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Legislative Update April 2008

Family Medical Leave Act

Since the Carriers lost their battle for FMLA leave, they are now trying to usurp the law by attacking with DOL Regulations. They have issued a Notice of Proposed Rulemaking to circumvent the law. A Department of Labor official stated that employers may adjust pay for workers taking intermittent leave under the Family and Medical Leave Act, but must keep other benefits intact, so that if the lesser hours or pay drops the employee below what would normally be a threshold for eligibility in medical or other coverage, those benefits must nevertheless be maintained,.

Amtrak Reauthorization

A hearing was held on April 3 by the Senate Appropriations Committee’s Subcommittee on Transportation, Housing, and Urban Development and related agencies regarding transportation appropriations, particularly the Amtrak Appropriation for FY 09. Amtrak’s President and CEO Alex Kummant said that the passenger railroad would need $1.671 billion in federal assistance for Fiscal Year 2009. He attributes the increase over the 2008 spending levels to increases in wages, benefits, and fuel. Recent settlements with labor unions mandate that Amtrak grant pay increases to its employees as well as issue back payments in two lump sums, one in 2008 and one in 2009, for the years that Amtrak employees worked without a contract. Kummant said that Amtrak can meet its wage and back pay obligations for Fiscal Year 2008, but for 2009, it can only meet its wage obligations and needs additional funds for the back pay.

Subcommittee Chairwoman Patty Murray (D-WA) stated that the high price of gasoline is pushing Amtrak to record ridership levels. She went on to say: “For the second year in a row, the Bush administration has proposed cutting direct subsidies to Amtrak by almost 40 percent. For Amtrak’s critical operating and debt service subsidies, which keep the railroad out of bankruptcy, the Bush administration is proposing a cut of 64 percent. Once again, the administration is proposing to decimate intercity rail transportation.”

Freight-rail Delays Cost Amtrak $137 million in FY2006

The U.S. Department of Transportation’s Office of Inspector General has released a report detailing the effects of freight-rail delays on Amtrak. The report, which was requested in February 2007 by Sen. Frank Lautenberg (D-N.J.), states that in FY2006 the delays cost Amtrak almost $137 million in overtime and fuel costs, and lost revenue, an amount equal to about 30 percent of Amtrak’s federal operating subsidy.

More than 97 percent of Amtrak’s 21,000 route miles run along tracks owned and maintained by freight railroads. The report states that between fiscal years 2003 and 2007, Amtrak’s on-time performance (OTP) for long-distance trains outside of the Northeast Corridor (NEC) fell from an average of 51 percent to 42 percent, and OTP for shorter corridors outside the NEC fell from 76 percent to 66 percent. In comparison, OTP for Acela service, which runs on the Amtrak-owned-and-operated NEC, currently stands at 86.1 percent.

In October 2007, the Senate passed Lautenberg’s Passenger Rail Investment and Improvement Act of 2007 (S. 294), authorizing $1.6 billion for Amtrak over a six-year period. The bill includes a provision that enables the Surface Transportation Board to investigate Amtrak delays and issue fines to freight railroads if the OTP of an individual route falls below 80 percent in two consecutive quarters due to “freight interference.”

Section 211 of S.294 allows for railroad that own infrastructure on which Amtrak operates, or any entity operating as a rail carrier that has negotiated a contingent agreement, to lease necessary rights-of-way from a rail carrier or rail carriers that own the infrastructure on which Amtrak operates such routes, to petition the FRA to be considered as a passenger rail service provider over that route in lieu of Amtrak. We are opposed to Section 211. Amtrak was originally created in 1971 after the railroads that own the infrastructure sought to discontinue intercity passenger service due to the operating losses they generated throughout the 1960s. These hugely profitable freight railroads should not now receive a windfall by operating federally-subsidized passenger service. Further, regarding leased trackage rights over these railroads, no other entities in the U.S. currently operate intercity passenger service. It has been repeatedly proven that privatized intercity passenger rail service has failed to generate profits everywhere it has been attempted.

The Problems with S. 1889, the Railroad Safety Enhancement Act of 2007

  1. 1889 was placed on the Senate Legislative Calendar on March 3. The bill includes a cap of 276 hours of combined service time and limbo time per calendar month. The bill further mandates time off duty at the home terminal: (1) of at least 48 consecutive hours after six consecutive work days, (2) of at least 72 consecutive hours after seven consecutive work days, or (3) a collectively-bargained alternative approved by the FRA.

Regarding time off duty, the Senate bill closely parallels the House version (H.R. 2095 passed in the House in October 2007) by requiring a minimum of 10 hours’ undisturbed rest under all circumstances. Extra rest equivalent to the duration of limbo time could be taken at the option of the individual employee. Railroad and unions will also be able to negotiate Hours of Service. There is no legitimate reason to apply limbo time toward an Hours of Service cap because limbo time is neither time off duty nor time on duty. It cannot justifiably be time on duty for some purposes, but not for others.

  1. 1889 also does little to stop all but the most egregious limbo time abuse by the industry because it provides a three-hour daily limbo time allowance with no cap. Any further relief would have to come from the FRA, which would be granted limited regulatory authority over Hours of Service.
  1. 2095 would impose a limbo time cap of 40 hours per month during the first year after enactment, 30 hours per month during the second year, and 10 hours per month thereafter.

We will let you know right away if S. 1889 goes to the floor for a vote. Although we support the bill, we are hoping that if it is passed, the differences with the limbo time issue can be worked out when the bills are referred to the conference committee.

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