RAILROAD / Positive Train Control – Federal Railroad Administration proposes to expand exceptions to application of FRA’s original 2010 rule that implements mandates of the Rail Safety Improvement Act of 2008 requiring certain passenger and freight railroads to install positive train control systems.

Who is affected? Railroad carriers and providers of rail rolling stock (locomotives and rail cars).

December 11, 2012, Notice of Proposed Rule Making ):

This is part of the implementation of Positive Train Control (“PTC”) into U.S. railroads pursuant to the Rail Safety Improvement Act of 2008. This notice of proposed rule making is a Federal Railroad Administration response to a petition for rule making dated April 22, 2011 concerning a final rule and clarifying amendments on this promulgated in 2010. That petition was brought by the Association of American Railroads (which is comprised of the Class I railroads) in what amounts to a course correction in PTC implementation. Broadly speaking, this would revise the de minimis exception to PTC rules in various respects, discontinue those signal systems made unneeded by the installation of PTC systems, and otherwise refine the 2010-promulgated rules.

“FRA proposes amendments to regulations implementing a requirement of the Rail Safety Improvement Act of 2008 that certain passenger and freight railroads install positive train control (PTC) systems. The proposal would revise the regulatory provisions related to the de minimis exception to the installation of PTC systems generally, and more specifically, its application to yard-related movements. The proposal would also revise the existing regulations related to en route failures of a PTC system and discontinuances of signal systems once a PTC system is installed and make additional technical amendments to regulations governing grade crossing warning systems and signal systems, including PTC systems.”

“For years, FRA has supported the nationwide proliferation and implementation of positive train control (PTC) systems, forecasting substantial benefits of advanced train control technology in supporting a variety of business and safety purposes. As such, in 2005, FRA promulgated regulations providing for the voluntary implementation of processor-based train control systems. See 70 FR 11,052 (Mar. 7, 2005) (codified at 49 CFR part 236, subpart H). However, implementation was not mandated by FRA due to the fact that the costs for the systems far outweighed the possible benefits at that time.

“Partially as a consequence of certain very severe railroad accidents, coupled with a series of other less serious accidents, Congress passed the Rail Safety Improvement Act of 2008 § 104, Public Law 110-432, 122 Stat. 4854 (Oct. 16, 2008) (codified at 9 U.S.C. 20157) (hereinafter “RSIA”) mandating the implementation of PTC systems by December 31, 2015, on lines meeting certain thresholds. RSIA requires PTC system implementation on all Class I railroad lines that carry poison- or toxic-by-inhalation hazardous (PIH or TIH) materials and 5 million gross tons or more of annual traffic, and on any railroad’s main line tracks over which intercity or commuter rail passenger train service is regularly provided. In addition, RSIA provided FRA with the authority to require PTC system implementation on any other line.

In accordance with the statutory mandate, FRA issued a final rule on January 15, 2010, and clarifying amendments on September 27, 2010. The final rule included various exceptions from mandatory PTC system implementation. For instance, the de minimis exception was developed to provide railroads an opportunity to avoid PTC system implementation where the burdens of the regulation would yield a gain of trivial or no value. In accordance with its statutory authority, the final rule also included a limited operations exception for passenger operations or segments over which limited or no freight railroad operations occur.

“In a petition for rulemaking dated April 22, 2011 (“Petition”), the Association of American Railroads (AAR) requested that FRA initiate a rulemaking to propose expanding the de minimis exception and otherwise amending the rules concerning the limited operations exception, en route failures of trains operating within PTC systems, and the discontinuance of signal systems once PTC systems were installed. AAR also requested that FRA develop a new exception that would allow unequipped trains associated with certain yard operations to operate within PTC systems.

“In response to the Petition, FRA proposes here to make several changes to part 236, subpart I. With respect to the specific de minimis exception at 49 CFR 236.1005(b)(4)(iii), FRA is proposing to modify the specific exception to raise the number of freight cars containing PIH materials from 100 cars to 200 cars and revise the grade limitation to be more consistent with the definition of “heavy grade” present in part 232. FRA is also proposing to remove the traffic limitation of 15 million gross tons from the general de minimis exception in paragraph (b)(4)(iii)(C), but not the categorical exception in paragraph (b)(4)(iii)(B). In response to AAR’s suggestions for a yard move exception, FRA proposes to add a yard movement de minimis exception that would authorize movements by unequipped locomotives over PTC-equipped main line track segments for the purpose of switching service or transfer train movements. FRA does not propose to create an additional limited operations exemption, nor does FRA propose to remove oversight from signal system discontinuances or modify the default rules for resolving en route failures of a PTC system. However, FRA does propose to clarify that PTC equipment of non-controlling locomotives may be used to restore full PTC functionality to the consist. Finally, FRA proposes a number of technical amendments to the signal and grade crossing regulations of parts 234, 235, and 236.

“For the first 20 years of the proposed rule, the estimated quantified benefits to society, due to the proposed regulatory changes, total approximately $156 million discounted at 7 percent and $211 million discounted at 3 percent. The largest components of the benefits come from reduced costs of PTC system wayside components because of proposed extensions of the de minimis risk exception under 49 CFR § 236.1005(b)(4)(iii)(B), and reduced costs of onboard PTC systems on locomotives operating in yard areas. A smaller benefit, independent of the other two benefits, comes from changes to the application process for a discontinuation or material modification of a signal system under 49 CFR part 235 where the application would have been filed as part of a PTC system installation.”

Additional material in the Federal Register entry offers data to quantify benefits and burdens of the new framework.