Posts Tagged ‘Surface Transportation Board’

Appeals Court Strikes down STB On-time Standards

July 17, 2017

Another federal court has struck a blow at the efforts of the U.S. Surface Transportation Board to establish on-time standards for Amtrak trains.

The Eighth U.S. Circuit Court of Appeals found the STB standards to be unconstitutional, saying that the STB had “exceeded its authority” in creating the standards.

The appeal court ruling came in the wake of a similar U.S. Supreme Court ruling that development of on-time metrics by the Federal Railroad Administration and Amtrak as directed by Section 207 of 2008’s Passenger Rail Investment and Improvement Act was unconstitutional.

In the Eighth Circuit ruling, Chief Judge Lavenski R. Smith acknowledged that the absence of such on-time standards would make it impossible for the STB to investigate or adjudicate disputes brought by Amtrak against host railroads in the event that punctuality fell below 80 percent for two consecutive quarters.

However, the court in essence decided that the STB’s inability to measure on time performance is not a problem for the judiciary to solve.

There are two cases pending before the STB in which Amtrak alleges that host railroads needlessly delayed Amtrak trains.

One case involve the handling by Canadian National of the Saluki and Illini between Chicago and Carbondale, Illinois, while the other regards Norfolk Southern’s handling of the Capitol Limited west of Pittsburgh.

In both cases, Amtrak contends that dispatching decisions made by the host railroads are delaying its trains.

The STB had contended that it had the legal right to establish on-time standards “by virtue of its authority to adjudicate complaints brought by Amtrak. Any other result would gut the remedial scheme, a result Congress clearly did not intend.”

Supporting the STB’s position were 13 intervenors, including the National Association of Railroad Passengers and its state affiliates along with the U.S. Conference of Mayors.

Challenging the STB were Union Pacific, CSX, CN and the Association of American Railroads.

They argued that the “gap-filling rationale does not allow one agency to assume the authority expressly delegated to another.”

The court found that the only place in federal law where the 80 percent standard was spelled out was in section 207, which the Supreme Court ruled unconstitutional because Amtrak had a hand in developing it.

Although the court let stand Congress’ setting a statutory right of passenger train “priority” over freight trains, the practical effect of the court decision is that Amtrak has no way to challenge a host railroad’s systematic denial of that right.

Instead, the only motivation for railroads to keep Amtrak trains on time are the proprietary and confidential incentive contracts Amtrak has been able to negotiate with its host railroads pertaining to on-time handling.

The only action Amtrak can take against a host railroad would be to refuse to make incentive payments due to non-performance under the terms of its operating contracts with a host railroad.

The court rulings do suggest that Congress could give the FRA a mandate to establish on-time standards provided that Amtrak was not a participant in the writing of those standards.

Trump Budget Slashes Amtrak Funding by 45%

May 24, 2017

The Trump administration wants to slash Amtrak funding by 45 percent in fiscal year 2018.

The detailed budget proposed released this week proposed giving Amtrak $744 million.

In the current fiscal year, Amtrak received $1.4 billion. The cuts for next year include ending $289 for Amtrak’s long-distance train routes.

The budget document described long-distance trains as “a vestige of when train service was the only viable transcontinental transportation option. Today, communities are served by an expansive aviation, interstate highway, and intercity bus network.”

The document said Amtrak’s long-distance trains represent the greatest amount of Amtrak’s operating losses, serve relatively small populations, and have the worst on-time record.

The Trump administration would instead appropriate $1.5 billion for the Northeast Corridor between Boston and Washington.

[The Northeast Corridor] “faces many challenges, and the 2018 Budget proposal would allow Amtrak to right-size itself and more adequately focus on these pressing issues,” the budget document said.

Nonetheless, the Trump administration has proposed cutting funding for the development of New York’s Penn Station by 64 percent from $14 million to $5 million.

The Amtrak funding cuts make up the lion’s share of the 37 percent cut proposed by the Trump administration for the Federal Railroad Administration.

The agency’s parent organization, the U.S. Department of Transportation, would receive $16.2-billion in FY 2018, a decline of 12.7 percent over what it received in FY 2017.

The Federal Railroad Administration’s budget would drop by 37 percent from $1.7 billion to $1.05 billion while Federal Transit Administration will decline by 5 percent from its FY 2017 appropriation of $11.8 billion.

The FTA would receive $11.2 billion, which includes $9.7 billion for transit formula grants. The FTA’s Capital Investment Grant program for new starts would be cut by 43 percent from $2.16 billion to $1.2.

Funding would be continued only for programs that FTA is legally bound to support through full-funding grant agreements.

Funding for the Transportation Generating Economic Recovery grant program would be eliminated.

