Posts Tagged ‘Surface Transportation Board’

NARP Wants High Court Review of Passenger Ruling

November 15, 2017

The Rail Passengers Association, the new name for the National Association of Railroad Passengers, and the Environmental Law & Policy Center have asked the U.S. Supreme Court to review an appeal court decision that reduced the authority of the Surface Transportation Board to set on-time standards for passenger trains.

In the petition, the groups content that without defined standards, freight will be systematically given preference over passenger trains, leading to chronic delays for long distance riders.

NARP is seeking to overturn the appeals court decision that applied a narrow interpretation of the Passenger Rail Investment and Improvement Act.

The case grew from a challenge to a section of that law by the Association of American Railroads that was first ruled upon by a Federal District Court for the District of Columbia.

“When the D.C. Circuit nullified Section 207 last year, it took away FRA’s power to develop on-time performance standards. Then the Eighth Circuit this summer interpreted Section 213 in a way that eviscerated the power of the Surface Transportation Board, which was the only agency left to carry out Congress’ assignment to improve on-time performance. The two courts’ moves together have left no agency remaining to fulfill Congress’ statutory mandate in PRIIA to enforce those standards,” said Jim Mathews, NARP president.

Matthews said these decisions have thwarted congressional intent in PRIIA and leaves passengers without any recourse.

The Eighth Circuit Court of Appeals rejected an STB interpretation that Section 213 of PRIIA, which created two separate “triggers,” each of which require the STB to investigate sub-standard on-time performance.

NARP noted that the AAR had in 2015 asked the STB to create the regulation that defined on-time performance.

NARP said that after the STB sided with passenger group, the railroad industry trade association challenged STB’s authority to regulate the issue.

“This fight has gone on long enough,” Mathews said. “For decades, rail passengers have been left waiting for freight trains to clear the rails. Even acts of Congress haven’t been able to budge them out of the way. We need the courts to now recognize and allow Congress’ goal to be carried out. The law creating Amtrak in the early 1970s codified a deal these railroads made with the American taxpayer: we’ll relieve you of your common-carrier responsibility for passenger service, and in exchange you’ll ensure those passenger trains get where they need to go on time. It has been a battle ever since.”

 

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STB Express Concerns Over Amtrak Delays on CSX

August 21, 2017

Somewhat overlooked in all of the back and forth about deteriorating CSX freight service is a directive from the U.S. Surface Transportation Board that it will no longer tolerate delays that have slowed some of Amtrak’s trains on CSX routes.

The STB sent a letter to CSX CEO E. Hunter Harrison “expressing concerns about deteriorated service,” and criticizing CSX for its “unreliable” and “inefficient” operations, as well as “poor communications and coordination.”

A CSX spokesman acknowledged that the operations of Amtrak trains have been disrupted, particularly on the Chicago-Indianapolis route.

“CSX understands that these changes have resulted in some disruptions to Amtrak on its passenger rail service on the Hoosier State line between Indianapolis and Chicago, and we have been in contact with Amtrak and the Indiana Department of Transportation about those issues,” said CSX spokesman Rob Doolittle said. “CSX is committed to continuing a dialogue about these concerns as operational changes occur.”

Amtrak’s Chicago-Indianapolis corridor is primarily comprised of CSX track.

During June, the southbound Hoosier State arrived on-time one in three times.

“It remains a concern — and will be as we continue to report out the performance of that train and their handling of it,” said Amtrak spokesman Marc Magliari.

Doolittle insisted that the disruptions to Amtrak will be short-lived as the railroad better implements its new operating plan.

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.