Legislative Update May 2008

H.R. 6003, Amtrak Reauthorization – New House Bill at Odds with Senate Plan

A bipartisan Amtrak bill was released on May 8. The bill authorizes $14.4 billion over five years for the passenger rail system. This is the first authorizing bill for Amtrak in more than a decade. For FY 2009 alone, the bill would authorize close to $3 billion, a considerable increase over the $800 million requested the White House and the $1.7 billion sought by Amtrak itself. Transportation & Infrastructure Committee Chairman James Oberstar (D-Minn) called the bill “revolutionary,” stating that it would make Amtrak a “world class service.” The Committee has tentatively scheduled a markup of the bill for the week of May 11.

The House bill, however, contains a provision that could run into opposition from many Democrats. The high-speed rail provision, written by John L. Mica, of Florida, the panel’s ranking Republican, who has been a staunch Amtrak critic in the past, would allow private firms to compete to provide train service in the Northeast Corridor for the first time. Mica stated that the opportunity for private funding of rail projects “will repeat itself across the Untied States.” Sen. Frank Lautenberg, D-N.J., who co-authored a rival $11.4 billion Amtrak bill that passed the Senate 70-22 in October, has expressed strong objection to this provision that calls for opening up the Washington-to-Boston route and 10 others across the country to private competitors. Under that scenario, Amtrak would have to outbid its privately funded rivals to run trains on its own most heavily traveled and consistently profitable route. A Senate aide stated that such a privatization provision would not be supported by the Senate and would definitely cause tension in a House-Senate conference. The aide went on to say, “We encourage people to look at rail as fundamental public infrastructure.”

The bill would authorize $1.75 billion over five years for grants to states and to Amtrak for up to 11 new high-speed rail corridors, as well as $6.7 billion for capital grants. It also allocates $3 billion for operations, which would help Amtrak meet its back pay obligations to employees who worked for eight years without a wage increase. The additional $2.5 billion would be used for grants to pay for facilities and equipment needed to provide new or improved intercity passenger service.

Amtrak President and CEO Alexander Kummant said Congress needs to act soon on a reauthorization, noting that the rail service faces cost increases of $100 million/year in diesel fuel alone.

A hearing by the House Transportation & Infrastructure Committee Subcommittee on Railroads, Pipelines & Hazardous Materials regarding this legislation is scheduled for May 14.

S.1889, the Railroad Enhancement Act of 2007

This bill still has not reached the Senate floor. Because we do not fully support it in its current form (see last month’s update), we will stand by and see what happens when it does come to a vote. In the meantime, BLET National Legislative Rep. John Tolman plans to meet with Senator Oberstar to discuss the provisions of the bill that are troublesome.

Close Call Reporting

A second railroad has joined the FRA Risk Reduction Pilot Program permitting confidential reporting of “Close Call” incidents. In April of this year, the Canadian Pacific Railway (CP) joined the Union Pacific Railroad (UP) in this pilot program designed to allow employees the ability to voluntarily and anonymously report “close call” incidents that could have resulted in an accident but did not. Employees can report these incidents without fear of sanction or penalty from the railroad or the federal government. The cumulative result of “close call” reports is being studied to determine areas of potential risk and develop solutions to prevent and minimize their occurrence in the future. UP employees at the North Platte,Nebraska, yard began reporting “close calls” in February 2007. The FRA is working with Alaska Railroad, hoping to make it the third railroad in the program. Additionally, the Bush Administration has requested $1.2 million in its proposed FY09 budget to operate and expand the pilot program.

FRA Report on CSX Harassment and Intimidation

Last month, the FRA issued a final report on its investigation of worker harassment and intimidation by CSXT. Following allegations made by the BLET and UTU in August 2006 that CSXT officers were trying to manage injury reporting numbers instead of managing safety, the FRA initiated a one-year investigation. The unions alleged that CSXT was discouraging injured employees from reporting on-duty injuries or receiving proper medical attention, and/or harassing or intimidating those employees who did report injuries. After a three-phase audit of CSXT’s practices, the investigation team concluded that certain CSXT officers had created an atmosphere or culture of fear with regard to employee injury/illness reporting by sending a message to employees that if they report an on-duty injury, they will be subject to adverse consequences. The investigation resulted in the recommendation to the FRA’s Office of Chief Counsel of the assessment of 30 civil penalty violations against CSXT and one individual liability action with civil penalty against a CSXT officer. The FRA Office of Safety will issue 20 regional warning letters to individual CSXT officers and the Office of Chief Counsel will issue two Chief Counsel warning letters.

NTSB Reauthorization

On April 29, the House Transportation and Infrastructure Committee on Aviation led an examination of the pending reauthorization of the National Transportation Safety Board (NTSB) at a Capitol Hill hearing. In his opening statement, Committee Chairman James Oberstar (D-Minn) gave a brief history of the NTSB and emphasized its vigilance on safety issues that have resulted in improvements involving all modes of transportation.

