Federal Railroad Administrator Ron Batory in a Jan. 14 letter to union leaders denied a request from the SMART Transportation Division (SMART-TD) and the Brotherhood of Locomotive Engineers and Trainmen (BLET) to issue an emergency order to safeguard passenger rail travelers and workers, even in the face of known threats and the potential for violence, according to the FBI.
“Regrettably, we received a response from FRA Administrator Ron Batory that denied our Emergency Order request from earlier this week,” SMART-TD President Jeremy R. Ferguson said. “It seems that the safety-first mentality has fleeted under his watch and now the agency is not even willing to strengthen or increase enforcement actions against those that may do harm to the people, equipment, or infrastructure of this nation’s rail system – a complete deviation from FAA, its sister agency under the same DOT umbrella.
“FAA has announced extremely aggressive measures to deter those willing to do harm from boarding commercial aircraft. It’s sad that FRA refuses to do the same.”
In his letter, Batory deferred to the Department of Homeland Security (DHS), which oversees the Transportation Security Administration (TSA), and encouraged rail labor to work with the carriers on bulking up security. This is in spite of the FRA being the primary agency responsible for regulating and enforcing passenger behavior, including the interference or assault of a train crew.
“While your petition correctly notes the differences in statutory and regulatory authorities between the Federal Aviation Administration and the FRA, which evolved based upon operational differences and legislative considerations, these differences do not provide a basis for FRA to take the requested action,” Batory responded. “Accordingly, FRA declines to grant your request for an emergency order. In addition, FRA does not believe it would be appropriate to introduce such an emergency order into the long-standing, well-established law enforcement partnerships between railroads and Federal, state, and local agencies.
“Consistent with your stated willingness ‘to work with the applicable agencies,’ we encourage you to work with railroads as they coordinate to provide for safe passenger rail service at the upcoming Inauguration and beyond,” Batory wrote.
Leaders from both SMART-TD and the BLET, two of the nation’s largest railroad labor unions, expressed concerns to FRA on Jan. 11 and to DHS on Jan. 13 about security vulnerabilities in passenger rail service in the wake of the Jan. 6, 2021, insurrection that occurred at the U.S. Capitol. While airport and air travel security administered by the FAA is well-equipped to react to bar those suspected of causing violence from air travel, no such measures are in place for passenger rail.
“Realizing years of neglect cannot be fixed overnight, we are demanding that significant changes to passenger rail protocol be granted immediately to protect against the imminent threat of danger that exists today,” President Ferguson and BLET President Dennis R. Pierce said. “It is our recommendation, as a minimal standard, that any regulation granted to prohibit the interference of a train crew’s duty be in line with that of aviation statutes and regulations.”
Among the remedies suggested by the union leaders to FRA was the establishment and implementation of a “No-Ride List,” which would mirror the FAA’s “No Fly List” and restrict people from using passenger rail. This solution also was shared with the DHS in the Jan. 13 emergency order request.
“There is nothing more important than the safety of our employees. Since the start of the pandemic, our dedicated frontline employees have kept our trains running, providing a vital transportation service to essential workers. We join our labor partners in continuing to call upon Congress and the Administration to make assaults against rail workers a Federal crime, as it is for aviation workers, and to expand the TSA’s “No Fly List” to rail passenger service,” Flynn said.
“After last week’s violent attack on the U.S. Capitol, we are taking extra steps to continue ensuring the safety of our employees and customers in Washington DC and across our network as we prepare for the Inauguration. In addition to limiting ticket sales and requiring masks to be worn at all times, we are increasing our police enforcement to ensure strong compliance, remove noncomplying customers and ban those that don’t follow our policies,” Flynn said. “This includes deploying additional Amtrak Police officers onboard our trains and in our stations to support our frontline staff, and utilizing additional support from TSA and partner law enforcement agencies.”
