by Bill McCaffery

The Albany Times Union reports that all Amtrak trains which had been using Grand Central Station during the summer construction period are back to Penn Station in the first week of September. Amtrak spent an estimated $45 million to $50 million on infrastructure improvements over the summer that included track work in Penn Station as well as rehabilitation of the tracks on the Empire Connection, the line used by upstate trains to reach Penn. The Spuyten Duyvil Bridge along the Empire Connection route was removed from its piers and placed on a barge, where workers upgraded the mechanical and electrical systems. It was then lowered back in place. [Railpace Magazine October 2018 issue, back cover, has a picture of this bridge being put back in place].

The Boston Globe reports that the MBTA wants to replace the North Station draw bridges by 2026. Preliminary planning work is beginning now. North Station has two 80-year old drawbridges, each has two tracks. The B&M once had four double track drawbridges here. The MBTA plan is to increase the current four tracks across the Charles River to six tracks.

Many rail travelers get frustrated with Amtrak’s poor on-time performance record. Many wish for a law that gives passenger trains priority over freight trains. The following lengthy quote from the railroad trade publication Railway Age explains why this is not so simple: “Welcome to an interminable legal donnybrook—a hereditary emolument for involved attorneys—featuring Amtrak and freight railroads over whose privately-owned track Amtrak trains operate with diminutive hint of scheduled precision.

“The current fisticuffs began in 2008 upon enactment of the Passenger Rail Investment and Improvement Act (PRIIA), whose Sections 207 and 213 aimed to improve an abysmal 42% on-time performance (OTP) for long-distance passenger trains.

“Ten years later, Amtrak’s on time performance remains dreadful, in spite of the PRIIA. Roots of this raw saga extend to 1970, when Amtrak was created to relieve privately-owned railroads of an unfunded mandate to operate intercity passenger trains whose current-dollar $6 billion annual loss was an intolerable burden on stockholders and freight shippers. The congressionally-brokered deal gave Amtrak access to the freight rail network at a regulated fee that the freights bemoan as woefully inadequate.

“In 1973, with tribalism affecting Amtrak OTP, Congress ordered that freight railroads provide undefined priority handling of passenger trains—a mandate freights allege inconveniences time-sensitive freight fully paying its way. In 2008, with Amtrak’s on-time performance perennially appalling amidst accusations of discriminatory dispatching, Congress pounced.

“PRIIA Section 207 empowered Amtrak and the Federal Railroad Administration (FRA) jointly to establish minimum metrics and standards (M&S) to assess the on-time performance of intercity passenger trains hosted by freight railroads. Section 213 allows the Surface Transportation Board (STB) to investigate poor Amtrak on-time performance and prescribe damages for delays attributable to host railroads.

“When Amtrak and the FRA finalized metrics and standards in 2010, freight railroads went to court, asserting that the transfer of regulatory power by Congress to a private entity—Amtrak, which competes with freight railroads for scarce track space—violated the Constitution’s “non-delegation” doctrine and its Due Process Clause.

“Following lower court schisms, the Supreme Court answered the delegation of powers question by ruling that Amtrak, although created by Congress as a “for-profit corporation” (even though it has never turned a profit) is, for purposes of the PRIIA, an arm of the federal government.

“On remand, a circuit court of appeals was left to decide the Due Process Clause issue—whether Amtrak’s self-interest in the outcome could be kept “in check” by a disinterested FRA. The court answered in the negative, because were there is an “intractable disagreement” between Amtrak and the FRA in writing metrics and standards the PRIIA problematically provides for binding arbitration by a Surface Transportation Board (STB) appointed arbitrator.

“As binding arbitration would be a “final agency action” by an individual neither appointed by the President of the United States nor whose decisions are reviewable by Presidentially-nominated members of the STB, the court saw a violation of the Constitution’s Appointments Clause.

“Although railroads argue there “is nothing in the [PRIIA] grant of regulatory power to Amtrak that can be salvaged,” the appellate court, in a split decision, disagreed—ruling that the severing from the statute of the binding arbitration provision cures all remaining constitutional problems, as no metrics and standards will go into effect without approval of a disinterested (in the outcome) FRA.

“In a dissent, Judge David S. Tatel said there remains a Due Process Clause violation as Amtrak is “an economically self-interested actor,” and the FRA is not a disinterested party.

“Railroads likely will mount another appeal, convinced that if the PRIIA sections stand, Amtrak, with assent from a politicized FRA, will have unconstitutional power to commandeer the assets of privately-owned freight railroads.

“Of note, the Senate voted 99-0 in July to instruct Amtrak’s inspector general to update on-time performance.

