Written by: William C. Vantuono, Editor-in-Chief Acting Federal Railroad Administrator Sarah Feinberg will respond to questions before the U.S. Senate Committee on Commerce, Science, and Transportation at her confirmation hearing to become permanent FRA Administrator on Thursday, Sept. 17th at 9:45 a.m. Will the hearing be about her job qualifications, or about the controversy on Capitol Hill surrounding the Dec. 31, 2015 Positive Train Control implementation deadline? The latter topic cannot be avoided. “Despite it being a confirmation hearing, the subject matter most certainly will be the PTC implementation deadline and what actions FRA can or should take to avoid the embargoes on TIH hazmat and passenger traffic the railroads maintain they will be forced to enact on Jan. 1, 2016, since—as they say—they are unable to meet the deadline and would be violating federal law should they operate such trains,” notes Railway Age Contributing Editor Frank N. Wilner. As most followers of Capitol Hill goings-on realize, confirmation hearings tend to be based on political agendas and not on the actual nominee and his or her qualifications. That’s business as usual in Washington. However, in this case, things are much more complicated, and Feinberg—a skilled and by many accounts effective political insider—may feel like she’s caught between a rock and a hard place. Feinberg’s testimony—specifically, her answers to questions about PTC delays and potential fallout effects—could be a difficult balancing act for the long-time Democratic political operative. Sen. John Thune (R-N.Dak.), who serves as chairman of the Senate Committee on Commerce, Science, and Transportation and effectively controls whether Feinberg is confirmed or rejected, supports the railroads’ position that the PTC deadline must be extended and stands ready with legislation that will accomplish just that. The FRA itself has said to Congress that the deadline is unattainable and must be extended. However, the FRA is a regulatory body charged with upholding federal law and overseeing railroad safety. Unless the deadline is extended, the FRA by statute will have no choice but to fine the railroads up to $25,000 per day for every day that they are not in compliance. The railroads’ response, individually, and collectively through the AAR? “We’ll have no choice but to embargo all shipments of TIH hazmat and refuse track access to Amtrak and other passenger rail operators.” As Frank Wilner recently noted, “Allowing such operations over noncompliant track would expose all parties to unimaginable jury awards were the unthinkable to occur.” More important, “Congress was warned by shippers that such embargoes would kindle severe national economic harm.” Is Congress listening? Is Pope Francis an Episcopalian? All of this has fallen squarely into Feinberg’s lap as 2015 winds down, while a procrastinating, do-nothing Congress that cannot even agree on a highway bill as the nation’s roads and bridges crumble away does little or nothing to deal with a deadline that most halfway-intelligent people realize cannot be met. Is the railroads’ embargo threat real, or just the public part of a multi-act play going on behind the scenes on Capitol Hill? Has Feinberg’s confirmation hearing been purposely timed as the focal point for Congress to get off its partisanship-petrified posterior and make a decision? Some observers are suggesting that this will all be worked out, at the last minute (perhaps just before the New Year’s Eve ball drops in Times Square). Probably so, but that does nothing at the moment for Sarah Feinberg, who before the Senate Commerce Committee will be asked to provide some sort of solution—even though the responsibility does not rest entirely with her, or with the FRA. Sarah, it’s all up to you. Good luck! (Sarah Feinberg has served as Acting Administrator since January 2015. President Barack Obama formally nominated on her May 29, 2015 to be FRA Administrator. Feinberg’s nomination questionnaire can be downloaded by clicking HERE.) Continue reading...