As a precaution in advance of the inauguration of President-elect Joe Biden next week, two regional passenger rail carriers have announced service changes. The Maryland Department of Transportation stated it was halting traffic on three MARC lines from Jan. 17th to the 20th. Virginia Railway Express (VRE) said it will not operate trains Monday, Jan. 18 through Jan. 20 as well, citing security concerns.
DHS continues to weigh the emergency order request from the unions to implement a “No-Ride List” despite Batory’s rejection of the unions’ emergency order request and FRA’s failure to act.
President-elect Joe Biden has decided not to take Amtrak to his inauguration ceremony after security concerns intensified following the Jan. 6, 2021, insurrection at the U.S. Capitol, CNN reports.
Biden had planned a journey similar to the one he had taken from Delaware to D.C. as a U.S. senator when he commuted daily on the passenger rail carrier. He also took a ride on Amtrak into D.C. for his 2009 inauguration for his first vice presidential term.
However, the attack on the U.S. Capitol and additional threats detected by federal agencies led to the cancellation after Biden had initially announced his intention to take the train.
CLEVELAND, Ohio (Jan. 13, 2021) — The leaders of two of the nation’s largest railroad worker unions urgently petitioned the Department of Homeland Security (DHS) in a letter Jan. 13 to enact a “No-Ride List” on passenger rail carriers after the deadly Jan. 6 insurrection in Washington D.C.
The International Association of Sheet Metal, Air, Rail and Transportation Workers — Transportation Division (SMART-TD) and the Brotherhood of Locomotive Engineers and Trainmen (BLET) demanded that the DHS take immediate executive action to tighten passenger rail security in line with aviation security overseen by the Federal Aviation Administration (FAA).
“Even as of this hour, the only real requirement for a person to board a train is simply to have a ticket; nothing more, nothing less. There is no screening process. There is no TSA. And there are no significant statutes or regulations to penalize those willing to interfere with a train’s crew or to do harm on a train, especially not when compared to the airline industry,” Presidents Jeremy R. Ferguson of SMART-TD and Dennis R. Pierce of the BLET said in their emergency order request.
SMART-TD and BLET urge that DHS implement a “No-Ride List” that mirrors FAA’s No Fly List immediately by expanding 49 U.S.C. §114(h) to include the Federal Railroad Administration (FRA) and passenger rail carriers.
“By granting an extension of the statute and giving access to the FRA and rail carriers, there will be, at minimum, a line of protection against those known to pose a threat from utilizing rail to manipulate the country’s transportation system, and it will mitigate against unwanted, aggressive interaction or attacks on train crews,” the presidents wrote.
The petition to DHS for an emergency order follows a similar petition sent Jan. 11 to FRA urging it to act to prevent security vulnerabilities and to protect those who ride — as well as the essential workers who operate — passenger rail service in and around the nation.
The SMART Transportation Division is comprised of approximately 125,000 active and retired members of the former United Transportation Union, who work in a variety of different crafts, including as bus and commuter rail operators, in the transportation industry.
The Brotherhood of Locomotive Engineers and Trainmen represents nearly 58,000 professional locomotive engineers and trainmen throughout the United States. The BLET is the founding member of the Rail Conference, International Brotherhood of Teamsters.
CLEVELAND, Ohio (Jan. 12, 2021) — The leaders of two of the nation’s largest railroad worker unions urgently petitioned the Federal Railroad Administration (FRA) and Department of Homeland Security (DHS) in a letter January 11 to prevent security vulnerabilities and to protect those who ride — as well as the essential workers who operate — Amtrak passenger rail service in and around the nation’s capital after the deadly Jan. 6 insurrection.
The International Association of Sheet Metal, Air, Rail and Transportation Workers — Transportation Division (SMART-TD) and the Brotherhood of Locomotive Engineers and Trainmen (BLET) demanded that FRA and DHS take immediate executive action to tighten security and enhance punishments, and to increase personnel to a level that brings passenger rail security more in line with aviation security overseen by the Federal Aviation Administration (FAA) as the threat of political violence swirls.
