Solving the PTC Deadline Problem

[Wizlish]

There seems to be some magical-mystery-tour aspect of this PTC enforcement action discussion that is being lost in the procedural details.

Congress passed a law - for better or worse - that established a mandate to create and deploy a working PTC system by the end of 2015.

The FRA, which is the agency that would enforce the provisions of that law, says that it will do so, and impose the penalties for non-compliance that are included in that law.  All this is simply atatutory enforcement, and what the FRA is saying is not 'posturing' - they point out there is no room for selective enforcement.

The railroads note that they will be unable to provide service for PIH and passenger traffic - services for which PTC is specifically mandated - after the end of December without violating Federal law.  I am sure that the penalties are more important than the moral aspects of the breach, but the end result is the same.

Now, one place a 'line might be drawn' is that one of the principal railroad 'excuses' (I think it is better termed an 'explanation') for non-readiness is the sheer scale of expensive components and infrastructure, much of which has little actual 'safety' benefit.  For instance, it's been commented on here that every switch needs sensors that reliably determine its position, and can relay that position to whatever back=end system is doing the fancy position and movement checking.  Likewise, standards for things like the software-based radios were not finalized until after 2011, if I recall correctly, and manufacture, testing, debugging, and the inevitable bugs and rework of software issues all have to take place before the SBR components are applied to ALL the pool road locomotives. 

If I understand correctly, this might be the conditional basis under which Congress issues its extension - but we've already seen with ECP that the technical issues themselves can be obfuscated either way with a certain amount of facility.  I am not sure how many Congresspeople are able, even if willing, to drill down through the morass of positioning and spin to distinguish between what is necessary and what is expedient to extend.

I see this as the normal political dance surrounding this type of legislation - I believe there were examples of it following the Esch Act of 1920, which established a similar type of mandate for automatic train control (albeit not as sweeping, and with at least a premise of common sense in how it was to be rolled out, and how a market for the technology would develop).  It might be remembered that just because the early attempts at ATC were de-prioritized in 1928 (the 'safety' focus then being shifted to grade crossings) did not relieve the railroads of responsibility to maintain their required ATC territories ... and that the 1920 law was the basis of the 1947 ICC order that imposed the 79 mph speed limit where some compliant form of ATC was not deployed.

What is happening is that Congress does not want to be the body that 'admits' that the effort to provide mandated PTC might have been excessively ambitious, or technically difficult, or excessively costly for railroads to implement, in the mandated (and somewhat arbitrarily determined) timeframe.  The chief difficulty, I think, lies in a point that has been previously mentioned: if you send a message that it's OK to slip the deadline because things didn't get done, it sets the precedent that subsequent deadlines will also be variable.  So what I expect is for Congress to extend the deadline, probably by no more than three years and hopefully with strict milestones for provision in those areas (probably most particularly on the commuter railroads that have been some of the 'worst' offenders) where 'safety' of the type provided by PTC is most significant.

dehusman

The real risk is timing. Congress likes to go to the last minute, railroads will will pull the trigger on the shutdown a couple weeks in advance to have things set up before the deadline.

This is what I understand to be one of the primary purposes of the current 'round' of letters from the Class Is.  What I expect is that the debate on the issue of extension will go down to 'a' wire -- so as not to make it appear that Congress is caving to a railroad industry that may be dragging its heels for other than the stated reasons -- but that wire will be early enough that most, if not all, of the traffic that would be embargoed at or close to its origin will be able to move to destination as desired.

A problem here, though, is non-NEC Amtrak passengers who are expecting to make reservations during the new year.  If they have a reasonable supposition that the trains won't run ... and they will have to go through a rigmarole to get their money back ... expect to see Amtrak's advance sales plunge, and perhaps not recover quickly.  I don't know enough about Amtrak's sales to predict when this would become obvious to politicians not watching for it, but it might be starting already.  Conspiracy theorists already suspicious of ulterior motives in the Silver Star 'diner test' may find this another tailor-made opportunity to "help" ease Amtrak out of the LD markets, and there may even be some Congressional discussion on that point. 

It's going to make a classical case study for government policy schools.  Probably at least one thesis.  I'm taking notes 'for later'.

