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Rail industry groups urge against ‘midnight’ regulation

Officials from the American Association of Railroads, along with the American Short Line and Regional Rail Association, said that federal regulators should hold off on any new rulemakings until the new administration takes over.

   Representatives from railroad industry groups are urging federal regulators not to push new legislation through in the waning days of President Barack Obama’s administration.
   Following last week’s election, President-elect Donald Trump now has a partisan majority in both the Senate and the House of Representatives, meaning that any so-called “midnight” legislation could be reversed once he takes office in January.
   Edward R. Hamberger, president and chief executive officer of the Association of American Railroads (AAR), said that given the “dramatic” shift in the political landscape in Washington, D.C., the Surface Transportation Board (STB) should “suspend its misguided quest to re-regulate freight rail,” at least until the STB has a full complement of members.
   Congress in 2015 reauthorized the STB for the first time since its creation, expanding the board from three members to five, but currently, only two members have seats on the board. President-elect Trump will nominate three new board members next year, which will then be subject to confirmation by the Senate.
   “Now is not the time for midnight regulations, let alone the enactment of the unfounded proposals currently arising from the STB that will surely fail to meet the rigorous examination promised by future leaders,” said Hamberger.
   The AAR chief urged the new administration, as well as the STB and Federal Railroad Administration (FRA), to push for policies based on data and the “market realities of today, not the past.”
   “Our industry has made it clear that rules should protect a true free market, and that no agency can spur ‘competition’ through regulation,” he said. “The current economic regulatory structure enables freight railroads to earn the revenues necessary to invest so we can deliver the rail service our customers expect and deserve.
   “Baseless proposals to re-regulate commodities exempt from strict oversight for more than 30 years, or mandates for privately owned companies to use their private infrastructure and equipment for the benefit of competitors are indeed drastic shifts in economic regulation and have no business advancing without a full complement of board members,” he added.
   Those comments were echoed by American Short Line and Regional Railroad Association (ASLRRA) President and CEO Linda Bauer Darr, who said that there are “literally thousands” of political jobs yet to fill in D.C. and that it would be unwise for any regulations to be finalized before the new administration has a chance to weigh in on the various proposed rulemakings. Top regulatory priorities of the ASLRRA include the STB’s proposal to mandate two-person crews on all trains and exemptions to the federal hours of service regulations.
   AAR in August submitted comments to the FRA in response to a July 15 public hearing, once again urging the administration to withdraw its proposed mandate for two-person crews on railroads.
   Proponents of the proposed regulations, which include transportation unions and labor groups, argue the two-person crew mandate promotes safety by closing existing loopholes permitting freight railroads to deploy single crew operations.
   Sen. Richard Blumenthal, D-Conn., however, last week sent a letter calling on Federal Railroad Administrator Sarah Feinberg to fast-track several rail safety initiatives over the final months of the current administration.
   In the letter, Blumenthal urged Feinberg to continue the administration’s efforts to ensure railroads have realistic plans to complete the implementation of positive train control (PTC) by 2018, as mandated by Congress. He also noted several remaining safety provisions from the Fixing America’s Surface Transportation (FAST) Act of 2015, including improvements to signals at grade-crossings, inspection practices on commuter rail lines, and installation of inward- and outward-facing cameras on all passenger trains.
   In addition, Blumenthal called on Feinberg to finalize a “sensible” rule regarding two-person train crews and requirements for railroads to address worker fatigue issues.
   “There is tremendous opportunity for action in the time you have left, so I urge you to take all steps possible to keep our rail system from reverting to the dangerous, deadly network of days past,” he wrote.
   For his part, STB chairman Elliott told the RailTrends 2016 conference that as a member of a board, he couldn’t push midnight legislation through even if he wanted to – he’d need another vote at least -but that the board’s goal is to always take a measured approach to finding the best possible set of regulations, however long that takes.
   “The bottom line is that great uncertainty is looming not just over the freight rail industry, but the entire economy,” said Hamberger. “Now is not the time for regulators to jam through rules and inject even more government-induced uncertainty.”