) Hoboken terminal, providing service to Rockland and Orange counties.  NJ Transit maintains the equipment and operates and controls the trains.  Metro-North maintains the infrastructure.

Map of the Metro-North System

WRITTEN STATEMENT OF

THE HONORABLE JOSEPH C. SZABO,
ADMINISTRATOR,
FEDERAL RAILROAD ADMINISTRATION,
U.S. DEPARTMENT OF TRANSPORTATION

BEFORE THE

Subcommittee on Surface Transportation and
Merchant Marine Infrastructure, Safety, and Security
COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION,
U.S. SENATE

June 3, 2014

Mr. Chairman, Ranking Member, and Members of the Subcommittee, thank you for the opportunity to appear before you today to discuss the Administration’s ideas for the next phase of rail policy and investment programs. 

The Federal Railroad Administration’s (FRA) mission is to enable the safe, reliable, and efficient movement of people and goods for a strong America, now and in the future. The Administration’s groundbreaking legislative proposal, the GROW AMERICA Act, sets policies in place that will enhance safety, maintain current rail services and infrastructure, and expand and improve the rail network to accommodate growing passenger and freight demand  -- all while providing new national and regional system planning and development.  

The GROW AMERICA Act creates a new rail account within the transportation trust fund to provide predictable, dedicated funding for rail and forges new partnerships and better planning through Regional Rail Development Authorities.   This critical shift will give States and localities the certainty they have long required to effectively plan and execute projects that will improve transportation infrastructure, allow regions and States to achieve their long-term visions for rail transportation, and to support economic growth.  GROW AMERICA authorizes $19 billion over four years to improve rail safety and invest in a National High-Performance Rail System.  This funding is allocated to two new programs aimed at promoting market-based investments to enhance and grow rail:

• Current Passenger Rail Service Program—Over four years, the Act will provide $9.5 billion to meet current passenger rail service needs, which includes:
  • $2.6 billion to bring Northeast Corridor infrastructure and equipment into a state of good repair, thus enabling future growth and service improvements;
  • $600 million to replace obsolete equipment on State-supported corridors and to facilitate efficient transition to financial control for these corridors to States;
  • $3.1 billion to continue operations of the Nation’s important long-distance routes, which provide a vital transportation alternative to both urban and rural communities;
  • $1.8 billion improve efficiency of the Nation’s “backbone” rail facilities, make payments on Amtrak’s legacy debt, and implement Positive Train Control (PTC) on Amtrak routes; and
  • $1.4 billion to bring stations into compliance with the Americans with Disabilities Act (ADA).

• Rail Service Improvement Program—The Act provides an additional $9.5 billion to address future rail service improvements, which includes:
  • $6.4 billion to develop high-performance passenger rail networks through construction of new corridors, substantial improvements to existing corridors, and mitigation of passenger train congestion at critical chokepoints;
  • $2.4 billion to assist commuter rail lines in implementing PTC systems;
  • $500 million to help mitigate the negative impacts of rail in local communities through rail line relocation, grade crossing enhancements, and investments in short line railroad infrastructure; and
  • $300 million to develop comprehensive plans that will guide future investments in the Nation’s rail system and to develop the workforce and technology necessary for advancing America’s rail industry.  

Before I dive into the details of the GROW AMERICA Act, it is important to quickly look back on the building blocks of the Rail Title for this legislative proposal – the Passenger Rail Investment and Improvement Act of 2008 (PRIIA) and the Rail Safety Improvement Act of 2008 (RSIA) – and the reasons why it is critical we continue to invest in rail and develop policies to improve rail safety, efficiency, and reliability.

Building on PRIIA and RSIA

PRIIA and RSIA were bipartisan, seminal pieces of legislation that broke new ground on rail safety.  This Committee did important work in a collaborative and forward-thinking way that has had far-reaching effects in the rail industry.  The rail industry has changed dramatically since these two landmark acts were passed in 2008.  Preliminary data indicates that fiscal year 2013 was the safest for the rail industry on record.  It also saw record ridership, reliability, and financial performance for Amtrak across its network.  The freight rail industry has never been stronger.  Historic levels of public and private investment have been made in passenger rail equipment, corridor upgrades, freight capacity, and safety improvements.  Dozens of planning studies, environmental reviews, and engineering analyses are underway, creating a strong pipeline for future projects. 

