Tuesday, May 15, 2012

FRA Publishes PTC Amendments Final Rule

Yesterday the Federal Railroad Administration (FRA) published their PTC Amendments Final Rule in the Federal Register (77 FR 28285-28305). This rule eases some of the requirements for removing sections of rail line from the requirements to install positive train controls (PTC). These rules only pertain to track segments that “do not transport poison- or toxic-by-inhalation hazardous (PIH) materials traffic and are not used for intercity or commuter rail passenger transportation as of December 31, 2015” (77 FR 28285).

This rule is being issued in response to a Settlement Agreement reached in a suit by the Association of American Railroads (AAR). It eliminates two qualifying tests previously required to remove a line segment from PTC implementation. Those tests were based upon alternative route analysis and the residual risk analysis.

Complicates TIH Shipping Issues

As I noted in an earlier blog, it would seem that the removal of these two tests, particularly the alternative route analysis test, will further complicate the toxic inhalation hazard (TIH) routing issues that plague relations between TIH shippers and the railroads. This issue is addressed in the preamble to the rule with the FRA stating that “even where a railroad is able to reroute its PIH materials traffic in accordance with the PHMSA regulations, resulting in future PIH materials traffic needing to traverse a line segment that does not have a PTC system in order to travel from its source to its destination, FRA does not view such rerouting as a barrier to future PIH materials traffic” (77 FR 28292).

I also noted in a separate blog post that this rule could increase the number of rate setting disputes that the Surface Transportation Board will be required to hear. This rule acknowledges this potential problem; noting that “FRA recognizes that PTC system implementation may affect STB's review of rates” (77 FR 28292); but then ignores the issue in this rule.

Public Comments

This is a final rule and it is effective on July 13, 2012. Apparently anticipating objections to this rule (it is a tad bit controversial) the FRA has set a deadline for petitions for reconsideration on the same date. Those petitions will be published on the Federal eRulemaking Portal (www.regulations.gov; Docket # FRA-2011-0028). Public comments on those petitions are being solicited (they really do expect petitions apparently) need to be submitted via the same venue by August 27, 2012.

Oh, by the way, FRA is already considering the next set of amendments to the PTC rules. There is no mention of the topics to be covered in such amendments, just the notice that a new notice of proposed rulemaking (NPRM) is already in the works.

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