There is more to life than tank cars. Though you may not believe it, other car markets do exist and continue to operate while tank cars dominate the headlines. Here’s what’s going on around the horn.
Covered Hoppers (Grain): After a big run-up in rates, we hear that there is a little softening in this market at both the high-cube (5,150-cubic-foot) and smaller-cube (4,750-cubic-foot) levels. This could be typical seasonal slowness in the case of the jumbo cars and demand might steady and strengthen as we approach the harvest. The current planting season lacks definition but does not point to a record crop year. Plus, significant grain remains in storage. On the smaller side, older 4,750-cubic-foot cars are finding their way back into grain after potentially spending years in sand service. That market could slow down in a hurry if every lessor repurposes the cars used in sand for grain. Jumbo rates are around $500 and smaller cars in the mid $300s (full-service per car per month).
Covered Hoppers (Sand): This softening market has many investors on their heels. Anecdotally, there are stories of cars in storage in the thousands. Frac well productivity continues in spite of the low price of oil, but as Kristine Kubacki of Avondale Partners has been pointing out, train velocities are increasing and car dwell times are decreasing. Efficiency is working against this and other markets. The result: more car availability and a retrenching of the fleet to remove suboptimal (rate, term and size) cars. While the backlog is not increasing, there are substantial numbers of new cars yet to be built. Lease rates? A general softening is occurring to levels in the high $400s, maybe low $500s (full-service per car per month). There’s tough sledding ahead near-term as cars ordered during the oil boom roll off production lines and potentially into storage while they look for homes. Sources say that this market will be prepped for a turn when the turn comes. Investors may need a strong stomach for this ride.
Plastic Pellet Covered Hoppers: Strength in this market continues as the producers work to manage the impact of the low price of natural gas and oil (though both are off their lows from earlier in the year). There is optimism about the next three to five years for this car type as production facilities come on line and car demand increases. Low priced oil has sidelined or called into question some planned ethane crackers so keep your eyes on exactly where demand is going to be coming from. This market, its low mileage and few annual car turns per year is not as heavily impacted by velocity improvements. Lease rates are in the high $600s and low $700s (full-service per car per month).
Coal Cars: Low oil and natural gas combined with improving velocity take a bite out of coal car pricing. As decreasing levels of coal-fired power production competes with natural gas for market share, this market will be more commodity- and price-focused. Lease rates: Gondolas are trading in the high $200s or low $300s and hoppers in the low $400s, full-service. Those numbers are likely to decrease before they increase as the metrics for this market continue to weaken.
Mill Gons: Though off its five year low, iron ore is still very low as is the current sub $300 per ton scrap steel. This market, which tightened in 2014, is now softening with demand. This fleet is in need of rehabilitation, but the market softness demonstrates why lease rates for these cars do not support investment in new cars. Lease rates on older cars are in the low $300s (full-service per car per month) while for newer cars, rates are in the low $600s (or at least that’s the asking price). Opportunities for placing cars in new leases are few here. There is likely to be continued softness.
Boxcars: Difficult to tell if the demand for boxcars is due more to issues in velocity or overall demand for the products being loaded in them. New car orders are low in volume but the boxcar fleet is engaged in a long-term process of being overhauled to Plate F from Plate C. Good quality Plate C cars are still in demand at over $450 (full-service per car per month). Newer Plate F cars are running more than $600 (full-service per car per month). Improved rail system metrics could soften this market.
Tank Cars (Crude): This market is all over the place considering the speculation, price of oil and the numbers of cars being built. There are stories of thousands of tank cars moving to storage and spot leases available at a fraction of the peak-of-the-market $3,000 (full-service per car per month) from 18 months ago. Cars are leasing for below $1,000 (full-service per car per month) though we do hear of lessors trying to hold the line and keep rates high where possible. Until final resolution is achieved on the tank car regulations, these rates should follow the price of oil. Once the regulations are final and the appeal process has been completed, all bets are off and good luck for all.