FRA is proud of its accomplishments in implementing RSIA and PRIIA, particularly in light of the  laws’ sweeping provisions and FRA’s simultaneous need to implement the American Recovery and Reinvestment Act of 2009 (Recovery Act).  The $10 billion provided under the Recovery Act and subsequent fiscal year (FY) 2010 appropriation far exceeded the $3.4 billion authorization envisioned under PRIIA.  In addition to this funding authorization, PRIIA served as the impetus for several other key passenger rail initiatives underway, including improving stakeholder collaboration and the methods for appropriately allocating costs on the Northeast Corridor and State-supported routes, developing standards for the next-generation of passenger locomotives and rail cars, furthering cooperative research programs for passenger and freight rail, and providing States with consistent guidance for planning their future passenger and freight rail services.  

Today, FRA is a very different agency than when PRIIA was passed, managing an approximately $20 billion investment portfolio of grants and loans.  These investments make up more than 200 active projects improving the rail network across the country:

• California – Over $3.8 billion to construct the first segment of the California high-speed rail network.
• Illinois – Over $1.3 billion in improvements to track, signal systems, stations, and rolling stock to reduce trip times and increase performance, passenger comfort, and safety on the Chicago to St. Louis service.
• New Jersey/New York – Over $775 million in improvements to the Northeast Corridor in New Jersey and New York, including:  upgrades or replacement of catenary, power, track, and signal systems between Trenton and New York; construction of a conflict-free, grade-separated route through the heavily-congested Harold Interlocking railroad junction in Queens, New York; and developing the new Moynihan Station transportation facility to increase capacity and relieve congestion at Penn Station.
• Washington – Over $750 million to increase frequencies, reduce travel time, and improve performance on the Pacific Northwest Rail Corridor.
• Connecticut – Over $190 million to increase capacity and improve performance on the New Haven – Hartford – Springfield line.
• Missouri – Over $22 million to construct a second railroad bridge over the Osage River (the existing bridge is single tracked), which will eliminate a significant passenger and freight bottleneck on the route between St. Louis and Jefferson City.

This portfolio of investments is having a substantial impact on the Nation’s rail system:  6,000 corridor miles are being improved, 30 stations are being upgraded, and hundreds of new passenger cars and locomotives are being procured.  These projects will improve the customer experience by reducing trip times, improving reliability, adding additional frequencies, and making stations and equipment more comfortable and accessible. Collectively, these projects represent the foundational elements to fulfill the long-term vision for sustainable rail improvements envisioned by the States and Amtrak.  Yet these projects only represent a small portion of the investments needed for a 21^st century passenger and freight rail network that will meet growing market demand. 

Good Federal policymaking contributed greatly to these recent accomplishments, and FRA is proud of the job we have done implementing the policies laid out by Congress.  However, these achievements do not mean we can declare victory–much more needs to be done if we are to meet the transportation challenges facing our country in the 21^st century, which include:

• Population growth—By 2050, the U.S. Census Bureau projects that an additional 100 million people will reside in the United States.  The vast majority of this growth will be concentrated in a small number of “megaregions.”  The U.S. DOT and Department of Commerce have found that 40 tons of freight is moved through the U.S. for each resident. Thus, this population increase will mean an extra 4 billion tons of freight moved each year, an increase of 35 percent over 2010 levels.[1]

• Congestion and Mobility—Highway and aviation congestion continues to rise, with an estimated economic impact growing from $24 billion in 1982 to $121 billion in 2011 in lost time, productivity, and fuel.[2]  In many places with the worst congestion, expanding airports and highways is difficult, as land is limited and environmental/community impacts are significant.

• Energy consumption—In 2010, the United States used more than 13 million barrels of oil every day for transportation.  U.S. citizens consume nearly twice the oil per capita as citizens of Organization for Economic Cooperation and Development (OECD) member nations, and approximately 55 percent of this oil is imported.[3] 

• Energy costs—The inflation-adjusted cost of oil increased 129 percent from 1990 to 2010.  As a result, Americans spent $630 million more per day on oil for transportation than they did 20 years earlier—an average annual increase of nearly $750 for every American.  The Energy Information Administration expects crude oil prices to rise an additional 50 percent between 2011 and 2035.[4]

• Environmental protection—The 2012 Inventory of U.S. Greenhouse Gas Emissions and Sinks found that the U.S. emitted 10.5 percent more greenhouse gases in 2010 than it did in 1990.[5] Thirty-two percent of all greenhouse gas emissions are now from the transportation sector.

In addition to helping address these transportation challenges, it is clear that the American people want rail as a viable transportation choice:

• Ridership—Demand for passenger rail is surging across the United States.  Ridership levels have set new records in ten of the past eleven years.  In FY 2013, Amtrak carried a record 31.6 million passengers, including 15.4 million passengers on its State-supported routes (another record).  These ridership levels are being achieved even before the substantial service improvements funded in recent years begin to come online.  Once new trains are added and trip times and delays are reduced, the system will attract even higher levels of ridership.

