Legislative Analysis for Counties: Freight Rail Safety Legislation in the 118th Congress

H.R. 1633 – RAIL Act 
(Johnson & Sykes)

H.R. 1674 – DERAIL Act (Deluzio & LaLota) / 
S. 576 – Railway Safety Act (Vance & Brown)

NACo Policy

• Issue or modify regulations based on NTSB’s report of the East Palestine derailment within one year of it being issued to require the following from trains carrying HAZMAT but not subject to high-hazard flammable train regs:
  • Provide advanced notification and info on the transport of HAZMAT to each state emergency response commission (SERC) or tribal response commission
  • Include written gas discharge plan in the notification
  • Reduce/eliminate delays that cause blocked crossings
• Develop new “additional requirements” around train length, weight, rail cards, routes, speeds, track standards, maintenance, train control, response times

• Issue or modify regulations based on NTSB’s report of the East Palestine derailment within one year of it being issued to require the following from trains carrying HAZMAT but not subject to high-hazard flammable train regs:
  • Provide advanced notification and info on the transport of HAZMAT to each state emergency response commission (SERC) or tribal response commission
  • Include written gas discharge plan in the notification
  • Reduce/eliminate delays that cause blocked crossings
• Develop new “additional requirements” around train length, weight, rail cards, routes, speeds, track standards, maintenance, train control, response times
• Adds “other items as deemed necessary by Sec’y” under covered activities for “additional requirements”
• Allows Sec’y to modify existing safety requirements for high hazard flammable trains

Counties urge Congress to provide additional funding to local governments, states and railroads to improve grade crossings and separations allowing for safer interactions between road and rail traffic.

• Within one year of the bill’s enactment, Sec’y must update regs to create minimum time requirements inspectors must spend inspecting a train and to ensure HAZMAT cars are inspected by qualified persons at different intervals
• Within 60 days of the bill’s enactment, Sec’y must audit federal rail inspections programs to determine compliance
• Must audit Class I RRs at least every five years (currently every 2 years) and adds requirement to annually audit selected Class II (regional RRs) and III (short line RRs) RRs as determined by the Sec’y (GAO determined FRA was not sufficiently inspecting IIs and IIIs) 
  • If programs are determined insufficient, RR must update
  • Auditees, including the RRs, their employees and any labor org must participate during the audit or USDOT must notify House T&I / Senate Commerce
• 3x a year, Sec’y must determine if an update to RR freight car safety standards is warranted
• USDOT must publish an annual report containing audit findings and any related reg updates

• Within one year of the bill’s enactment, Sec’y must update regs to create minimum time requirements inspectors must spend inspecting a train and to ensure HAZMAT cars are inspected by qualified persons at different intervals
• Within 60 days of the bill’s enactment, Sec’y must audit federal rail inspections programs to determine compliance
• Must audit Class I RRs at least every five years (currently every 2 years) and adds requirement to annually audit selected Class II (regional RRs) and III (short line RRs) RRs as determined by the Sec’y (GAO determined FRA was not sufficiently inspecting IIs and IIIs) 
  • If programs are determined insufficient, RR must update
  • Auditees, including the RRs, their employees and any labor org must participate during the audit or USDOT must notify House T&I / Senate Commerce
• 3x a year, Sec’y must determine if an update to RR freight car safety standards is warranted
• USDOT must publish an annual report containing audit findings and any related reg updates

Counties support the Rail Routing Risk Assessment required and audited annually by the FRA. Counties urge Congress to further require local and state review of, and input into, the risk model.

• USDOT must, within one year after the bill’s enactment, set regs for the installation, repair, testing, maintenance and operation of wayside detectors for rail carriers operating HAZMAT trains
• Creates new regs, including:
  • Class I RRs must install a wayside detector every 10 miles on tracks where HAZMAT is carried
  • Est. a temperature at which the detector would indicate a failure from overheating (preliminarily is likely what went wrong in East Palestine)
  • Next steps that an operator must take when a detector is triggered
• Requires the heat threshold of placards be 180 degrees and allows threshold to be increased as necessary

• USDOT must, within one year after the bill’s enactment, set regs for the installation, repair, testing, maintenance and operation of wayside detectors for rail carriers operating HAZMAT trains
• Creates new regs, including:
  • Class I RRs must install a wayside detector every 10 miles on tracks where HAZMAT is carried
  • Est. a temperature at which the detector would indicate a failure from overheating (preliminarily is likely what went wrong in East Palestine)
  • Next steps that an operator must take when a detector is triggered