[Euclid]

Norm,

It is entirely logical.  Operation needs to be legal, so the railroads do not have to shut down to avoid breaking the law.  An extension is favorable because it would keep everything legal and running. 

But the problem with an extension is that it sets a precedent that the government lays down an ultimatum to force action, and then caves at the last minute.  If they do that one, everybody knows they will do it again.  So any threat of fines becomes moot forever after.  Without that threat, there is no incentive to hurry.  Without the hurry, the job never gets done.  Obviously, the government looks at it that way because if they did not, we would not be in this 11^th hour crisis today.

I understand your point that a fine normally requires the breaking of a law.  So change the law to apply ONLY to failing to install PTC, regardless of whether the non-compliant assets operate.  That way, the fines stay in place as an incentive to hurry the work, and the railroads will not have to suffer the burden of shutting down and losing revenue. 

[Norm48327]

Euclid

So change the law so it is not illegal to operate, but levy fines if they do.

Uh! Fine them for doing something that was made legal? That surely would be setting a new legal precedent. Not likely to happen and be in compliance with the constitution.

Your logic defies logic.

[dehusman]

All of the congressmen I have talked to in the last 6 months or so were aware of the problems the PTC deadline would raise and were aware that congress (the House) would have to do something.  The real risk is timing.  Congress likes to go to the last minute, railroads will will pull the trigger on the shutdown a couple weeks in advance to have things set up before the deadline. 

[beaulieu]

Euclid, from looking at the fines it looks like ~$30,000 per train operated per day. So figure that each of the Big 4 would operate 200 trains per day that would draw fines, so $6mil per day x 365 days per year= pretty hard to turn a profit by operating.

[Euclid]

Jeff,

As I understand it, railroads are not planning to shut down for the purpose of avoiding fines.  They are shutting down because the law says it is illegal to operate if non-compliant after the deadline.  They say they will shut down to avoid breaking the law, and to avoid the extra liability of any accidents that happen to occur while they are breaking the law. 

So change the law so it is not illegal to operate, but levy fines if they do.  That would leave the teeth of the mandate in place after the deadline passes, thus being an incentive to complete the PTC installation.

Under those circumstances, there would be no reason to shut down.  Why would a railroad shut down and penalize itself with a loss of revenue when there is nothing to gain by it?

I am not sure how that would work in legal art.  Maybe you cannot fine someone if they have not broken the law.  So maybe they would have to call the financial penalty a tax instead of a fine.     

[jeffhergert]

Am I missing something here?  I assume the reason the railroads are saying they will shut down, in whole or in parts, is to avoid the fines.  If they didn't care about any fines, they would operate business as usual without PTC. 

Plus how can a law tell them they have legal pemission to be noncompliant, but will still be fined after being told they don't have to be compliant?  It would seem to me once a law says they don't have to be compliant at the deadline, it would remove the chance for fining them for noncompliance with the original law.  Of course, I'm not a lawyer or politician.

I would think even if such a law was passed, the railroads would follow through on their shutdown plans. 

Jeff  

[SALfan]

caldreamer

It was stated in the reports on CNN that the house was expected to pass the bill and the president would sign it.

 

Tell you what - expect in one hand and crap in the other, and see which one gets full first.

[Euclid]

oltmannd

 

Euclid

However the government apparently did not anticipate the reaction of shutting down in order to not break the law. 

 

 

Clearly, Congress did not.  

 

Euclid

The way to solve this problem is to impose the fines for operating in non-compliance; without making such operation illegal. 

 

 

You have to change the law to make it "not illegal". 

Don,

Changing the law is basically what I am suggesting in the first post.  The essential problem we face is that the railroads cannot continue much of their operations after the deadline if they are not in compliance with the mandate. 

The fines are added to give the mandate teeth after its deadline has passed in order to press the railroads to complete the PTC installation as soon as possible.  This poses the dilemma of suffering a major shutdown; or losing the teeth by extending the deadline.

But there is a third option to that seems easy:  Fix the problem by changing the law so the railroads can continue operation even though not being in compliance.  Keep the teeth and get rid of the requirement that forces the shutdown. 

[caldreamer]

It was stated in the reports on CNN that the house was expected to pass the bill and the president would sign it.

