Solving the PTC Deadline Problem

[BaltACD]

http://www.nytimes.com/2015/09/29/us/politics/rail-service-threatened-as-deadline-for-train-safety-system-looms.html?emc=edit_th_20150929&nl=todaysheadlines&nlid=33885527&_r=0

[Euclid]

MidlandMike

 

Euclid

I am just looking at what might happen given this very odd set of circumstances in which Congress has created a mandate with a deadline that is unenforceable because enforcing it will damage the U.S. economy.  If the mandate is unenforceable now, will it be enforceable at the end of three years if extended?  If the mandate is unenforceable now, it seems to me that there never was a mandate, and never will be one. 

The mandate with its present deadline is certainly enforecable, and the FRA has threatened such (unless they are successfully sued by the RRs.)  Because the deadline has now been shown to be unreasonable (by all private RRs and virtually all government run commuter agencies) the administration has asked for the ability to extend the deadlines.  They would negotiate reasonable extensions with the individual RRs, with penalties for missing the new deadlines.  They are simply delaying enforcemrnt to a more reasonable time.  

 

 

Well yes the deadline is enforceable in the practice of the enforcement mechanism.  But if that leads to the ruin of the economy and of the railroads, the deadline is not enforceable in any practical sense.  You say they will just delay enforcement.  What happens after the delay? They are back to the same problem of ruining the economy.       

 

[MidlandMike]

Euclid

Midland Mike,

People keep talking about what Republicans will do.  I have no idea how Republicans will view this mandate deadline problem.  But more importantly, I am not attempting to prove that a certain outcome will occur.  I am just looking at what might happen given this very odd set of circumstances in which Congress has created a mandate with a deadline that is unenforceable because enforcing it will damage the U.S. economy.  If the mandate is unenforceable now, will it be enforceable at the end of three years if extended?  If the mandate is unenforceable now, it seems to me that there never was a mandate, and never will be one.  Why was it ever felt that a mandate was needed?   

 

The mandate with its present deadline is certainly enforecable, and the FRA has threatened such (unless they are successfully sued by the RRs.)  Because the deadline has now been shown to be unreasonable (by all private RRs and virtually all government run commuter agencies) the administration has asked for the ability to extend the deadlines.  They would negotiate reasonable extensions with the individual RRs, with penalties for missing the new deadlines.  I have mentioned some of the available legal instruments previously.  This is done all the time in the regulatory process.  They are simply delaying enforcemrnt to a more reasonable time.  The mandate is to get PTC done; this will get it done in a realistic timeframe.

[BaltACD]

A carrier shut down will futher delay any PTC installations as all personnel will be laid off during the period of the shut down.  PTC doesn't install itself.

[Euclid]

Buslist

 

Euclid

 

 

Buslist

For those thinking that a shutdown might be lengthy due to congress wanting the railroads to loose revenue need to consider a basic fact.

 

 

I don't know of anybody here who has said that a shutdown might be lengthy because congress wants the railroads to loose revenue.  Can you please explain?

 

 

 

 

someone in another forum said 

"In my previous post, I was talking about a case where Congress fails to grant an extension by the deadline, and the railroads shut down a large amount of operations as they have announced they will do.  I can see how fuel and crews would be cheaper during a shutdown, as you say, but what about the loss of revenue?  How long could the railroads stand that loss?  In other words, what will the railroads do if Congress persists in not extending the deadline after it passes?" 

 

Why would they refuse to pass it if they didn't think that the loss of revenue wasn't a way to get the railroads running again? 

 

 

 

 

Okay, I see.  You are responding to my comment in Fred Frailey’s blog.  You ask why Congress would refuse to pass an extension if they didn't think that the loss of revenue wasn't a way to get the railroads running again.  One reason, other than the reason you cite, might be that they will refuse to pass an extension because they believe that doing so would slow the implementation of PTC. 

But I understand your point, and agree that it might be an objective of Congress.  The way I see it, a shutdown puts both Congress and the railroads over a barrel.  A shutdown will pressure Congress because of damage to the economy.  But it will also pressure the railroads because of a loss of revenue.  So I don’t think a shutdown works to the advantage of either side. 

[wanswheel]

blue streak 1

Boehner resignation how will it affect this problem??