“Realizing years of neglect cannot be fixed overnight, we are demanding that significant changes to passenger rail protocol be granted immediately to protect against the imminent threat of danger that exists today,” Presidents Jeremy R. Ferguson of SMART-TD and Dennis R. Pierce of the BLET said. “It is our recommendation, as a minimal standard, that any regulation granted to prohibit the interference of a train crew’s duty be in line with that of aviation statutes and regulations.”
Suspected insurrectionists continue to threaten further violence as the transition to President-elect Joe Biden’s administration approaches next week. Some of these have been relegated to the No Fly List overseen by FAA, preventing them from traveling by air, but no such restriction exists for the national passenger rail network. SMART-TD and BLET urge that a “no-ride” list that mirrors FAA’s list be enacted immediately.
Similarly, train stations lack security. Absent the screening protocols similar to those provided by the Transportation Security Agency (TSA) at the nation’s airports, armed riders with malicious intent could board an Amtrak train with weapons, putting passengers and rail workers at risk of injury or death. To remedy this, SMART-TD and BLET call for an additional law enforcement presence in the form of Amtrak police or, if manpower is insufficient, requests the Department of Justice or Department of Homeland Security bring in U.S. Marshals or TSA agents to take measures approaching those enacted by the airline industry.
A proportional presence of workers in the passenger compartments of Amtrak trains similar to that in the airline industry, with at least one conductor or assistant conductor present per 50 riders aboard also can enhance safety and the response aboard the train if an emergency does occur.
“SMART-TD is committed to safety, and we will accept nothing less. Our men and women risk their lives every single day as critical infrastructure employees in the railroad industry,” Ferguson said. “They have no way of knowing if an individual is violent, armed, or much less already flagged as a known risk to safety via the TSA’s No Fly List. Every encounter could serve as an agitation or provocation of an already aggravated individual to attack.
“Our members deserve better and the traveling public deserves better. We are willing and able to work with all applicable agencies to achieve this goal, but it must be done today.”
“Railroad workers have continued to serve the needs of the traveling public during these difficult times,” BLET President Pierce said. “Our members are hardworking Americans who put their lives at risk each day in the performance of their duties. In the aftermath of the violence in our nation’s capital last week, our members and the traveling public deserve increased protection during this time of ongoing political unrest. We stand ready to assist FRA, TSA and Homeland Security to help ensure the safety of our members and the traveling public.”
The SMART Transportation Division is comprised of approximately 125,000 active and retired members of the former United Transportation Union, who work in a variety of different crafts, including as bus and commuter rail operators, in the transportation industry.
The Brotherhood of Locomotive Engineers and Trainmen represents nearly 58,000 professional locomotive engineers and trainmen throughout the United States. The BLET is the founding member of the Rail Conference, International Brotherhood of Teamsters.
Over the past 1.5 weeks, the Federal Railroad Administration has published several notices in the Federal Register. Below are portions of those postings, including: Drug and alcohol testing: Determination of minimum random testing rates for 2021 (notification of determination); Qualification and certification of locomotive engineers – miscellaneous revisions (final rule); Positive train control systems (notice of proposed rulemaking); and Fatigue risk management programs for certain passenger and freight railroads (notice of proposed rulemaking).
Drug and alcohol testing: Determination of minimum random testing rates for 2021 (notification of determination) – (published 12/15/2020)
FRA is announcing the 2021 minimum annual random drug and alcohol testing rates for covered service and MOW employees. For calendar year 2021, the minimum annual random testing rates for covered service employees will continue to be 25% for drugs and 10% for alcohol, while the minimum annual random testing rates for MOW employees will continue to be 50% for drugs and will be lowered to 10% for alcohol. Because these rates represent minimums, railroads and contractors may conduct FRA random testing at higher rates.
To set its minimum annual random testing rates for each year, FRA examines the last two complete calendar years of railroad industry drug and alcohol program data submitted to its Management Information System (MIS). FRA has also, however, reserved the right to consider factors other than MIS-reported data before deciding whether to lower annual minimum random testing rates. See 63 FR 71789 (Dec. 30, 1998).
