As we all know, the railroads are supposed to be operating under PTC on New Years Day 2016. They are not going to make that deadline. So let's say CSX, to use them as an example, decides to run their trains anyway. The FRA swoops down with fines. CSX says the deadline was unreasonable, we are not paying. CSX decides to sue FRA. One side wins the other side loses and the loser appeals. The whole thing starts working it's way through the courts. Here is my question, what happens then? Does the case go all the way to the supreme court? Does CSX have to pay the fines but then get the money back if the supremes rule for them? Some of you that are lawyers please chime in and help the rest of us "war game" this situation. I just would like to know what to expect. CSX has a busy line through my home town. Will I be able to go down to trackside on Jan 2, 2016 and watch trains if I want to? Will they just stop running all together and hope the outcry from the shippers will push the government to put off the dead line? Is something altogether different that I haven't mentioned going to happen? Inquiring minds want to know.
I would opine that at some point, someone will give in.
It'll depend on who is on the losing end of most of the suits.
There is the possibility that a stay will be issued while the suits make their way through the courts, which would have the same effect as delaying the deadline...
Larry Resident Microferroequinologist (at least at my house) Everyone goes home; Safety begins with you My Opinion. Standard Disclaimers Apply. No Expiration Date Come ride the rails with me! There's one thing about humility - the moment you think you've got it, you've lost it...
Balt was right about the Perpetual Tort Creator, or something to that effect. None of the railraoads will pay fines until the suits have worked their way through the appeals process.
Then Senate has passes a three year extension, the House may still do so.
Otherwise, grab a whole lotta popcorn come January.
Excerpt from FRA Report to Congress on the Status of Positive Train Control Implementation
https://www.fra.dot.gov/eLib/details/L16962
In the nearly seven years since RSIA was enacted and in the four and a half years since the railroads submitted their PTCIPs, FRA has observed a wide range of efforts and resources that have been applied to PTC by different railroads. For railroads that are not in full compliance with the PTC statute and regulations on the date of the implementation deadline, and in keeping with the clear direction of the RSIA statue, FRA will pursue enforcement efforts against these railroads.
As with all FRA enforcement action, FRA’s use of its enforcement tools will be targeted to maximize safety, save lives in the event of an accident, and bring railroads into compliance with the PTC statute and regulations. Certain enforcement actions, such as prohibiting service on specific routes, may potentially result in sustained and disruptive impacts on the movement of freight and passengers in those locations until full implementation is achieved.
FRA has a number of enforcement tools, including assessment of civil penalties, issuance of compliance or emergency order, and pursuit of injunctions or criminal penalties with the Department of Justice. Assessment of civil penalties is the most often used enforcement tool most often used to gain compliance.
As stated in FRA’s long-standing enforcement policy in 49 C.F.R. Part 209 Appendix A, FRA weighs the following factors in determining which instances of noncompliance merit penalties and the amount of penalties that should be imposed:(1) The inherent seriousness of the condition or action;(2) The kind and degree of potential safety hazard the condition or action poses in light of the immediate factual situation;(3) Any actual harm to persons or property already caused by the condition or action;(4) The offending person's (i.e., railroad's or individual's) general level of current compliance as revealed by the inspection as a whole;(5) The person's recent history of compliance with the relevant set of regulations, especially at the specific location or division of the railroad involved;(6) Whether a remedy other than a civil penalty (ranging from a warning on up to an emergency order) is more appropriate under all of the facts; and(7) Such other factors as the immediate circumstances make relevant.
The amount of the civil penalty assessment will be based on the penalty guidelines, which were outlined in FRA’s first PTC regulation issued in 2010... Penalties can be assessed per violation per day. In the instance of the expected widespread PTC noncompliance on January 1, 2016, and the railroads’ admission that it may take up to five years for them to come into full compliance, the potential civil penalties that FRA could assess are substantial. As with all enforcement actions, FRA has inherent discretion to ensure penalties imposed are aimed at increasing compliance and raising the level of safety.
The best way to get a rediculous law or rule repealed is to comply with it to the letter. That seems to mean not operating anything on any line that requires PTC but does not have it. So, to avoid fines and littigation shut it down. No passenger trains, no chlorine, no anhydrous ammonia, no grain, no coal, no containers of consumer goods.
Better is if can operate without the offending causes, that is passenger trains and TIH. That limits embargo to passenger trains and TIH only.
Mac
The FRA's comments on enforcement could just be a push to try and get Congress to pass legislation to resolve the problem.
