Devin Rouse, DC Rail Advisory & CRC Regulatory Advisor

It’s been quiet for quite some time on the railroad safety regulatory front, but as expected, the flood gates opened before the election, and we have a number of new proposed rulemakings to consider that will directly impact commuter railroads. Unfortunately, because of the timing, the comment period for these will coincide with the holidays and year end activities. So its critical that we determine what, if any comments we want to submit to articulate any suggestions or concerns from the commuter railroad perspective. With that in mind, we encourage our members, and in particular, our commuter railroads, to have their relevant subject matter experts review the proposed rulemakings and determine if there are comments that should be submitted by CRC. Specifically, we have provided questions relevant to each rule that we would invite members to provide feedback on, below.

In addition to the rulemaking discussions, we have a number of other updates to provide, including a summary of the most recent RSAC meeting. So as to not overload you with too much information this month, we will provide more detail on some of these other regulatory matter in next month’s update.

As many of you are aware, CRC submitted a Petition for Reconsideration to FRA on July 12, 2024, to voice concerns over certain aspects of the dispatcher (49 CFR Part 245) and signal employee (40 CFR Part 246) certification rules. The petition touched on a number of points that have been raised by CRC members over the past year including the timeframe for program development and implementation, logistical challenges related to execution of the rule, and the impracticality of application and oversight of the requirements to third party contractors. CRC’s petition can be downloaded here.

Many CRC members also participated and contributed to a formal Q&A document that raised similar questions for additional clarity regarding both rulemakings. CRC held a Q&A session with FRA on July 2, 2024, and submitted formal questions to FRA on July 29, 2024. We originally discussed an estimated turn-around for the Q&A document by Labor Day, however, we expect that industry’s submissions of petitions for reconsideration have offset this outlook. Several of the questions are tied directly to matters raised in the petition documents, so if FRA does choose to formally modify any of the regulatory requirements, it could supersede the responses to some of CRC’s questions.

CRC is currently working with FRA to set up a meeting to discuss and provide practical examples of the challenges its members are facing attempting to implement the final rule. We hope that this perspective can help illustrate the importance behind many of the points raised in our petition. We will be working with interested members to either participate or provide their insight into these discussions. Most importantly, if you have any additional questions regarding the implementation of Parts 245 or 246, please submit them to us as soon as possible, so that we can incorporate them into any discussions that are held.

NOTICES OF PROPOSED RULEMAKING (NPRM)

Positive Train Control Systems – Amendments to Part 236 [Docket # FRA–2023–0064]

On October 28th, FRA published the anticipated proposed amendments to Part 236. These amendments would modify certain provisions governing temporary situations during which PTC technology is not enabled, including after certain initialization failures, or in cases where a PTC system needs to be temporarily disabled. Specifically, the NPRM proposes to revise the following sections within the current PTC regulations contained in Subpart I to 49 CFR Part 236:

• § 236.1006 Equipping locomotives operating in PTC territory – FRA is proposing to add an exemption under paragraph (b) to accommodate certain non-revenue moves of passenger equipment to a point of repair. The move can only be made solely for the purpose of repairing or exchanging a PTC system, so long as such moves comply with six proposed conditions (e.g., limited speed, absolute block, prohibition of work zones, etc.).

• § 236.1021 Discontinuances, material modifications, and amendments – Here, FRA is proposing to clarify requirements to temporarily disable a PTC system when necessary to facilitate repairs or maintenance, upgrade or modify infrastructure, or implement capital projects that require a temporary system outage. Prior to December 31, 2022, railroads were permitted to temporarily disable PTC systems when necessary to perform such work, so long as they notified the appropriate FRA regional office in advance. When this provision expired, such outages could only be permitted through a formal Request for Amendment (RFA). The proposed language, retains the requirement for an approved RFA, but is aimed at streamlining RFA requests to disable PTC on an equipped section of track for the reasons cited above.

• § 236.1029 PTC system use and failures – In this section, FRA is proposing to effectively reintroduce operational flexibility for certain types of initialization failures, specifically, systemic failures in which multiple trains are impacted. As FRA notes in the NPRM “this section does not apply to a single train that experiences an onboard PTC system failure at the initial terminal…[t]he purpose of this paragraph (g) is to address issues affecting multiple trains.” Under this new provision, a railroad would be able to permit the movement when a system-wide failure inhibits the ability for trains to initialize, and requires certain operating restrictions that would become increasingly restrictive after the first 24 hours.

The changes proposed largely follow the areas previously identified by FRA in its meetings with industry, and appear to have adopted a number of the points raised in those discussions. The CRC plans to examine the points raised from our previous meetings and compare them against the proposed language. Specifically, CRC is interested in its member’s perspectives regarding the following:

• Does the proposed language in § 236.1006(b)(6) sufficiently address the types of non-revenue movements required by passenger operators, or is the language too limiting?

• Has the RFA process proven to be timely and manageable for railroads that have implemented temporary outages using this process? Would the proposed streamlining in § 236.1021(m)(4) help as written, or should other factors be considered?

• Is the 24-hour initial operational flexibility provided in § 236.1029(g) enough time to implement alternatives and notify the public should a systemic outage impact service. Should other restrictions (limited service) be considered in lieu of operating at restricted speed after the first 24 hours?

We invite members to provide responses to these questions and any additional observations or comments which should be considered. Public comment period ends: December 27, 2024.

