That whooshing sound you may have heard early on Wednesday, Sept. 30 was a collective sigh of relief expelled by everybody who has been beating their head against the wall since 2008, when the Rail Safety Improvement Act mandating fully operational Positive Train Control by the stroke of midnight Jan. 1, 2016, was passed.
The House Transportation & Infrastructure Committee, after flogging railroaders and regulators in numerous let’s-beat-another-dead-horse hearings on why PTC won’t get done on time, and egged on by the Thune in its side, finally did the right thing by introducing H.R. 3615, the Positive Train Control Enforcement and Implementation Act of 2015. If H.R. 3615 becomes law—and I have little reason to believe it won’t—the industry will have at least three more years to turn on a fully operational and interoperable PTC network.
I now have at least some faith that PTC will not become an acronym for “Perpetually Tardy Congress.” You can thank House Transportation & Infrastructure Committee Chairman Bill Shuster (R-Pa.) and Ranking Member Peter DeFazio (D-Ore.), and House Railroad Subcommittee Chairman Jeff Denham (R-Calif.) and Ranking Member Michael Capuano (D-Mass.) for introducing this bipartisan legislation. (I suppose it’s bipartisan because PTC applies to passenger as well as freight operations). You can also thank Senate Committee on Commerce, Science, and Transportation Chairman John Thune (R-S.Dak.) and Ranking Member Bill Nelson (D-Fla.) for pushing very hard on this matter.
Visions of a doomsday scenario, prompted by more letters than even Santa Claus gets, have been swirling around Capitol Hill: embargoed hazmat trains, contaminated drinking water, untreated sewage, deadly diseases like cholera and typhoid running rampant, passenger rail service shut down, and the economy grinding to a halt, if there is no PTC extension. The Big Seven Class I railroads all said that without an extension, they “would be forced to suspend shipments of certain chemicals, including some used in treating drinking water and in fertilizers; commuter railroads would need to cease operations, significantly impacting commutes in major metropolitan regions; and all Amtrak service outside of portions of the Northeast Corridor would be suspended.” The Federal Railroad Administration and the Government Accountability Office previously recommended extending the PTC deadline. Additionally, groups such as the American Water Works Association, Alliance of Automobile Manufacturers, American Chemistry Council, American Farm Bureau Federation, National Association of Manufacturers, National Retail Federation and U.S. Chamber of Commerce all expressed support of a PTC deadline extension.
See? If everyone screams loudly, something might get done. Whoever said Congress wasn’t a reactive body?
Here are the basics of H.R. 3651: The bill gives railroads until Dec. 31, 2018 to implement PTC. The Secretary of Transportation has the discretion to extend the deadline for up to 12 months if the railroads “are able to demonstrate to the satisfaction of the Secretary that they: (1) are unable to meet the deadline due to technical, programmatic or operational challenges, such as availability of public funding, spectrum, technology and interoperability standards; (2) have taken actions to address any challenges and mitigate risks to successful implementation of PTC; and (3) have made good-faith efforts to implement their plans. If carriers still face challenges, the Secretary has the discretion to provide a one-time additional extension of up to 12 months if a carrier is able to demonstrate to the satisfaction of the Secretary that (1) implementation of PTC was delayed due to one or more circumstances beyond the carrier’s control, such as a delay in federal approval of a plan, testing or certification; or (2) the carrier has experienced additional technical, programmatic or operational challenges; demonstrated due diligence in fully implementing PTC; and has made substantial progress in fully implementing PTC. Any such carrier must commit to the Secretary in writing that they will fully implement PTC by the end of the extension.”
The legislation also requires the railroads to revise and transmit to the Secretary their PTC Implementation Plans, “which must include a detailed schedule and sequence for full implementation of PTC. Under current law, the Secretary has authority to enforce the plan.”
Finally, H.R. 3651 authorizes the Secretary “to phase-in PTC deployment so the railroads do not have to wait until the end to ‘turn it on.’” T&I noted that “a phase-in is not authorized under current law or federal regulation.”
So, it looks like we will have an extension, and the bill seems to contain enough flexibility to allow for even more delays—even though Shuster & Co. have said that “Congress will not accept any more delays.”
Basically, the railroads have been handed a Get Out of Jail Free card. I’m betting that they won’t blow this opportunity. I don’t recommend assuming two more years will be available, on top of the three that have been promised. You never know who’s going to be running things in the White House or at the DOT or on Capitol Hill, and politicians tend to have very short memories.
So, here are the marching orders from Shuster and Denham. Note the disciplinarian-like tone: “Railroads must implement this important but complicated safety technology in a responsible manner, and we need to give them the necessary time to do so.” (Shuster). “Passenger and freight railroads have stated they can’t meet the current deadline and will shut down later this year. This includes ACE in my district. We must protect communities across the country from a railroad shutdown, which would damage local economies nationwide.” (Denham).
As rookie Apollo 13 Command Module Pilot Jack Swigert said to Commander Jim Lovell and Lunar Module Pilot Fred Haise when attempting to dock the CM with the LM (in the movie, three days before the oxygen tank exploded), “Don’t worry guys. I’m on it.”
The reaction from the railroads was enthusiastic and optimistic: “The freight rail industry is pleased the House T&I bipartisan leadership has introduced legislation to extend the PTC deadline,” AAR chief Ed Hamberger said. “The Committee leadership clearly recognizes the need for immediate action to forestall the looming economic crisis that would result from widespread freight and passenger rail service disruption. We look forward to working with both the House and Senate bipartisan leadership to quickly get the PTC extension across the finish line and to the President’s desk for signature.”