• Changing Travel Habits—Reports show that since 2005, Americans have been driving fewer miles each year.  In 2011, the average American drove six percent fewer miles than they did in 2004.  What’s even more significant is that studies show the trend away from driving is being led by youth.  Between 2001 and 2009, Americans ages 16 to 34 decreased their average number of vehicle-miles traveled by 23 percent and increased their passenger miles traveled on trains and buses by 40 percent.  Factors causing these changes may include new communication technology, shifts in driving laws, and higher fuel prices. And while the Great Recession had some role in influencing habits, research indicates that travelers will continue to look for transportation alternatives even as the economy recovers.[6] 

• Funding Demand—Nearly every region in the U.S. has demonstrated demand for investments in passenger rail services. Between August 2009 and April 2011, FRA evaluated nearly 500 High-Speed Intercity Passenger Rail Program applications submitted by 39 States, the District of Columbia, and Amtrak, requesting more than $75 billion for rail projects. In the absence of recent HSIPR appropriations, prospective applicants have also turned to the Transportation Investment Generating Economic Recovery (TIGER) program, which has awarded more than $800 million for rail projects through the first five rounds of funding.

• Proven Public Benefits—Strengthening passenger rail services can help balance the Nation’s transportation network, as demonstrated on the Northeast Corridor (NEC).  Since the introduction of the Acela service 10 years ago, Amtrak has almost tripled its air/rail market share on the NEC, carrying 75 percent of travelers between New York and Washington.[7]  These changing travel patterns can free airport capacity for more cost-efficient long-distance flights. 

The rail industry is growing and safety is improving.  The GROW AMERICA Act includes policies and predictable, dedicated funding that will encourage economic growth, improve safety, mitigate negative impacts on communities, and build the rail network America deserves.  The GROW AMERICA Act sets five key priorities for rail, which I will discuss in detail:

1. Enhancing America’s world-class rail safety. 
2. Modernizing our rail infrastructure. 
3. Meeting the growing market demand.
4. Promoting innovation.
5. Ensuring transparency and accountability.

Priority 1:  Enhancing World Class Safety
 

FRA’s top priority is safety, and FY 2012 was the safest year on record, with preliminary data from FY 2013 indicating it will be even better than FY 2012’s record.

Since FY 2004:

• Total train accidents have declined by nearly 47 percent.
• Total derailments have declined by 46 percent.
• Total highway-rail grade crossing accidents have declined by 35 percent.

These safety improvements resulted in 15-percent fewer fatalities overall (895 fatalities to 759 fatalities – 96 percent of which are trespassing or grade crossing related), 59-percent fewer employee fatalities (22 fatalities to 9 fatalities), and 7-percent fewer total injuries (9,367 injuries to 8,675 injuries) over 10 years. 

The table below also illustrates a decade of safety improvement.

*Accident/Incident, Train Accident, and Highway-Rail Incident Numbers Normalized by Million Train-Miles for Fiscal Year, Non-Accident Hazmat Releases Normalized by 200 Million Hazmat Ton-Miles for Fiscal Year

These improvements are impressive in their own right, but especially if you consider the regulatory workload that FRA received from RSIA and passenger and freight rail’s growth during this same time.

RSIA mandated that FRA, as the Secretary’s designee, complete an unprecedented 42 tasks, including final rules, guidance documents, model State laws, studies, and reports as well three types of annual reports and hundreds of periodic accident reporting audits. 

Thirty-one of the 42 tasks are complete, and the rest are in the pipeline progressing towards completion.  Appendix 1 lists the rulemakings, non-periodic reports and studies, guidance, and model State laws that FRA has completed as of the time of this writing. FRA’s regulatory program improves safety by developing rules based on facts, incident and accident causation analysis, comparison of alternative mitigation measures, and cost-beneficial solutions.  FRA rulemaking considers current and future industry capabilities, compliance burden and cost, and other economic and social realities.  Within this context, FRA will continue to attempt to meet statutory milestones with its available resources.

The GROW AMERICA Act charts the course for continuous safety improvement throughout the industry.  The proposal contains $2.3 billion over four years to help commuter rail lines deploy and implement RSIA-mandated PTC systems, a type of technology designed to prevent (1) over-speed derailments, (2) train-to-train collisions, (3) incursions into established roadway work zones, and (4) movement of a train through an improperly aligned switch.  The proposal also enables FRA to grant merit-based extension of the PTC implementation deadline and to authorize provisional certification of PTC systems on individual railroads.  The proposal also allows alternative methods of improving rail safety in lieu of PTC, where the alternatives provide an appropriate level of risk mitigation with respect to the functions of a PTC system. This permits FRA to focus the burden of PTC system implementation on the most dangerous mainlines and allow a more appropriately-tailored reduction of risk on mainlines covered by the current statutory mandate to implement PTC systems. Additionally, the proposal promotes uniform operating rules for the industry by authorizing the Secretary to require harmonization of railroad operating rules in certain small geographic areas with joint operations governed by two or more host railroads.  The proposal also addresses the persistent challenge of fatigue by enabling FRA to replace current inadequate statutory requirements on hours of service with regulations grounded with scientific evidence. 

