LRB-3278/1
ARG:lmk:rs
2005 - 2006 LEGISLATURE
August 2, 2005 - Introduced by Representatives Townsend, Ainsworth, Albers,
Bies, Hahn, Krawczyk and Ott, cosponsored by Senators Grothman, Olsen
and Roessler. Referred to Committee on Highway Safety.
AB588,2,9
1An Act to repeal 26.20 (2), (3), (10) and (11), 190.16 (1), (3) and (4), 192.14,
2192.15, 192.18, 192.255, 192.266, 192.267 and 192.268, 192.29 (1) and (2),
3192.29 (4), 192.292, 192.324, 192.42 and 192.52, 192.55 (7), 195.05 (5) and (6),
4195.08 (5), 195.08 (10), 195.17, 195.19 (1), 195.19 (3), 195.22 and 195.24 and
5195.305, 195.31 and 195.33;
to renumber and amend 191.001, 192.31 (1) and
6195.39;
to amend 15.79, 15.795 (1), 20.155 (2), 25.40 (1) (f) 1., 85.01 (5), 85.08
7(4m) (e) 5., 85.09 (3) (a), 190.02 (5), 190.025 (2) (b), 190.16 (2), 190.16 (5), 191.01
8(1), 191.17, 191.19 (1), 191.19 (3), 192.29 (title), 192.29 (3) (title), 192.29 (3) (a),
9192.29 (5), 192.295, 192.31 (4), 192.321, 192.33 (1), 192.53 (4) (b), 192.53 (6),
10192.55 (6), chapter 195 (title), 195.02 (3), 195.02 (5), 195.03 (7), 195.03 (8),
11195.03 (9), 195.03 (10), 195.03 (11), 195.03 (12), 195.03 (13), 195.03 (19), 195.04
12(1), 195.04 (2), 195.04 (3), 195.041, 195.042, 195.043, 195.05 (title), 195.05 (1),
13195.05 (3), 195.05 (4), 195.07 (1), 195.07 (2), 195.08 (title), 195.08 (1r), 195.08
14(2), 195.08 (3), 195.08 (4), 195.08 (7), 195.08 (9), 195.08 (11), 195.10, 195.11,
1195.12, 195.13, 195.14, 195.15, 195.16, 195.19 (title), 195.19 (2), 195.21, 195.26,
2195.27, 195.286 (6) (title), 195.286 (7), 195.34, 195.35 (1), 195.36, 195.37 (title),
3195.37 (1), 195.38, 195.50, 195.60 (title), 195.60 (1), 195.60 (2), 195.60 (3),
4195.60 (4) (a), 195.60 (5), 197.10 (4), 201.01 (1), 201.01 (2), 201.13, 706.05 (2m)
5(b) 2. and 706.09 (3) (a); and
to create 182.018 (4), 189.02 (2m), 190.005,
6191.001 (2), 191.001 (3), 192.005, 192.145, 195.02 (4m), 195.04 (1m) and 195.28
7(5) of the statutes;
relating to: repealing provisions that may be inconsistent
8with federal law of, and modernizing, chapters 189 to 192 and 195 and other
9provisions related to railroad regulation and providing a penalty.
Analysis by the Legislative Reference Bureau
Under federal law, the jurisdiction of various federal agencies is exclusive as to
certain operational aspects of rail carriers on interstate rail networks and as to
certain aspects of railroad safety. Federal law preempts state law with respect to
these matters, even when the activity appears confined to this state. This bill repeals
many provisions of state law that may be inconsistent with federal law and also
modernizes certain provisions of state law.
federal regulation of railroads
Federal economic regulation of rail carriers began in the United States with the
Interstate Commerce Act of 1887, which created the Interstate Commerce
Commission (ICC) to administer the regulation of railroad rates and practices. The
ICC was later charged with additional responsibilities, including regulating railroad
line construction, mergers, carrier practices, and line abandonments. The ICC also
administered all federal rail safety requirements until the U.S. Department of
Transportation (USDOT) was created in 1966. The Federal Railroad Safety Act of
1970 (FRSA) gave the USDOT broad powers to promote safety in all areas of railroad
operations and the Federal Railroad Administration (FRA), within the USDOT,
exercises primary authority over rail safety and safety standards. The Staggers Rail
Act of 1980 (Staggers Act) substantially limited economic regulation of rail carriers
and removed many regulatory restraints on the railroad industry, including limiting
the authority of the ICC to regulate rates to certain traffic and allowing private
railroad-shipper contracts in lieu of fixed tariffs. The FRSA was replaced by the
Federal Railroad Safety Authorization Act of 1994 (FRSAA), the stated purpose of
which is to promote safety in every area of railroad operations and reduce
railroad-related accidents and incidents. The Interstate Commerce Commission
Termination Act of 1995 (ICCTA) continued economic deregulation that began under
the Staggers Act, eliminating many restrictions on rail carriers, abolishing the ICC,
and transferring some ICC functions to the newly created federal Surface
Transportation Board (STB) to administer more limited regulatory responsibilities.