 

 

Might help.  He’s still Speaker through October, and without the need to worry anymore that sensible legislation passed with the help of Democrats will outrage his critics.  He is the man who invited Pope Francis to come to the Capitol. I won’t be surprised if he follows the Golden Rule (do unto others) and arranges not to burden his successor with problems that he is currently empowered to solve.

[schlimm]

Non-compliance generally carries penalties, whether fines, jail time or both.  Otherwise the law is unenforceable, i.e., toothless.

[Euclid]

Well it is a bit melodramatic because my point is to push back against the popular idea that the railroads tried, but the job is bigger than estimated, so they need more time; therefore, let’s give them more time by extending the deadline.  What this simplistic view conveniently ignores is that there is a strong feeling that the railroads need to be pushed into PTC because they would not have done it on their own. 

I am emphasizing this point by saying, “They would not have written the law, stipulated the fines, and threatened to apply them if they did not feel like they have the right, the duty, and the necessity to inflict financial pain on the railroads in order to spur them on in the quest to complete PTC.”

This is the point of my statement that you quote, but it needs the first sentence to complete the context and meaning.  My point is that there is more to this than just the need for more time.  There is also the need to get it done as quickly as possible because every day delayed is more potential for lives lost.  Essentially, this is the reason why some in Congress do not want to grant an extension.

If all that was needed is more time, there would not be the need for inflicting financial pain as a motivator to get the job done.  There would be no need for deadlines and fines.  So the existence of a deadline with fines indicates a need to enforce the deadline, not to extend it.

[dehusman]

Euclid

I say it is obvious because it is clearly apparent from the law and fines that the law calls for, and by the threat of the FRA to issue the fines. They would not have written the law, stipulated the fines, and threatened to apply them if they did not feel like they have the right, the duty, and the necessity to inflict financial pain on the railroads in order to spur them on in the quest to complete PTC.

Virtually all the federal regulations have penalties attached for non-compliance.  Its nothing new. Safety appliance regs, hazmat regs, hours of service regs, etc., etc. etc.  All have penalties, typically in the form of fines, for non-compliance.  If you want to characterize that as "the necessity to inflict financial pain on the railroads" ok, seems a bit melodramatic.  Its like saying the library feels "the necessity to inflict financial pain" on people who keep a book too long.  That's kinda the purpose of all fines and penalties.  If the railroads violate the law then there are fines for the violation.  You make it sound like some vendetta.

[jeffhergert]

I would be more worried about some House members adding amendments for items they know the President wouldn't otherwise sign.  They might not go anywhere and be removed in reconciliation, but would delay everything.  There are some politicians who aren't above playing politics at the risk of everything else.

Jeff 

[Euclid]

Midland Mike,

People keep talking about what Republicans will do.  I have no idea how Republicans will view this mandate deadline problem.  But more importantly, I am not attempting to prove that a certain outcome will occur.  I am just looking at what might happen given this very odd set of circumstances in which Congress has created a mandate with a deadline that is unenforceable because enforcing it will damage the U.S. economy.  If the mandate is unenforceable now, will it be enforceable at the end of three years if extended?  If the mandate is unenforceable now, it seems to me that there never was a mandate, and never will be one.  Why was it ever felt that a mandate was needed?   

[MidlandMike]

Euclid

 

I say it is obvious because it is clearly apparent from the law and fines that the law calls for, and by the threat of the FRA to issue the fines.  They would not have written the law, stipulated the fines, and threatened to apply them if they did not feel like they have the right, the duty, and the necessity to inflict financial pain on the railroads in order to spur them on in the quest to complete PTC. 

...

 

You seem to talk of Congress in somewhat of the abstract.  As I have said, the democratic Congress that enacted PTS is not the republican Congress that is there now.  As an example, the ACA (ObamaCare) which was enacted by a democratic Congress, has been voted 40 times to be repealed by the present republican Congress.  The present Congress may be as likely to repeal PTC as extend the deadline.  Sure there are some members of Congress who espouse keeping the present deadline, mainly democrats in the northeast, however they know they are in the minority.  Their rhetoric may score points with their base, nevertheless, I am not sure how committed they are to an absolute deadline, since most of the commuter line shutdowns are in their districts.  Even the democratic administration wants to extend the deadline.  The Senate has approved the extension.  You will need to show me the members of the republican House majority who want to hold to the Janurary deadline.

