'Hill' weighs in on passenger rail safety, security

The safety and security of the nation’s passenger rail systems received significant attention on Capitol Hill during 2007. A number of hearings were held by the relevant committees in the House and Senate early in the legislative cycle to consider railroad safety, reauthorization legislation and rail security funding. These hearings culminated in the authorization by Congress of significant amounts of rail security funding and the passage of railroad safety legislation on the House side. Congress also clarified the scope of a railroad safety preemption statute and directed the Department of Homeland Security (DHS) to take various measures to improve rail security.

It is likely that further consideration of the railroad safety legislation will be one of the top legislative priorities for the Senate in 2008. The debate will focus on proposed revisions to the federal hours-of-service laws applicable to Amtrak, commuter railroads and freight railroads subject to the jurisdiction of the Federal Railroad Administration (FRA). In addition, the Senate will evaluate possible mandates for the implementation of positive train control (PTC) technology by the largest Class I freight railroads. Although very costly to develop and deploy, the implementation of such PTC technology could have significant safety and security benefits for both freight railroads and the passenger operators that share tracks or corridors with those freight railroads.

Railroad safety legislation:

The House passed railroad safety reauthorization legislation (H.R. 2095, the “Federal Railroad Safety Improvement Act of 2007”) in October. One of the most significant provisions of the House bill would increase the maximum rest period under the federal Hours of Service Act, which is designed to prevent fatigue among train operating employees. The House bill also would establish significant limits relating to “limbo time” (the period after the train crew reaches the hours-of-service limit but before a replacement crew arrives), require railroads to prepare fatigue management plans and give the FRA, which would be renamed the Federal Railroad Safety Administration or FRSA, explicit authority to revise the applicable hours-of-service standards through regulation. These hours-of-service laws apply to all passenger rail systems (including Amtrak and commuter rail operators) subject to FRA safety jurisdiction and could in certain circumstances apply to rail transit operators that share track or other essential facilities with freight railroads.

The House bill would adopt a number of measures to improve the monitoring of safety at highway-rail grade crossings and would double the number of FRA safety inspectors from approximately 200 to 400. These provisions would provide further support for the FRA’s recent initiative to improve rail safety compliance. In addition, H.R. 2095 also would require Class I freight railroads to implement PTC technology by December 2014 (unless a waiver of the applicable deadline is obtained from FRA) and would authorize the establishment of a grant program for the deployment of such technology. The grant program would give priority consideration to applications that benefit both passenger and freight safety and efficiency, or to applications that create incentives for PTC deployment on “high-risk corridors” with hazardous material movements or Amtrak and commuter rail operations.

The FRA safety reauthorization bill, which is currently awaiting consideration by the Senate (S. 1889, the “Railroad Safety Enhancement Act of 2007”) addresses many of the same subject areas as the House bill. Among other provisions, the current Senate version would adopt less restrictive changes to the Hours of Service Act, authorize the FRA to hire slightly fewer safety inspectors, and would require Class I railroads and commuter/intercity railroads to implement PTC technology by the end of 2018. In the event that railroad safety legislation is passed by the full Senate in 2008, any remaining differences between the House and Senate versions would be ironed out by a conference committee. The final version of such legislation should be of great interest to the various passenger rail systems across the country.

Railroad security legislation:

The security of the nation’s passenger and freight rail systems received similar legislative attention on Capitol Hill last year. Rail security legislation that covers both passenger and freight rail operators was enacted in August 2007 as part of the bill implementing recommendations of the 9/11 Commission (P.L. 110-53, Implementing Recommendations of the 9/11 Commission Act of 2007). This rail security legislation authorizes $3.4 billion in transit security grants through FY 2011. These funds must be distributed directly to transit agencies and will not require state or local matches. The legislation requires transit properties that accept such funds to establish security plans and staff training programs that will be subject to certain levels of federal oversight.

The rail security legislation also authorizes $1.2 billion for freight railroad and Amtrak security. These collective amounts represent a significant increase in federal authorization for passenger and freight rail security funding — although funding remains subject to the annual appropriations process. The 9/11 Commission Recommendations bill also contains several provisions that direct DHS to complete a national railroad security risk assessment in order to develop a “National Strategy for Railroad Transportation Security.” The bill also requires railroad carriers assigned to a “high-risk tier” by DHS to complete a vulnerability assessment and to develop security plans that would be approved by DHS.

The 9/11 Commission Recommendations bill also clarifies that state law tort claims arising from railroad accidents are not preempted by federal law in certain circumstances. This clarification was enacted in response to a federal court decision arising out of a 2002 freight train derailment in Minot, N.D. This decision left injured parties without an apparent remedy by finding state law causes of action against the Canadian Pacific railroad, preempted by federal law even if the railroad allegedly did not comply with FRA laws and regulations relating to rail safety.

The statutory clarification makes it clear that federal law will not preempt state law causes of action where a defendant has failed to comply with applicable federal rail safety regulations. The revised preemption statute is retroactive to Jan. 18, 2002 (the date of the Minot accident) and should be of great interest to Amtrak and commuter railroads subject to FRA jurisdiction. These systems are also following closely the pending appeal of a state court decision arising out of Metrolink’s Glendale, Calif., accident that determined that push-pull operations are not subject to federal preemption.

The Omnibus appropriations bill, which was enacted in late 2007 (P.L. 110-161, Consolidated Appropriations Act, 2008), includes $400 million (more than double the initially requested amount) in rail security grant funds. The legislation specifies that rail transit systems, commuter railroads, Amtrak and freight railroads are eligible for such funds, although at least $25 million must be used for Amtrak security. The remaining appropriated funds could be used, for example, to help deploy PTC technology (as authorized by the 9/11 Commission Recommendations bill) or on other similar initiatives.

The use of innovative PTC technology to improve safety and security on the rail network is a common theme in the rail legislation passed in 2007, and there are existing demonstration projects underway to further this goal. The BNSF freight railroad and Chicago’s Metra commuter rail system are deploying Electronic Train Management System (ETMS) technology developed by Wabtec Corp. on limited portions of their systems. ETMS is a form of positive train control, which the National Transportation Safety Board as far back as 1990 labeled one of the “Ten Most Wanted” transportation safety improvements. This type of technology is extremely costly to implement, but has significant safety and security benefits because of the ability to override human factor errors that contribute (in the FRA’s estimation) to approximately 40 percent of all train accidents. The technology also could be used to automatically shut down operations in the event of a terrorist attack or other emergency. ETMS, for example, is an electronic signal system safety overlay that automatically initiates braking if a train engineer does not act in accordance with operating instructions or fails to respond to movement and speed limit warnings.

2008 outlook:

Although election year politics will have a major impact on the legislative achievements in 2008, rail safety legislation will be at the top of the Senate’s transportation agenda in the final year of the 110th Congress. It is likely that a compromise version of the House and Senate rail safety bills will be enacted at some point in 2008. Unless there is another tragic accident or terrorist incident, there probably will be less legislative activity on rail security funding given the significant achievements in 2007. Congress also hopes to move legislation relating to Amtrak that could have implications for other passenger railroads that share track or other facilities with the intercity railroad.