The ICCTA's significant economic deregulation of railroads applies to both
interstate and intrastate rail transportation and impacts railroads not only on a
federal level but also significantly preempts certain areas of state regulation of
railroads. Under the ICCTA, the STB maintains exclusive jurisdiction over those
aspects of rail carrier transportation related to: rail carrier rates and classifications;
rail carrier operating rules and practices, including rules related to the use, control,
supply, movement, and interchange of locomotives, rolling stock, and other
equipment; rail carrier routes, services, and facilities; and the construction,
acquisition, operation, abandonment, and discontinuance of industrial and side
tracks and facilities, even if the tracks and facilities are located entirely in one state.
The ICCTA specifically preempts state regulation of rail transportation with respect
to these matters. The STB's jurisdiction extends to both interstate rail
transportation and intrastate rail transportation that is part of the interstate rail
network. The STB's jurisdiction applies to rail carriers, which means those
providing common carrier railroad transportation of property or persons for
compensation, and includes all related services and facilities but does not include,
with certain safety exceptions, mass transit or street, suburban, or interurban
electric railways not operated as part of the general system of rail transportation.
Some areas of broad and exclusive authority conferred on the STB under the ICCTA
include: rail carrier corporate and facilities transactions, such as mergers and
acquisitions of rail carriers and other "control" transactions, line sales, and
agreements between rail carriers to use each other's tracks or facilities; freight rates
for common carriers and contract carriers, including matters of rate reasonableness
and rate discrimination; railroad construction and abandonment matters, including
construction of new lines, the removal of rail lines from the national rail network, and
the discontinuation of railroad facilities such as agency stations; access of one rail
carrier across or over the tracks of another carrier or to another carrier's terminal
facilities, including portions of the main-line track; and line crossing arrangements
where one railroad's right-of-way physically blocks the access of another railroad to
a particular shipper or destination.
The FRSA and FRSAA provide that railroad safety laws should be nationally
uniform to the extent practicable, so these acts preempt state laws relating to
railroad safety. Under the FRSAA, state regulation of locomotive and rolling stock
equipment standards, train crews and their qualifications, train speed restrictions,
restrictions on the amount of time that trains can obstruct traffic at crossings, and
train horn requirements have been, or may be, found to be preempted under federal
law.
The ICCTA and FRSAA do not preempt all state efforts to regulate railroads.
States retain certain "police powers" despite the broad scope of exclusive federal
railroad regulation. With certain exceptions, state regulation of railroad-highway
crossing safety is generally not preempted. State laws are generally not preempted
where they do not frustrate the federal scheme governing the construction,
acquisition, or operation of railroad tracks or facilities or railroad safety and can be
applied without interfering with federal law. Courts typically resolve issues of
federal preemption on a fact-specific, case-by-case basis.
STATE REGULATION of railroads
In this state, the Office of Commissioner of Railroads (OCR), attached to the
Public Service Commission (PSC), and the Wisconsin Department of Transportation
(DOT) both have some authority over railroad operations and railroad safety in the
state, but most of the state's regulatory authority over railroads resides with OCR,
which is generally charged with receiving complaints, conducting hearings, and
entering orders related to railroad operations and safety. DOT also has certain
investigative duties with respect to OCR proceedings, as well as additional
responsibilities related to development of rail transportation infrastructure and use
of abandoned railroad rights-of-way.
This bill repeals many provisions of state law relating to, and eliminates the
authority of OCR with respect to, economic and safety regulation of railroads that
may be inconsistent with, and therefore preempted by, federal law, but retains these
provisions in a more limited application to water carriers. The bill also modernizes
certain provisions of state law by repealing obsolete provisions and updating other
provisions.
Economic regulation
The bill repeals the following provisions of current state law related to economic
regulation of railroads, which might be found to be inconsistent with, and therefore
preempted by, federal law, but retains these provisions to the extent they also apply
to water carriers:
1. Providing OCR authority over railroad rates and charges, pricing
discrimination or preferences, and adequacy of service.