[Norm48327]

Jailhouse lawyers have all the answers, don't they.

[Euclid]

Deggesty

 

I  have the impression that anyone who does not want to extend the time does not comprehend the reality that much still needs to be done before all of the track that needs to be protected can be protected. Apparently such a person has his mind made up and refuses to be confused by reality.

I think this is the way that some people in Congress look at it:

There will be as much time available as is needed to finish the job, no matter whether the deadline is extended or not.  The people who do not want to extend the deadline feel that doing so will cause PTC to take more time overall than it would take with the deadline and its fines in place. 

A three year extension would eliminate the fines and their motivating effect for three years.  It would also set the precedent that extensions are granted if needed when a deadline arrives.  That would render deadlines moot, and make the PTC conversion voluntary.   It would mean that there was no point to the mandate in the first place.   

[Deggesty]

Euclid

 

MidlandMike

 

Euclid

...

You mentioned that the Administration asked for the authority to extend the deadline.  Have they been given that authority?  If so, why haven’t they extended the deadline? 

...

It seems evident to me that Congress overall does not quite want to give an extension. Obviously they feel like they have the right, the duty, and the necessity to inflict financial pain on the railroads to spur them on in the quest to complete PTC.  Perhaps the fines are just an empty threat to spur them on, but even so, it is an indication of a belief that the railroads need to be pushed.  This mindset of keeping up the pressure is inconsistent with the idea of granting an extension and thereby losing the push for three years. 

 

 

There has been a steady drumbeat from the republican Congress for smaller government and less regulation, so I have no idea why you say "Obviously they feel like they have the right, the duty, and the necessity to inflict financial pain on the railroads to spur them on in the quest to complete PTC." 

 

 

 

I say it is obvious because it is clearly apparent from the law and fines that the law calls for, and by the threat of the FRA to issue the fines.  They would not have written the law, stipulated the fines, and threatened to apply them if they did not feel like they have the right, the duty, and the necessity to inflict financial pain on the railroads in order to spur them on in the quest to complete PTC. 

But the main point of the comment is the sentence preceding it as follows:

“It seems evident to me that Congress overall does not quite want to give an extension.”

So, when I say it is obvious that Congress and the FRA “feel they have the right, the duty, and the necessity to inflict financial pain…”, I am simply explaining why I say it is evident to me that Congress does not want to give an extension.  Or at least, that sentiment exists, and it is holding back on an extension.

Allow me to elaborate:

One popular way to look at this now is that since it is apparent that the railroads cannot meet the deadline, they need more time. Therefore, we must give them more time by extending the deadline, and the only impediment is the time needed to change the law.  But I think this overlooks one major factor.  

What this overlooks is that there are many who don’t want to delay the implementation of PTC.  There is pressure on the railroads to hurry the implementation today because of the deadline and its fines.  That pressure disappears with an extension.  So it is not just legal process in Congress that is holding back an extension.  It is also the desire within Congress to not grant an extension.  That too is holding back an extension. 

 

I  have the impression that anyone who does not want to extend the time does not comprehend the reality that much still needs to be done before all of the track that needs to be protected can be protected. Apparently such a person has his mind made up and refuses to be confused by reality.

[Euclid]

MidlandMike

 

Euclid

...

You mentioned that the Administration asked for the authority to extend the deadline.  Have they been given that authority?  If so, why haven’t they extended the deadline? 

...

It seems evident to me that Congress overall does not quite want to give an extension. Obviously they feel like they have the right, the duty, and the necessity to inflict financial pain on the railroads to spur them on in the quest to complete PTC.  Perhaps the fines are just an empty threat to spur them on, but even so, it is an indication of a belief that the railroads need to be pushed.  This mindset of keeping up the pressure is inconsistent with the idea of granting an extension and thereby losing the push for three years. 

 

 

There has been a steady drumbeat from the republican Congress for smaller government and less regulation, so I have no idea why you say "Obviously they feel like they have the right, the duty, and the necessity to inflict financial pain on the railroads to spur them on in the quest to complete PTC." 

