1. Positive Train Control Allison I. Fultz Kaplan Kirsch & Rockwell LLP Washington, DC 2010 LEGAL AFFAIRS SEMINAR February 23, 2010

2. 2 Overview PTC Implementation – IMPORTANT DATES: January 15, 2010 – Final Rule issued March 16, 2010 – Final Rule goes into effect April 16, 2010 – PTC Implementation Plan Deadline December 31, 2015 – PTC Implementation Deadline

3. 3 Overview Rail Safety Improvement Act of 2008 (RSIA) Mandates comprehensive operational and physical improvements Broadens power of USDOT/Federal Railroad Administration (FRA) and Surface Transportation Board (STB) Rulemaking to implement legislation is well underway – legislation sets out strict timetables RSIA, Sec. 104: Positive Train Control (PTC) technology (49 U.S.C. § 20157)

4. 4 Overview Impetus for legislation - Freight and passenger operations share track and corridors Precursors to current technology – 1920s–1960s Recent technical advances Recent incidents involving collision of passenger trains with freight trains or interference with track

5. 5 RSIA, Sec. 104 (codified at 49 U.S.C. § 20157) Positive Train Control (PTC) is technology designed to prevent collisions and other incidents by automatically detecting and controlling the movement of trains Definition (49 U.S.C. § 20157(i)(3)): a system designed to prevent train-to-train collisions, over-speed derailments, incursions into established work zone limits, and the movement of a train through a switch left in the wrong position Implementing regulations at 49 C.F.R. Parts 229, 234, 235 and 236 General

6. 6 HOW IT WORKS Key components: Equipment on locomotive cars detects position and relation to other objects Equipment at control center – broadcasts authority for train movements Wayside interface units Wireless data line between train and control center Illustration available at: www.volpe.dot.gov/safety/crashavoid.h tml

7. 7 General When (49 U.S.C § 20157(a)(1); C.F.R. § 236.1005(b)(1)): Progressively, according to PTCIP submitted by April 16, 2010 Complete implementation by December 31, 2015 Who (49 U.S.C § 20157(a)(1)): Class I freight carriers Each railroad providing or hosting regularly scheduled Intercity passenger service (Amtrak) Commuter passenger service

8. 8 General Where: On each main line over which any quantity of poisonous by inhalation (PIH) material is transported (49 U.S.C. § 20157(a)(1)(B); 49 C.F.R. § 236.1005(b)(i)) On each main line used for regularly provided intercity or commuter passenger service, subject to limited exceptions Main line definition: Freight: a segment or route of railroad tracks over which 5 million or more gross tons of railroad traffic is transported annually (RSIA Sec. 104(i)(2), codified at 49 U.S.C. § 20157(i)(2)) Passenger: all intercity and commuter passenger lines

9. 9 General Main line track exceptions Only available to passenger intercity or commuter passenger railroads, or freight railroads conducting joint passenger and freight operation over the same segment of track (49 C.F.R. § 1019(a)) Specific segments of track may be designated as “not main line” (49 C.F.R. § 1019(a))

10. 10 General Regulatory progress: DOT required to issue regulations governing PTC technology (49 U.S.C. § 20157(g)) Notice of proposed rulemaking (NPRM) - July 21, 2009 (74 Fed. Reg. 35950) FRA public hearing on proposed rule - Aug. 13, 2009 Final rule - January 15, 2010 (75 Fed. Reg. 2598) – effective March 16, 2010 FRA seeks further comment on specific issues DOT must report to Congress by December 31, 2012 on progress of PTC implementation

11. 11 General Immediate next steps: PTC Implementation Plan due to FRA no later than April 16, 2010 Must describe where and how railroad will install PTC systems Each railroad must – Define circumstances Describe risks Propose PTC elements

12. 12 Technical Requirements Interoperability (49 U.S.C. § 20157(i)(1)) Address areas of greater risk prior to areas of lesser risk (49 U.S.C. § 20157(a)(2)) Once a railroad’s plan is approved, it must be phased in progressively (49 C.F.R. § 236.1005(b)(1)) – not all at once, as close to Dec. 31, 2015 as possible Subparts A through G of 49 C.F.R. Part 236 continue to apply

13. 13 Technical Requirements Each PTC system must reliably and functionally prevent: (49 C.F.R. § 236.1005) train-to-train collisions overspeed derailments incursions into established work zones Movement of a train through a main line switch in the improper position

