WASHINGTON, D.C. – U.S. Sen. John Thune (R-S.D.), chairman of the Senate Committee on Commerce, Science, and Transportation, urged his colleagues in the Senate to keep America’s railroads open amidst a possible shutdown on January 1, 2016. If Congress fails to extend the positive train control deadline, railroads who cannot meet the requirements would be forced to shut down or operate in violation of the law. A shutdown of rail services would have widespread effects on Americans who rely on rail for getting to their jobs or for receiving critical freight deliveries.
 
More facts about the possible shutdown can be found at www.commerce.senate.gov/ptc.
 
The full text of Sen. Thune’s floor speech follows:
 
Mr. President, I rise today on a subject of urgency and importance to our nation’s economy. The looming deadline for implementing a new railroad safety technology, known as Positive Train Control – or PTC – could soon wreak havoc on our nation’s transportation system.

This havoc would not just affect the millions of Americans who board commuter trains every day, but also Americans who depend on critical freight rail deliveries.

These services could be interrupted because, despite years of warnings, implementation of PTC has not kept pace with an overly ambitious schedule set by Congress. Let me explain how we got here.

Seven years ago, following a deadly Metrolink passenger train collision in California caused by an engineer who was texting and failed to react to track signals, this body passed legislation mandating the installation of PTC, an innovative safety technology on over 60,000 miles of rail lines.

Though a meaningful and important safety upgrade, PTC is not a panacea.

It will not make a difference when rail tracks are damaged, in situations when people trespass on tracks, or at highway-rail grade crossings where the most accidents occur.

But PTC can and will have an impact in preventing three specific accident scenarios.

First, the technology will prevent train-on-train collisions when both trains, and the track they are traveling on, have fully functioning PTC systems installed.

Second, the system will prevent accidents or derailments caused by excessive train speeds, like the deadly Amtrak derailment in Philadelphia earlier this year.

And third, the technology will help protect individuals working on railroad tracks from being hit by a train accidently routed onto the wrong track.

PTC systems operate by relying on ground-based computer systems, equipment installed on train locomotives, satellites, and wireless radio spectrum-based communications coming from a network of thousands of towers being built along rail tracks.

A PTC system can help certain trains automatically communicate with one another and sense if operator instructions, namely speed, are appropriate for where the train is operating.

Because it isn’t effective unless all trains are linked together on a network, PTC will be required on all passenger and freight trains that travel on rail tracks that carry passengers or certain hazardous materials, regardless of what an individual train is hauling.

Our colleague, the senior senator from California, Sen. Feinstein championed the legislative provision that put this requirement in place back in 2008. The legislative mandate was forward-looking and set an aggressive schedule for fully implementing the technology.

Seven years later, both freight and commuter railroads have made substantial progress in implementing Positive Train Control.

But there have been some unexpected delays in implementing the technology.

The Federal Communications Commission halted the construction of necessary communication towers for over a year in 2013 over concerns about historic preservation and potential impacts on tribal lands.
There have also been delays in regulatory approvals, problems in obtaining necessary communications spectrum, and many difficulties that come with building a new technology.

The complexity of a Positive Train Control system falls somewhere in between a new version of computer operating software and driverless cars.

Any of us who have had a just-released version of software installed on our computer know about bugs that have to be worked out. And like driverless cars, when lives are at stake, you have to get the technology right before relying on a system as advanced as PTC.

Over 5.5 billion dollars in private funding has already been spent on implementing PTC. The debate on the need, cost, and benefits is long over.
When this body voted in 2008 to mandate full and certified implementation of PTC by December 31, 2015, there were concerns that the timeline was too aggressive. Those concerns have steadily grown.

Both the independent Government Accountability Office and the Federal Railroad Administration, which regulates railroad safety, have warned for years that the deadline set by Congress was unrealistic.
Now, some saw great value in keeping this overly aggressive deadline in place – it was a way of maintaining pressure on freight and commuter railroads to move aggressively. At the end of the day, the thinking went, if railroads did not meet the deadline they would be subject to financial fines, and these penalties would motivate them to quickly finish work on PTC.

And if the pressure didn’t work, these individuals assumed, things could go on much as if the law hadn’t been put in place at all.

Freight railroads could just continue to haul critical shipments of products like chlorine and fertilizer, which would pose greater public hazard if hauled on highways.

There was even a naïve belief that commuter railroads, run by state and local governments, could get exempted from fines mandated under the law. Some believed commuter railroads could continue to move passengers, instead of adding to the congestion and safety risks on our nation’s roads.
But over the past month, these myths have been put to rest as the real consequences of failing to meet the legal deadline for Positive Train Control implementation have come into focus.

Both freight and commuter railroads have informed Congress, regulators, and even stockholders that an inability to comply with the PTC mandate could halt some freight and passenger services by January 1, 2016.

In fact, the effects will be felt weeks earlier when it comes to the shipment of hazardous materials like anhydrous ammonia, a critical fertilizer for our nation’s crops, because it takes time to move tank car traffic off the rail network.

The Obama Administration, in testimony before the Commerce Committee this month noted that the law leaves no possibility of exempting publicly owned commuter railroads that do not meet the PTC deadline from fines.
But the threat of federal fines is only one worry for railroads among other much larger consequences of missing the PTC deadline.