Improving the Safety of Hazardous Materials Transported by Rail

The GROW AMERICA Act will improve the safety of hazardous materials transported by rail. There are three key components to that success:  PTC implementation, rail development and investment, and research and development.

1. PTC
   1. Advances PTC implementation as quickly and safely as possible
      1. More detail is provided in the following section.
2. Rail Development
   1. Investments in safety – Contains grant programs for rail safety improvements, and to mitigate negative impacts of increased freight traffic on communities through projects such as:
      1. Rail line relocation projects
      2. Grade crossing improvements (which reduce risk for train/vehicle collisions)
      3. Sealed corridors – overpasses/underpasses (The safest grade crossing is one that doesn’t exist.)
   2. Short Lines - Invests in short line infrastructure through projects such as:
      1. Bridge upgrades
      2. Track integrity (286,000-pound loads)
      3. Signal upgrades
   3. Improves RRIF – 1) authorizes appropriations to pay for the Credit Risk Premium
      1. PTC is an eligible expense for RRIF.
3. Research and Development (R&D)
   1. Next Generation of Rail Safety Technology – Advances the next generation of rail safety through imperative investments in R&D, including  automatic track inspection technology
   2. Improves Transportation Technology Center (TTC) – The planning section includes improvements to TTC, including help to train first responders and conduct imperative R&D projects to improve rail safety.

Current Status of PTC Implementation

A critical element of RSIA is the mandate to implement PTC systems, which would mitigate or prevent many types of future train accidents caused by human factors.  Past train accidents caused by human factors that would have been prevented by PTC include (1) the over-speed derailment of a commuter train in 2013 at Spuyten Duyvil Station, Bronx, New York; (2) the head-on collision of a commuter train with a freight train in 2008 at Chatsworth, California; and (3) the collision of a freight train with standing on-track equipment, due to a misaligned switch, and the resulting chlorine release in 2005 at Graniteville, South Carolina.  These three PTC-preventable accidents killed 38 people and injured many more.  Under the RSIA mandate, briefly stated, each Class I railroad must install a PTC system governing train operations on its mainline routes carrying toxic by inhalation material, and each railroad providing regularly scheduled intercity passenger or  commuter service must install a PTC system  on its mainlines.

FRA strongly believes in the deployment of PTC by each individual railroad at the earliest practical date consistent with schedule delays arising from resolution of the individual railroad’s unique technical and programmatic issues, in order to gain the safety benefits that PTC can offer.   However, the current, statutorily mandated deadline of December 31, 2015, for completion of PTC installation will not be reached by many railroads subject to the mandate for a number of reasons.  In addition to the technical and programmatic challenges outlined in FRA’s August 2012 Report to Congress “Positive Train Control:  Implementation Status, Issues, and Impacts,” another issue has arisen regarding PTC communications towers deployment, a matter under the jurisdiction of the Federal Communications Commission (FCC).   Deployment of PTC before these issues have been fully addressed could both adversely affect safety and have a negative impact on system efficiency.  Given the dependence of the Nation on rail to move goods and services (40 percent by ton-miles of all U.S. freight moves are by rail), either of the preceding prospects is unacceptable.  DOT’s surface transportation bill would grant FRA the tools needed to advance implementation in timely manner.

We will continue to act as a technical resource to the FCC as that commission weighs and evaluates the complex, and often conflicting demands, of the railroads, as well as other licensed stakeholders, entities seeking licenses, the general public, communication system manufacturers, and local, State, and Tribal Governments.  While FRA can act as a technical resource for the FCC on PTC technologies, ultimately, the programmatic and policy decisions associated with spectrum allocation and communications tower construction are solely in the purview of the FCC. 

It is important to note that there is only a limited number of qualified technical staff available to the railroads, system suppliers, and FRA to support the design, manufacture, deployment, and certification of PTC systems.  FRA has little or no ability to control the procurement of engineering services and equipment or its price.  This is driven by the marketplace; for those items that are in short supply, the lack of supply has driven up prices.  This, in turn, results in higher implementation costs to the railroads.

