I think the real threat to NS steam is Wick Moorman's retirement announcement today.

I do not believe that Congress ever intended to extend the deadline. No matter how obvious it has become that the installation of PTC has been underestimated by Congress, and that more time is justified; there is the feeling that an extension will lead to complacency and ultimately take more time than necessary to finish the work. So the plan by Congress and the FRA has been to hold firm on the deadline, and then issue fines thereafter. The continuance of daily fines would keep the pressure on to get the job done. The railroads were nicely boxed in.

Considering this rationale, I do not believe that Congress or the FRA expected the railroads to threaten to shut down. I think this has come as a complete surprise. The effect is that the threat to shut down amounts to a reversal that places Congress into a box. A shutdown would cause a national crisis and damage the economy. The government simply must prevent this from happening.

One way to prevent it would be for Congress to cave on the deadline and offer an extension. But the optics of this would look like Congress caving in to a threat from the railroads at the cost of prolonging the national danger that PTC seeks to eliminate. The railroads shutting down would particularly look like a tactical threat if Congress happens to disagree that being non-PTC compliant after the deadline legally requires a shutdown.

There is a common carrier obligation to operate, but the railroads say that it is suspended if they are non-compliant after the PTC deadline. Congress may disagree with that premise, and say that a shutdown is illegal. Congress may say that the railroads must continue to operate and just pay the fines until they are PTC-compliant. Therefore, with the railroads and Congress disagreeing over the meaning of the law, the matter would have to be resolved in the courts.

I suppose the ultimate say in the matter requires the courts to decide. But my point is that if Congress thinks the shutdown is illegal, they may refuse to extend the deadline, and just call the railroads’ bluff. Then what? How long are the railroads prepared to stay shut down and lose revenue? Aside from that, it could be a public relations disaster if the railroads are portrayed in the media as destroying the economy.

Port Authority Transit Corp. installed Automatic Train Operation on its Lindenwold High
Speed Line because Automatic trains could run trips in less time than when run manually.
Under Automatic operation, the trains always ran at the maximum speed allowed, and
the brakes were released as soon as the train slowed to the new speed limit, and
maximum power was applied as soon as the speed limit increased. A human operator
could not respond and move the controls that quickly. Also, a human operator might
be conservative, and keep the speed under the limit, instead of just at it, to avoid over
speed alarms.
Now, some freight trains don't take kindly to having brakes released before the train has
been completely stopped, so the above productivity gain might not always apply.

NS posted a service alert yesterday: "Notice of Cessation of Service Effective December 1, 2015, for All Shipments of Poisonous-Inhalation-Hazard (“PIH”) Commodities"
...
"In addition, NSR has notified in writing Amtrak, Virginia Railway Express and Metra that passenger trains will not be permitted to operate on NSR track after December 31, 2015."

http://www.nscorp.com/content/nscorp/en ... pment.html

Seems like the government isn't listening to the railroads, there are tons of articles popping up everywhere. http://www.bing.com/news/search?q=ptc+s ... dlt=strict

I find it interesting how closely this is falling in line with the story of "Atlas Shrugged". Big train wreck, government meddling, industrial giants going on strike, etc.


The FRA may not. They are surprisingly practical, for a government agency.

The courts will definitely frown on this. My jurist divining rod says: courts do not like catch-22’s, especially those created by lawmakers, and may be gleeful in punishing creators of same. Especially if they see the law as a political stunt done to grandstand and full knowing courts would later strike it down.

I believe courts will tend to view the whole of government as a single actor; so if the "left hand" FRA requires a fast-track, while the "right hand" FCC stacks delay upon delay, they'll hold that against the "head", not the company stymied by it.

I think if a party is put in a no-win situation and errs on the side of complying with the law, courts will never punish that. Think of the impact of such a precedent!

In a no-win situation, if a business where safety matters, takes the safer course, courts will be very reluctant to punish that.

Courts are not big fans of unfunded mandates. They smell like regulatory takings. If regulations limit your use of your property too much, courts may view them as being tantamount to a "taking" under the 5th Amendment, requiring the government to pay for it. That would be more likely if the on-its-face purpose of PTC (safety) required a fairly simple thing, but the government required unnecessary complexity, driving up its cost.

All in all, I think the railroads are in pretty good shape here legally.

Keeping in mind that judges are lazy, and the #1 question always on their minds is "why are you in my courtroom today" (litigating over something you could have worked out among yourselves)? If the answer to that question strongly disfavors one party, well, don't be that party.

If you look at all the various rulings, the trend is currently on the side of the railroad industry.

The Surface Transportation Board has already ruled that railroads are common carriers, but when regulations prevent them from operating as a common carrier, the additional regulations have the power. The STB has said that railroads have the obligation to shut down where PTC is required but not operating. The FRA has said that they will happily issue fines, estimated to total many millions of dollars a day, if the railroads operate. For a railroad, the big issue is if they operate and have any problem, then it falls under gross negligence which generally takes any damages and multiplies it by 10 or more. Even where no PTC is required, an accident or incident could lead to large lawsuits as it could easily be proved in court that the railroad is knowingly operating illegally elsewhere.

The Inspector General has issued a long report, placing most of the blame for this problem on the FRA, FCC, and Congress. The IG has said that Congress can extend the completion date with simply a new law. The IG report is a very interesting (but somewhat hard) read and sounds somewhat like like an old comedy routine - Who's on First, etc.