On October 24th FRA published a proposed rule that would require commuter railroads who own mainline and controlled siding track to perform additional track inspections using a qualified Track Geometry Measurement System (TGMS). The new requirements would primarily modify § 213.236(a) (and corresponding requirements for Class 6 track) to require a qualified TGMS inspection a minimum of “three times within any 365-day period with not less than 90 days between inspections.” What defines a “qualified” TGMS system is further described in paragraphs (b) thru (d). Additional requirements including reporting and training are also outlined, along with requirements for TGMS inspection records (see § 213.241).

As noted at the CRC Fall Summit, this effort was originally part of an RSAC working group (Task 19-05), but the effort was abandoned before a consensus could be reached. Ostensibly, this rulemaking was based on conclusions from the various test programs that were performed under test waivers by BNSF, NS, CSX, CN, UP, and CP. The rulemaking, however, is significantly deficient in its explanation of what lessons were learned from the test waiver programs, and how the results of testing performed under the waiver programs were incorporated. This information would have been valuable for comment at the NPRM stage, and wasn’t presented to the RSAC committee at large, so we’ll see if we can get this from the working group documents for any interested members who were not a part of those meetings.

In the NPRM FRA notes that “research indicates that all the track owners affected by this rulemaking are already performing TGMS inspections at or above the frequency that would be required by this NPRM. To determine if there is any value in commenting on this NPRM, CRC is seeking the following input from its member railroads:

• Are member railroads conducting testing with qualified TGMS equipment as noted by FRA in the NPRM (3 inspections a year / 90 days apart)?

  • If not, what would be the estimated cost and implementation time required to implement such a program?

• Is the prohibition against performing visual inspections during TGMS runs, and specifically the phrase “sole responsibility” too restrictive (see § 213.236(h))?

• Are there other revisions to track requirements under Part 213 that would be appropriate to be considered as part of an update to this part?

Public comment period ends: December 23, 2024.

On October 9th, FRA published a proposed rule to amend its Rules of Practice as it relates to petitions for relief from certain safety regulations or requirements (i.e., waivers). These requirements have largely been unmodified since first adopted in 1976. The proposed rule would modify the procedures for waivers and safety-related proceedings by adding definitions to the statutory standards of “in the public interest” and “consistent with railroad safety” by which non-emergency safety waivers are required to be considered (49 U.S.C. 20103(d)(1)). The NPRM proposes to align the metric for railroad safety by establishing the current regulations as the “status quo” for which any petition must demonstrated equivalence or improvement over. The proposed rule defines “public interest” as alignment with “one or more of DOT’s priorities and innovation principals[.]” Additionally, the NPRM proposes to require any petition under Part 211 to demonstrate that a railroad has meaningfully consulted with “potentially impacted employees, and the local and general chairmen as well as the State and national legislative levels of any labor organizations that represent them.”

Unlike the recent PTC NPRM rulemaking in which FRA proactively engaged industry for input on its proposed modifications (and even to an extent the TGMS NPRM), it is unclear if FRA conducted any proactive engagement with industry stakeholders regarding these proposed changes to Part 211, making the comment period pivotal for incorporating perspectives of the impacted entities. Ironically, this NPRM is apparently following the practice its intending to allay, by relying solely on the public comment period rather than engaging with stakeholders for input prior to its development.

The NPRM notes that “[d]efining these terms will help clarify for petitioners and affected stakeholders how FRA will decide whether waiver requests meet the statutory standard.” While this stated intent is admirable, it’s unclear why the proposed definitions require incorporation into the regulations in lieu of formalized agency guidance. The proposed definitions simply appear to identify subjective categories of evaluation rather than performance-based criteria. Oddly, the preamble goes out of its way to note that a request for relief that “would reduce the number of inspections being performed” may not meet the proposed definition of “in the public interest.” This would appear to conflict with previous preamble guidance related to the proposal of alternative inspection intervals “when justified by accumulated, verifiable data”. Regardless, the statement is sufficiently vague to warrant clarifications. Likewise, the statement noting “[a] petition showing only that a proposal may improve the efficiency of railroad operations or reduce costs will likely not meet the standard in the proposed definition of ‘in the public interest’ …” also raises concern. Unlike most freight railroads, commuter railroads are not profit generating corporations, and their ability to be efficient with taxpayer dollars is inherently in the public’s interest. I’m sure this point is particularly paramount to our member railroads as we continue to struggle with rising maintenance and equipment costs, depressed ridership, and the never-ending rise in insurance costs.

Overall, the timing of this NPRM will undoubtedly make providing member input and timely industry comments a challenge, but the importance of the administrative procedures under Part 211 requires thoughtful consideration. We encourage members to review this NPRM and provide any feedback, concerns, or suggestions. Some questions to consider that would help CRC determine how to respond include:

• Are the proposed definitions and additional conditions appropriate for commuter rail agencies and the types of waivers anticipated?

• Are the proposed definitions sufficiently clear and objective to comply with?

• Is the estimated cost to industry (~$1114 increased cost per waiver request) an accurate reflection of the potential burden?

Public comment period ends: December 30, 2024.

Railroad Safety Advisory Committee (RSAC)

The 67th meeting of the RSAC was be held on October 9th, 2024, in Washington, DC. In addition to updates from the current active working groups, a review was provided of the current regulatory agenda and FRA rulemaking priorities. A more detailed briefing regarding these updates will be provided in next month’s regulatory update. Meeting documents, the agenda, presentation material will be posted on the RSAC website.

There are no upcoming RSAC meetings currently scheduled.