FRA Publishes PTC Direct Final Rule

Today the DOT’s Federal Railroad Administration (FRA) published a final rule in the Federal Register (81 FR 10126-10131) implementing changes in compliance dates for the implementation of Positive Train Control (PTC) technology in accordance with the requirements of §1302 of the Surface Transportation Extension Act of 2015 (PL 114-73).

The changes being made in this new final rule include:

• Striking the deadline referenced in 49 CFR §236.1005(b)(1) and is adding a paragraph (b)(7) to address the new deadlines the recent legislation mandates;

• Amending paragraph §236.1005(b)(6) by striking “2015” and replacing it with “2020”;

• Striking the deadline in §236.1006(b)(1) and (b)(3), replacing the latter change with a cross-reference to new paragraph § 236.1005(b)(7);

• Removed paragraph §236.1006(b)(2);

• Striking the introductory phrase in §236.1006(b)(3);

• Adding three years to each date referenced in paragraph §236.1006(b)(4)(iii)(B);

• Amending paragraph §236.1009(a)(5) to reference that new progress report deadline and to avoid confusion and potential redundant submissions;

• Amending the deadline in § 236.1011 to cross-reference to the applicable deadline determined under §236.1005(b)(7); and

• Amending the deadline dates referenced in Appendix A.

This is a direct final rule implementing changes required by Congress, so the typical public comments are not being solicited by FRA. The FRA does note that petitions for reconsideration may be filed via the Federal eRulemaking Portal (www.Regulations.gov; Docket #FRA-2016-0012). Petitions should be filed before April 19^th, 2016. The effective date of this final rule is April 29^th, 2016.

HR 3819 Passes in Senate – STA Extension

Yesterday the Senate passed HR 3819, Surface Transportation Extension Act of 2015, on a voice vote. The bill passed the day before in the House, also by a voice vote. The bill extends the authorization for various surface transportation programs from tonight until November 13^th. This was done to provide additional time for Congress to pass a longer term authorization bill.

There was minimal debate in the House (20 minutes) and no debate in the Senate. Just what you would expect with a short term extension for a fast expiring program that seems to finally be moving forward to resolution. One odd thing in the Senate. This was passed at the close of the session when we normally see non-controversial bills pass ‘without objection’. In that process the voice of a single Senator can derail passage. In this case a voice vote was used instead allowing the President Pro Tempore to decide if there were more voices in the almost empty chamber for or against. I’m not saying that there was anything underhanded in the passage of this bill, but this is how you would slip one by if you were so inclined (and willing to take the heat from the opposition the next day).

OOOPS. I never did take a close look at this bill. These short term extensions are typically pretty vanilla so as not to attract any undue objections to their passage. Now I wish I had. Someone mentioned last night that the Senate had passed an extension of the PTC deadline; oh yes it was a tweet from @SOCMA. It didn’t make sense when I saw it late last night, but I checked this morning, and sure enough, §1302 of HR 3819 is the “Positive Train Control Enforcement and Implementation Act of 2015”. This is virtually identical to §7014 of the most recent House STA bill, HR 3763.

The bill is on its way to the President for signature. There has been no specific word on whether or not he will sign it. There had been suggestions during the summer after the previous STA extension had been signed, that the President did not want to sign another short term extension, but I suspect that this will be quietly signed as it looks like there is some movement to consider HR 22 in the House.

Markup of HR 3763 Scheduled

Earlier today the House Transportation and Infrastructure Committee announced that it would be holding a markup hearing for HR 3763, the Surface Transportation Reauthorization and Reform Act of 2015. There are no amendments currently listed for consideration, but that will certainly change before the hearing starts tomorrow morning.

As I noted earlier today there are five sections in this lengthy bill that may be of specific interest to readers of this blog:

• Sec. 7005. Wetlines.

• Sec. 7010. Thermal blankets.

• Sec. 7011. Comprehensive oil spill response plans.

• Sec. 7012. Information on high-hazard flammable trains.

• Sec. 7014. Ensuring safe implementation of positive train control systems.

Wetlines

Section 7005 would require the Secretary to withdraw the proposed rule described in the notice of proposed rulemaking issued on January 27, 2011, entitled “Safety Requirements for External Product Piping on Cargo Tanks Transporting Flammable Liquids” (76 FR 4847-4854) {§7005(a)}. Paragraph (b) would allow the Secretary to initiate a new rulemaking on the subject.

Thermal Blankets

Section 7010 would require the Secretary to issue regulations requiring that each DOT 117 tank car and each unjacketed tank car modified to the DOT 117R specification be equipped with “an insulating blanket with at least 1⁄2-inch-thick material that has been approved by the Secretary” {§7010(a)} in accordance with 49 CFR 179.18(c).

Comprehensive Oil Spill Plans

Section 7011 would add §5111 to 49 USC Chapter 51 requiring the Secretary to draft new regulations “to require any railroad carrier transporting a Class 3 flammable liquid to maintain a comprehensive oil spill response plan” {new §5111(a)}. The plan would be made public, but the Secretary would allow certain information in the plan to be withheld from the public, including “security-sensitive information, including information described in section 1520.5(a) of title 49, Code of Federal Regulations” {new §5111(d)(2)(B)}. Nothing in this section address fire fighting planning.