“Also, a federal court struck down an attempt by the STB to promulgate its own version of M&S, ruling the STB acted beyond its statutory authority”

 I realize that the above quote makes for heavy reading, but think it is helpful for rail passengers to have some knowledge of the legal complexities involved in this issue. A quick summary of the Railway Age article is that this issue has been a bonanza for lawyers and a nightmare for rail travelers.

 TRAINS Magazine also devoted some space to on-time performance. See page 24 of the October 2018 issue. TRAINS mentions track construction, passing sidings that are too short, limited crossovers, and freight crew shortages as contributing factors to the problem. TRAINS mentions the Crescent, Empire Builder, Illini, and Saluki as trains affected by this problem. TRAINS also said that Illinois Senator Dick Durbin is taking an active interest in this issue.

In the November 2018 issue of TRAINS, columnist Fred W. Fraley offered a dissenting view. He brings up the fifth amendment of the US Constitution. This amendment is famous for protecting criminal defendants from answering incriminating questions from police and prosecutors. It also contains the “Takings Clause” which prohibits the government from taking private property without just compensation. (Here is quote from the fifth amendment “nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation “). He talks about a recent trip on Amtrak’s Empire Builder which was running 8 hours late. The problem was not long waits in sidings for freights going in the opposite direction. It was mostly yellow signals caused by slower moving freights in the same direction. He argues that Amtrak trains eat track capacity on busy single-track lines as if they were two or three freights. He speculates that freight railroads could win a lawsuit based on the fifth amendment and demand much higher fees for use of their tracks than Amtrak is now paying them. Mr. Fraley is a professional railroader and a railfan and a regular train rider.

Those of us who collect old employee timetables and railroad rule books know that there was a time in railroad history when passenger trains made profits and employee timetables and rule books defined passenger trains as first-class trains and commanded other trains of inferior classes to stay out of their way. This benefitted even the money-losing commuter trains and branch line local passenger trains.

The MBTA has announced plans to reroute Pan Am freight trains from the Lowell Line [former B&M New Hampshire Division] to the Haverhill Line [former B&M Portland Division Western Route Main Line]. This detour will run from September to end of 2018. The reason is the construction of the new Green Line extension. Freight movements will be mostly at night. This affects the gravel train to Boston Sand and Gravel as well as local freights to North Shore destinations. [Mass DOT memo posted to Facebook by Mark Jackson]

Here is a summary of another fascinating article from Railway Age. William C. Vantuono, Editor-in-Chief wrote on 9/18/18 that Union Pacific has announced a new operating plan called “Unified Plan 2020”. It is based on Precision Scheduled Railroading principles that were implemented at IC, CN, CP, and CSX by the late E. Hunter Harrison who died while CEO of CSX. UP will begin with their Texas to Wisconsin corridor. UP Chairman, President and CEO Lance Fritz said the railroad, the largest in North America, is “not currently meeting customer expectations. Unified Plan 2020 is our path forward to secure our place as the industry leader in safety, service and financial performance.”

UP’s version of PSR involves:

• “Shifting the focus of operations from moving trains to moving cars.

• “Minimizing car dwell, car classification events and locomotive power requirements.

• “Utilizing general-purpose trains by blending existing train services.

• “Balancing train movements to improve the utilization of crews and rail assets.”

The last paragraph of the Railway Age Article goes on to speculate about possible mergers: “There has been some speculation that UP 2020 is being implemented in preparation for a UP-CSX merger, which in turn could prompt a final round of Class I consolidation. Should that occur, two giant east-west transcontinental systems will probably emerge, with the likely combinations of UP-CSX-Canadian Pacific and BNSF-Norfolk Southern-CN. Whether Kansas City Southern is absorbed by one of these mega-railroads remains to be seen. If anything, KCS de México would most likely remain independent.”

TRAGEDY ON METRO NORTH – Two brothers from New Hampshire who were Red Sox fans climbed on the roof of an electric commuter car, possibly to display a Red Sox banner. The conductor was able to save one of them but the other died after coming into contact with the catenary. There were doctors and nurses on the train who made valiant efforts to save the victim with CPR but were unable to do so. The tragedy happened at Mamaroneck NY. The train was full of baseball fans returning from a Red Sox vs. Yankees game. [Rockland/Westchester Journal News].

The dome car on Amtrak train 690, the Downeaster struck a tree limb on Saturday, September 22. This resulted in broken glass on the outer pane of one window. The car has double pane windows, the inner pane was not broken. [Facebook Downeaster Group].

The MBTA has begun design work to make the Natick Commuter Rail Station fully handicapped accessible [Railpace].

TRAINS Magazine November 2018 issue has a major article on the 40th anniversary of VIA RAIL CANADA. There is a sad map on pages 28 and 29 showing all the lines that have been lost in red and remaining lines in blue. The Quebec City to Windsor corridor is OK but much service outside this corridor has been lost and most of what remains is three days per week. Time flies, it is hard to believe that 40 years have gone by since CN and CP ran their last passenger trains. VIA has even less clout with freight railroads than Amtrak.