Random testing rates for covered service employees
The rail industry’s random drug testing positive rate for covered service employees (employees subject to the Federal hours of service laws and regulations) remained below 1.0% for 2018 and 2019. The administrator has therefore determined the minimum annual random drug testing rate for the period January 1, 2021, through December 31, 2021, will remain at 25% for covered service employees. The industry-wide random alcohol testing violation rate for covered service employees remained below 0.5% for 2018 and 2019. Therefore, the administrator has determined the minimum random alcohol testing rate will remain at 10% for covered service employees for the period January 1, 2021, through December 31, 2021.
Random testing rates for MOW employees
MOW employees became subject to FRA random drug and alcohol testing in June 2017. See 81 FR 37894 (June 10, 2016). FRA now has MIS data for two full consecutive years of the industry-wide performance rates for MOW employees, 2018 and 2019. While FRA may lower the minimum random drug testing rate to 25% whenever the industry-wide random drug positive rate is less than 1.0 percent for two consecutive calendar years while testing at the 50% rate, FRA has reserved the right to consider other factors before deciding whether to lower annual minimum random testing rates. See 63 FR 71789 (Dec. 30, 1998).
As illustrated in the figures in the appendix below, in contrast to the drug testing positive rate for covered service employees that remained substantially below 1.0% for 2018 and 2019, the random drug testing positive rate for MOW employees is not only trending upwards, but also approaching the 1.0% positive rate threshold at which point the administrator will raise the drug testing rate under 49 CFR 219.625(d)(2). Specifically, the industry-wide random drug testing violation rate for MOW employees increased from 0.69% in 2018 to 0.8% in 2019, and MOW employees continue to have a higher positive testing rate than covered service employees. The Administrator further notes that MOW employees who were performing duties for a railroad before June 12, 2017, were exempted from the pre-employment drug testing requirement. See49 CFR 219.501(e). As such, some MOW employees may remain who have never been subject to FRA drug testing because they have not yet been randomly selected.
Taking these factors into consideration, the administrator finds it is currently not in the interest of railroad safety to lower the random drug testing rate for MOW employees. Therefore, for the period January 1, 2021, through December 31, 2021, the administrator has determined that the minimum annual random drug testing rate will continue to be 50% for MOW employees.
Because the random alcohol testing violation rate for MOW employees remained substantially below 0.5% for 2018 and 2019, and has been trending downwards, the administrator has determined that the minimum annual random alcohol testing rate will be lowered to 10% for MOW employees for the period January 1, 2021, through December 31, 2021.
Qualification and certification of locomotive engineers; miscellaneous revisions (final rule) – published 12/15/2020
FRA is revising its regulation governing the qualification and certification of locomotive engineers to make it consistent with its regulation for the qualification and certification of conductors. The changes include: Amending the program submission process; handling engineer and conductor petitions for review with a single FRA review board (Operating Crew Review Board or OCRB); and revising the filing requirements for petitions to the OCRB. To ensure consistency throughout its regulations, FRA is also making conforming amendments to its regulations governing the control of alcohol and drug use, and the qualification and certification of conductors. The changes would reduce regulatory burdens on the railroad industry while maintaining the existing level of safety.
This regulation is effective January 14, 2021.
On May 9, 2019, FRA issued a notice of proposed rulemaking (NPRM) to amend title 49 Code of Federal Regulations (CFR) part 240, Qualification and Certification of Locomotive Engineers (part 240). In response to that NPRM, FRA received three written comments.
This final rule responds to those comments and amends part 240 by: Making part 240 more consistent with the language in 49 CFR part 242, Qualification and Certification of Conductors (part 242); creating two provisions under which railroads may issue temporary locomotive engineer certifications; merging FRA’s locomotive engineer and conductor review boards; adopting aspects of part 242 for locomotive engineer certification; providing labor representatives with the ability to provide input on a railroad’s part 240 program; and allowing for and encouraging the use of electronic document submission of a railroad’s part 240 program. This final rule also makes technical amendments to part 242 to: (1) Make the requirement for calibration of audiometers used during hearing tests for conductors the same as the requirement in part 240 for locomotive engineers; and (2) conform the definition of “main track” in part 242 to the definition of “main track” in part 240.