N/A

N/A

• Mandates two-person train crews for all freight trains consisting of at least one conductor and one engineer
• Creates exemptions, including for carriers:
  • Operating off a main line track
  • With 40K less employees and $40M or less in annual operating revenue (this exempts many Class II and III RRs) where the train is traveling 
    < 25 MPH on a track with a grade of < 2% for any two continuous miles
  • Assisting another train or unattached to any equipment or only a caboose and do not travel > 30 miles
  • Without a two-person crew before the date of enactment of the mandate by this bill (1 yr.) as determined by the Sec’y
• Codifies certain trains never eligible for exemptions, including those:
  • Carrying inhalant HAZMAT as defined in the CFR
  • With 20 contiguous cars carrying flammable HAZMAT or a train with 35 non-contiguous HAZMAT cars (this is the current req.)
  • Adds requirement for trains of 7,500 ft.+ in length
• RR can seek waiver

N/A

• Increases penalties related to transporting HAZMAT, including caps on fines for safety violations for rail carriers from $75K to the greater of .5% of the person’s annual income or the RR’s annual operating income or $750K and, where death or serious injury results, from $175K to $1.75M
• Increases penalties for general violations from $500 to $25K to the greater of .5% of the person’s annual income or the RR’s annual operating income or $250K and, where death or serious injury results, from $100K to the greater of 1% of the person’s annual income, RR’s operating income or $1M
• Increases penalties for accidental and/or incidental violations of rail safety standards from $25K to the greater of .5% of the person’s income or the RR’s annual operating income or $250K 
• Increases cap on penalties for persons acting grossly negligent or in a pattern of violating rail safety regs from $25K to the greater of .5% of the person’s annual income or the RR’s annual operating income or $250K and, where death or serious injury results, from $100K to $1M

• Increases penalties related to transporting HAZMAT, including caps on fines for safety violations for rail carriers from $75K to the greater of .5% of the person’s annual income or the RR’s annual operating income or $750K and, where death or serious injury results, from $175K to $1.75M
• Increases penalties for general violations from $500 to $25K to the greater of .5% of the person’s annual income or the RR’s annual operating income or $250K and, where death or serious injury results, from $100K to the greater of 1% of the person’s annual income, RR’s operating income or $1M
• Increases penalties for accidental and/or incidental violations of rail safety standards from $25K to the greater of .5% of the person’s income or the RR’s annual operating income or $250K 
• Increases cap on penalties for persons acting grossly negligent or in a pattern of violating rail safety regs from $25K to the greater of .5% of the person’s annual income or the RR’s annual operating income or $250K and, where death or serious injury results, from $100K to $1M

N/A

• Phases out old rail cars by May 1, 2028
• Sec’y must update other regs and any related deadlines to conform with this section

• Phases out old rail cars by May 1, 2025*
• Sec’y must update other regs and any related deadlines to conform with this section

*The House bill includes additional language “notwithstanding Section 7304 of the FAST Act” (est. different phase out schedules for some HAZMATs)

Counties support rigorous tank car standards, including enhanced thermal protection for tank cars and eliminating the usage of older tank cars that are considered unsafe for moving hazardous materials.

• Est. a new, $1M annual fee for Class I carriers
• Amends ALERT Grants to broaden training materials covered and adds new annual fee as second funding source for ALERT Grants
• Increases authorization level from $2M annually to $4M for supplemental training grants to national nonprofit fire service orgs to train the instructors responsible for training first responders and others required to respond to HAZMAT incidents

• Est. a new, $1M annual fee for Class I carriers
• Amends ALERT Grants to broaden training materials covered and adds new annual fee as second funding source for ALERT Grants
• Increases authorization level from $2M annually to $4M for supplemental training grants to national nonprofit fire service orgs to train the instructors responsible for training first responders and others required to respond to HAZMAT incidents

NACo passed a 2020 – 2021 resolution calling on additional appropriations for ALERT grants to make up for funding levels that depend on how efficiently states use Hazard Mitigation Emergency Preparedness grants. As states utilize this funding more effectively, less resources are left for ALERT grants. 

N/A

• Authorizes $22M in appropriations for grants to support the research, development and implementation of wayside defect detectors in accordance with requirements, restrictions and eligibilities of FRA CRISI grants (counties directly eligible for CRISI grants)
• Authorizes $5 million for grants to PHMSA for the R&D of safer tank cars

Counties believe Congress should provide assistance to local governments, states, and railroads for the rehabilitation, preservation, and improvement of rail lines with the goal of maintaining and improving needed freight service.