To support test oversight and certification, which is the only element over which FRA can exercise control, FRA has created a dedicated PTC staff, the PTC Branch.  Even with that staff in place, FRA nonetheless depends heavily on the vendors and railroads in the certification process.  As a matter of practicality, the proactive participation and good faith efforts of the vendors and railroads to ensure system safety through the entire design, implementation, and operation of the system are necessary not only for timely certification of a system, but also to ensure that the level of safety oversight is adequate relative to the system complexity.  FRA staffing needs are therefore heavily dependent on the technology deployed, the capabilities of individual inspectors, as well as the level of effort and degree of objective safety oversight being expended by the vendors and railroads.  The PTC Branch consists of eight regional specialists (one per region), two senior specialists, and a supervisor dedicated to PTC system certification and safety oversight.  This group is augmented by a senior scientist and senior electronics engineer, two senior signal engineers, and contract engineering support as required. 

Commuter rail operation implementation efforts are further complicated by their financial positions.  Commuter railroads are generally cash-strapped and unable to attain certain necessities for implementation, such as communications spectrum.  For example, system procurement and deployment costs just for Southern California Regional Rail Authority (Metrolink), operating in the Los Angeles basin, are exceeding $210 million.    These costs are representative of the more than 30 intercity passenger and commuter railroads required to implement PTC. 

The GROW AMERICA Act addresses critical PTC funding issues by establishing predictable and dedicated Federal funding for rail programs, similar to other modes of transportation.  Congress has for decades funded highway infrastructure and safety, transit, and aviation programs through multi-year authorizations that provide guaranteed funding; this enables States, local governments, and other stakeholders to plan and make large-scale infrastructure investments on a year-to-year basis. 

The GROW AMERICA Act advances PTC implementation as quickly and safely as possible by:

• Authorizing $2.4 billion over the four-year life of the bill to implement PTC on passenger railroads, which will also benefit freight transportation on shared corridors.

• Requiring establishment of revised implementation schedules for PTC systems that reflect the technical and programmatic issues facing individual railroads, a mechanism for making railroads accountable for implementation.

• Allowing provisional operation of PTC systems in full revenue service prior to full PTC system certification.

• Allowing alternative methods of protection in lieu of PTC systems where the alternative methods will not decrease safety and will provide appropriate risk mitigation against PTC-preventable accidents.

• Advancing coordination between DOT and FCC to assess spectrum needsand availability for implementing PTC systems.

FRA will prioritize funding provided under GROW AMERICA based on levels of risk to the traveling public so commuter railroads that have the greatest risk exposure will be able to install and obtain PTC system protection first.  

FRA, in selecting the recipients of grants for eligible projects, will consider the following factors:

• The scope of PTC system components necessary including the number of locomotives owned by the eligible recipient, the number of wayside miles owned by the eligible recipient, the number of PTC systems with which the eligible recipient's PTC system must be interoperable; the scale of the communications infrastructure the eligible recipient requires to support PTC system operations; and the number of modifications to dispatching and back office systems required to support PTC system operations.

• The extent to which the applicant has demonstrated a clear need for Federal financial assistance.

• The overall completeness and quality of the application, including the comprehensiveness of its supporting documentation.

• The extent of prior PTC implementation activities.

Nationwide Rollout of C³RS 

FRA is implementing a voluntary, Confidential Close Call Reporting System program (C³RS) for railroads and their employees to report close calls without receiving disciplinary action.  The GROW AMERICA Act proposes expanding the C³RS from a limited pilot project to a nation-wide rollout.  Data from C3RS pilot sites show promising results. Rigorous evaluation of one of the most mature pilot sites demonstrated that C³RS contributed to a 70-percent reduction in certain accidents. These results demonstrate the potential this program has to significantly improve safety. Reductions in accidents come from a proactive culture of safety that uses real data far beyond that which can be pulled from accident investigations on a reactive basis.  Effective safety oversight is helped by having accurate data.  The magnitude of the information provided from proactive programs like C³RS in comparison to traditional data from accidents and injuries is illustrated below:

Priority 2:  Modernizing Rail Infrastructure

Past generations of Americans invested heavily to build the infrastructure we rely on today. For example, most segments of the Northeast Corridor were initially built over a century ago. Maintaining and modernizing these assets will reduce long-term costs and result in safer, more reliable, and more efficient rail transportation.  The GROW AMERICA Act will build upon previous investments made under the HSIPR Program, the Department’s TIGER Program, and other Federal and State funding to modernize America’s rail infrastructure.  Approximately 40 percent of the funding authorized for rail under the GROW AMERICA Act is dedicated for one-time investments to address the substantial backlog of deferred infrastructure projects across our rail system.  A few of these key rail infrastructure priorities include:

• ADA Compliance – The GROW AMERICA Act authorizes $1.4 billion to bring all Amtrak-served rail stations into compliance with the ADA.  The Obama Administration is strongly committed to rectifying this issue – it is imperative that the Nation’s rail system be accessible and comfortable for all Americans.