Chairman Oberstar also pointed out the decline in the number of public hearings held by the Board in recent years, ranging from one to three per year, for all modes of transportation combined, expressing his concern that the benefits of such hearings are not being appropriately weighed against the costs. He urged the Board to reconsider the benefits of public hearings and “bear in mind that one of the main reasons we have a politically-appointed Board, and do not rely solely on professional career investigators, is that we expect Board Members to see needs beyond reaching a technically correct decision, such as the need for transparency, public participation, and education. In other words, hearings can be both a teaching moment and a learning moment for the Board.”

He went on to state that he is a strong supporter of the NTSB’s mission, stating that it is imperative that the Board has sufficient resources to perform its mission. The NTSB has requested $87.9 million for FY09, consistent with the President’s FY09 Budget. Mr. Oberstar pointed out that no new program initiatives or new staff would be funded at that requested level. The NTSB has requested $107.2 million for FY 2010 and $113 million for FY 2011, which would support an increase in staff to 475 full-time equivalent employees. The NTSB states that is the minimum needed to effectively meet their core mission of accident investigation.

NEW FRA Human Factors Final Rule

 

The FRA has implemented a new federal regulation that places accountability for train accidents on railroad managers and employees. The FRA Human Factors Final Rule, published February 13, 2008, defines three distinct levels of responsibility and accountability, including: railroad managers for putting in place programs designed to test employees for proficiency in abiding by applicable operating rules; supervisors for properly administering such operational tests; and employees for complying with the rules. Under the regulations, employees will have a “right of challenge” should they be instructed to take actions that, in good faith, they believe would violate the rules.

The FRA new regulations require increased frequency of testing of train and yard employees by the FRA.  The Agency has always had the ability to fine employees between $7,500 and $16,000 for willful violations, but the new regulation can hold all crew members liable for a violation, not just the violating person.  In addition, the FRA will be allowed to test without the presence of a railroad manager.

The Final Rule took effect on April 14, 2008. Prior to that, Petitions for Reconsideration of various aspects of the Final Rule had been filed by six rail unions, including the BLET, as well as by the American Passenger Transportation, and the Association of American Railroads. The FRA filed a notice to suspend the rule; however, it was not received by the Federal Register in time for publication in the April 14 edition. Therefore, the FRA will judiciously exercise its enforcement discretion with respect to the aspects of the Final Rule that were petitioned.

Tank Car Rulemaking

The Pipelines and Hazardous Materials Safety Administration and the FRA will conduct a series of public meetings related to the April 1, 2008, Notice of Proposed Rulemaking regarding improving the safety of railroad tank car transportation of hazardous materials. The meetings, to be held May 14, 15, 28, and 29, will focus on differing aspects of the proposed rulemaking which proposes to require:

  • A maximum speed limit of 50 mph for all railroad tank cars used to transport PIH (poisonous by inhalation) materials;
  • A maximum speed limit of 30 mph in non-signaled (i.e., dark) territory for all railroad tank cars transporting PIH materials, unless the material is transported in a tank car meeting the enhanced tank-head and shell puncture resistance systems performance standards proposed;
  • As an alternative to the maximum speed limit of 30 mph in dark territory, submission for FRA approval of a complete risk assessment and risk mitigation strategy establishing that operating conditions over the subject track provide at least an equivalent level of safety as that provided by signaled track;
  • Railroad tank cars used to transport PIH materials have a shell puncture-resistance system capable of withstanding impact at 25 mph and a tank-head puncture-resistance system capable of withstanding impact at 30 mph;
  • The expedited replacement of tank cars used for the transportation of PIH materials manufactured before 1989 with non-normalized steel head or shell construction; and
  • An allowance to increase the gross weight on rail for tank cars designed to meet the proposed enhanced tank-head and shell puncture-resistance systems performance standards.

New Re-Routing Rule for Hazardous Materials

A new federal rule announced by the Department of Transportation will require railroads to route every train carrying the most toxic and hazardous materials on the safest and most secure route. Beginning June 1, each railroad will be required to conduct a comprehensive safety and security risk analysis of its primary route and any practicable alternative routes over which it has authority to operate. The analysis will take into consideration information provided by local communities and a minimum of 27 risk factors, including trip length, volume and type of hazmat, existing safety measures along the route, and population density. Based on these analyses, railroads must implement their routing decisions by September 2009. The rule also includes several rail security provisions designed to guard against tampering with the rail hazmat car during transportation.

Secretary of Transportation Mary Peters stated that the new rule complements the Department’s previous proposal to increase by 500 percent on average the amount of energy a rail hazmat tank car must absorb during a train accident before a catastrophic failure occurs.

The BLET is in the process of analyzing this new rule.

FRA Train Accident Investigation Reports now Publicly Available Online

 

Federal Railroad Administrator Joseph H. Boardman announced the FRA is, for the first time ever, making its investigation reports of major train accidents and other incidents available online. Investigation reports for all of 2005 and 2006, and the first quarter of 2007, are now available online. The reports for the remainder of 2007 will be posted in the coming months, and those for 2008, as well as all future reports, will be made available online as they are completed and finalized.

A major train accident or incident investigation typically takes six to nine months to complete, and no portions of reports are made public until an investigation is finalized. An up-to-date listing of all active, open, and ongoing investigations will also be posted online.

The accident investigation webpage can be accessed at:

http://www.fra.dot.gov/us/content/1696.