States oppose federal system safety plan rules

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WASHINGTON — What would seem to be a routine Federal Railroad Administration safety rule-making is being opposed by officials who are usually the agency's natural allies: state railroad authorities. As a result of their opposition, plus orders from President Donald Trump’s administration, a rule requiring passenger carriers to draw up System Safety Plans has been delayed five times in the past 16 months.

In August 2016, the FRA issued the rule that would require an “intercity passenger railroad” to draw up a safety plan that “continually and systematically evaluates railroad safety hazards on its system and manages the resulting risks to reduce the number and rates of railroad accidents, incidents, injuries, and fatalities.”

The rule would apply mainly to Amtrak, and any state-owned properties Amtrak operates under contract. Also included are the Alaska Railroad, and state-owned commuter lines that operate under contract. Mass transit lines are not included.

State officials appear to object to who is responsible for the plans — not the safety principle — and that includes the states that own the track. The rule applies to “states, state agencies and instrumentalities, and political subdivisions of states that own [but do not necessarily operate]” railroads, railroad equipment, or provide financial support for passenger trains.

States balked. They argued that safety is the purview of the railroad tenant, not the landlord. A system safety plan would impose a financial burden. States lacked the experience and expertise to create safety plans. According to the petition from the Vermont Agency of Transportation, state officials weren't even allowed on the right-of-way without the railroad's permission.

The FRA received similar petitions from the Capitol Corridor and San Joaquin joint power authorities in California, Indiana Department of Transportation, Northern New England Passenger Rail Authority, and the North Carolina Department of Transportation.

The states asked the FRA to stay the rule until their objections were considered. The FRA stayed the rule in February, then again in March, May, and finally Dec. 4. The rule would now take effect in December 2018. Some of the delays were the result of a new administration policy: New rules from the federal bureaucracy had to go to the White House for review.

The rule also raised a constitutional question: How far could the federal government reach to regulate states?

“In opening the door to application of its [safety plan] rule … the FRA plainly has overreached its grant of enabling authority from Congress,” Vermont's petition states. “Moreover, by exposing such state entities with the untoward consequences of 'railroad carrier' status, the FRA will have a chilling effect on activities encouraged by Congress …” including state acquisition of lines threatened by abandonment.

The FRA apparently has taken the states' position to heart. The final stay came after a meeting of the FRA Railroad Safety Advisory Committee on Oct. 30, where states, railroads and labor organizations expressed their views.

“The state of Vermont is wholeheartedly is favor of enhancing rail passenger safety. However, the State always has structured its support of both freight and passenger rail to avoid actual rail carrier status,” said John Dunleavy, Vermont assistant attorney general. “I'm reasonably optimistic that FRA will make the changes that Vermont and the other states are asking for.”

While the rule is yet to take effect, Amtrak is not waiting.

“We are taking action independent of the stay of the rule. We are building a Safety Management System which includes the development of a System Safety Program,” according to an Amtrak spokeswoman.

CORRECTION: An earlier version of this story incorrectly reported Vermont's ownership of a rail line in other states. We regret the error. Dec. 28, 2017, 2:44 p.m. Central time.
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