CRS Reports – Week of 2-3-24 – Freight Rail Safety Legislation

This week the Congressional Research Service (CRS) updated a report on “Freight Rail Safety Legislation in the 118th Congress”. This report looks at legislation that has been introduced this session and the issues being addressed by that legislation.

The covered bills include:

• S 576)/H.R. 1674, Railway Safety Act of 2023

• HR 1633, Reducing Accidents In Locomotives (RAIL) Act of 2023

• HR 1238, Decreasing Emergency Railroad Accident Instances Locally (DERAIL) Act of 2023

• S 1044, Railway Accountability Act of 2023

• HR 1347, Don’t Block Our Communities (D-BLOC) Act of 2023

• HR 5871, Rail Worker and Community Safety Act of 2023

The following issues are discussed:

 •  Hazardous Materials Transportation by Rail:

⸰ High-Hazard Flammable Trains,

⸰ Tank Car Crashworthiness,

⸰ Train Braking, and

⸰ Emergency Response Training,

• Prevention of Train Derailments:

⸰ Wayside Defect Detectors,

⸰ Railcar Inspections and Inspector Qualifications,

⸰ Civil Penalties, and

⸰ Train Length,

• Other Issues and Legislative Proposals:

⸰ Blocked Crossings,

⸰ Crew Size, and

⸰ Confidential Close Call Reporting System.

STB to Act on PTC Related Rail Service Suspension Issue

The Surface Transportation Board (STB) published a notice in today’s Federal Register (80 FR 61271-61272) that the Board is instituting a declaratory order proceeding in response to a petition by the American Chemistry Council, the Chlorine Institute, and the Fertilizer Institute. That petition requested that the STB issue an order to require Class I railroads to transport toxic inhalation hazard (TIH) chemicals over mainlines even though those railroads may not have installed positive train control (PTC) systems on those lines by December 31^st, 2015 in accordance with 49 USC 20157(a).

The STB Order initiating this process was actually issued on October 6^th. The STB has given interested parties until October 23 to submit replies to the ACC petition. Rebuttals to those replies must be filed by November 2^nd. The STB docket number for this action is FD 35694 and submissions may be filed through the STB web site.

Background

In 2008 the Congress passed the Rail Safety Improvement Act of 2008 (PL 110-432). One of the requirements of that Act was that all Class I railroad had to install a positive train control system on mainlines that either carried passenger rail traffic or minimum amounts of TIH chemicals. The deadline for installing and operating these PTC systems is December 31^st, 2015. None of the Class I railroads will have anywhere near complete PTC coverage over the designated sections of track by the deadline.

There have been a number of reasons for the delay in getting the PTC system installed and operational. Some of them have been government related (most famously problems with the FCC over communications frequency issues and infrastructure permitting issues) that were not foreseen when Congress set the deadline. There have also been technology development and compatibility issues (Congress did not mandate a specific PTC technology and different systems used by the various Class I railroads have got to be able to interact where their rail systems cross and/or interchange railcars).

Recent letters from various Class I railroads (BNSF, CSX and NS for instance) to Sen. Thune (R,SD), Chair of the Senate Commerce, Science and Transportation Committee, provide additional details about the efforts made to date by the railroads to comply with the PTC deadline and the problem that they have faced.

Those same letters also outline the railroads’ dilemma with deciding how they are going to have to deal with the consequences of failing to meet the December 31^st deadline. If they continue to operate freight trains and allow the operation of passenger trains on rail lines on which there is no operational PTC system they will be in violation of 49 USC 20157(a) and subject to fines from the Federal Railroad Administration. More importantly they are concerned about their legal liability if an accident occurs on stretch of mainline not covered by an operational PTC system. Tort law provides for the award of substantial punitive damages where an accident is the result of a willful disobedience of law.

Those letters also describe the railroads likely response to this problem. Both CSX and NS indicate that they will probably stop carrying TIH chemicals over segments of their mainlines that do not have operational PTC systems. BNSF takes the broader view that they will have to halt all freight traffic on such lines. Their stand is based on the fact that historical TIH traffic is only used to establish which lines must have operational PTC systems and that all trains operating over those lines (including Class II and Class III railroad trains) must operate in the PTC mode. The other two railroads would apparently argue that the cessation of TIH traffic on those lines would negate the need for operational PTC system.

The Dispute

The plaintiffs in this case argue that 49 USC 11l0l(a), requires a Class I railroad to transport toxic inhalation hazard ("TIH") materials over main lines. This ‘common carrier’ obligation was written into law because railroad operate what is essentially a monopoly over much of its tracks. Refusal of a railroad to carry appropriately offered freight rail traffic would leave the offeror no alternative means of transporting that rail traffic.

The railroads position is centered on the first sentence in paragraph (a): “A rail carrier providing transportation or service subject to the jurisdiction of the Boardunder this part shall provide the transportation or service on reasonable request [emphasis added].” They argue that a request that requires them to violate federal law is, upon its face, unreasonable.