Dave H. Painted side goes up. My website : wnbranch.com
FRA probably desires passage of the GROW AMERICA Act (Generating Renewal, Opportunity and Work with Accelerated Mobility, Efficiency and Rebuilding of Infrastructure and Communities throughout America Act), which “establishes clear milestones for PTC implementation, allows for the discretion to provide extensions beyond the current statutory implementation deadline of December 31, 2015, and assists publicly-funded commuter rail agencies to implement PTC systems, by providing $3 billion over six years for commuter railroads to support integration.”
For what it's worth...
When you come down to it PTC legislation was panic legislation, pure and simple, and panic legislation is never good legislation.
I mean really, all this because some idiot was texting while running a commuter train?
Lawyers themselves have a saying, "Hard cases make bad law!"
Firelock76I mean really, all this because some idiot was texting while running a commuter train?
Heck, NY passed a gun control law because of a shooting in another state. As part of the unintended consequences of the law, virtually every law enforcement officer was in violation with his/her service pistol the day the law took effect.
Please don't morph the discussion to gun laws - that's not the intent here.
Knee-jerk laws are usually exactly that. Rarely is the real problem addressed - just some feel-good measure that makes some measure of the people people happy, never mind what it does to everyone else.
For a good lesson on avoiding panic legislation all lawmakers should find a copy of Wyn Craig Wade's "Titanic, End Of A Dream".
It's not so much a telling of the "Titanic" story but a history of the US Senate investigation of the same chaired by Senator William Alden Smith of Michigan. Smith was asked by constituents right after the disaster what the Congress was going to do about it and the Senator said (in so many words) "Nothing, not until we find out what happened, why it happened, and what if anything can be done to keep it from happening again!"
And Senator Smith ran a GOOD investigation, it took about a month, and sound common-sense proposals to maritime law came out of it. Ever take a cruise and seen your lifeboat assignment and location printed on the ticket? That's one of the things you can thank Senator Smith for!
Quite a guy, Senator Smith. Self-made man; lawyer, journalist, maverick Republican who wouldn't be pushed around by anyone, man for the people, and (we can take some pride in this) a railroader!
That's it Brother Wanswheel! Where it starts, "From the builders hands..." is Senator Smith's speech to the Senate when he presented the completed report of the investigation.
Taking into account Smith's 19th Century vernacular, which is a bit stilted to modern ears but not bad when you get used to it, it's a damn good speech.
But in the last paragraph is where full responsibility was laid -Lightoller for not supplying binoculars to the lookout who was thus unable to sight the iceberg in time for effective evasive actions.
Never too old to have a happy childhood!
Not to digress too much, but according to Lightoller's testimony binoculars weren't the panacea everyone thought they might have been. Lightoller said that initial sightings were best made by the naked eye, then positive identifications were done with binoculars. As far as Lightoller "denying" anyone binoculars the fact was there WERE binoculars on board but no-one knew where they were stored! The officer responsible for them, David Blair, had been transferred off the ship before the voyage began and hadn't thought to tell anyone where he put them.
Just another foul-up in the chain of foul-ups that lead to the catastrophe.
Poor Frederick Fleet, the lookout, seemed to be afraid that he'd be held accountable for the collision. He needn't have worried, no such accusation was ever made, either by the American inquiry or the British one.
Senator Smith WAS a bit peeved at Mr. Lightoller. Trying to protect his employer, the White Star Line, Lightoller wasn't a very co-operative witness. At any rate, Senator Smith didn't blame Lightoller for the disaster, he blamed Captain Smith, even thought it pained him to do so. Senator Smith knew Captain Smith and liked him, a lot. Protecting the company didn't do Lightoller any good in the long run anyway. Not wanting to be reminded of, or to remind anyone else of, the "Titanic" disaster neither Mr. Lightoller or any other surviving "Titanic" officer ever got command of a White Star ship.
So much for the binoculars. The Senate report lists all the contributing factors which lead to the disaster of which lack of binoculars may have been a part.
The main cause of the accident was the policy, on most, if not all British express liners, to keep up the speed irregardless of conditions and rely on the lookouts to spot trouble in time to avoid it. What happened to "Titanic" might just have happened to anyone. As the chairman of the British enquiry Lord Mersey said, "Hopefully, this is the last we have heard of THIS practice!"
I would think the railroads would have a pretty good legal case as
there was not co-operation from the FCC, the technology was not
fully developed, difficulty in getting bandwith, and indian tribes
not allowing transmission towers to be built.
