REMARKS / Last week addressed a fine-tuning process on positive train control (PTC). Congress has spoken and the Federal Railroad Administration has issued the final rule. But the exact form is subject to a continuing debate – witness two recent inputs. COMMENTS: Though each would dislike any hint of disharmony, NTSB and Association of American Railroads are likely future rivals to persuade the Federal Railroad Administration – and ultimately the Congress.

Last week’s “Comments” observed that, like rock n’ roll, Positive Train Control is here to stay. But make no mistake: Recent statements of the National Transportation Safety Board’s Chair Deborah Hersman, on one side, and the Association of American Railroads, on the other, reflect starkly conflicting views on the future policy, scope and above all the timing of PTC.    

NTSB Chair Deborah A.P. Hersman in three tweets:

“Hersman: We acknowledge that there are real hurdles to clear – in particular for public operators who do not have the available capital.”

“Hersman: What we need to hear about is not what can’t be done, but what can be done.”

“Hersman: Our work is hard. But it’s harder when our recs go unheeded and we see same accidents over & over and more lives cut short.”

And in a longer quote cited by “Logistics Management” Deborah A.P. Hersman dispensed with any diplomatic niceties:   

“The railroad community should have solved this by now,” she said. “Some of you have been involved in PTC pilots or tests dating back decades. 20 years ago I worked for members of Congress that supported these types of programs. We can do better. It is time to refocus on rail safety and [PTC]. The rails are safer and stronger, but there is still some distance to go. Railroads have so many tremendous growth opportunities and a role to play in our nation’s economy and its future. [Rails] could be carrying more of the load and carrying it more safely and efficiently.”

The AAR counters that the deadline as it stands now (2015) is just not feasible:

Legal take-away:

Note that the debate is not truly between a regulator and the Class I’s, or even the Congress and the Class I’s. Right now it’s the NTSB and Chair Hersman in particular that are making the case for more aggressive PTC implementation.

For the most part, we are not hearing from either the Federal Railroad Administration or the  transportation committees in Congress on the specifics of this debate.

Practical take-away:

How “real” is the 2015 deadline? Watch for two factors:

First, who is Federal Railroad Administration Administrator between now and then?  Would the White House take an interest? It might be that an Administration reputed to take aggressive regulatory stances might not focus on PTC as such. It might be too sector-specific and miss the public visibility test.

Second, what incidents if any take place between now and then? Many connect the Graniteville, S.C. and Minot, N.D. tragedies with subsequent passage of the Federal Rail Safety Improvement Act of 2007.

Another visible tragic accident could easily catapult the PTC issue out of the sector-specific category with corresponding focus on implementing PTC on its present 2015 deadline.

UPCOMING: Like rock ‘n roll, Positive Train Control (PTC) is here to stay. Now activity is afoot to fine tune PTC’s application and effect in two important respects.

There is no question about its future in that regard since the notice of final rule on January 15, 2010 (available here) and clarifying amendments September 27, 2010 (available here).

First, the Association of American Railroads has applied to the Federal Railroad Administration to make some adjustments existing regulations pertaining to PTC’s application. (available here).

Second, the National Transportation Safety Board has taken a major initiatives this past week to promote and refine PTC: 

A February 27 forum on PTC – “Forum: Positive Train Control: Is it On Track?”. This will include one presentation among multiple experts to look back to evaluate PTC implementation to date and two similar panels to evaluate future challenges to PTC implementation. Announcement available here.

Live streaming of the webcast available here the day of the meeting and archived thereafter.

Legal doctrine take-away: 

The regulations are unchanged, subject to modifications that might emerge from the AAR’s efforts to fine-tune the original PTC rules in specific situations.

Practical business take-away: 

As investments in capital equipment and track infrastructure are anticipated for the future, PTC as an element of planning is a new and prominent safety factor.

RAILROAD / Administrative Rule – / Federal Railroad Administration clarifies but does not alter its December 11, 2012 proposal on implementing the Rail Safety Improvement Act of 2008 to require that “certain passenger and freight railroads install positive train control (PTC) systems”. Key here: Responses the FRA makes to Association of American Railroads petition.

In a petition for rulemaking dated April 22, 2012 the Association of American Railroads (AAR) proposed – regarding a future FRA rule about Positive Train Control systems – “expanding the de minimis exception and other amend[ing] the rules concerning the “limited operations” exception, en route failure of trains operating with PTC systems, and the discontinuance of signal systems once PTC systems are installed”. 

Note: This is categorized in this blog under both “RAILROAD” topics and “HAZARDOUS MATERIALS”. The first occasion I had with the CEO of a Class I railroad to discuss what I referred to as “the new proposed rules on rail transportation of poisonous-by-inhalation / toxic-by-inhalation” materials that CEO replied simply that the main issue in this area is simply the specifications and implementation of positive train control.   Continue reading

RAILROAD & FEDERAL RAILROAD ADMINISTRATION / BNSF petitions Federal Railroad Administration to approve BNSF Positive Train Control Safety Plan and Electronic Train Management System.

This is a milestone for Positive Train Control’s move from concept to law to operational reality. BNSF and the other railroads covered by the new law are required to do this by statute (49 U.S.C. § 20157(h)) and regulation (49 C.F.R. § 236.1015(a). 

January 7, 2013, Notice of proposed rulemaking; request for additional comment.

As the Federal Railroad Administration put it: Continue reading