Remember, the vast majority of passenger rail service relies on track owned by freight railroads. To run commuter rail service on freight lines in compliance with the PTC mandate, not only must commuter rail trains and tracks be fully equipped, but all freight tracks and freight trains that run on them must also be properly equipped.
There are approximately forty railroads, mostly commuter railroads, in the United States that will be affected by the December 31, 2015, deadline for certified implementation of Positive Train Control. I asked them to tell us about their situations in dealing with the upcoming mandate. Let me tell you what I heard.

Not one railroad said that they have met the legal obligation for implementing PTC. Let me repeat that.
Not one railroad, commuter or freight, told us that after seven years of work and with three months to go before the legal deadline for full implementation of Positive Train Control that they have been certified by the Federal Railroad Administration as compliant with the requirement.

We had one railroad, Metrolink, in California that would go so far as to express that they were “cautiously optimistic” that they could meet the end-of-year legal deadline for implementing PTC.

But neither Metrolink nor any other railroad advised us against extending the legal deadline for Positive Train Control.

Some commuter railroads bluntly told us that they saw no option for continuing passenger service after December 31st without action by Congress to extend the deadline.

Last week, the Board of Directors of Metra in Chicago, with over 70 million riders annually, voted in favor of a resolution to shut down on January 1, 2016 if the deadline is not extended.  

Our nation does not have the transit bus capacity to move these displaced riders. This will dramatically increase the number of people who are stuck in traffic each day and decrease the safety of our transportation system.

Sarah Feinberg, the acting administrator for the Federal Railroad Administration, testified last week that she had not recently spoken to a railroad that planned to continue operating on January 1, 2016.

Why are railroads so concerned about running over the legal deadline for PTC?

Railroads point out that, regardless of fines, their insurance would not cover an incident if the railroad had knowingly violated a safety law or regulation like operating in non-compliance with the PTC mandate.

They also point out that federal law provides individual railroad workers with the right to refuse instructions that are counter to federal safety laws or regulations.

In effect, railroad workers across the country would have an individual right, and protection from consequence, to refuse from participating in the operation of trains in non-compliance with the PTC mandate.

Now different railroads have different concerns. Freight railroads have expressed some varying ideas about how they interpret the law. But remember, railroads are interconnected.
Let me explain a common view we have heard and how it will affect the nation’s interconnected rail system and economy broadly.

The PTC mandate only applies to routes where there is passenger travel or shipment of certain hazardous materials, like chlorine used for water reservoir purification.

Under normal circumstances, freight railroads are bound by something called the “common carrier” requirement. This means that freight railroads can’t refuse to haul a specific cargo like chlorine simply because it is unprofitable or inconvenient.

But railroads argue that this common carrier requirement cannot be reasonably interpreted as requiring them to haul cargo on tracks if doing so would violate federal law.
Dan Elliott, the chairman of the federal Surface Transportation Board which regulates railroad business practices, added weight to these concerns. In a letter to me this month about the situation, Elliott stated that the “common carrier obligation is not absolute.”

He informed us he “cannot predict” how regulators would rule on specific railroad decisions to exclude cargo or passenger traffic in order to comply with the PTC mandate.

So how do we avert this safety and economic disaster?

The independent experts at the Government Accountability Office who studied this issue and released a report, told us that railroads will need an additional one to five years to meet the legal requirements of implementation.

They documented the immensely complex technological challenges associated with new PTC components.

This report and the letters I received from both railroads and regulators about the Positive Train Control deadline are posted on the committee website: “commerce.senate.gov/ptc”.

Mr. President, the Senate acted in July by passing a provision on the multi-year highway reauthorization bill that would extend the deadline on a case-by-case basis.

The Senate’s bill – which passed by a vote of 65-34 – took the best parts of legislation to extend the deadline that had been put forward by the Obama Administration; Sen. Feinstein who championed the PTC requirement; and Senators Roy Blunt and Claire McCaskill of Missouri who saw this problem coming some time ago and have worked with me to prevent it.
 
Under the bipartisan Senate plan, the secretary of transportation gets the legal authority to approve or disapprove requests for extensions submitted in plans where railroads show how and when they will meet all the requirements of full PTC implementation. If approved, this essentially becomes a contract and railroads will face consequences if they do not adhere to it – including fines.

Under no circumstances could the secretary approve a date for full PTC installation that is later than 2018.

The secretary also has the authority to identify and require changes to deficient schedules that do not show safe and successful implementation as soon as practicable.

The proposal is specifically designed to maintain pressure on railroads to install and implement PTC systems without undue delay. It also recognizes that review by regulators after installation, which is necessary to achieve legal certification of full PTC implementation, may take additional time.

Of serious concern to many commuters and shippers who rely on railroad transportation, the deadline for congressional action on the PTC mandate is actually well before December 31, 2015.

Without a legal extension, railroads will have to begin preparations weeks in advance to operate under the assumption that no change will be made. This will mean railroads contacting customers like water treatment facilities by Thanksgiving to cancel critical shipments.

It will mean contacting passenger and commuter rail customers to have tickets refunded because passenger rail cars will have to be cleared off the rail system before January 1.

To avoid this calamity, not to mention the other backups that such changes can have on a vast rail network, we need to pass an extension into law before these cancellations begin.

Working on a bipartisan basis, we can help our constituents avert a transportation calamity that would have a much more serious impact on our economy than last year’s West Coast ports slowdown.

This is about helping millions of Americans who are dependent on railroads for their livelihood and essential deliveries. We have a responsibility to act.

Mr. President, I ask unanimous consent to submit letters and other information that the Committee on Commerce, Science and Transportation received from railroads and federal officials and yield back.