Most interesting result? RRs shut down to avoid being in violation.
Most likely result? RRs and FRA come to an informal understanding about level of fines and continued operation.
-Don (Random stuff, mostly about trains - what else? http://blerfblog.blogspot.com/)
Back to railroads, if the 'roads had any guts what they'd do in the case of inaction by the FRA and/or the Congress or Senate is shut down operations on New Years Day. Totally.
"OK, you incompetants made this situation, now YOU deal with it!"
Maybe it's time Atlas shrugged a little bit, know what I mean?
Firelock76 Back to railroads, if the 'roads had any guts what they'd do in the case of inaction by the FRA and/or the Congress or Senate is shut down operations on New Years Day. Totally. "OK, you incompetants made this situation, now YOU deal with it!" Maybe it's time Atlas shrugged a little bit, know what I mean?
Only in trash fiction. Such a temper tantrum could have very negative consequences for the rails, including a repeat of Truman's 1950 action against striking unions of that time.
C&NW, CA&E, MILW, CGW and IC fan
schlimm Firelock76 Back to railroads, if the 'roads had any guts what they'd do in the case of inaction by the FRA and/or the Congress or Senate is shut down operations on New Years Day. Totally. "OK, you incompetants made this situation, now YOU deal with it!" Maybe it's time Atlas shrugged a little bit, know what I mean? Only in trash fiction. Such a temper tantrum could have very negative consequences for the rails, including a repeat of Truman's 1950 action against striking unions of that time.
You obviously missed the point of Atlas Shrugged, which becomes more relevant by the day.
The real issue is this. Since when did complying with the law become a temper tantrum? Congress created an impossible situation. They need to fix it. Failing that shut down whatever is necessary to comply with the law. Do not pay tribute!
Passenger and TIH would be best case for carriers, but it seems that the way the law was written, those items were only "criteria" for selecting lines that had to be PTC equipped. If that is true, only recourse is to shut any line not equipped down.
Firelock76 Back to railroads, if the 'roads had any guts what they'd do in the case of inaction by the FRA and/or the Congress or Senate is shut down operations on New Years Day. Totally.
Avoiding the fines by staying within the law
Modeling the Cleveland and Pittsburgh during the PennCentral era starting on the Cleveland lakefront and ending in Mingo junction
Look at it this way, if they're not running trains, it's not a railroad, it's just idle real estate.
Firelock76 Look at it this way, if they're not running trains, it's not a railroad, it's just idle real estate.
[from the FRA] "Financial Assistance PTC systems are eligible for funding under the Railroad Rehabilitation and Improvement Financing Program; however; no railroads have approached FRA for funding of PTC projects using this program."
https://www.law.cornell.edu/cfr/text/49/part-236/appendix-A
Civil penalties (per day, per occurence): [the numbers in the table do not show after posting, so go to the link]
schlimm https://www.law.cornell.edu/cfr/text/49/part-236/appendix-A Civil penalties (per day, per occurence): [the numbers in the table do not show after posting, so go to the link] Subpart I—Positive Train Control Systems 236.1005Positive Train Control System Requirements: violation willful violation Failure to complete PTC system installation on track segment where PTC is required prior to 12/31/2015 16,000 25,000 Commencement of revenue service prior to obtaining PTC System Certification 16,000 25,000 Failure of the PTC system to perform a safety-critical function required by this section 5,000 7,500 Failure to provide notice, obtain approval, or follow a condition for temporary rerouting when required 5,000 7,500 Exceeding the allowed percentage of controlling locomotives operating out of an initial terminal after receiving a failed initialization 5,000 7,500 236.1006Equipping locomotives operating in PTC territory: Operating in PTC territory a controlling locomotive without a required and operative PTC onboard apparatus 15,000 25,000 Failure to report as prescribed by this section 5,000 7,500 Non-compliant operation of unequipped trains in PTC territory 15,000 25,000 236.1007Additional requirements for high-speed service: Operation of passenger trains at speed equal to or greater than 60 mph on non-PTC-equipped territory where required 15,000 25,000 Operation of freight trains at speed equal to or greater than 50 mph on non-PTC-equipped territory where required 15,000 25,000 Failure to fully implement incursion protection where required 5,000 7,500
Where is the penalty for the personnel taking two breaths when only one is permitted.
schlimm [from the FRA] "Financial Assistance PTC systems are eligible for funding under the Railroad Rehabilitation and Improvement Financing Program; however; no railroads have approached FRA for funding of PTC projects using this program."
I wonder what the explanation for that is.
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