Congress is having an issue. The Senate rolled all transportation issues into one giant bill, reportedly more than 2000 pages. It has been held up because of veto threats and Senators from both parties wanting to add and subtract parts of the bill. The House of Representatives has had a bill come out of committee that covers only PTC and gives an extension through 2018. This bill is only a few pages and also would give the FRA the authority to issue additional waivers on PTC installation. The bill also requires monthly status reports from the railroads installing PTC. The Senate bill is tied into all transportation funding and a number of other issues.

Right now, there doesn't seem to be much panic in Washington, DC, but the general public (and shippers) are just now starting to understand what is happening. I've been quite busy the last few months explaining the issue to large rail shippers, and in some cases helping to put emergency plans in place to deal with the loss of rail transportation.

I am sure that congress will have to cave in to the railroads because they hold the cards. Without the railroads the economy shut downs. I think the railroads are playing a dangerous game here calling Congress out is gutsy and I give them credit for that. The ones who owns the railroads they will do what they want if congress wants a railroad go get one oh wait they have one and that's Amtrak. If NS will not go entirely PTC and something happens then that's their fault. Congress needs to be put in their place and say no. If congress want PTC so damn bad then have them pay for the thing out of their own dollar. Well see what happens then

"Congress has no say in the matter, whether or not railroads continue to run or not past a deadline.

If there is a hard deadline and any carrier operates past that deadline- they are in fact in violation of the regulation. Surely, the FRA will frown on this."


I'm sorry, but this is silly. Congress created the requirement by statute, the deadline is not a regulation, and even if it were, the legislature controls the regulator.

Ԥ 20157. Implementation of positive train control systems
‘‘(a) IN GENERAL.—
‘‘(1) PLAN REQUIRED.—Not later than 18 months after the
date of enactment of the Rail Safety Improvement Act of 2008,
each Class I railroad carrier and each entity providing regularly
scheduled intercity or commuter rail passenger transportation
shall develop and submit to the Secretary of Transportation
a plan for implementing a positive train control system by
December 31, 2015, governing operations on—

"I am sure that congress will have to cave in to the railroads "

Now here's a different interpretation. This Congress will realize that a prior session, no doubt with the interests of a whole bevy of electronics suppliers, IT consultants and operations consultants in mind (and perhaps the railroad themselves seeing an opportunity to remove the costs of wayside signalling) made an unrealistic edict to design, develop and deploy a system that only existed in concept and now they'll undo that error before a major transportation substructure makes a wholly rational decision to suspend service and avoid massive fines.

This issue reminded me of the attached cartoon, which I clipped out of the newspaper nearly forty years ago.

/s/ Larry
Lawrence G. Lovejoy, P.E.

thats the key, just the plan, not that you might or might not be fully implemented.

No...the railroads had to submit a plan within 18 months of the law passing that would result in full PTC operation by December 31, 2015. This means that the PTC MUST be active by January 1, 2016.

A problem with this was that the FRA took that long to define what PTC was and the railroads were set back from the start by not even being able to create a plan.

The House Transportation and Infrastructure Committee has approved the Surface Transportation Reauthorization and Reform (STRR) Act of 2015 (H.R. 3763). It now goes to the Ways and Means Committee and then on to the Full House. One of the provisions is a minimum three (3) year extension on the deadline for implementation of Positive Train Control.

Assuming that it passes the full house it will then be up to the Senate to pass a bill which agrees substantively with the house bill and then for the President to sign it. There is limited time for this to happen and if there is not some sort of delay approved by the Congress and signed by the President then the threatened shutdowns seem a certainty. The result will be economic chaos coupled with gridlock.

While this is not really the place for a lecture from Constitutional Law 502, Separation of Powers, based on some of the comments here I think a quick overview is in order.

The Legislative Branch, Congress, makes the law. The Executive branch, headed by the President, implements and enforces the law. Officers of the Executive Branch, including the Administrator of the Federal Railroad Administration, are charged with enforcing the law on behalf of the President. The third branch of our government, the Judiciary is charged with interpreting the law. (In my profession we often consider that to be cleaning up the mess left by the other two branches)

One of the checks and balances is that the President signs off on the Congress' actions. If there is significant disagreement between the Legislative and Executive Branches the we have the Veto and Override Process. The PTC Mandate came from the Congress in the form of the Rail Safety Improvement Act of 2008 and was signed into law by the President at the time, George W Bush. No Veto, no need to Override.

Because the basis of the mandate is a date set by the original legislation it is up to the Congress to fix it. The President (and by extension the Federal Railroad Administration) is charged with enforcing that law. The Surface Transportation Board (part of the Executive Branch, not the Judiciary) has already stated that Federal safety legislation overrides the common carrier obligation. (Remember that most Preemption arguments are over who may regulate railroads, not whether they may be regulated).

By way of disclosure - Both my lovely Granddaughter and one of my long time associates are involved in the Railroads' lobbying efforts.

The best place to start if you want an overview of the real issues involved is http://www.gorail.org. As I have said so many times elsewhere, "Its about MONEY, not running trains."

GME

http://www.railwayage.com/index.php/ptc/house-ti-passes-hr-3763-ptc-extension-intact-now-the-fun-begins.html?channel=63

For anyone residing on Mars or otherwise out of reach of the various headline services: Yesterday the Full House passed HR 3819 which was primarily the temporary extension of the Transportation Trust Fund. It included a provision extending the Positive Train Control deadline by at least three years. Acting with incredible speed the Senate this afternoon approved the bill without modification. It now awaits the President's signature.

Almost as an aside, now that she is no longer caught in the middle, the Senate confirmed Sarah Feinberg as the FRA Administrator.

GME

(Edited to correct House bill number 'arthritic finger on blackberry error')