Thursday, August 15, 2013

S 1462 Introduced – PTC Delay

As I noted earlier Sen. Thune (R,SD) introduced S 1462 the  Railroad Safety and Positive Train Control Extension Act. This bill would amend 49 USC 20157 by extending various deadlines for the implementation of positive train control (PTC) technology.

Five Year Statutory Extension

Section 2b of the bill would amend §20157 to change the requirements for submitting plans for PTC implementation. The deadline for submitting plans (already passed) is removed. The date by which plans would be implanted would be changed to December 31st, 2020. Finally the date used for determination of which sections of track must be covered by PTC equipment is changed to December 31st, 2015.

Additional Extensions Authorized

Section 3(a) would give the DOT Secretary authority to provide additional extensions if requested by the railroads. Section 20157 is amended by adding paragraph (i) that establishes the limits of that authority. The Secretary is allowed to authorize one-year extensions if it is found that the railroad has made a good faith attempt to implement its PTC plan, and has submitted a new plan.

The Secretary must determine that the reason for the inability to complete the PTC implementation is due to circumstances beyond the control of the railroad. The new language provides some examples of such circumstance {§20157(i)(1)(A)} including:

• Funding availability;
• Spectrum acquisition;
• Resource and technology availability;
• Software development and testing;
• Availability of alternate risk reduction strategies; and
• Interoperability standards.

Presumably this would also include the problems with FCC antenna licensing identified by various House Committee Chairs.

The authority for these incremental one-year extensions would not allow for delaying the implementation of the PTC plan beyond December 31st, 2022 {§20157(i)(1)(D)}. There is an additional fig-leaf restriction on this extension authority. The Secretary must take into consideration “whether the affected areas of track have been identified as areas of greater risk to the public and railroad employees in the applicant’s positive train control implementation plan under section 236.1011(a)(4) [Link Added] of title 49, Code of Federal Regulations” {§20157(i)(2)(A)}.

CFR Revision Required

The Secretary is given 180 days by §4 of this bill to make specific (and limited) changes to PTC regulations. The deadlines in 49 CFR 236.1006(b)(4)(iii)(B) would have to be extended by 5 years. Those deadlines deal with the requirements for Class II and Class III railroads to have locomotives equipped with PTC equipment if they will be moving more than 20 miles on a PTC controlled section of track.

Normally 180 days is way too short of a time to make substantive changes to Federal Regulations. Given the limited nature of the changes required by this section and the fact that the Secretary is given no regulatory discretion in this particular change, there should be no real problem in complying with this section. A direct final rule without the need for a public comment period is all that is required.

Moving Forward

It is becoming painfully apparent that Congress was a tad bit aggressive in establishing the time limits for the implementation of these PTC requirement and that the railroads will not be able to fully implement their PTC plans by the currently required date of December 31st, 2015. This is a fairly straight forward extension plan that should be able to be accepted by a clear bipartisan majority in both houses of Congress.

The only question will be when this bill could actually be considered. The main (and contentious) issue facing Congress on their return from the Summer Recess will be the various spending bills that must be passed by October 1st. The political gamesmanship that will be involved in that controversy will almost certainly impede congressional work on less disruptive legislation through the end of the year. This bill may languish until 2014.

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