• Infrastructure Backlog – The GROW AMERICA Act authorizes funding to significantly reduce the backlog of state of good repair needs on the Northeast Corridor.  Addressing this backlog is critical to maintaining and improving current passenger rail services

• Obsolete Equipment – The GROW AMERICA Act authorizes funding to replace aging and obsolete equipment on the Northeast Corridor, State-supported routes, and long distance services.  Many of the rail cars and locomotives in service across the country are operating at or past their useful lives, leading to higher maintenance costs and reduced performance levels.  FRA and Amtrak have started to replace this aging equipment through HSIPR grants and RRIF loans, however, a significant need still remains.  New rolling stock will not only lower operating and maintenance costs, but also result in better reliability, improved passenger comfort and amenities, and ultimately better position rail services for long-term economic success.

• Platforms – The GROW AMERICA Act would standardize passenger equipment and platform heights to increase interoperability of services and equipment, as well as better provide for safe boarding and alighting.

Priority 3:  Meeting Growing Market Demand

Since 2009, FRA and its State and private partners have invested nearly $60 million in planning studies to establish a pipeline of future rail projects.  These studies and independent planning efforts led by the States have resulted in a pipeline of more than $20 billion worth of projects that are already underway or ready for construction.  The GROW AMERICA Act authorizes the funding required to make market-based investments to turn these studies into improved and new services.

The Nation requires seamless, intermodal transportation networks in order to move people and goods efficiently and effectively—and achieving that goal requires improved transportation-related coordination among Federal, State, and local entities. To achieve these goals, the GROW AMERICA Act will authorize DOT to establish Regional Rail Development Authorities (RRDAs) in consultation with state governors. RRDAs will have the power to plan for and undertake regional corridor development activities and be an eligible recipient of certain grants.

The Railroad Rehabilitation and Improvement Financing (RRIF) loan program makes additional financing available to stakeholders to: acquire, improve, and rehabilitate intermodal or rail equipment and facilities; refinance outstanding debt; and develop or establish new intermodal or railroad facilities. In an effort to make RRIF more accessible to short line railroads, the GROW AMERICA Act enhances the program by authorizing grants under the Local Rail Facilities and Safety program to fund credit risk premiums (CRP) for capital short line railroad improvements. The Act also authorizes appropriations to pay for the CRP, and caps maximum RRIF share at 80 percent of total project costs for projects greater than $100 million that received a subsidized CRP. 

Meeting market demand also means meeting communities’ needs as they see increased rail traffic.  The GROW AMERICA Act authorizes a grant program under the Rail Service Improvement Program that would competitively award grants for projects that mitigate the negative impacts of increased rail traffic on communities through: (1) the relocation of rail lines from busy or populated downtown areas; (2) grade crossing improvements that could lead to quiet zones; and (3) grade separations that protect trains and vehicular traffic while preventing trespassing deaths.

Priority 4:  Promoting Innovation

FRA has consistently made gains in safety using advanced research and development.  For example, in 2013, the Track Safety Standards for high-speed rail were substantially updated by adding  innovations for combinations of track geometry irregularities and high cant deficiency operation.  The procedures for qualifying track and equipment were changed extensively.  FRA may also at some future date revise track safety standards for conventional speed operations of both freight and passenger equipment through similar use of computer modeling of track and equipment performance, service operation and test data, and other research.   

Building on previous successes in safety risk reduction and improved safety culture, the GROW AMERICA Act authorizes additional funding for research and development to improve safety and develop new technologies.  FRA plans to continue its innovative research into railroad employee fatigue, distraction and situational awareness.  The outcomes will be used to improve hours of service regulations, reduce stop signal violations, and ensure new technology does not have a negative effect on safe operations. 

FRA plans to investigate the technical challenges related to shared corridors for passenger and railroad freight operations.  Areas that will be researched include evaluation of deterioration rates of special track work and other track structure components due to various types of impact and dynamic loads on shared corridors, accounting for axle load, train speed, and tonnage.

FRA, in coordination with PHMSA, plans to improve the safety of hazardous materials transportation.  New approaches to be pursued include developing acceptance criteria for damage of thermal protection systems, assessing the effects of in-train forces and fatigue life of tank cars of single commodity trains, studying the effects of repair procedures on the reliability and fatigue life of tank cars, and developing a risk-based approach to evaluating defective conditions of tank cars.  FRA is uniquely equipped with a test center in Pueblo, Colorado to conduct this research in conjunction with PHMSA.

These are just a few examples of research in the pipeline for FRA.  There are many more examples, including the next generation of automated track inspection technology, which would be funded through the GROW AMERICA Act.