2. Providing OCR authority to receive complaints that a railroad's rate, fare,
charge, classification, practice, or service in connection with the railroad's
transportation of persons or property is unreasonable or unjustly discriminatory or
that service is inadequate, to direct DOT to investigate these complaints, and to hold
hearings and order a reasonable rate, fare, charge, classification, practice, or service
in lieu of that found to be unreasonable or unjustly discriminatory or inadequate.
However, the bill entirely eliminates, for water carriers too, certain provisions
relating to OCR's authority to apportion joint rates.
3. Requiring every railroad to furnish reasonably adequate service and
facilities, and requiring the charges for the transportation of passengers or property
or for any related service, including receiving, delivering, storing, or handling
property, to be reasonable and just, and providing for OCR's authority to receive
complaints and hold hearings on these matters and to determine if charges are
unreasonable or unjustly discriminatory. However, the bill entirely eliminates, for
water carriers too, certain provisions relating to OCR's authority over joint rates,
fares, or charges.
4. Prohibiting rebates, concessions, or discrimination with respect to the
transportation of property or any related service under which the property is
transported at a rate less than the tariff rate.
5. Providing OCR authority to fix the time for filing railroad schedules (rate
tariffs) and to prescribe forms for these schedules.
6. Requiring railroads to deliver to OCR copies of all contracts with other
railroads or shippers that relate to the transportation of persons or property or any
related service, if required by OCR.
7. Requiring all freight tariffs issued by any railroad relating to interstate
traffic through this state to be filed with OCR and authorizing OCR to investigate
all freight rates on interstate traffic affecting this state and, if they are excessive or
discriminatory, allowing OCR to petition the ICC for relief.
8. Authorizing OCR to prescribe rules related to charges and operations of
public elevators and warehouses on railroad grounds, and related to the furnishing
of cars to shippers, the moving, loading or unloading, and weighing of cars and
freight, and the testing of railroad weights and scales.
9. Requiring a common carrier receiving property for intrastate transportation
to issue a bill of lading, making the carrier liable for loss of or injury to the property,
and giving rights to the holder of the bill of lading.
10. Requiring OCR to gather certain financial information from railroads and
include the information in a report.
11. Authorizing OCR to direct DOT to investigate complaints that railroad
charges for the transportation of property or for any related service, including
storage charges, are erroneous, illegal, unusual, or exorbitant, and to hold a hearing,
determine what would have been a reasonable rate or charge, and order a refund.
12. Allowing a person who ships property by railroad to, within 3 years after
the delivery of the property, submit to OCR expense bills or receipts showing charges
paid for the transportation so that DOT may examine them to determine the
correctness of weights, rates, and charges indicated on the bills or receipts and, if
OCR finds any weights, rates, or charges to be incorrect, authorizing OCR to order
the railroad in error to refund any over or excessive charges paid.
Current law imposes specific requirements on the issuance of securities by
public service corporations, which are defined to include railroads. OCR is
authorized to control the issuance of, and impose special restrictions on, railroad
corporation securities, including stock and debt instruments. OCR must approve
issuance of railroad securities, may determine their number, character, purpose, and
issuing value, and may impose other restrictions. The ICCTA repealed federal
authority previously granted to the ICC to approve railroad issuance of securities
and assumption of liabilities, although exclusive federal authority still exists with
respect to certain transactions, including mergers and acquisitions, between
railroads. This bill excludes railroads from the definition of public service
corporation for these purposes, while retaining water carriers in the definition,
thereby eliminating these specific requirements as applied to railroads.
Construction and facilities regulation
The bill repeals the following provisions of current state law related to
regulation of railroad construction and facilities, which might be found to be
inconsistent with, and therefore preempted by, federal law, but retains these
provisions to the extent they also apply to water carriers:
1. Prohibiting a railroad from abandoning a station, removing a depot, or
withdrawing agency service without obtaining approval from OCR.
2. Imposing requirements related to, and providing OCR authority over,
industrial spur tracks. However, the bill retains OCR's authority to order removal
of tracks that have been abandoned but physically remain in place.
3. Prohibiting a railroad from removing, relocating, or closing its repair and
maintenance shops or terminals without the consent of OCR, after a public hearing.
That consent may not be given if the removal, relocation, or closure is not in the
public interest or is unreasonable or unfair to railroad employees.
4. Requiring railroads to keep and maintain adequate and suitable depots,
buildings, switches, and sidetracks for freight transported by the railroads.
5. Requiring railroads to provide and maintain adequate passenger depots
meeting certain standards for amenities, comfort, and hours of service.
