December 7, 2017

Department of Transportation Repeals Controversial Rail Brake Rule

Holland & Knight Transportation Blog
Jameson B. Rice

In a decision that had become all but inevitable, the U.S. Department of Transportation (DOT), on December 4, 2017 rescinded its rule that would have required railroads carrying highly hazardous flammable materials, such as crude oil, to be equipped with electronically controlled pneumatic (ECP) brakes, rather than standard air brakes. DOT’s Pipeline and Hazardous Materials Safety Administration (PHMSA) and Federal Railroad Administration (FRA) issued the rule in 2015 and a two-phase compliance schedule was set to begin in 2021.

The rule received support from labor unions, but the Association of American Railroads fought hard against the rule and lobbied for its repeal. Among other arguments, the rail industry observed that virtually no railroad accidents would be avoided by shorter stopping distances, and that introducing a special brake system on some cars would disrupt the current equipment interchangeability whereby any locomotive can haul any car on the North American rail network. The rule was dealt several blows after it was issued.

The 2015 Fixing America’s Surface Transportation (FAST) Act (Pub. L. No. 114-94) required that the Government Accountability Office (GAO) and the National Academy of Sciences (NAS) examine the assumptions and conclusions made by DOT in its ECP brake rule. In October 2016, the GAO concluded that the DOT’s justification for the rule “lacked transparency” and that more data would be helpful. In October 2017, NAS’s Transportation Research Board was unable to conclusively state how well ECP brakes perform in an emergency as compared to other braking systems. Also in October 2017, DOT issued a revised regulatory impact analysis in which the cost of the rule, estimated to be between $375.5 million and $491.7 million, was nearly three times higher than the benefit.

U.S. Sen. John Thune (R-S.D.), chairman of the Committee on Commerce, Science, and Transportation, issued the following statement in response to the DOT repeal:

“Repealing this rule puts sound science and careful study by the independent National Academies of Sciences and Government Accountability Office over flawed guesswork the [DOT] used in 2015. While new technologies offer potential improvement to railroad safety, regulators have a responsibility to fairly evaluate effectiveness and avoid arbitrarily mandating new requirements. I applaud the Department’s new leadership for reacting appropriately to the findings of independent experts and fixing a mistake.”

The DOT decision follows just days after the AAR filed comments in response to a DOT request, listing the rules it wanted to see repealed, replaced or modified, in which the ECP brake rule was first on the AAR’s list.

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