[Deggesty]

caldreamer

OBVIOUSLY you people CANNOT READ.  I have reinterated twice based upon reports on CNN that the senate has passed a three year extention of the PTC deladline through 2018.  Now it iup to the house to pass the bill this fall.  THER WILL NO SHUTDOWN!!!!!

 

Obviously you are supremely confident that the House will pass the bill that the Senate sends to it--and the President will sign it. All of that must be done before anyone can be certain that there will be no shutdown.

[BaltACD]

caldreamer

OBVIOUSLY you people CANNOT READ.  I have reinterated twice based upon reports on CNN that the senate has passed a three year extention of the PTC deladline through 2018.  Now it iup to the house to pass the bill this fall.  THER WILL NO SHUTDOWN!!!!!

Senate > ====<House

[caldreamer]

OBVIOUSLY you people CANNOT READ.  I have reinterated twice based upon reports on CNN that the senate has passed a three year extention of the PTC deladline through 2018.  Now it iup to the house to pass the bill this fall.  THER WILL NO SHUTDOWN!!!!!

[BaltACD]

What is the penalty for exceeding the speed of light?  Reality be damned! 

PTC equipment cannot be manufactured, tested, installed, tested, manpower trained in time for carriers to meet the Dec. 31, 2015 date - THAT IS REALITY.  The carriers will take the actions necessary to protect their LEGAL obligations and their legal obligations are to NOT KNOWINGLY VIOLATE THE LAW, however they decide to do it.

[ALEXANDER WOOD]

oltmannd

My hunch is the group that would flunk the "good faith effort" test would be the commuter roads.

MN and LIRR would flunk it, that's for sure. They had ACSES available since day 1. But at the same time, I would still hope that a rational cost/benefit analysis of the safety risk of operating with no PTC, as they have for something like 100 years on the PRR signal system, versus having more people on the roads in cars and busses, and allow LIRR and MN to operate, maybe contingent on the firing of the people responsible for their inexcusable delays in ACSES implementation.

[oltmannd]

This https://www.fra.dot.gov/eLib/Details/L03718

is worth a good, long look.  Lots of really solid info.  

[oltmannd]

Euclid

However the government apparently did not anticipate the reaction of shutting down in order to not break the law. 

Clearly, Congress did not.  

Euclid

The way to solve this problem is to impose the fines for operating in non-compliance; without making such operation illegal. 

You have to change the law to make it "not illegal".

The FRA suggested that they be given the authority (that the law currently does not grant) to flex the deadline based on good faith effort by the railroads.

My hunch is the group that would flunk the "good faith effort" test would be the commuter roads.  

[Euclid]

With the prospect of the looming PTC deadline, there is lots of prediction about what will happen, all of which seems unlikely.  Other than some type of emergency response to extend the deadline, there is no solution to the problem.  And even an extension seems unlikely.  The minute you extend the deadline, no future deadlines have any teeth.  So extending the deadline basically means there is no deadline.

The problem with the deadline is that it will not be met.  The government’s plan to maintain the pressure of the deadline after it arrives unmet is to fine the railroads for non-compliance.  As I understand it, the fines would be for breaking the law by operating out of compliance after the unmet deadline. 

With this, there must be the presumption on the part of the government that the railroads will operate after failing to meet the deadline because they want the revenue, and they have a common carrier obligation to operate.  So the government assumes that the railroads will simply pay the fines, and press ahead to complete PTC as though there was a deadline. 

What appears to be an unintended consequence is that the railroads are deciding that they simply will not break the law.  It is not clear to me whether shutting down an operation will avoid the fine.  In any case, there will still be a motivation to complete PTC because it will renew full operation and revenue for the railroad.

However the government apparently did not anticipate the reaction of shutting down in order to not break the law.  So they are bound to view the shutdowns as an unfair tactic to anger the public in order to place pressure on the government to extend the deadline.   Even now, when you read the letters from BNSF, UP, and CSX, they can easily come across as a threat rather than a plea for an extension.

The way to solve this problem is to impose the fines for operating in non-compliance; without making such operation illegal.  That way the railroads cannot find an exemption to their common carrier obligation, nor can they choose to shut down to avoid breaking the law.  This would keep the railroads boxed into their PTC obligation without this messy public backlash against the government for the interruption of rail service.