Information on High-Hazard Flammable Trains

Section 7012 would require the Secretary to issue regulations implementing the SERC notification requirements set out in “Emergency Order Docket No. DOT–OST–2014–0067”. The bill would specifically require those regulations to address protection “from public release of proprietary information and security-sensitive information [49 CFR 1520.5]” {§7012(a)}

Positive Train Control System Implementation

Section 7014 is very similar to HR 3651 that I described earlier. There are two major differences. The provisions for allowing the Secretary to further extend the deadline past 2018 on a by railroad basis have been removed. Secondly there is a great deal more specificity in this version as to what information the railroads will be required to provide in their revised plan for implementing PTC by December 31^st, 2018.

Commentary

I remain very disappointed in the failure of Congress to realize that there is a difference in responding to an oil spill (where the task is isolate and clean up the spilled oil) and dealing with the frequently fiery and explosive aftermaths that we have been seeing with many (certainly not all) of the crude oil train derailments.

There has not been any significant public outcry about the oil spilled in these accidents. With the exception of some very brief comments about oil getting into rivers, the news about these derailments has all been about the fires and explosions or the threat of fire and explosions. The public and news media have been focused on the more visible (and potentially more deadly) aspects of these accidents which the Congress has studiously ignored.

This bill should certainly at least have some sort of study requirement for planning on preventing and suppressing fires in these crude oil spills. 

Bills Introduced – 09-30-15

Yesterday there were 30 bills introduced in the House and Senate. Of those two may be of specific interest to readers of this blog:

HR 3651 To amend title 49, United States Code, to provide for the extension of certain deadlines related to positive train control, and for other purposes. Rep. Shuster, Bill [R-PA-9]

HR 3654 To require a report on United States strategy to combat terrorist use of social media, and for other purposes. Rep. Poe, Ted [R-TX-2]

The introduction of HR 3651 by the Transportation Committee Chair bodes ill for the timely consideration of HR 22, the Drive Act, that was passed by the Senate. That transportation authorization bill includes PTC extension language.

HR 3654 is going to be closely watched by privacy and freedom of speech advocates.

S 650 Introduced – PTC Extension

As I noted in an earlier blog posting Sen. Blunt (R,MO) introduced S 650, the Railroad Safety and Positive Train Control Extension Act. The Senate Commerce, Science and Transportation Committee held a markup hearing on the bill this week and recommended the bill favorably after amending it. The bill would extend various deadlines for the implementation of positive train control (PTC) technology on railroads.

Background

Congress required in 49 USC 20157 that all Class 1 railroads install a PTC system by December 31, 2015 on all rail lines over which toxic inhalation hazard (TIH) chemicals are transported. In implementing that requirement the Secretary of Transportation {49 CFR 236.1005} extended that requirement to all railroads that operated passenger rail lines on the same tracks over which TIH chemicals were transported.

There have been a number of challenges in meeting that deadline; both technical and regulatory. One of the problems that the railroads had was getting regulatory approval from the FCC for installing the track-side communications antennas. The FCC had originally required that each antenna installation undergo a separate permitting process, including a required historical commission review. That process was ultimately streamlined, but only after significant delays.

Wholesale Deadline Extension

Section 2 of the bill makes two changes to 49 USC 20157. The first extends the current deadline until December 31^st, 2020 {§2(b)(1) to §20157(a)(1)}. The second would change the date basis for determining which sections of rail line would be required to have PTC installations; requiring PTC installation on lines over which TIH chemicals are transported on or after December 31^st, 2015 {§2(b)(2) to §20157(a)(1)(B)}.

Retail Deadline Extension

Section 3 of the bill would also allow the Secretary of Transportation to authorize one year extensions to the implementation deadline on a case by case basis through 2022 {§3(a)(3) adding §20157(i)}. It goes on to outline the process by which the railroad would request the extension and the guidelines the Secretary would use in approving the extension. It provides a 10 day approval decision deadline after the Secretary receives the application.

Committee Amendment

The Committee amended the bill by adding a new section 5. This section amends §20157 by adding §20157(a)(3). It would require that each covered railroad would provide detailed annual reports to the Secretary about the progress they were making on the implementation of their PTC systems. The reporting requirement would continue until the Secretary certified the PTC installation under §20157(h).

In an interesting change of Congressional reporting requirements, the amendment did not require a summary report to Congress on the PTC implementation status. Instead it required the Secretary to make each report “available on the website of the Federal Railroad Administration” {§20157(a)(3)(D)}.

Moving Forward

Chairman Thune (R,SD) is obviously making the adoption of S 650 a priority for his Committee. It will be interesting to see how well that translates into moving the bill to the floor of the Senate.

The bill did have bipartisan support in committee. There will be some environmental and safety advocates who can be expected to object to the extension of this deadline. Given the fact that the current deadline cannot be met at this point, I would expect that those objections would take the form of modifying the new deadline date in the amendment process rather than stopping the bill from being considered.

I also expect that there will be an attempt made to add rail lines over which crude oil trains run to the PTC installation requirement. This has included in some other proposed legislation about crude oil trains, but getting that particular amendment added to this bill would probably be easier than getting the other bills through the legislative process. Such an amendment would also make the overall bill more palatable to safety and environmental advocates.