Daniel Elliot, the current STB Chair, in a letter to Thune, notes that this is a complex issue with little precedent for the STB to use as guidance. He noted that:

“Because prior safety-related curtailment-of-service cases often involved services that complied with comprehensive safety regimes administered by FRA (and the Pipeline and Hazardous Materials Safety Administration), a carrier-initiated curtailment of service due to a failure to comply with RSIA would present a case of first impression before the Board. I cannot predict the outcome of such a case. My expectation is that the views of the FRA, which has primary jurisdiction over rail safety in general and over implementing RSIA in particular, would be a critical consideration.”

Congressional Action

The simplest fix to this problem from the point of view of both the railroads and the shippers would be for Congress to take cognizance of the reasons for the delays in PTC implementation and to extend the deadline. HR 22, as amended and passed in the Senate before the summer recess, would extend the installation deadline until 2018 as part of the surface transportation authorization package. HR 3651, introduced last week, would do the same thing in a standalone bill.

There are concerns in the safety community, however, that the railroads may not have done as much as they could have to complete the implementation of the PTC requirements. These folks are objecting to a blanket extension without some sort assurance that the railroads will not just require another extension in three years. Congressional negotiators are working to resolve those concerns.

Committee Hearings – Week of 1-25-14

Here we are in the fourth week of the 114^th Congress and the hearing schedule is starting to pick up. There are only two hearings this week, both on the Senate side, that may be of specific interest to readers of this blog; one on cybersecurity and one on rail transportation safety.

Cybersecurity

On Wednesday the Senate Homeland Security and Governmental Affairs Committee will be holding a hearing on Protecting America from Cyber Attacks: The Importance of Information Sharing. The witness list makes it clear that the focus of this hearing will be on the IT side of cybersecurity.

Freight Rail Safety

The Senate Commerce, Science and Transportation Committee will be holding a hearing on Wednesday on Freight Rail Transportation: Enhancing Safety, Efficiency, and Commerce. The current witness list includes:

● Mr. Frank Lonegro – CSX Transportation;

● Mr. Dave Brown – Genesee & Wyoming Railroad Services;

● Mr. Bill Johnson – Former Director of Port Miami and Former Chair of the Florida Ports Council;

● Ms. Michelle Teel – Missouri Department of Transportation; and

● Mr. Chris Jahn – The Fertilizer Institute

It is clear from this list that hazardous material transportation will be one of the topics discussed. Given that fact it is slightly disappointing that no one from the emergency response community is included on the witness list.

FRA to Issue Train Crew Size and Securement NPRMs

A press release yesterday from the DOT’s Federal Railroad Administration (FRA) indicated that they intend to issue proposed rules requiring two-person train crews on crude oil trains and establishing minimum crew size standards for most main line freight and passenger rail operations. A probable second rule making would address unattended freight trains or standing freight cars on main track or sidings and require railroads to adopt and implement procedures to verify securement of trains and unattended equipment for emergency responders.

Crew Size

After the Lac-Mégantic derailment last year one of the actions taken by the Railroad Safety Advisory Committee was the establishment of a working group to look at potential regulations for establishing minimum train crew size requirements. At the most recent meeting of the RSAC a presentation was made by that working group concerning the work that they had done to date.

While the RSAC is extremely slow in posting the minutes from their meetings, the FRA press release notes that the Working Group was unable to reach a consensus on the minimum crew size requirements. In the absence of a consensus recommendation the FRA is developing its own proposed requirements. According to the press release:

“The notice of proposed rulemaking (NPRM) will most likely require a minimum of two person crews for most mainline train operations including those trains carrying crude oil.  It is also expected to include appropriate exceptions.”

Train Securement

A working group on train securement was also formed last year and they too made a presentation at the recent RSAC meeting. Apparently there was a consensus reached on these issues and FRA intends to initiate a rule making based upon that consensus language. It would include provisions:

• Prohibiting certain unattended freight trains or standing freight cars on main track or sidings;

• Requiring railroads to adopt and implement procedures to verify securement of trains and unattended equipment for emergency responders;

• Requiring locomotive cabs to be locked and reversers to be removed and secured; and

• Requiring railroad to obtain advance approval from FRA for locations or circumstances where unattended cars or equipment may be left.

Moving Forward

No draft language for either potential NPRM has yet been made public. Nor has there been any indication how soon such language will be available to send to the OMB’s Office of Information and Regulatory Affairs (OIRA) for review.

OMB Approves FRA PTC NPRM

Yesterday the Office of Management and Budget (OMB) announced that it had approved the Federal Railroad Administration’s notice of proposed rulemaking (NPRM) revising some of their positive train control regulations. According to the Fall 2011 Regulatory Agenda (this is the most current version of the Agenda; the Obama Administration has not been updating their agenda very regularly) this NPRM was initiated at the request of the American Association of Railroads (AAR).

The abstract notes that this proposed rule would “revise Positive Train Control regulations by defining the de minimis exception and en route failures, proposing exceptions relating to yard movements that may not be considered on the main line system, and amending regulations governing grade crossing and signal and train control systems.”

One assumes the ‘de minimis’ exception refers to the minimum amount of selected hazardous chemicals that are transported on a section of line that would establish the requirement to equip that section of rail line with PTC systems. The actual weight of chemical triggering that exemption is not likely to change due to the wording of the congressional PTC mandate, so it is unclear what changes would be made.

OMB approved the rule ‘consistent with change’ so there is no telling how long it will take the FRA to publish this rule in the Federal Register. It will be at least a week or two.