The budget document said projects that are attempting to receive TIGER funding could still earn grants through the Nationally Significant Freight and Highways Projects fund managed by DOT’s Build America Bureau.

The Railroad Rehabilitation and Improvement Financing and Transportation Infrastructure Finance and Innovation programs would remain in place, but receive no additional funding.

The National Transportation Safety Board would receive $106 million, which is no change from FY 2017.

The Surface Transportation Board would receive a $5 million boost to $37 million in order to implement regulatory changes under the STB reauthorization law of 2015.

The Trump administration budget proposal is likely to undergo numerous changes as Congress considers federal funding priorities for FY 2018.

Amtrak’s Moorman Favors Negotiations With Railroads Rather than Government Force

December 22, 2016

Amtrak President Charles “Wick” Moorman prefers negotiations with its contract railroads rather than government regulation or court action when it comes to improving the passenger carrier’s on-time issues.

Amtrak logoMoorman said during an interview with Politico that on-time performance is a sensitive subject, but he thinks the freight railroads are amendable to talking about how to improve Amtrak’s performance.

Moorman said he knows that delays caused by freight trains are hindering Amtrak’s long-distance trains, but he also believes the railroads are putting forth their best effort to give passenger trains good on-time performance.

In recent years, the on-time performance of passenger trains has been the subject of a U.S. Surface Transportation board rule-making proceeding and Amtrak has filed complaints with the STB about the dispatching practices of certain railroads, notably Canadian National.

The STB has said it will examine on a case-by-case basis situations in which a freight railroad is to blame if Amtrak is unable to meet an 80 percent on-time performance goal.

The STB also will implement new formulas for calculating on-time performance.

STB Finalizes Passenger Dispute Rules

November 30, 2016

The U.S. Surface Transportation Board has issued its final rule implementing standards for resolving dispute between passenger carriers and their host railroads.

STBThe standards were mandated by the Fixing America’s Surface Transportation Act of 2015.

The STB said that “the FAST Act clarified and augmented the Board’s existing adjudicatory responsibilities related to the National Railroad Passenger Corporation (Amtrak).”

“Specific FAST Act provisions address STB adjudication of disputes regarding Amtrak cost recovery for its operation of state-supported routes, and costs allocated to states in their use of rail facilities for commuter rail operations within the Washington, D.C.-to-Boston Northeast Corridor.”

The FAST Act requires the Board to establish procedures for resolving such disputes, which may include the provision of professional mediation services. The Board said its final rule implements those provisions.

AAR Appeals STB Passenger Train Ruling

August 11, 2016

Displeased with the outcome of a U.S. Surface Transportation Board ruling on passenger train on-time standards, the Association of American Railroads has asked the U.S. Court of Appeals for the District of Columbia to review the ruling.

AARAAR maintains in its appeal that federal law gives the Federal Railroad Administration and Amtrak — but not the STB — the legal authority to define on-time performance.

The ruling in question involved an STB determination that on-time arrivals and departures at all stations along a passenger train’s route should be used for the purpose of determining on-time performance.

The STB also said it was dropping a proposal that would have allowed railroads to give higher priority to some freight trains over passenger trains.

The AAR asserted in its appeal that it is not challenging the rule that gives preference to passenger trains on freight-rail lines, said AAR spokesman Ed Greenberg.

“Freight railroads take contractual obligations seriously and comply with the law in giving Amtrak preference,” said Greenberg. “That has never been contested by freight railroads.”

But the AAR said it is disappointed that the STB “has decided to add mid-point on-time performance measures, which could result in negative impacts for freight rail customers and consumers.”

STB Rules in 2 Passenger Cases

July 28, 2016

The U.S. Surface Transportation Board this week decided that it would consider on-time arrival and departure at all stations along a passenger train’s route for purposes of assessing on-time performance.

STBThe STB said in a news release that it deem a train to be “on time” if it arrives at or departs from, a station no more than 15 minutes after its scheduled arrival or departure.

In a related decision, the STB said it is withdrawing a proposed policy statement on issues that may arise, and evidence to be presented in proceedings under the Passenger Rail Investment and Improvement Act of 2008 in favor of a case-by-case approach.

“Reflecting careful consideration of an extensive public and stakeholder response to our most recent passenger rail proposals, these decisions will better position the Board to implement its responsibilities under the Passenger Rail Investment and Improvement Act of 2008,” said Board Chairman Daniel R. Elliott III in a statement. “Improved passenger train on-time performance is an important goal, and the Board’s decisions will support that goal by clarifying the trigger for starting a proceeding, while allowing more complex and detailed issues to be resolved in the context of individual cases.”