“Looming economic crisis.” Nice touch, Ed. Keep driving that point home. I don’t think you need to go as far as mentioning cholera and typhoid epidemics, as several water treatment industry associations predicted would break out if railroads stopped moving chlorine and anhydrous ammonia.
Of course, Congress is always willing to engage in a little back-slapping (when members from opposite sides of the aisle aren’t engaging in back-stabbing). “I applaud Reps. Shuster, DeFazio, Denham and Capuano for introducing legislation to extend the deadline and avert a disastrous rail service shutdown, the effects of which we will start to see in November,” said Thune (who can now extract himself from the side of the T&I Committee). “The Senate has passed a bipartisan proposal to avoid commuter and freight rail service disruptions with case-by-case oversight to ensure continued progress is made toward full implementation. Along with my colleagues, I am committed to securing enactment of an extension that meets the needs of railroad passengers, railroads and freight customers while important safety enhancements move forward. Our country’s economy cannot afford the significant disruptions that will occur if we don’t act soon. Reaching an agreement and passing legislation in the coming weeks is the only way to avert a rail service shutdown.”
Recall that on July 30, 2015, the Senate approved the DRIVE (Developing a Reliable and Innovative Vision for the Economy—another clever acronym!) Act on a bipartisan vote of 65-34. The DRIVE Act is described as “a significant bill creating forward-looking policies for building transportation infrastructure and improving safety. The DRIVE Act included a PTC extension provision (Section 35442), passed by the Commerce Committee. The proposal is specifically designed to maintain the need for railroads to install and activate PTC systems as soon as safely possible, while recognizing that review by regulators after installation will take additional time.”
The DRIVE Act would extend the deadline through 2018. According to Capitol Hill Contributing Editor Frank Wilner, “The Senate extension is part of a massive highway bill that will not pass this year. Thus, the House version most likely is what will have to move and find something bigger and passable on which it can be appended.”
Nothing is ever simple in Congress. Most legislation has to be “attached” or “appended” to something else. Seems to me as though every member of Congress should be given an honorary membership in Monty Python’s Society For Putting Things On Top Of Other Things.
To make matters more complicated, the day before H.R. 3615 was introduced, three chemical industry trade associations—the American Chemistry Council, Chlorine Institute and Fertilizer Institute—applied for a preliminary injunction to prevent the “Defendant” railroads from “refusing to accept or transport toxic inhalation hazard (‘TIH’) materials offered for rail transportation on grounds that such transportation cannot be performed over main lines due to Defendants’ failure to equip those lines with an operable positive train control (‘PTC’) system, as required by 49 U.S.C. § 20157(a).” The complainants have sought a hearing within 21 days on their preliminary injunction application. The application is supported by affidavits from seven chemical companies, along with the chief economists from the ACC and The Fertilizer Institute.
I can imagine what the reaction at the AAR was to that one. Probably something like, “Jeez, don’t these pains in the posterior ever let up? I mean, we want their business, but enough is enough!” (For the record, it’s not polite to say “ass.”)
The AAR’s actual reaction (not chemical) was more measured:
“The legal action taken by shippers is regrettable, but not surprising considering the situation that has been created by the lack of a PTC deadline extension. This situation highlights the difficult position in which railroads find themselves as the clock ticks down on getting a PTC extension and avoiding real-world consequences for millions of commuters and the consumer and industrial goods moved each day by rail in support of the American economy. Congress can ensure all of this can be avoided—legal action by shippers, the very real potential for a nationwide rail shutdown—by doing the right thing and quickly taking legislative steps to extend the PTC deadline, a deadline that has proven to be unworkable. The decision by some shippers to turn to the courts is a stark example of how serious this situation is and the urgency that exists for Congress to find the legislative will to extend the PTC deadline before the end of October.”
What does our erstwhile Capitol Hill sleuth/transportation law guru Frank Wilner have to say about the American Complaining Council/Swimming Pool Quick Tabs Institute/Cow-Pie Institute shot across the tracks? (Yes, I know—it should be “shot across the bow,” but this isn’t Marine Log talking.)
“Perhaps the AAR should enquire of the complainants’ attorneys whether they, were the positions reversed, would advise their clients to carry these hazardous materials in the face of open-ended liability were there to be an accident. I cannot fathom what they are asking a court to do, as it would seem that the right of embargo, as an exception to the common carrier responsibility, was intended precisely for such a situation as is now faced.”
“My understanding of the law and regulation is that railroads, in the first instance, issue an embargo, which can be for a definite or indefinite period,” Wilner notes. “Such an embargo can be appealed to the Surface Transportation Board. Said the Interstate Commerce Commission way back in 1917 with regard to embargoes: ‘The Act to Regulate Commerce (renamed the Interstate Commerce Act in 1920) does not inhibit the declaration of an embargo by a carrier, and the advisability or the necessity of declaring embargoes is a matter of policy to be determined in the first instance by the carriers.’ (Baltimore Chamber of Commerce v. B.&O. R.R., 45 ICC 40 (1917).)”
If you haven’t read enough by now and are interested in something free of my Newark, N.J.-bred wisecracks (yes, I’m an Italian originally from Newark), click on this link to H.R. 3615, the actual bill, as published in the Congressional Register.
If you want to know how much time is left for Congress to pass the bill and for President Obama to sign it, go to the AAR website, where you wil find a digital countdown clock. Sorry, I didn't see any crystal ball waiting to drop at midnight on New Year's Eve, like the one in Times Square.