STB unclear on handling of rail service shutdowns

OREANDA-NEWS. September 14, 2015.  It is not clear how the Surface Transportation Board (STB) would handle a railroad that chose to suspend freight and passenger service rather than operate while out of compliance with the mandate to have positive train control (PTC)technology installed by 31 December, the board's chairman recently told a Republican senator.

STB chairman Dan Elliott wrote in a letter to senator John Thune (R-South Dakota) that the railroads might be able to lawfully suspend service despite a common carrier obligation, and that the Federal Railroad Administration (FRA) would need to be consulted before a governmental response is determined.

Elliott in the letter said "it appears that some railroads are considering suspending all freight and passenger service" beginning 1 January on lines where PTC will be required by then. Thune, chairman of the Senate Commerce Committee, has taken the lead on a PTC extension proposal since his oil-heavy state has a strong interest in keeping crude trains moving.

The seven Class I railroads serving North America this week told Thune, Elliott and heads of other federal agencies that they might suspend freight and passenger traffic across tens of thousands of miles of rail lines if Congress does not extend the deadline. Railroads have said for years they will not make the deadline Congress mandated in the Rail Safety Improvement Act of 2008 (RSIA) to install PTC, a \\$9bn hardware and software system designed to keep trains from colliding.

Thune had written Elliott in late August, asking what information STB has sought from railroads, which factors railroads would consider in deciding whether to suspend service, and how the board would handle the service snarls that would result if the deadline is not extended.

The common carrier obligation, which requires railroads to provide service pursuant to a reasonable request from shippers, "is not absolute, and railroads can lawfully suspend service for a number of reasons, including safety," Elliott said.

Previous cases in which STB has evaluated service embargoes were fact-specific, and the board has never evaluated a case in which a carrier suspended service because it was out of compliance with federal law.

"I cannot predict the outcome of such a case," Elliott told Thune. "My expectation is that the view of the FRA, which has primary jurisdiction over rail safety in general and over implementing RSIA in particular, would be a critical consideration." Previous cases involved services that were suspended, but the carrier still complied with safety regimes administered by the FRA and the Pipeline and Hazardous Materials Safety Administration.

A PTC deadline extension and possible repeal of a requirement to install electronically controlled pneumatic brake rule were included in HR 22, the Developing a Reliable and Innovative Vision for the Economy Act. The bill, which also extends federal transportation programs for six years, passed the Senate on 29 July. But the House has not acted on a transportation bill.