Court Sides With AAR in On-Time Rules Dispute

May 3, 2016

A federal appeals court ruled last week that a 2008 law unconstitutionally gave Amtrak regulatory power over its contract railroads.

The U.S. Court of Appeals for the District of Columbia sided with the Association of American Railroads in saying that the Passenger Rail Investment and Improvement Act of 2008 gave Amtrak too much power when it comes to writing regulations pertaining to on-time performance metrics.

It was the second time that the appeals court has ruled in favor of the AAR.

Amtrak logoAn earlier decision was overturned by the U.S. Supreme Court which sent the case back to the appeals court for further review.

AAR had brought suit against the U.S. Department of Transportation in an effort to invalidate Section 207 of the 2008 PRII law.

In its latest ruling, the appeals court said the law’s giving Amtrak the authority to write regulations that affect its host railroads is in violation of the Constitution’s Due Process clause.

The court also knocked down the clause that gives the Surface Transportation Board the authority to appoint a mediator to arbitrate disputes between Amtrak and a host railroad over on-time performance.

The case has a long history that began with a federal district court siding with the U.S. DOT in favor of the law.

AAR appealed that decision to the appeals court, which said in July 2013 that Amtrak is a private company.

The Supreme Court ruled unanimously in March 2015 that Amtrak must be considered a governmental entity but instructed the appeals court to decide the question of the propriety of a government entity that is a participant in a private marketplace being able to regulate that marketplace.

However, concurring opinions by justices Samuel Alito and Clarence Thomas noted that the situation might violate a host railroad’s right to due process.

Those opinions said that regulators must be “disinterested” government bodies rather than competitors in the business.

In its latest ruling, the appeals court cited the Alito and Thomas’s opinions, but conceded that Amtrak and its contract railroads are not competing for the same customers.

They are, however, the court said, competing for the same scarce railroad route capacity and therefore must be considered economic competitors.

As for the STB’s authority under the 2008 law to appoint an arbitrator, the appeals court said that an independent arbitrator appointed by the STB cannot make final regulations because he or she is not a duly appointed or sworn Officer of the United States, as the Constitution requires.

The AAR originally filed suit acted after the U.S. DOT began to promulgate regulations under Section 207 if the PRII with the railroad trade group arguing that the law was an unconstitutional delegation of rule-making to a private company.

In briefs to the court, the AAR relied on the congressional proclamation of the Rail Passenger Service Act of 1970 creating the National Railroad Passenger Corporation (Amtrak) not be treated as a government entity but instead be operated as a for-profit business.

Although the appeals court last week struck down Section 207, it left the rest of the 2008 PRII intact and did not disturb Amtrak’s statutory rights to access of freight railroad tracks on an incremental cost basis.

Nor did the appeals court set aside laws that give Amtrak trains “preference over freight transportation.”

Congress could revise the 2008 law to grant the U.S. DOT the sole power to write on-time performance metrics and standards, in consultation with Amtrak and other others.

In doing so, Congress could give the authority to mediate between Amtrak and a contract railroad to the STB, whose members are duly sworn Officers of the United States, appointed by the president with the advice and consent of the Senate.

The court did not say that it was improper for the federal government to promulgate on-time performance regulations.

AAR Opposes ‘All Stations’ OT Metrics

April 1, 2016

The Association of American Railroads has told the Surface Transportation Board that it opposes use of “all stations metrics” in setting on-time performance standards for passenger trains.

AAR submitted its comments as part of an STB proceeding that was mandated by federal law.

AARInstead of using an “all stations metric” as Amtrak has proposed, AAR said the STB should use those on-time performance metrics that Amtrak and its host railroads have adopted in their operating agreements, if applicable.

“Switching to an all-stations metric would create false positives for investigation because of the back-loading of recovery time in many of Amtrak’s schedules, in addition to conflicting with the operating agreements,” AAR said. “All-stations OTP (on-time performance) is a deficient metric.”

Amtrak has contended that an all-stations metric is the best way to measure on-time performance.

However, the AAR noted that the passenger carrier did not advocate for an all-stations metric in its operating agreements with the freight railroads even though virtually all of the arguments that Amtrak now makes in its comments to the STB were available when it negotiated those agreements.

The on-time standards that the STB is considering would come into play if a passenger carrier such as Amtrak felt that its trains were consistently being delayed by a host railroad.

Amtrak or another passenger carrier could ask the STB to launch an investigation and sanction a railroad if it was found to have violated the on-time performance standards.

In its comments to the STB, AAR noted that most operating agreements measure on-time performance through arrival at the endpoint of each host’s segment or at specified checkpoints rather than at all intermediate stations.

