Appeals court rejects on-time performance standards

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Amtrak’s southbound 'Saluki' rolls past the Canadian National yard into Champaign, Ill., in Feb., 2015.
Bob Johnston
ST. LOUIS, Mo. – The Eighth U.S. Circuit Court of Appeals has struck down a U.S. Surface Transportation Board attempt to provide metrics which measure host railroad on-time performance. The action follows a U.S. Supreme Court finding that the metric’s joint development by the Federal Railroad Administration and Amtrak as directed by Section 207 of 2008’s Passenger Rail Investment and Improvement Act is unconstitutional.

The appeals court ruling, written by Chief Judge Lavenski R. Smith, says that the STB “exceeded its authority” in trying to come up with a valid on-time performance measurement, even though the absence of such a yardstick would make it impossible for it to investigate or adjudicate disputes brought by Amtrak against host railroads in the event that punctuality fell below 80 percent for two consecutive quarters.

The judges effectively decided that the STB’s inability to measure on time performance is not the court’s problem.

Amtrak has two proceedings before the STB which have been on hold pending this ruling: a lawsuit charging Canadian National with delays to the Chicago-Carbondale, Ill., Saluki and Illini, and another documenting Capitol Limited tardiness on Norfolk Southern rails west of Pittsburgh.

The STB with 13 supporting “intervenors,” including the National Association of Railroad Passengers and its state affiliates plus the U.S. Conference of Mayors, argued that it had the right to establish metrics “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.”

But the court accepted the argument of petitioners Union Pacific, CSX Transportation, and CN, with the Association of American Railroads as intervenor, that the “gap-filling rationale does not allow one agency to assume the authority expressly delegated to another.”

It found that the only place in the statute 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.

Congress’ statutory right of passenger train “priority” over freight trains remains, but the ruling means that Amtrak has no way challenge a host railroad’s systematic denial of that right. The strongest tardiness deterrent falls to the proprietary and confidential incentive contracts Amtrak has with freight carriers for on-time handling, but other than not paying the incentives for non-performance under whatever those terms are, the passenger operator will have no enforceable yardstick unless Congress authorizes the FRA to develop a new standard without input from Amtrak.

Based on Trains News Wire’s daily monitoring of Amtrak long distance train arrivals and departures at Chicago, on-time performance has deteriorated dramatically on some routes over the last six months. Through July 12, the BNSF Railway-hosted’s Southwest Chief has arrived into Chicago more than two hours late on 20 of the past 22 days and into Los Angeles more than three hours late (missing connections with the Coast Starlight) on 17 occasions during the same period. Blaming trackwork between Lamy, N.M., and Albuquerque, Amtrak recently issued a passenger advisory regarding connections, but hours-long delays during the past month have occurred on west of Winslow, Ariz.

NEWSWIRETrains News Wire

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