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2005 ASSEMBLY BILL 588 LRB3278/1
ARG:lmk:rs
2005 2006 LEGISLATURE
2005 ASSEMBLY BILL 588
August 2, 2005 Introduced by Representatives T
OWNSEND,
A
INSWORTH,
A
LBERS,
B
IES,
H
AHN,
K
RAWCZYK
and O
TT
, cosponsored by Senators G
ROTHMAN,
O
LSEN
and R
OESSLER
. Referred to Committee on Highway Safety.
A
N
A
CT

to repeal 26.20 (2), (3), (10) and (11), 190.16 (1), (3) and (4), 192.14,
192.15, 192.18, 192.255, 192.266, 192.267 and 192.268, 192.29 (1) and (2),
192.29 (4), 192.292, 192.324, 192.42 and 192.52, 192.55 (7), 195.05 (5) and (6),
195.08 (5), 195.08 (10), 195.17, 195.19 (1), 195.19 (3), 195.22 and 195.24 and
195.305, 195.31 and 195.33; to renumber and amend 191.001, 192.31 (1) and
195.39; to amend 15.79, 15.795 (1), 20.155 (2), 25.40 (1) (f) 1., 85.01 (5), 85.08
(4m) (e) 5., 85.09 (3) (a), 190.02 (5), 190.025 (2) (b), 190.16 (2), 190.16 (5), 191.01
(1), 191.17, 191.19 (1), 191.19 (3), 192.29 (title), 192.29 (3) (title), 192.29 (3) (a),
192.29 (5), 192.295, 192.31 (4), 192.321, 192.33 (1), 192.53 (4) (b), 192.53 (6),
192.55 (6), chapter 195 (title), 195.02 (3), 195.02 (5), 195.03 (7), 195.03 (8),
195.03 (9), 195.03 (10), 195.03 (11), 195.03 (12), 195.03 (13), 195.03 (19), 195.04
(1), 195.04 (2), 195.04 (3), 195.041, 195.042, 195.043, 195.05 (title), 195.05 (1),
195.05 (3), 195.05 (4), 195.07 (1), 195.07 (2), 195.08 (title), 195.08 (1r), 195.08
(2), 195.08 (3), 195.08 (4), 195.08 (7), 195.08 (9), 195.08 (11), 195.10, 195.11,
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ASSEMBLY BILL 588
195.12, 195.13, 195.14, 195.15, 195.16, 195.19 (title), 195.19 (2), 195.21, 195.26,
195.27, 195.286 (6) (title), 195.286 (7), 195.34, 195.35 (1), 195.36, 195.37 (title),
195.37 (1), 195.38, 195.50, 195.60 (title), 195.60 (1), 195.60 (2), 195.60 (3),
195.60 (4) (a), 195.60 (5), 197.10 (4), 201.01 (1), 201.01 (2), 201.13, 706.05 (2m)
(b) 2. and 706.09 (3) (a); and to create 182.018 (4), 189.02 (2m), 190.005,
191.001 (2), 191.001 (3), 192.005, 192.145, 195.02 (4m), 195.04 (1m) and 195.28
(5) of the statutes; relating to: repealing provisions that may be inconsistent
with federal law of, and modernizing, chapters 189 to 192 and 195 and other
provisions 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
railroadshipper 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
railroadrelated 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,
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and transferring some ICC functions to the newly created federal Surface
Transportation Board (STB) to administer more limited regulatory responsibilities.
The ICCTAs 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 STBs jurisdiction extends to both interstate rail
transportation and intrastate rail transportation that is part of the interstate rail
network. The STBs 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 others 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 carriers terminal
facilities, including portions of the mainline track; and line crossing arrangements
where one railroads rightofway 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 railroadhighway
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 4
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applied without interfering with federal law. Courts typically resolve issues of
federal preemption on a factspecific, casebycase 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 states regulatory authority over railroads resides with OCR,
which is generally charged with receiving complaints, conducting he