That same issue of TRAINS also includes a 10-page article on the freight railroads of New England by Brian Solomon. There is a detailed map on page 49.

Amtrak’s Inspector General, Tom Howard sent a report entitled Top Management and Performance Challenges—Fiscal Years 2019 and 2020 to Amtrak CEO, Richard Anderson. The report is 44 pages long and is available on line. Here are a few of the more interesting paragraphs:

“The company’s workforce includes about 16,800 union (agreement) employees and 2,700 management employees. In Fiscal Year 2017, these employees’ salaries, wages, and benefits totaled about $2.1 billion. And since FY 2012, these costs have consistently accounted for about 50 percent of the company’s overall expenses. The company also employs at least 3,100 contractors who help meet its workload demands.”

“The company has also focused more on taking care of customers, as evidenced by its decision to fund initiatives that address customers’ needs. Notable initiatives include refreshing passenger car interiors, providing customers with cleaner bathrooms, and developing additional training for all customerfacing employees. In addition, the company is pursuing a once-in-a-generation upgrade to its diesel locomotives and passenger rolling stock, as well as major redevelopment initiatives at some of its largest stations.”

“Completing the installation of PTC [Positive Train Control]. The company identified PTC as its key safety system for preventing train collisions, and was one of the first railroads in the United States to have a functional PTC system on segments of track it owns, including about 510 miles in the northeast and about 230 miles in Michigan.5 The company plans to complete PTC implementation on tracks it owns in three other areas by the end of 2018, as required by federal law—on the Hudson line in New York (about 95 miles), on the Springfield line in Connecticut (about 60 miles), and at the Chicago Passenger terminal (about 2 miles).”

From the Amtrak Northeast Group on Yahoo we have a few quotes from Amtrak CEO Richard Anderson at a town-hall style meeting for Amtrak employees:

“We are receiving the largest grant in the history of Amtrak – more than we requested and more than what is in the FAST Act ($1.7B). We also have an additional $600 million in funds available through the grant process for the Northeast Corridor. This funding gives us the capability to execute on all the pillars of our strategy in a way we’ve never had before. Let’s deploy this capital wisely and only consistent with our statutory mandate.”

“We are going to the Board in April with a five-year capital plan to double our equipment capacity on the Northeast Corridor. All total, it will be somewhere between $400M to $500M. We need to buy a new undercutter, a new track laying machine and a new set of high-speed surfacing machines. We’re going to be hiring more Maintenance of Way employees and buying more equipment so we can double the output of our undercutter and our track laying machine up and down the corridor. This is hard, difficult work that our people do well. It’s imperative that we increase our investment here.”

“These are two big programs for us. We want to get an RFP [Request For Proposals] completed and contracts awarded this year. There is no reason why we can’t. In large measure, our Amfleet cars and P42 locomotives can be replaced by more modern, lightweight, environmentally-sensitive, ADA-compliant equipment that will give us a completely different product. If we want to appeal to a millennial generation in high-density urban markets, we need the same kind of modern, unit trains we see operating in Europe and Asia. Making these investments now will benefit the next generation of Amtrak.”

From the Amtrak Web Site: “The Massachusetts Department of Transportation has announced it has committed approximately $700,000 to help Amtrak make safety improvements at the public railroad crossing at Birnie Road in Longmeadow. This funding is expected to cover approximately 90% of the cost of the improvements. Amtrak, which owns the railroad line and is carrying out the project, will fund the remaining costs.” There have been five deaths at this crossing since 1975. Work is scheduled to start in 2019.

From the Wabtec Web Site. – “Wabtec and GE Transportation will be combined in a transaction in which GE will (i) sell a portion of the assets of GE Transportation to Wabtec; (ii) complete the spin-off or split-off of a portion of GE Transportation to GE shareholders; and (iii) immediately thereafter merge GE Transportation with a wholly owned subsidiary of Wabtec. Upon closing, Wabtec shareholders will own approximately 49.9%, and it is planned that GE shareholders will own approximately 40.2%, and GE will own 9.9% of the merged company on a fully diluted basis. GE has the right to increase the portion of the merged company owned by GE shareholders (subject to a corresponding reduction in GE’s ownership).” Wabtec was formerly known as Westinghouse Air Brake. It is a very wellknown name in the railroad supply business with a history dating back to the nineteenth century. This combination is expected to become final in the first quarter of 2019. This means that GE and GM, the two companies that dominated locomotive manufacturing since the dawn of the diesel age, are out of the locomotive business.

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Revised: Dec 2018