S.576 Out of Committee. What Next?Written by William C. Vantuono, Editor-in-Chief
S.576, the Rail Safety Act of 2023, has been passed by the Senate Committee on Commerce, Science and Transportation along party lines with few changes, and will go to the full Senate for consideration after amendments have been added. (Download below.) At least 60 votes are required for passage. There is speculation that the House will simply adopt the Senate version and rubber-stamp it with no modifications, but this is unlikely.
Introduced by Sens. Sherrod Brown (D-Ohio), J.D. Vance (R-Ohio), Bob Casey (R-Pa.) and John Fetterman (D.-Pa.), along with Sens. Marco Rubio (R-Fla.) and Josh Hawley (R-Mo.), following the derailment in East Palestine, Ohio., S.576 “addresses safety requirements for rail carriers and trains transporting hazardous materials. Specifically, the Department of Transportation (DOT) must issue safety regulations for trains carrying hazardous materials to require that rail carriers or shippers (1) provide state emergency response commissioners with advanced notice and information about the hazardous materials; (2) reduce blocked rail crossings; and (3) comply with certain requirements regarding train length and weight specifications, track standards, speed restrictions, and response plans. DOT must also establish requirements for wayside defect detectors … Current federal regulations do not require their use, but federal guidance does address their placement and use. Under the bill, DOT must issue regulations establishing requirements for the installation, repair, testing, maintenance, and operation of wayside defect detectors for each rail carrier operating a train carrying hazardous materials. The bill also increases the maximum fines DOT may impose on rail carriers for violating safety regulations, requires DOT to update railcar inspection regulations and audit the federal inspection program, requires a minimum two-person crew for certain freight trains, phases out certain railroad tank cars by Dec. 31, 2028, expands training for local first responders, imposes a new fee on certain rail carriers, and provides funding for research and development to improve railway safety.”
The bill passed by the Commerce Committee mandates that HBDs (hot bearing detectors) be deployed an average of every 15 miles, “a reduction of the current voluntary industry practice of installing defect detectors an average of 25 miles today. If a railroad does not comply with its plan, and an accident occurs, no matter the cause, the railroad will be considered in violation of rail safety law and subject to a fine. The bill also empowers DOT to make railroads stop trains when these technologies identify something is wrong.”
The bill also “expands the types of chemicals that trigger these specific safety requirements so that trains carrying vinyl chloride and other explosives and toxic materials, including flammable gas, poisonous gas and nuclear material, are subject to the same safety requirements as flammable liquid trains … [The] East Palestine train carrying vinyl chloride was not subject to these safety requirements because it was a flammable gas and not a flammable liquid.” As well, the bill “requires that railroads notify states about the types and frequency of trains carrying hazmat transported through the state boundaries. Additionally, the bill requires DOT to improve railroads’ existing hazmat response plans by ensuring railroads have: (1) a DOT approved plan explaining how they will respond to a release of dangerous chemicals that high-hazard trains transport; and (2) that railroads have their own hazmat spill response teams to quickly respond to derailments and support local firefighters.”
S.576 “prevents 30-second railcar inspections and mandates a new requirement that ensures railcars are properly maintained. To ensure that a railcar is free of defects that could lead to a derailment, like the failed wheel bearing that caused the East Palestine event, railcars are required to be inspected prior to a compiled (sic) train departing it is (sic) initial location. However, the Committee received documents showing Norfolk Southern recommended its employees complete inspections of one side of a railcar in just 30 seconds. Additionally, in September 2022, DOT sent all the Class I railroads a letter raising concerns that railroads were not using properly trained mechanics to conduct the predeparture inspections. This bill creates a statutory prohibition on railroads imposing time requirements on inspectors and also requires DOT to ensure railroads use trained mechanics to conduct these inspections.
“Another issue is that freight railcars, like the hopper car carrying plastic pellets that caused the derailment in East Palestine, are not subject to any periodic maintenance requirements. Similar to an automobile that is recommended to get a thorough inspection every 30,000 miles, railcars should go through a more thorough periodic inspection by a trained mechanic to see if any parts, like wheel bearings, need to be replaced. The bill mandates a new requirement that all railcars have a thorough inspection at least once every five years to ensure all its components are in working order. The bill improves the regular maintenance of railcars to ensure they are less likely to cause derailments.”
The average penalty Class I railroads pay for a violation of rail safety law “was less than $4,000 per violation in 2021,” according to the Commerce Committee. “To ensure that railroads take seriously both rail safety laws and hazardous materials safety laws, including the mandates in this bill, the legislation increases the maximum statutory civil penalty from $100,000 to $10 million.”
The bill creates a statutory requirement that all trains operated by Class I railroads, not Class II and III carriers, are operated with two crewmembers. Whether the Class II/III exemption will remain in place is unclear at this point. Short lines and regionals have different operating profiles than Class I’s, and many of the bill’s prescriptive directives “would simply not be implementable or necessary on Class II and III railroads,” commented one observer. “Many small-road concerns have been addressed, either by explicit removal, or identifying what type of railroad or operating circumstances the bill is intended to address. But railroading is a network business, so if it is problematic for Class I’s, it will be problematic Class IIs and IIIs. Congress is still directing quite a bit of rulemaking by the Secretary of Transportation, and does not limit that authority in any way, so small carriers may in the end be caught up unintentionally in rulemakings that will be difficult for them to implement, and may not make sense for their operating profiles.”