 

I say it is obvious because it is clearly apparent from the law and fines that the law calls for, and by the threat of the FRA to issue the fines.  They would not have written the law, stipulated the fines, and threatened to apply them if they did not feel like they have the right, the duty, and the necessity to inflict financial pain on the railroads in order to spur them on in the quest to complete PTC. 

But the main point of the comment is the sentence preceding it as follows:

“It seems evident to me that Congress overall does not quite want to give an extension.”

So, when I say it is obvious that Congress and the FRA “feel they have the right, the duty, and the necessity to inflict financial pain…”, I am simply explaining why I say it is evident to me that Congress does not want to give an extension.  Or at least, that sentiment exists, and it is holding back on an extension.

Allow me to elaborate:

One popular way to look at this now is that since it is apparent that the railroads cannot meet the deadline, they need more time. Therefore, we must give them more time by extending the deadline, and the only impediment is the time needed to change the law.  But I think this overlooks one major factor.  

What this overlooks is that there are many who don’t want to delay the implementation of PTC.  There is pressure on the railroads to hurry the implementation today because of the deadline and its fines.  That pressure disappears with an extension.  So it is not just legal process in Congress that is holding back an extension.  It is also the desire within Congress to not grant an extension.  That too is holding back an extension. 

[Buslist]

wanswheel

Excerpt from Railway Age, Aug. 1, 1999

Though railroads and suppliers have made significant strides toward interoperable Positive Train Control, questions remain as to whether the FRA will allow the industry enough time to "do it right."

The good news is that in under two short years, the major U.S. railroads have made significant progress in working with the industry to develop its next generation train control technology known as Positive Train Control (PTC). The bad news is that it is unclear whether actual PTC deployment will be fast enough to satisfy the Federal Railway Administration--partly because its own timetable may have become infected by a need for political expediency.

Dr. Robert Gallamore, program manager for the North American PTC Joint Program, probably best articulated the railroads' perspective in his paper for the Railway Age/PTG De Leuw, Gather Third International Conference on Communications-Based Train Control in Washington, D.C.: "FRA is considering using its regulatory powers to mandate PTC in high risk corridors. But the railroads argue that without interoperable standards, cost-effective systems are impossible. Without cost-effective systems, wide-scale deployment is unlikely. And without wide-scale deployment, few safety benefits will be realized."

Both major U.S. PTC programs, the North American PTC Joint Program (also known as the IDOT program) and the CSX Transportation/Norfolk Southern PTC program, appear to be converging on common standards and technologies. Despite these positive indicators, however, significant issues surrounding safety regulation of PTC appear still to be open and recent transit experience with CBTC technology suggests it may take longer than expected before PTC technology is ready for prime time.

 

 

There are those in the industry that blame (perhaps falsely) Gallamore for the failure of the IDOT project and his insistence on using a consultant near his beach home, but never mind!

[wanswheel]

Excerpt from Railway Age, Aug. 1, 1999

Though railroads and suppliers have made significant strides toward interoperable Positive Train Control, questions remain as to whether the FRA will allow the industry enough time to "do it right."

The good news is that in under two short years, the major U.S. railroads have made significant progress in working with the industry to develop its next generation train control technology known as Positive Train Control (PTC). The bad news is that it is unclear whether actual PTC deployment will be fast enough to satisfy the Federal Railway Administration--partly because its own timetable may have become infected by a need for political expediency.

Dr. Robert Gallamore, program manager for the North American PTC Joint Program, probably best articulated the railroads' perspective in his paper for the Railway Age/PTG De Leuw, Gather Third International Conference on Communications-Based Train Control in Washington, D.C.: "FRA is considering using its regulatory powers to mandate PTC in high risk corridors. But the railroads argue that without interoperable standards, cost-effective systems are impossible. Without cost-effective systems, wide-scale deployment is unlikely. And without wide-scale deployment, few safety benefits will be realized."

Both major U.S. PTC programs, the North American PTC Joint Program (also known as the IDOT program) and the CSX Transportation/Norfolk Southern PTC program, appear to be converging on common standards and technologies. Despite these positive indicators, however, significant issues surrounding safety regulation of PTC appear still to be open and recent transit experience with CBTC technology suggests it may take longer than expected before PTC technology is ready for prime time.

[Buslist]

Euclid

 

 

Buslist

For those thinking that a shutdown might be lengthy due to congress wanting the railroads to loose revenue need to consider a basic fact.

