Positive Train Control

Allison I. Fultz

Kaplan Kirsch & Rockwell LLP

Washington, DC

2010 LEGAL AFFAIRS SEMINAR

February 23, 2010

2

Overview

PTC Implementation – IMPORTANT DATES:

January 15, 2010 – Final Rule issued

March 16, 2010 – Final Rule goes into effect

April 16, 2010 – PTC Implementation Plan Deadline

December 31, 2015 – PTC Implementation Deadline

3

Overview

Rail Safety Improvement Act of 2008 (RSIA)

• Mandates comprehensive operational and physical improvements

• Broadens power of USDOT/Federal Railroad Administration (FRA) and Surface Transportation Board (STB)

Rulemaking to implement legislation is well underway – legislation sets out strict timetables

RSIA, Sec. 104: Positive Train Control (PTC) technology (49 U.S.C. § 20157)

4

Overview

Impetus for legislation -• Freight and passenger operations share track and

corridors• Precursors to current technology – 1920s–1960s• Recent technical advances• Recent incidents involving collision of passenger trains

with freight trains or interference with track

5

RSIA, Sec. 104 (codified at 49 U.S.C. § 20157)• Positive Train Control (PTC) is technology designed to

prevent collisions and other incidents by automatically detecting and controlling the movement of trains

• Definition (49 U.S.C. § 20157(i)(3)): a system designed to prevent train-to-train collisions, over-speed derailments, incursions into established work zone limits, and the movement of a train through a switch left in the wrong position

• Implementing regulations at 49 C.F.R. Parts 229, 234, 235 and 236

General

6

General

HOW IT WORKSKey components:• Equipment on locomotive cars

detects position and relation to other objects

• Equipment at control center – broadcasts authority for train movements

• Wayside interface units• Wireless data line between

train and control centerIllustration available at:www.volpe.dot.gov/safety/

crashavoid.html

7

General

When (49 U.S.C § 20157(a)(1); C.F.R. § 236.1005(b)(1)):• Progressively, according to PTCIP submitted by April 16,

2010• Complete implementation by December 31, 2015Who (49 U.S.C § 20157(a)(1)):• Class I freight carriers• Each railroad providing or hosting regularly scheduled

• Intercity passenger service (Amtrak)• Commuter passenger service

8

General

Where:• On each main line over which any quantity of poisonous

by inhalation (PIH) material is transported (49 U.S.C. § 20157(a)(1)(B); 49 C.F.R. § 236.1005(b)(i))

• On each main line used for regularly provided intercity or commuter passenger service, subject to limited exceptions

Main line definition: • Freight: a segment or route of railroad tracks over which

5 million or more gross tons of railroad traffic is transported annually (RSIA Sec. 104(i)(2), codified at 49 U.S.C. § 20157(i)(2))

• Passenger: all intercity and commuter passenger lines

9

General

Main line track exceptions• Only available to passenger intercity or commuter

passenger railroads, or freight railroads conducting joint passenger and freight operation over the same segment of track (49 C.F.R. § 1019(a))

• Specific segments of track may be designated as “not main line” (49 C.F.R. § 1019(a))

10

General

Regulatory progress:• DOT required to issue regulations governing PTC technology

(49 U.S.C. § 20157(g))• Notice of proposed rulemaking (NPRM) - July 21, 2009 (74

Fed. Reg. 35950)• FRA public hearing on proposed rule - Aug. 13, 2009• Final rule - January 15, 2010 (75 Fed. Reg. 2598) – effective

March 16, 2010• FRA seeks further comment on specific issues DOT must

report to Congress by December 31, 2012 on progress of PTC implementation

11

General

Immediate next steps:• PTC Implementation Plan due to FRA no later than April 16,

2010• Must describe where and how railroad will install PTC

systems• Each railroad must –

• Define circumstances• Describe risks• Propose PTC elements

12

Technical Requirements

• Interoperability (49 U.S.C. § 20157(i)(1))• Address areas of greater risk prior to areas of lesser risk (49

U.S.C. § 20157(a)(2))• Once a railroad’s plan is approved, it must be phased in

progressively (49 C.F.R. § 236.1005(b)(1)) – not all at once, as close to Dec. 31, 2015 as possible

• Subparts A through G of 49 C.F.R. Part 236 continue to apply

13

Technical Requirements

Each PTC system must reliably and functionally prevent: (49 C.F.R. § 236.1005)• train-to-train collisions• overspeed derailments• incursions into established work zones• Movement of a train through a main line switch in the

improper position

14

Technical Requirements

PTC system requirements, cont’d (49 C.F.R. § 236.1005) – system must:

• Include safety-critical integration of all authorities and indications of a wayside or cab signal system

• Provide an appropriate warning or enforcement in response to authority or hazard detection

• Limit the speed of passenger trains to 59 mph and freight trains to 49 mph in areas without broken rail detection or equivalent safeguards

15

Technical Requirements

Submittals:• PTC Implementation Plan (PTCIP) (49 C.F.R. § 236.1011)• PTC Development Plan (PTCDP) and Type Approval (49

C.F.R. § 236.1013) - Components• PTC Safety Plan (PTCSP) (49 C.F.R. § 236.1015) –

Procedures• PTCDP and PTCSP need not be submitted simultaneously

with PTCIP• FRA may require independent third-party verification and

validation of product safety plan (49 C.F.R. § 236.1017; 49 C.F.R. § 236.913)

PTC applications – public docket (49 C.F.R. § 236.1011(e))

16

Technical Requirements

Host railroad (49 C.F.R. § 236.1003(b)Safe State/fail safe (49 C.F.R. § 236.1003(b))

17

PTC & Passenger Operations

Requirements• No new intercity or passenger rail service may commence

after Dec. 31, 2015, until a PTC system has been certified, installed and made operative (49 C.F.R. § 236.1005(b)(6))

18

PTC & Passenger Operations

Requirements, cont’d.Joint submission of PTCIP (49 C.F.R. § 236.1009(a)(3))• If host railroad is required to install and operate a PTC

system on a segment of its track; and • If tenant railroad that shares the same track segment would

have been required to install a PTC system if the host railroad had not otherwise been required to do so

Civil penalties may apply if freight and passenger operators fail to reach agreement on joint filing (49 C.F.R. Part 236, Appendix A)

19

PTC & Passenger Operations

Main Line Track Exceptions 49 C.F.R. § 236.1019

File main line track exclusion addendum (MTEA) to railroad’s PTCIP

• Passenger terminal exception (49 C.F.R. § 236.1019(b))• Limited operations exception (49 C.F.R. § 236.1019(c))

• FRA may grant exception where passenger and freight operations are temporally separated, among other criteria

20

Federal Preemption

49 C.F.R. § 236.0(i)(1) – Final rule preempts any state law, regulation, or order covering the same subject matter, except an additional or more stringent law, regulation or order that is

• necessary to eliminate or reduce an essentially local safety or security hazard;

• is not incompatible with a law, regulation or order of the United States Government and

• that does not impose an unreasonable burden on interstate commerce.

49 C.F.R. § 236.0(i)(2) – Final rule establishes a federal standard of care for railroad signal and train control systems

21

HSR & PTC

Intersection with high-speed rail (HSR) requirements (49 C.F.R. § 236.1007)):

• As of Dec. 31, 2015, the method of protecting HSR operations will be through the use of PTC. 49 CFR § 236.0(d)(2).• Defines high-speed operations as those exceeding 80

mph.• Specific requirements apply:

• Freight operation above 50 mph; passenger operation above 60 mph

• Freight or passenger operation above 90 mph• Freight or passenger operation above 125 mph• Freight or passenger operation above 150 mph

• Amtrak relief

22

Observations

• Effects of “the pressure of the time”• Solicitation of further comments – no timetable announced• FRA discretion

23

Implementation Costs

• FRA has estimated cost to freight railroads alone of implementing PTC at $2.3 – 5 billion

• Public policy decision (75 Fed. Reg. 2602)• No funding for PTC proposed in either House or Senate

version of transportation reauthorization.• FRA has determined - no direct compliance costs on state

and local governments (75 Fed. Reg. 2696)• Class I view - cost of PTC is weighted disproportionately

toward Class I carriers, with little impact on Class II and III railroads. (75 Fed. Reg. 2612)

24

Policy Collisions

• Freights – leverage• Public agencies – no funding source for PTC-related

improvements• No Congressional proposal for funding• Shared use of corridors by freight and passenger providers• Implementation of HSR on shared corridors

25

Practical Considerations

Shared use – presence of passenger service on joint use corridor will not absolutely trigger PTC

Dispute resolution• no mechanism in final rule – use STB non-binding mediation

and plug result in at FRA?

26

QUESTIONS?

Allison I. FultzCharles A. Spitulnik Kaplan Kirsch & Rockwell LLPWashington, DC(202) 955-5600afultz@kaplankirsch.comwww.kaplankirsch.com