14. 14 Technical Requirements PTC system requirements, cont’d (49 C.F.R. § 236.1005) – system must: Include safety-critical integration of all authorities and indications of a wayside or cab signal system Provide an appropriate warning or enforcement in response to authority or hazard detection Limit the speed of passenger trains to 59 mph and freight trains to 49 mph in areas without broken rail detection or equivalent safeguards

15. 15 Technical Requirements Submittals: PTC Implementation Plan (PTCIP) (49 C.F.R. § 236.1011) PTC Development Plan (PTCDP) and Type Approval (49 C.F.R. § 236.1013) - Components PTC Safety Plan (PTCSP) (49 C.F.R. § 236.1015) – Procedures PTCDP and PTCSP need not be submitted simultaneously with PTCIP FRA may require independent third-party verification and validation of product safety plan (49 C.F.R. § 236.1017; 49 C.F.R. § 236.913) PTC applications – public docket (49 C.F.R. § 236.1011(e))

16. 16 Technical Requirements Host railroad (49 C.F.R. § 236.1003(b) Safe State/fail safe (49 C.F.R. § 236.1003(b))

17. 17 PTC & Passenger Operations Requirements No new intercity or passenger rail service may commence after Dec. 31, 2015, until a PTC system has been certified, installed and made operative (49 C.F.R. § 236.1005(b)(6))

18. 18 PTC & Passenger Operations Requirements, cont’d. Joint submission of PTCIP (49 C.F.R. § 236.1009(a)(3)) If host railroad is required to install and operate a PTC system on a segment of its track; and If tenant railroad that shares the same track segment would have been required to install a PTC system if the host railroad had not otherwise been required to do so Civil penalties may apply if freight and passenger operators fail to reach agreement on joint filing (49 C.F.R. Part 236, Appendix A)

19. 19 PTC & Passenger Operations Main Line Track Exceptions 49 C.F.R. § 236.1019 File main line track exclusion addendum (MTEA) to railroad’s PTCIP Passenger terminal exception (49 C.F.R. § 236.1019(b)) Limited operations exception (49 C.F.R. § 236.1019(c)) FRA may grant exception where passenger and freight operations are temporally separated, among other criteria

20. 20 Federal Preemption 49 C.F.R. § 236.0(i)(1) – Final rule preempts any state law, regulation, or order covering the same subject matter, except an additional or more stringent law, regulation or order that is necessary to eliminate or reduce an essentially local safety or security hazard; is not incompatible with a law, regulation or order of the United States Government and that does not impose an unreasonable burden on interstate commerce. 49 C.F.R. § 236.0(i)(2) – Final rule establishes a federal standard of care for railroad signal and train control systems

21. 21 HSR & PTC Intersection with high-speed rail (HSR) requirements (49 C.F.R. § 236.1007)): As of Dec. 31, 2015, the method of protecting HSR operations will be through the use of PTC. 49 CFR § 236.0(d)(2). Defines high-speed operations as those exceeding 80 mph. Specific requirements apply: Freight operation above 50 mph; passenger operation above 60 mph Freight or passenger operation above 90 mph Freight or passenger operation above 125 mph Freight or passenger operation above 150 mph Amtrak relief

22. 22 Observations Effects of “the pressure of the time” Solicitation of further comments – no timetable announced FRA discretion

23. 23 Implementation Costs FRA has estimated cost to freight railroads alone of implementing PTC at $2.3 – 5 billion Public policy decision (75 Fed. Reg. 2602) No funding for PTC proposed in either House or Senate version of transportation reauthorization. FRA has determined - no direct compliance costs on state and local governments (75 Fed. Reg. 2696) Class I view - cost of PTC is weighted disproportionately toward Class I carriers, with little impact on Class II and III railroads. (75 Fed. Reg. 2612)

24. 24 Policy Collisions Freights – leverage Public agencies – no funding source for PTC-related improvements No Congressional proposal for funding Shared use of corridors by freight and passenger providers Implementation of HSR on shared corridors

25. 25 Practical Considerations Shared use – presence of passenger service on joint use corridor will not absolutely trigger PTC Dispute resolution no mechanism in final rule – use STB non-binding mediation and plug result in at FRA?

26. 26 QUESTIONS? Allison I. Fultz Charles A. Spitulnik Kaplan Kirsch & Rockwell LLP Washington, DC (202) 955-5600 afultz@kaplankirsch.com www.kaplankirsch.com