Positive-train-control (PTC) requirements still undecided as end-of-year deadline looms

Most rail companies will not implement positive-train-control (PTC) technology by the end of the year, as current law requires, according to a Government Accountability Office (GAO) report released this week. Meanwhile, at least some rail companies say they may stop service, if Congress does not pass legislation to extend the PTC-compliance deadline, according to a letter from a top transportation official.

Beltway sources indicate that federal lawmakers—and the Obama administration—agree that the PTC deadline should be changed, and a five-year extension to Dec. 31, 2020, is included in the surface-transportation legislation passed by the Senate earlier this year. A House surface-transportation bill is still “under development” and no timetable has been established to introduce such legislation, according to Jim Billimoria, communications director for the House Committee on Transportation and Infrastructure.

House Transportation and Infrastructure Committee Chairman Bill Shuster (R-Pa.) and Senate Commerce Committee Chairman John Thune (R-S.D.) were among the leading lawmakers that requested the GAO report on the PTC initiative. Shuster pledged to work on legislation that would extend the PTC deadline.

“This GAO report confirms that the PTC mandate is not achievable, and extending the deadline is essential to preventing significant disruptions of both passenger and freight rail service across the country,” Shuster said in a prepared statement.  “I am committed to working with Senator Thune and our colleagues to address the clear need for an extension and to ensuring that railroads implement this important but complicated safety technology in a responsible manner.”

Thune echoed this sentiment.

“Passenger and freight railroads need time beyond the current deadline to finish implementation of a complex system that relies on new technology,” Thune said in a prepared statement. “Failure to extend this legal deadline would create significant hardships for customers and passengers who rely on railroads. Passing an extension that includes meaningful accountability for PTC implementation is the best thing Congress can do to enhance safety and avert a chaotic situation that would hurt our economy much more than the recent West Coast ports backup.”

With the vast majority of rail companies stating that they will not be able to meet the end-of-the-year PTC deadline, the absence of an extension would force them to decide between two bad options: Cease operations or continue operating in violation of federal law, which could make them vulnerable to myriad legal liabilities and even potential regulatory enforcement action.

In fact, the BNSF Railway Company informed the Surface Transportation Board in a letter that it would not meet the PTC deadline and “offered the possibility that ‘neither passenger nor freight traffic would operate on BNSF lines that are required by federal law and regulation to have an interoperable PTC system’ after the current deadline,” according to a letter from Surface Transportation Board Chairman Daniel Elliott to Thune.

Informal communications with rail companies indicate that other railroads also are considering suspension of their freight and passenger services, if Congress does not extend the PTC-compliance deadline, Elliott states in his letter.

If Congress does not extend the PTC-compliance deadline, rail companies will have a lot to consider, according to Elliott.

“Without commenting on the merits of any particular concern, it would seem that the railroads would be considering how noncompliance would affect them in matters such as: insurance coverage; exposure to tort or other commercial liability; labor-relations issues; and potential civil penalty assessments by the Federal Railroad Administration,” Elliott states in his letter.

Suspending service also has potential legal and regulatory pitfalls, in addition to the obvious negative business implications, Elliott said. Rail companies have common-carrier obligations “to provide service pursuant to a reasonable request.” If a carrier were to suspend its service due to a lack of compliance with the PTC laws, it “would present a case of first impression before the [Surface Transportation] Board,” Elliott states in his letter. “I cannot predict the outcome of such a case.”