Another onerous provision in the 76-page bill (59 pages longer than the initial Commerce Committee draft version) is that it requires commuter railroads pay for installation and maintenance of HBDs on tracks they own over which hazmat freight trains operate. The bill provides $250 million to help commuter carriers pay for those costs, “but it is nowhere near the full costs,” according to the Commuter Rail Coalition’s John Cline.
Sens. John Thune (R-S.Dak.) and Ted Cruz (R-Tex.) have reportedly questioned why the commuter railroads should receive more funding than they’re already getting, Cruz calling it “a giveaway” to Senate Majority Leader Chuck Schumer (D-N.Y.), based on the fact that the carriers in his region (Long Island Railroad, Metro-North, NJ Transit) would receive a higher percentage of support based on their size. Cruz also remarked he doubts the bill will get the 60 required votes to pass the full Senate.
Commenting on the entire bill, not just the commuter rail aspects, Cline says it “is an emotional issue, and no one on Capitol Hill wants to be seen opposing it. What’s really frustrating, however, is that this bill has been fast-tracked through the Senate in the absence of a final NTSB report on East Palestine. And, it’s possible that, by the time the legislation is signed into law and the requirements take effect, the technology it’s mandating will have become outmoded, in the process of being replaced with something far more sophisticated, like real-time equipment health monitoring.”
“Before the legislation is considered on the Senate floor, AAR and its member railroads urge policymakers to continue refining the legislation to ensure the bill is focused on solution-driven polices that will measurably enhance safety,” Association of American Railroads President and CEO Ian Jefferies said. “Committee negotiations on the Rail Safety Act have yielded substantive improvements that advance stakeholders’ shared goal—enhancing rail safety, supporting first responders and keeping our communities safe. Railroads support items of this bill and remain fully committed to working with the Committee and all members of the Senate to build on these improvements, with the ultimate goal of ensuring all provisions result in meaningful data-driven safety advancements that all can support.
“At the same time, challenges remain with certain provisions, including those that mandate crew staffing models, expand hazmat transportation operating requirements, micromanage detector networks, and unnecessarily broaden manual inspections. In a piece of safety legislation, each provision should be clearly designed to rectify a current safety challenge. As reported out of the Committee, this bill falls short of that goal. That said, while railroads continue to advance industry-wide safety commitments, AAR and its members will continue to work with Congress to address the remaining obstacles and advance smart policies.
“The Commerce Committee has been committed to taking a risk-based approach when it comes to defining what constitutes a high hazard train. At the same time, more work remains to ensure the rulemaking proceedings contemplated in the legislation are driven by data, focused on safety and avoid unintended negative consequences for the supply chain.
“Over the past 30 years, railroads have voluntarily developed and deployed wayside detectors, which continuously monitor and assess the health and safety of the equipment. These detectors have enhanced safety by allowing railroads to identify defects traditional inspections cannot, and FRA research confirms this fact. This technology was developed because industry identified a problem and invested in a solution.
“If stakeholders’ goal is to drive continuous improvement in rail safety, the industry must be able to continue innovating just as it did decades ago to develop today’s wayside detectors. While the current legislation is less prescriptive than originally considered, conversations must continue to ensure the bill encourages future safety technological advancements.
“Complementing wayside inspection technologies, visual inspections are an important part of ensuring the health and integrity of railcars and locomotives across the rail network. Any changes to the current inspection regime must remain focused on checking safety-critical components and improving safety outcomes rather than impeding the network or advancing unrelated policy goals.”
“The American Short Line and Regional Railroad Association and its members have worked closely with various stakeholders and members of the Commerce Committee on both sides of the aisle on S.576 as it was modified,” said ASLRRA President Chuck Baker. “The bill as approved in Committee today represents meaningful progress toward recognizing the unique needs of smaller freight railroads across the country and mitigates many of the unintended consequences that we were concerned about.
“However, due to the interconnected nature of the U.S. freight rail system, short lines are still apprehensive that this broad set of proposed new regulations would have repercussions throughout the supply chain, may ensnare smaller railroads directly regardless of the legislation’s intent, and that funding proposals in the legislation may diminish opportunities for short line safety improvements.
“We pledge to continue working diligently and in good faith with members of Congress, as they have with us, to address all remaining concerns as the bill moves forward.”
Norfolk Southern Comments
“This is a first step toward the ultimate goal of enacting bipartisan legislation that advances rail safety and strengthens the ability of rail carriers to maintain their critical role in the nation’s economy,” Alan H. Shaw, President and CEO of Norfolk Southern, said in a May 10 statement. “The Committee bill contains important advancements in accident prevention, accident mitigation, and accident response that will make our railroads, our employees, and communities safer. We look forward to continuing our engagement with Members of Congress on the issues, achieving a meaningful and effective new law, and leading on safety measures within the industry.”
Download Full Bill:
Railway Age Executive Editor Marybeth Luczak contributed to this report.