The GROW AMERICA Act will also expand research programs at universities, including rail-based University Transportation Centers (UTCs).  Dedicated rail research at UTCs will serve two purposes that provide benefits by: (1) conducting basic research that FRA can apply to improve railroad safety and performance; and (2) producing qualified professionals who can lead implementation of high-performance rail.

The GROW AMERICA Act also authorizes funding for the National Cooperative Rail Research Program.  This program, established under section 306 of PRIIA and managed by the National Academy of Sciences, provides a rail research program similar to those for aviation, highways, and transit. FRA launched the program in 2012 to develop the intellectual infrastructure needed to advance effective rail policy, and a number of research proposals are currently underway, including research on the topics of building and retaining workforce, alternative financing, modal energy consumption, and developing multi-state institutions to implement rail programs.

The GROW AMERICA Act will strengthen the “Buy America” requirements in current law by ensuring uniform applicability to all of FRA’s financial assistance programs.  In the little more than five years in which the HSIPR Program has been in existence, Buy America has already had a measurable effect on the domestic rail manufacturing and supply industries.  The highest profile example is the new Nippon Sharyo manufacturing plant in Rochelle, IL, which opened in 2012 and will produce the next generation of American-built railcars for corridor services in California and the Midwest.  However, there are dozens more domestic manufacturers and suppliers at work as we speak thanks to the HSIPR Program and our Buy America requirements.

Priority 5: Ensuring Transparency and Accountability

The GROW AMERICA Act aligns funding for current passenger rail service programs by lines of business, and it streamlines FRA’s financial programs into four coordinated accounts: 

The Act also requires standards for national and regional rail planning, which is necessary to provide a long-range blueprint for proceeding with passenger and freight rail investments in a market-based, cost-effective manner.  These reforms provide American taxpayers with the transparency and accountability they require and deserve.

Over many years, existing capital and operating programs have focused on maintaining the legacy rail system on an annual basis. The GROW AMERICA Act will establish the Current Passenger Rail Service grant program to provide a longer-term view toward ensuring existing passenger rail assets and services are maintained in good, working condition. The grants will be oriented around Amtrak’s main business lines: the Northeast Corridor, State Corridors, Long-Distance Routes, and National Assets.

In addition to restructuring Amtrak funding around lines of business, the GROW AMERICA Act requires Amtrak to engage in annual five-year operating and capital planning to focus on the long-term needs of its business lines. These plans will be developed with close FRA coordination, and will directly inform annual budget requests. Capital asset plans will describe investment priorities and implementation strategies and identify specific projects to address the backlog of state-of-good-repair needs, recapitalization/ongoing maintenance needs, upgrades to support service enhancements, and business initiatives with a defined return on investment.

The GROW AMERICA Act supports this mission with predictable, dedicated funding that enhances safety and modernize our rail infrastructure to meet growing market demand, while promoting innovation and ensuring transparency and accountability. The Act will invest $19 billion over four years to improve rail safety and invest in a National High-Performance Rail System, as States and local communities need the certainty of sustained funding to make the transportation investments necessary to improve our infrastructure and support our economic growth. The Act also builds on current investments to vastly improve the system in areas ranging from PTC implementation to enhancing flexibility in financing programs that will better enable the rehabilitation of aging infrastructure.

Conclusion

Thank you for the opportunity to appear before you to participate in a dialogue on the future of rail in America.  The GROW AMERICA Act charts a bold new course for transportation infrastructure investment in the United States.  We look forward to working with Congress to put people back to work building a balanced transportation system that is safe, reliable, efficient, and able to meet the growing demand and changing travel habits of America’s population.  I will be happy to respond to your questions. 

Appendix 1

Completed FRA Rulemakings

that Were Mandated, Explicitly or Implicitly, by RSIA[8]

1. To specify the essential functionalities of mandated PTC systems, define related statutory terms, and identify additional lines for implementation. (Sec. 104).[9] 

2. To establish substantive hours of service requirements for passenger train employees.  (Sec. 108(d)). 

3. To update existing hours of service recordkeeping regulations.  (Sec.108(f)).

4. To require State-specific action plans from certain States to improve safety at highway-rail grade crossings.  (Sec. 202). 

5. To require toll-free telephone emergency notification numbers for reporting problems at public and private highway-rail grade crossings.  (Sec. 205).   

6. Increase the ordinary maximum and aggravated maximum civil penalties per violation for rail safety violations to $25,000 and $100,000, respectively. (Sec. 302). 

7. On prohibition of individuals from performing safety-sensitive functions in the railroad industry for a violation of hazardous materials transportation law. (Sec. 305).