The Gordian knot of tank car retrofitting
On May 1, 2015, the Department of Transportation (DOT) and Transport Canada (TC) made a joint announcement on the future of tank car design and use for tank cars hauling crude, ethanol and other flammable and combustible products. Beyond agreement on the fact that there was an announcement, the market of lessors, lessees, manufacturers and railroads remains uncertain about the future of the design, the market for retrofitting, the demand for new tank cars going forward, the real or imaginary need for electronically controlled pneumatic (ECP) brakes, the timing, the ultimate safety of the retrofitted tank car vs. the newly built car, and how the railroads that will be moving the retrofitted and non retrofitted cars will be able to segregate and adjust pricing on those cars to fit each individual situation. An intractable problem indeed! (aka a Gordian knot).
Tank car retrofit cost estimates range from $45,000 to $75,000 (per car) with a consensus settling somewhere in the $60,000 range. That’s the (very rough) potential cost for bringing a nonjacketed and noninsulated CPC 1232 design up to DOT 117R compliance. Want ECP brakes? Add another $6,000-$10,000 to that price. That invested cost into an asset that is anywhere from four to ten years old seems fairly modest—one, compared to the cost of an entirely new replacement car (estimated at $160,000 per tank car) and two, when you consider that 10 years represents only 20% of the interchange life of a tank car.
Who is going to pay for the retrofit? QUICK! Before you think about this question and before you read this paragraph, send your response (e.g., car owner, lessees, the DOT, etc.) to dnahass@railfin.com in the subject line of the email. The results will be posted in the July “Financial Edge” column in Railway Age.
The quick answer is that there is no easy response (duh!). Ultimately, the owner of a car will in some way have to take responsibility for its provisioning for service. For companies that own their cars and move crude oil, for example, it is straightforward: The car owner is responsible for the retrofit. These companies are “in for a penny, in for a pound.” If, like most end-users, the tank cars you operate are leased, the picture is a bit cloudier. A lessee in a net lease (where the lessee is responsible for car maintenance during the lease term) is like being the car owner during the lease term. A lessee in a full-service lease (where the lessor is responsible for, among other things, car maintenance during the lease term) has a lease with a provision that obligates the lessor to comply with laws requiring modification and increase your rental rate to accommodate the cost of the modification. This is called a mandatory modification.
Here’s where it gets cloudy. For a CPC-1232 specification tank car in packing group I (Bakken crude) service, the DOT set a date of April 1, 2020 (April Fools Day?) for compliance with the new tank car design. If your lease expires prior to that date, does a lessee have any responsibility to the car owner/lessor? If a lessor moves to modify a car and that modification will survive for the life of the car, how much of that cost should be the responsibility of a short-term lessee? These important questions will need to be addressed on a case-by-case basis.
Most lessors will not write a $60,000-$75,000 check for one car, never mind for 100 or 1,000 tank cars without a source of repayment. That is a huge risk. Lessors and car owners make investment-expecting repayment on that investment. When considering modification, this issue is key.
Which tank cars will be retrofitted? There are two main considerations when the topic of retrofitting comes up: Gross Rail Load (GRL) and Load Limit (LD Limit) that the tank car can carry. (The difference between the GRL and LD Limit is called the Light Weight, LT Weight.) How will these factors influence the choice of which cars will and won’t be retrofitted? A bit of railcar history. In 2005, the AAR defined a specification for railcar trucks (S-286) that established a standard for railcars that would carry 286,000 pounds GRL. Prior to that date, cars could be stenciled for 286,000 pounds GRL (though many were still stenciled at 263,000 or 268,000 pounds GRL). General types of freight cars such as covered hoppers for grain and plastics, coal cars and mill gons operated at 286 GRL capacity. However, for the most part, tank cars were not stenciled to the larger capacity until the S-286 specification was put in place.
What does this mean? First and foremost it means that cars built before the 286 GRL date may be at a disadvantage for retrofit. The loss of approximately seven to eight tons of commodity in a tank car is critical in evaluating crude by rail (CBR) economics.
Capacity loss will impact economics of scale, the cost of transportation (the railroad being required to haul more steel and less product and wanting to haul those cars that can be hauled at maximum rather than restricted speed), product salability and profit margins. Cars that are less than 286 GRL will be at a disadvantage when decisions about retrofitting will be made.