The AAR comments also noted that contrary to the belief of some, Congress has not adopted the all-stations metric for on-time performance in legislation it has adopted over the years, going back to 1976.

In its comments to the STB, Amtrak said an endpoint metric “ignores the experience’ of Amtrak passengers who disembark at an intermediate station.”

In response, the AAR said Amtrak and its host carriers have long recognized that the on-time performance measures in many of their operating agreements and endpoint OTP both provide strongly correlated indications of overall on-time performance on a route, including performance at intermediate stations.

“And in cases where endpoint on-time performance is satisfactory but all-stations on-time performance is not, the immediate focus should not be a full investigation of all operations for the train, but review and consideration of whether recovery time for that train has been appropriately set for the entire route.”

AAR spokesman Ed Greenberg told Railway Age magazine that the nation’s freight railroads recognize the importance of Amtrak.

“We are committed to a reliable passenger rail service,” he said.  “It is a delicate balance in this country where the majority of passenger rail operates on tracks owned by freight railroads, which means trying to find that right transportation mix of serving the needs of passenger rail while ensuring our industry is continuing to meet the shipping requirements of freight customers in moving the country’s economy. Freight railroads take their contractual obligations seriously and comply with the law.”

Greenberg said on-time performance measurement is complicated involves many factors that are negotiated between Amtrak and its host railroads.

If You Want to be Ontime Aboard Amtrak, Then You Need to Get on or Off at an Endpoint City

March 9, 2016

Only once have I lived in an Amtrak endpoint city. Otherwise, I’ve lived in places at or near an intermediate station.

I mention that because in my experience your best chance for an on-time arrival or departure is at an endpoint city.

For 20 years I rode Amtrak twice a year to visit my dad when he lived in downstate Illinois.

The westbound Capitol Limited or Lake Shore Limited typically arrived late into Cleveland, but on several occasions No. 29 or Nol 49 were on-time or even early arriving into Chicago Union Station, where both terminate.

My connecting train, the Illini, almost always departed Chicago on time, but more often than not arrived late at my destination of Mattoon, Illinois.

I’ve observed this phenomenon on other routes, too. In May 2014, I rode the Empire Builder from Chicago to Seattle.

On TransportationWe left Chicago 1 hour, 12 minutes late due to being held for a more than four-hour late arriving Lake Shore Limited.

During the 2,200-mile journey we were upwards of two hours late at times, but arrived into Seattle 15 minutes early.

How was that possible?

The short answer is what Amtrak euphemistically calls “recovery time.”

It is built into the schedule to enable a late Amtrak train to make up time before arriving at an endpoint city.

You often find recovery time by examining the running time between an endpoint city and the next station.

The running time of the Capitol Limited from South Bend, Indiana, to Chicago is 1 hour, 54 minutes. The running time from Chicago to South Bend is 1 hour, 29 minutes.

For the Lake Shore Limited, the running time from South Bend to Chicago is two minutes longer, but exactly the same from Chicago as the Capitol Limited.

The City of New Orleans has a running time of 49 minutes from Chicago to Homewood, Illinois, a distance of 24 miles. Yet its inbound counterpart “needs” 1 hour, 16 minutes to travel the same distance.

As this is written, Amtrak and its host railroads are sparring in a rule-making proceeding by the Surface Transportation Board over on-time standards.

A 1973 federal law gives preference to passenger trains over freight trains and Amtrak is arguing for an absolute interpretation of that standard. The Association of American Railroads sees it differently.

The STB is not going to get involved in every instance in which an Amtrak train is late.

Rather, the issue is a repeated pattern of a host railroad favoring freight trains over passenger trains and/or the host railroad’s repeated failure to dispatch Amtrak trains in a manner that results in on-time performance.

Amtrak argues that when a train arrives or departs at intermediate stations should be taken into account when considering if a host railroad has engaged in a pattern of preferring its freight trains over passenger trains.

The ARR counters that Amtrak schedules are unrealistic given the operating and physical characteristics of today’s railroads.

Both parties want to have it both ways. It’s a bit cheeky for Amtrak to talk about on-time performance at intermediate stations when its own schedules are skewed in favor of endpoint cities.

When Amtrak and the State of Illinois were negotiating a contract a few years ago for the state to fund certain corridor trains, Amtrak refused to agree to an on-time standard for intermediate cities, insisting that only arrival and departure times from originating cities and terminus cities be included in the standard.

In short, if the Illini is late arriving in Mattoon, tough luck. Illinois only can reduce its payments to Amtrak if the Illini is late arriving in Carbondale or Chicago.

The AAR brief might have you believe that Amtrak imposes its schedules upon its host railroads.