8.  On procedures for emergency waivers. (Sec. 308). 

9. To require the certification of conductors. (Sec. 402). 

10. On the results of FRA’s study of track inspection intervals and other track issues.  (Sec. 403(c)).

11. On concrete ties. (Sec. 403(d)). 

12.   To require certain railroads to develop and submit for FRA approval their plans for providing appropriate support services to employees affected by a “critical incident” as defined by FRA.  (Sec. 410(a))

13. To require owners of railroad bridges to implement programs for inspection, maintenance, and management of those structures. (Sec. 417). 

14. On camp cars used as railroad employee sleeping quarters. (Sec. 420). 

15. Amending regulations of the Office of the Secretary of Transportation to provide that the Secretary delegates to the Administrator of FRA the responsibility to carry out the Secretary’s responsibilities under RSIA. 

Completed RSIA-Mandated Guidance and Model State Laws[10]

1. Guidance on pedestrian safety at or near rail passenger stations.  (Sec. 201). 
    
2. Guidance for the administration of the authority to buy items of nominal value and distribute them to the public as part of a crossing safety or railroad trespass prevention program.  (Sec. 208(c)). 
    
3. Model State law on highway users’ sight distances at passively signed highway-rail grade crossings.  (Sec. 203). 
4. Model State law on motorists’ violations of grade crossing warning devices. (Sec. 208(a)). 

Completed RSIA-Mandated Non-periodic Reports or Studies

1. Report to Congress on DOT’s long-term (minimum 5-year) strategy for improving rail safety, including annual plans and schedules for achieving specified statutory goals, to be submitted with the President’s annual budget. (Sec. 102).  

2. Report to Congress on the progress of railroads’ implementation of PTC.  (Sec. 104).  

3. Conduct study to evaluate whether it is in the public interest to withhold from discovery or admission, in certain judicial proceedings for damages, the reports and data compiled to implement, etc., a required risk reduction program.  (Sec. 109). 

4. Evaluate and review current local, State, and Federal laws regarding trespassing on railroad property, vandalism affecting railroad safety, and violations of highway-rail grade crossing warning devices.  (Sec. 208(a)).

5. Report to Congress on the results of DOT research about track inspection intervals, etc. (Sec. 403(a)-(b)).

6. Conduct study of methods to improve or correct passenger station platform gaps (Sec. 404). 

7. Report to Congress detailing the results of DOT research about use of personal electronic devices in the locomotive cab by safety-related railroad employees. (Sec. 405).

8. Report to Congress on DOT research about the effects of repealing a provision exempting Consolidated Rail Corporation, etc., from certain labor-related laws (45 U.S.C. § 797j).  (Sec. 408). 

9. Report to Congress on the results of DOT research about exposure of railroad employees and others to radiation.  (Sec. 411). 

10. Report to Congress on DOT study on the expected safety effects of reducing inspection frequency of diesel-electric locomotives in limited service by railroad museums.  (Sec. 415). 

11. Report to Congress on model plans and recommendations, to be developed through a task force to be established by DOT, to help railroads respond to passenger rail accidents. (Sec. 503).  

Appendix 2

FRA’s Completed PRIIA Requirements

1. Establish a grant process for Amtrak and submit a letter to Congress. (Sec. 206).  
2. Establish metrics and standards for performance and service quality of intercity passenger train operations.  (Sec. 207).  
3. Report quarterly on performance and service quality of intercity passenger train operations.  (Sec. 207).  
4. Review and approve Amtrak’s Northeast Corridor State of Good Repair Plan.  (Sec. 211). 
5. Establish a Northeast Corridor Infrastructure and Operations Advisory Commission.  (Sec. 212).
6. Establish a Northeast Corridor Safety Committee. (Sec. 212).
7. Complete a rulemaking to develop a pilot program for alternate passenger rail service (Sec. 214). 
8. Establish a grant program and make grants to implement or improve intercity passenger rail service. (Sec. 301).
9. Make grants to reduce congestion or for facilitation of ridership growth.  (Sec. 302). 
10. Establish requirements for State rail plan development and review.  (Sec. 303). 
11. Establish and carry out a rail cooperative research program.  (Sec. 306). 
12. Complete a preliminary National Rail Plan.  (Sec. 307). 
13. Establish procedures for preclearance of passengers traveling from the U.S. to Canada. (Sec. 406).  
14. Report to Congress on the results of a study and actions to streamline compliance with historic preservation requirements. (Sec. 407).  
15. Establish a grant program and make grants for high-speed rail corridor development. (Sec. 501).  
16. Issue a request for proposals for projects on designated high-speed rail corridors.  (Sec. 502). 
17. Evaluate high-speed rail corridor proposals.  (Sec. 502).