6. Requiring multiple railroads operating in the same municipality to attempt
to maintain joint passenger depots, and giving OCR authority to order railroads to
construct, maintain, and operate union passenger depots.
7. Requiring railroads to provide reasonable facilities for the interchange of
passenger and freight traffic, and to transfer or switch without unreasonable delay
or discrimination freight or cars, between their respective lines.
8. Providing for OCR authority over the requirement that every railroad
construct and maintain its tracks, bridges, and line structures in a reasonably
adequate and safe manner, and for OCR to direct DOT to investigate complaints and,
upon hearing, if OCR determines that any railroad track or structure is inadequate
or unsafe for the operation of the railroad, to order the railroad to reconstruct or
repair the inadequate or unsafe track or structure. However, the bill allows OCR to
participate in federal track inspection programs, including the certification of OCR
staff for track inspection under federal law. The bill also retains the current law
requirement that railroads construct and maintain their tracks, bridges, and line
structures in a reasonably adequate and safe manner, as well as the current law
requirement that railroads adopt reasonably adequate safety measures and install,
operate, and maintain reasonably adequate safety devices for the protection of life
and property, but qualifies these requirements by limiting them to the extent that
they are consistent with federal law.
9. Providing that, whenever a railroad proposes to cross or join its track with
another railroad track, OCR must determine, after a hearing, whether the surface
road of the proposed track is to be above, below or at grade of any tracks proposed
to be crossed, and requiring OCR to fix the proportion of the expense of the crossing
or joining to be paid, respectively, by the owners of the tracks.
10. Requiring every railroad to transport grain at current rates to an elevator,
warehouse, or mill under specified circumstances.
11. Requiring railroads to allow siting of certain facilities for elevators or
warehouses associated with the transportation of property by railroad, and
providing OCR authority over siting, rates, and operations of these elevator and
warehouse facilities.
12. Requiring railroads to, when possible and under certain conditions,
furnish, without discriminating between shippers or places, suitable cars for the
transportation of freight.
13. Requiring OCR to gather certain cost data related to railroad construction
and railroad equipment and include the information in a report.
The bill also makes substantive modifications to modernize current law in the
following ways:
1. The bill eliminates obsolete provisions related to a railroad's authority to
move a highway in constructing a railroad over or across a highway.
2. Current law imposes certain specifications related to wires strung over
railroads prior to August 1, 1949, and requires wires strung over any railroad on or
after August 1, 1949 to be strung in such a way as to meet requirements of the
Wisconsin state electrical code. The bill provides that these requirements do not
apply to the extent they are inconsistent with federal law.
Safety regulation
The bill repeals the following provisions of current state law related to railroad
safety, which might be found to be inconsistent with, and therefore preempted by,
federal law, but retains these provisions to the extent they also apply to water
carriers:
1. Providing for OCR review of petitions asserting that a railroad-highway
crossing is dangerous to human life and that public safety requires setting a
maximum train speed at the crossing, and for OCR's authority to hold a hearing and
order a maximum train speed for the crossing and installation of a stop sign at the
crossing.
2. Prohibiting a train conductor, engineer, or brakeman from stopping or
leaving a railroad train, locomotive, or car on or across a highway crossing outside
of a city for more than 10 minutes.
3. Requiring railroad trains or locomotives to sound the whistle or horn 1,320
feet from a railroad-highway grade crossing outside the limits of a municipality and
to ring the engine bell continuously from that point until the crossing is reached, and
allowing OCR to order that these requirements be withheld at any crossing.
4. Requiring railroad trains or locomotives to ring the engine bell continuously
within 330 feet of a railroad-highway grade crossing within any city or village, and
until the crossing is reached, except where gates are operated or a flagman is
stationed. However, the bill recognizes the duty of railroad trains and locomotives
to comply with federal law.
5. Imposing requirements related to the qualifications of railroad conductors
and flagmen.
6. Imposing equipment and safety requirements for cabooses and engines.
However, the bill requires railroads to operate and maintain their equipment and
rolling stock in a reasonably adequate and safe manner consistent with federal law,
and authorizes OCR to participate in federal equipment inspection programs,
including the certification of OCR staff for inspection under federal law.
7. Imposing lighting requirements for track cars operated at night, visibility
marking requirements for engines and cars built in this state, and windshield and
canopy requirements for track cars operated in this state.
8. Requiring that locomotives be equipped with spark arresters meeting
standards of the Department of Natural Resources (DNR), providing DNR authority
to remove from service non-complying locomotives, and providing OCR authority to
make determinations related to spark arresters and similar devices.