Which tank car is safest (or the politics of tank car safety)? A tank car lessee confided that they did not want their company to be the operator of a retrofit car (DOT 117R) that derails and explodes. This suggests that the company, by not using a car perceived as the most modern DOT 117 tank car, did not adopt the safest possible approach to shipping its commodity. On this issue there rests the finest of lines. A tank car is an expensive investment. Those that invested in tank cars prior to the DOT regulation should not be forced to throw those cars away at a loss to create an appearance of greater safety. Yet potential for that circumstance does exist. A tank is a welded item, not a cast item. Welds are welds. The parties involved in the railroad industry are safety minded and concerned about the public welfare. While this concern may be overblown and may be overstated, it is real.
For each company, decisions on safety and economics will touch each branch of a broad decision tree: cost of retrofitting, impact on product sales, change in freight rates, adjustments to lease expense, availability of shop capacity for retrofit and production capacity for new builds, and perhaps most important, the appearance (or lack thereof) of concern for the safety of transportation. Very, very Gordian.
Appealing the DOT Regs
As some readers may be aware, several parties have raised concerns about the regulations regarding tank car design and service changes issued by the Department of Transportation (DOT) and Transport Canada on May 1, 2015. Several parties are appealing the DOT regulations to the United States Court of Appeals. In an attempt to understand the appeals process, its impact and timing, I spoke with Christopher J. McAuliffe who is Senior Counsel at Morgan Lewis & Bockius, LLP. Chris has a strong background in environmental work and has worked on appeals of governmental regulations similar to the recent DOT promulgation. I asked Chris some questions about the appeals process.
RA: A number of parties have initiated court challenges to DOT’s new tank car regulations. What is that process and what are the potential results?
McAuliffe: A party adversely affected or otherwise aggrieved by a final action of the Secretary of Transportation, such as the new tank car regulations, may file a petition with the United States Court of Appeals requesting that the court review the regulations within 60 days of when the action is final. Absent special circumstances, petitions to review final regulations are limited to issues raised by the party during the public comment period on the draft regulations. Parties seeking court review typically assert that challenged provisions of the regulations (or the regulations in their entirety) are arbitrary, capricious, an abuse of discretion, contrary to law or otherwise outside of the regulatory agency’s authority. After the appeal petitions are filed, the challenging parties will file briefs to explain their position. The government will file briefs defending the regulation. The court, after hearing oral arguments from the parties, will issue its decision. Generally, the court can uphold the regulations and dismiss the challenges, or vacate and/or remand some or all of the regulations back to the regulatory agency for further consideration. The court will not rewrite the regulations, but it may provide the regulatory agency with guidance on rewriting the regulations if the regulations are remanded back to the agency for further rulemaking.
RA: What impact do these challenges have on the effectiveness of the regulations and parties’ compliance obligations?
McAuliffe: The new regulations become effective 60 days after their May 8 publication in the Federal Register, which is July 7. Challenges do not impact their effectiveness unless the court stays the regulations or the DOT withdraws or stays the regulations. So, absent such a stay or withdrawal, the regulations are law until a court says otherwise. Parties engaging in transactions should account for the new regulations in their negotiations. They should consider how the terms of their transactions should change if the regulations or some portion of the regulations are vacated or the DOT changes the regulations in response to a court’s decision.
RA: When can we expect a resolution of these challenges?
McAuliffe: It’s too soon to tell, but it is safe to say that there will not be a final court decision on these new regulations for at least a year. A factor in how fast a case like this moves is the number of parties and issues involved. For these new regulations, large numbers of parties submitted comments on many provisions of the draft regulations so there potentially is a large pool of participants in this litigation who could raise a large number of issues for the court to consider.
RA: Any similar proceedings on this matter?
McAuliffe: There have been many challenges filed and decided by United States Court of Appeals over the past several years with respect to regulations issued by the Environmental Protection Agency. Many of these environmental regulations, similar to the DOT’s new tank car regulations, are complex and require large expenditures by the regulated parties over a series of years. Industry, private interest groups, the government and the courts have learned from those experiences how to conduct effectively the inevitable legal proceedings that arise out of such regulations, and businesses have adjusted to any uncertainty presented by such legal challenges. It is important for parties to keep informed on these matters and to maintain flexibility to make adjustments where necessary.