 

 

I don't know of anybody here who has said that a shutdown might be lengthy because congress wants the railroads to loose revenue.  Can you please explain?

 

someone in another forum said 

"In my previous post, I was talking about a case where Congress fails to grant an extension by the deadline, and the railroads shut down a large amount of operations as they have announced they will do.  I can see how fuel and crews would be cheaper during a shutdown, as you say, but what about the loss of revenue?  How long could the railroads stand that loss?  In other words, what will the railroads do if Congress persists in not extending the deadline after it passes?" 

 

Why would they refuse to pass it if they didn't think that the loss of revenue wasn't a way to get the railroads running again? 

 

 

 

[NorthWest]

wanswheel

FRA rhymes with ‘car’ in Massachusetts.

Yeah, the message would be more effective if whoever made that had actually had a real person read it. Personally, I think that at the very last minute they will pass an extension after much public jabbing at each other.

[Euclid]

Buslist

For those thinking that a shutdown might be lengthy due to congress wanting the railroads to loose revenue need to consider a basic fact.

I don't know of anybody here who has said that a shutdown might be lengthy because congress wants the railroads to loose revenue.  Can you please explain?

[wanswheel]

FRA  rhymes with ‘car’ in Massachusetts.

[Buslist]

For those thinking that a shutdown might be lengthy due to congress wanting the railroads to loose revenue need to consider a basic fact. Most propane (to heat many houses) moves by rail, how will the public react as their homes get cold in January. Most chlorine used to treat drinking water moves by rail. How will the public react when many municipal water systems issue boil orders due to a shortage of chlorine. The public will demand action NOW. But I'm afraid that with the change in leadership in the house this issue will not get the attention it deserves and as usual we will get into crisis mode. BTW my retired railroad regulatory lawyer friend tells me the common carrier obligation goes away if it requires the carrier to do something illegal.

[MidlandMike]

Euclid

...

You mentioned that the Administration asked for the authority to extend the deadline.  Have they been given that authority?  If so, why haven’t they extended the deadline? 

...

It seems evident to me that Congress overall does not quite want to give an extension. Obviously they feel like they have the right, the duty, and the necessity to inflict financial pain on the railroads to spur them on in the quest to complete PTC.  Perhaps the fines are just an empty threat to spur them on, but even so, it is an indication of a belief that the railroads need to be pushed.  This mindset of keeping up the pressure is inconsistent with the idea of granting an extension and thereby losing the push for three years. 

 

Giving the administraion the ability to extend PTC deadlines was the basis of (part of) the bill that the Senate passed, but has yet to be acted on by the House.

There has been a steady drumbeat from the republican Congress for smaller government and less regulation, so I have no idea why you say "Obviously they feel like they have the right, the duty, and the necessity to inflict financial pain on the railroads to spur them on in the quest to complete PTC." 

[tommyboy]

I'm guessing that is Ed Ellis of Iowa Pacific?

At any rate, thanks very much for posting the link. It looks fascinating, especially the letters from various railroads and commuter agencies. I look forward to going through them.

However, I found this to be a very illuminating comment by the Senate Commerce Committee:

As a practical matter Congress needs to pass an extension by the end of October to prevent freight and commuter rail disruption. To do this, Congress may have to pass the PTC extension in the DRIVE Act as a stand-alone bill.

So it is possible for the House to vote on (and hopefully pass!) the PTC extension by itself without voting on or approving the entire bill. That's good to know and I suspect that is what will happen.

 

[Buslist]

Ed Ellis posted this over on Facebook.

 

good summary on the Positive Train Control extension from the Senate Commerce Committee

http://www.commerce.senate.gov/public/index.cfm?p=PressReleases&ContentRecord_id=21debeed-48fd-4b77-94e9-f8df9bba875c

[blue streak 1]

Boehner resignation how will it affect this problem??

[schlimm]

meet again  Jan. 1 or even earlier.

[tommyboy]

I suspect most members of Congress have a very limited interest in the issue of PTC: there are a few other things going on that require their attention. Syria, ISIS, the economy, domestic terrorism, campaign finance, the federal budget, just to name a few. I also suspect it is naive not to think that railroad industry lobbyists (and yes, they have them), have been in contact with selected legislators. That behind-the-scenes the industry is keeping some key members of Congress up-to-speed.