The same brief mentions that individual railroads have negotiated agreements with Amtrak pertaining to on-time performance.

I find it hard to believe that any host railroad that has an “incentive” contract for Amtrak on-time performance would not have a major say in Amtrak schedules over its line.

Recovery time exists in part to benefit the host railroad so that it has a better chance of earning incentive payments.

The STB proceeding is about rules that may or may not have mean much in the daily performance of any given train on any given day.

Like any legal rules, the on-time standards the STB is considering would only come into play if Amtrak initiates a proceeding against a host railroad as it has done with Canadian National over its handling of Amtrak trains between Chicago and Carbondale.

Obviously, each party wants the rules slanted in favor of its own interests and positions of strength.

Amtrak hopes that if the rules favor it that will encourage host railroads to give Amtrak the benefit of the doubt more often than not when passenger trains and freight trains are in conflict.

From a passenger perspective, Amtrak’s position has appeal. The eastbound Capitol Limited is scheduled to arrive in Cleveland at 1:45 a.m. If it arrives at 2:15 a.m., it is a half-hour late as far as passengers getting off are concerned. It doesn’t matter that it arrived in Washington on time.

The interests of passengers might seem to be central to the STB proceedings but that isn’t necessarily the case.

Amtrak has already decided that although all passengers have an interest in arriving and departing on time, the interests of some passengers outweigh those of others.

That is why it is advantageous to get on at an originating city and get off at the end of the line. You’re more likely to leave and arrive when the schedules says that you will.

Amtrak Wants Times at Intermediate Stations Included in STB On-Time Performance Rules

February 10, 2016

In the ongoing battle before the Surface Transportation Board over on-time performance rules for Amtrak trains, the passenger carrier is arguing that the standards must also encompass intermediate stations as well as endpoint terminals.

Amtrak contends that measuring on-time performance at all stations located on a host railroad is the only viable method of measuring passenger train performance.

STBThat assertion was made to the STB as part of its proceeding in Ex Parte 726, Notice of Proposed Rulemaking on On-Time Performance under Section 213 of the Passenger Rail Investment and Improvement Act of 2008.

The law allows Amtrak to ask for an STB investigation in cases in which freight train operations deny Amtrak’s right of preference as contained in the 1970 Rail Passenger Service Act that created Amtrak.

Citing STB decisions as well as rulings by its predecessor, the Interstate Commerce Commission, Amtrak told the STB “[T]he only measurement that meets all these requirements is the one that measures performance of Amtrak trains on host railroads at all intermediate stations as well as at endpoint stations . . .”

The Amtrak brief said that incorporating on-time performance at all stations “is the most inclusive and revealing measurement of Amtrak train performance.”

The freight railroad industry, though, has a different take on the issue.

Norfolk Southern told the STB that its proposed rule implicitly adopts Amtrak’s published timetable as the on-time standard.

“[M]any, if not most, Amtrak schedules cannot and have not provided a meaningful or realistic standard for assessing on-time performance,” NS said in its brief.

NS argued for a rule that factors in calculations of “allowances” or “thresholds” for determining if a train is on time.

The Southern Rail Commission supported Amtrak, saying, “the proposed rule for measuring on-time performance is inadequate and doesn’t come close to providing the full picture of the performance of the system.”

The Commission said that Amtrak has been forced to pad schedules to provide the host railroads ample flexibility in hitting on-time performance metrics.

“Much of the padding builds in ample recovery time for the host railroads’ lack of preference for passenger trains, and still arrive at the endpoint destination on-time,” the Commission said in its brief.

The rule proposed by the STB would only take into account on-time performance at endpoint terminals, which Amtrak argued would mean that only 10 percent of Amtrak stations were being taken into account.

It said that would result in an incomplete and in some instances distorted view of actual performance that would not accurately reflect the experience of two-thirds of Amtrak passengers.

Furthermore, Amtrak said, it would leave on-time performance within 24 states unmeasured because those states have no endpoint stations and leaves unaddressed the many routes where performance appears to be above 80 percent when measured only at the last station on the route, but is significantly and chronically less than 80 percent at stations all along the route.

A spokesman for the Association of American Railroads told Railway Age magazine that host railroads “recognize the importance of Amtrak and are committed to a reliable passenger rail service while still meeting the shipping needs of the nation’s freight customers.”

John D. Heffner, a partner at Strasburger & Price, told the magazine that Amtrak’s agreements with its host railroads impose penalties for poor performance and incentives for good performance.

“What seems to be lost on everybody, lost on the individual and lost on the STB, is that by and large today’s freight railroads don’t really have any desire to run passenger trains late because running them late screws up their network,” he said.