9. Providing for complaints to OCR, and OCR hearings and orders, concerning
the safety of railroad bridges lacking walks and railings.
10. Providing for complaints to OCR, or action on OCR's own initiative, that a
bridge erected over a stream intersecting a highway upon which a railway is
constructed and operated is unsafe and dangerous to travelers and that public safety
requires the repair, alteration, or reconstruction (including in a different location) of
the bridge, and for OCR's authority to hold hearings and to order repair, alteration,
or reconstruction of the bridge.
11. Requiring railroads to maintain suitable telltales (arrangements of long
strips of rope, wire, or other material hanging from a bar over railroad tracks to warn
of an upcoming low overhead structure) wherever any part of an overhead structure
is less than 23 feet above the top of a rail, except where OCR authorizes an exception.
However, the bill requires telltales to the extent required under federal law and
authorizes OCR, if it finds that the absence of a telltale would create an unreasonable
risk of harm to the public or a railroad employee on a railroad not under the
jurisdiction of the STB or FRA, to order the installation of a telltale.
12. Requiring railroads to report to OCR all collisions, derailments, or other
accidents resulting in injury to persons, equipment, or tracks, and authorizing OCR
to issue rules concerning the reporting of accidents and, if public interests require,
cause an investigation of any accident. However, the bill requires railroads to submit
to OCR a copy of any monthly accident or injury report provided by the railroad to
the applicable federal authority.
The bill also makes substantive modifications to modernize current law in the
following ways:
1. The bill prohibits any person (not just a person under the age of 17, as
provided under current law), other than a railroad employee, from getting on or off
a moving railroad car or train.
2. Under current law, a railroad must allow a specified amount of horizontal
clearance, which varies depending on the circumstances, between any building or
platform and the tracks. OCR may exempt any building or platform if it finds that
such an exemption is in the public interest and will not imperil life or limb. The bill
allows OCR to provide such an exemption without a hearing if no objection is made
after notice is given.
3. Under current law, upon petition to determine whether a public highway and
railroad grade crossing protects and promotes public safety, OCR may investigate
and issue an appropriate order, after a hearing or without a hearing if no objection
is made. OCR must determine whether the existing warning devices at the crossing
are adequate to protect and promote public safety. If OCR determines that protection
is not adequate, it may order suitable crossing protection or safety devices at specific
locations at the crossing. State regulation of railroad-highway crossing safety is
generally not preempted, although preemption may occur if federal funds participate
in the installation of crossing warning devices and the devices are subject to the
approval of the Federal Highway Administration. The bill authorizes OCR to
participate in federal signal inspection programs, including the certification of office
staff for signal inspection under federal law.
4. Current law requires railroads to maintain "Railroad Crossing" signs on
each side of the tracks wherever their tracks cross public highways or streets. The
bill modernizes terms used to refer to the "Railroad Crossing" sign, commonly known
as a crossbuck sign, and requires that these signs conform with the Manual on
Uniform Traffic Control Devices adopted by DOT.
The bill also creates a new provision specifically recognizing OCR's regulatory
jurisdiction over railroad safety practices related to railroad equipment, facilities,
rolling stock, and operations to the extent consistent with federal law, and
authorizing OCR to participate in federal investigative activities necessary to
enforce the federal safety regulations that apply to railroad equipment, facilities,
rolling stock, and operations in this state.
Additional provisions
The bill changes penalties for the following offenses from imposition of a fine
(a criminal penalty) or incarceration or both to imposition of a forfeiture (a civil
penalty):
1. Getting on or off a moving railroad car or train.
2. Horizontal clearance violations by a railroad.
3. Trespassing on a railroad.
4. Receiving a rebate, concession, or discrimination with respect to water
carrier transportation of property or any related service under which the property
is transported at a rate less than the tariff rate.
5. Certain offenses related to the furnishing, installation, placement, and
maintenance of advance warning signs near railroad-highway grade crossings.
However, the bill does not change the penalty for damaging or interfering with these
signs.
6. Willfully failing to sound an engine horn at a grade crossing.
The bill makes additional modifications to current state law in the following
ways:
1. Under current law, "railroad" is defined to include common carriers of
property by water which operate between fixed end points. Rather than include a
common carrier of property by water within the definition of a railroad, the bill
removes a water carrier from this definition and defines a "water carrier" to mean
a common carrier of property by water that operates between fixed end points, but
not including a water carrier under common control with a railroad when
transporting property for continuous carriage or shipment.