Rail safety bill passes Senate committee amid GOP resistance

May 11, 2023

The future of a railway safety bill created in response to the Feb. 3 derailment of a Norfolk Southern (NYSE: NSC) train in East Palestine, Ohio, is uncertain even though it passed a Senate committee, paving the way for a vote on the Senate floor.

The 16-11 vote Wednesday on the Railway Safety Act fell mostly along party lines, with Democrats voting in favor of the bill and most Republicans voting against it. Senate Republicans Eric Schmitt of Missouri and J. D. Vance of Ohio voted in favor of the bill.

But expect continued debate in the Senate and the U.S. House of Representatives on the bill’s more contentious items, including regulations that would require at least two people to operate a freight train, Republican senators warned Wednesday during the Senate Commerce Committee’s markup of the bill.

“I don’t believe as written that it is likely to get 60 votes in the Senate. And I think it is even less likely as written to pass the House of Representatives,” said Sen. Ted Cruz, R-Texas, ranking member of the committee. “So I remain committed to working with the authors of this bill and with the chairwoman [Democratic Sen. Maria Cantwell of Washington] to find a bill that both enhances safety but also does not result in dramatically driving up the cost of energy for consumers who are being hurt today.”

Vance, who co-sponsored the bill, noted the involvement that industry stakeholders — including the railroads and rail shippers — had in crafting the bill, which, as Cruz remarked, started at 18 pages but is now nearly 80 pages long.

Since the derailment of the NS train in February, congressional leaders have been grappling over where and how to make rail safety regulations more stringent, and they have brought NS President and CEO Alan Shaw to testify before Congress on the derailment.

Meanwhile, the freight rail industry announced some of the adjustments being made at the Class I railroads, while other stakeholders, such as the unions, rail shippers and rail equipment manufacturers, are also keeping an eye on looming regulations. The Federal Railroad Administration (FRA) and the U.S. Department of Transportation have issued their own safety advisories in response to recent train derailments, and stakeholders are waiting for recommendations from the National Transportation Safety Board after that agency completes its investigation into the NS derailment.

“This bill has changed a lot from what I introduced just a few short months ago. We’ve made a number of concessions to the rail industry, a number of concessions to various interest groups, which is why we have so much bipartisan support in this body, but also we have a lot of support from industry,” said Vance, who co-sponsored the bill with Sens. Sherrod Brown, D-Ohio; Marco Rubio, R-Fla.; Josh Hawley, R-Mo.; Bob Casey, D-Pa.; and John Fetterman, D-Pa.

Included in the bill are provisions aimed at protecting and better equipping local emergency responders; requiring increased deployment of wayside defect detectors; expanding the types of chemicals that would trigger specific safety requirements; restricting speeds of trains that are carrying large amounts of flammable liquids and passing through urban areas; notifying states about the types and frequency of trains transporting hazardous materials through the state; prohibiting the railroads from imposing time restrictions on those inspecting trains; and raising fines for violating rail safety regulations from $100,000 to $10 million.

“This bipartisan legislation is focused on learning the lessons from East Palestine and helping us to avoid future accidents,” Cantwell said. “No community should have to go through the trauma and evacuation and environmental damage that East Palestine had to go through, especially when you can prevent these from happening.”

The bill is headed for the Senate floor, where it will need a 60-vote majority to pass. A similar bill in the U.S. House of Representatives is still in committee.

Failed amendments reflect broader industry concerns

Although the co-sponsors of the Railway Safety Act consist of a bipartisan group, the amendments that Republicans sought to incorporate into the bill — amendments that were later rejected mostly along party lines — reflected the freight rail industry’s broader concerns about regulation.

“There’s not much in the proposed legislation that would address the root cause of the derailment in East Palestine based on what we know so far,” said Sen. John Thune, R-S.D., citing the two-person crew mandate and certain new inspection requirements as examples. “This bill should have been about safety reforms relevant to the derailment in East Palestine. But now, it’s been expanded to [include] … onerous regulatory mandates and union giveaways. If the intent was to punish the railroads for their mistakes, this bill misses the mark. Instead, this bill would disproportionately affect the small shippers.”

Rejected amendments included:

An amendment by Cruz that calls for the secretary of transportation to issue rules and regulations only after determining that the safety benefits exceed the costs, versus the bill’s existing language that allows an executive order to serve as the basis for regulatory analysis related to rulemakings.

Cruz also said the proposed regulations could give the secretary of transportation and the president greater discretion over regulations, including those that could potentially restrict the rail shipments of certain energy products, such as coal, crude oil, natural gas and ethanol.

Countered Cantwell: “Many organizations representing customers of railroads have issued statements in support of this legislation. These customers are sophisticated businesses and know what may occur as the result of this bill. However, preventing derailments and keeping their product safe is also very important to them.”

An amendment offered by Sen. Marsha Blackburn, R-Tenn., that requires the railroads to submit a safety innovation plan as part of the railroads’ risk reduction plan, so that “the railroad would be free to pursue these innovative approaches as long as it demonstrates an equivalent or better level of safety.” Blackburn referred to an ongoing debate between stakeholders over the FRA’s handling of technology deployment related to track inspections.

An amendment by Thune that would strike language related to providing grants to commuter and passenger railroads to install defect detectors on railroad track. Vance said that language was included as a concession to railroad operators to defray installation costs.

Some other proposed amendments were withdrawn: one from Sen. Cynthia Lummis, R-Wyo., that would remove the language related to train crew sizes and another from Cruz on enabling increased shipments of liquefied natural gas by rail.

“Congress cannot become the arbiter of labor disputes in the transportation sector,” Lummis said. “And this provision puts us squarely back in that position. It is my hope that as this bill progresses, we can find a way to address rail safety that does not intertwine us in negotiations between the unions and management.”

Said Cruz: “In 2021, the Biden administration suspended a rulemaking that would have allowed railroads to transport LNG, subject to certain safety requirements. This is a huge problem for transporting energy because investing in the tank cars and facilities removing LNG by rail is expensive and time consuming. Additionally, LNG providers have to enter into long-term contracts with buyers to ensure that it’s profitable to make the investments to transport LNG. By creating regulatory uncertainty, this administration has effectively pocket vetoed the movement of LNG by rail.”

Some approved amendments that made it into the bill include calling for:

The U.S. General Accountability Office to examine roadway worker protections.

The production of a report that would review FRA’s inspector program as part of a broader effort to bolster inspector ranks.

The establishment of a toll-free telephone service offered by each railroad so that individuals can report blocked crossings.

The convening of FRA’s railroad safety advisory committee to examine the functioning of emergency brake signals.

Alcohol and drug testing for those who inspect locomotives, passenger cars, rail cars or other on-track equipment.

Stakeholders’ reactions to committee passage of the bill

In response to the commerce committee’s vote, the American Chemistry Council (ACC) said the bill would help prevent future incidents, strengthen emergency response and support the safe movement of chemicals.

“We support the committee’s bipartisan effort, and we commend the hard work by committee staff to address many complex issues and seek stakeholder input,” the trade group said in a statement. The legislation “provides a solid foundation for the Senate and House to move forward on rail safety.”

ACC worked with staff on some parts of the bill. It said improvements include additional support for emergency responders through reasonable increases in hazmat registration fees, the adoption of a feasible approach to accelerate the adoption of updated tank cars and focused safety regulations on a targeted set of high-hazard trains.

The Association of American Railroads said while it supports some of the bill’s measures, it also “urge[s] policymakers to continue refining the legislation to ensure the bill is focused on solution-driven policies that will measurably enhance safety.”

“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,” AAR President and CEO Ian Jefferies said in a Wednesday news release. “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.”

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