I also don't see any evidence that either side is truly antagonistic to the other. In fact, from what I have seen the railroads and Congress seem quite cordial in their dealings. That's probably a good thing too. Of course certain members of Congress probably can't seem too concerned with granting the industry an extension lest an oppponent in the upcoming elections accuse them of being too partial to railroad corporations and not concerned enough with public safety.

We'll see what happens.

 

[Euclid]

MidlandMike

 

Euclid

 

I have not ruled out the possibility that Congress will grant an extension.  I am just looking at a possible motive for Congress to not grant an extension, and what would happen if they don’t grant one.  This could become somewhat personal if Congress believes they are being bullied by the railroads.  It would appear that Congress had no intention of granting an extension before the railroads were talking about shutting down.  So they might tend to resist being shoved into granting an extension.

When I said in my possible scenario, “They also make a legal determination that the railroads are subject to the common carrier obligation despite the lack of compliance with the PTC law,” I did not mean that they would produce new legislation to give the railroads some literal new meaning of common carrier status, as you say.

All I meant is that Congress might not agree that the railroads will be exempt from their common carrier obligation because of being non-PTC compliant after the deadline.  I am sure that this would be an extremely complex legal point on which all legal experts might not agree. My only point is that if Congress feels they are being bullied by the threat of what they perceive as an illegal shutdown, they might not grant an extension.  If they don’t grant an extension, and if the railroads go ahead and shut down on 1/1/16; then what?  Either side will believe it is the other side’s fault. 

 

 

 

 

 

Congress has been discussing an extension at least since March, and the Senate passed an extension, before BNSF announced about a month ago they would shut down.

I presumed you were talking about legislation (to redefine common carrier status) because that's what congress does.  It is up to the administration to interpret how the law should be enforced, and STB(?) has already said that the common carrier status is not absolute in the face of conflicting laws such as PTC.

The PTC law was passed by a democratic Congress, so I am sure that the republican Congress will have no problem tweaking the law to make it more user friendly.  The main problem is that they have a lot of other priorities, and little time for all their pet projects.

The administration has already asked for an amendment to give them the leeway to extend deadlines, which is what the Senate passed.  However, if they don't get the cover that an extension law would give, they may effectivly extend the deadlines anyway, such as they did with the employer mandate on the ACA (ObamaCare).

 

Midland Mike,

I have no doubt that Congress has been talking about an extension.  They have realized that the deadline would not be met.  And it certainly is possible that we could hear they have granted one at any day now prior to the deadline. 

But I see no reason to believe that it is a forgone conclusion that they will grant a timely extension just because they have been talking about it.  It is getting a little late.  If they have been talking and thinking about it since March why isn’t it done by now?  Even if it happens to take a fair amount of time to process the extension, if the intent were there to issue the extension, why not announce it now and take the heat off?

You mentioned that the Administration asked for the authority to extend the deadline.  Have they been given that authority?  If so, why haven’t they extended the deadline? 

I also do not believe that it is a certainty that congress will agree that the railroads may ignore their common carrier obligations if they fail to meet the PTC deadline.  As I explained, when I suggested that Congress might conclude that railroads are not free to shut down if non-PTC compliant, I meant they might come to that conclusion in the face of the shutdown simply by their interpretation of the legal details of the premise.  This would be prior to any legislative action to change anything about the law.  It would just be their legal opinion guiding their political decisions.  

You mentioned that it is the Administration’s job to enforce the law, and not Congress’s job.  When I speak of Congress not agreeing that there is a right to shut down, I mean in terms of deciding not to grant an extension, not in terms of enforcement.  In other words, Congress would not try to enforce that railroads keep operating after becoming non-PTC compliant.  Instead, Congress would just refuse to grant the extension and announce that the railroads are violating the law and causing all the economic hardship.

It seems evident to me that Congress overall does not quite want to give an extension.  Obviously they feel like they have the right, the duty, and the necessity to inflict financial pain on the railroads to spur them on in the quest to complete PTC.  Perhaps the fines are just an empty threat to spur them on, but even so, it is an indication of a belief that the railroads need to be pushed.  This mindset of keeping up the pressure is inconsistent with the idea of granting an extension and thereby losing the push for three years.