Positive Train Control Still on the Front Burner

by Nossaman LLP

In 2008, Congress mandated the installation of positive train control ("PTC") communications and signaling technology on many passenger and freight rail lines by the end of 2015.  49 U.S.C. § 20157.  Congress tasked the Federal Railroad Administration ("FRA") with implementing the PTC mandate, and FRA has engaged in a contentious rulemaking process, most recently responding to rail industry criticism by proposing amendments to the PTC rule on December 11, 2012 that would further limit the scope of the PTC mandate.  77 Fed. Reg. 73589 (Dec. 11, 2012).  Comments on these proposed amendments are due by February 11, 2013.

Railroad industry concerns have centered on the scope of the rail lines burdened by the PTC mandate, and the 2015 implementation deadline.  The crescendo of criticism has peaked in recent months, with even FRA admitting that the majority of railroads cannot meet this 2015 deadline.  FRA Report to Congress: PTC Implementation Status, Issues, and Impacts (Aug. 2012).

Some in Congress sought to extend the PTC deadline through the 2012 surface transportation reauthorization bill, but when the rail title was ultimately excised from the bill, the PTC extension fell by the wayside.  Congress hopes to pass a new comprehensive rail bill in 2013, and will likely address PTC through that legislation, perhaps extending the deadline to 2018 or 2020 and further reducing the scope of the mandate.

PTC consists of a system of track signals and sensors that communicate train location, speed limits and moving authority, and on-board technology that allows the PTC system to automatically control railroad locomotives.  The Rail Safety Improvement Act of 2008 requires each major railroad carrier and each entity providing regularly scheduled intercity or commuter rail passenger transportation to implement by December 31, 2015 interoperable PTC technology on each passenger main line and each freight main line that carries poison- or toxic-by-inhalation hazardous materials.

This PTC mandate initially extended to approximately 70,000 miles of railroad track, or nearly 50% of the nation's total track-miles.  The FRA has estimated this massive technological undertaking to cost approximately $14 billion, but the federal government has offered little or nothing in the way of financial support to install PTC.  The Congressional Research Service has estimated that the capital cost of meeting the PTC mandate is roughly equal to the total capital spending of all railroads in a single year.  While major freight railroads largely have access to the capital to implement PTC on their affected rail lines, some commuter and passenger railroads have struggled to identify funding for PTC installation, leading many to describe the PTC requirement as an "unfunded mandate."

While Congress set the broad standards for the PTC mandate, it required the FRA to determine the details through rulemaking proceedings.  Through a series of final rules and amendments, the FRA reduced the affected rail lines by about 10,000 track-miles, but the FRA cannot extend the statutory deadline without congressional action.  If Congress enacts a rail bill in 2013, we anticipate the bill to include a limited PTC deadline extension.  The bill also would likely reduce the scope of the PTC mandate and may include funding for PTC implementation by passenger railroads, perhaps by making PTC projects eligible for existing programs like the Railroad Rehabilitation and Improvement Funding Program.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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