Additionally, this final rule makes conforming amendments to title 49 CFR part 219, Control of Alcohol and Drug Use (part 219) to update two cross-references to part 240. Updating these references is necessary to ensure consistency between part 219 and part 240, as amended.
The final rule will create new costs. First, each locomotive engineer certification manager will need to review the amendments made to part 240 to ensure compliance is maintained. Second, amendments to part 240 will require each railroad to provide a copy of its part 240 plan to the president of each labor organization whenever the railroad files a submission, resubmission, or makes a material modification to its plan. Third, a railroad will need to maintain service records for certified locomotive engineers who are not performing service that requires locomotive engineer certification. For the 20-year period of analysis, the cost of the final rule will be $233,779 (undiscounted), $171,764 (PV 7%), and $200,775 (PV 3%).
The final rule will also create cost savings. First, adding clarity in part 240 and conforming language in part 240 to part 242 will reduce stakeholder burden related to review and compliance with part 240. Second, it will reduce the burden on a railroad when providing another railroad with information about a former employee’s prior service records. Third, it will update the program submission process to allow for electronic document submission, which will reduce stakeholder paperwork and submission costs related to part 240 program submissions and locomotive engineer certification petitions. Fourth, it will remove the requirement for railroads to obtain a waiver from the annual testing requirements for certified locomotive engineers who are not performing service that requires certification. For the 20-year period of analysis, the cost savings of the final rule will be $12.3 million (undiscounted), $6.9 million (PV 7%), and $9.4 million (PV 3%).
As shown in Table ES.1, the regulatory evaluation quantifies the economic impact of the final rule in terms of cost savings and new costs accruing to stakeholders. For the 20-year period of analysis, the final rule will result in a net cost savings of $12.0 million (undiscounted), $6.8 million (PV 7%), and $9.2 million (PV 3%). This final rule is an Executive Order (E.O.) 13771 deregulatory action. Details on the estimated costs of this final rule can be found in the rule’s economic analysis.
The final rule will create benefits. First, the final rule will amend the part 240 program submission process to require railroads to solicit labor input, providing for fully informed decisions by railroads. Second, it affords railroads additional time and flexibility to comply with some regulatory requirements. Third, it creates certain provisions that allow for temporary locomotive engineer certificates. Fourth, electronic filing will make information more accessible to interested stakeholders and the public. Because FRA lacks sufficient information related to these four benefits, this analysis could not accurately quantify these benefits. Therefore, the rule’s economic analysis qualitatively explains benefits.
The final rule will also reduce Governmental administrative costs, including mailing, filing, and storing costs related to amendments to part 240, by allowing the Government and stakeholders to transmit and store documents electronically.
Positive train control systems (notice of proposed rulemaking) – published 12/18/2020
FRA is proposing to revise its regulations governing changes to positive train control (PTC) systems and reporting on PTC system functioning. First, recognizing that the railroad industry intends to enhance further FRA-certified PTC systems to continue improving rail safety and PTC technology’s reliability and operability, FRA proposes to modify the process by which a host railroad must submit a request for amendment (RFA) to FRA before making certain changes to its PTC Safety Plan (PTCSP) and FRA-certified PTC system. Second, to enable more effective FRA oversight, FRA proposes to: Expand an existing reporting requirement by increasing the frequency from annual to biannual; broaden the reporting requirement to encompass positive performance-related information, not just failure-related information; and require host railroads to utilize a new, standardized Biannual Report of PTC System Performance (Form FRA F 6180.152). Overall, the proposed amendments would benefit the railroad industry, the public, and FRA, by reducing unnecessary costs, facilitating innovation, and improving FRA’s ability to oversee PTC system performance and reliability, while not negatively affecting rail safety.
Written comments must be received by February 16, 2021. FRA believes a 60-day comment period is appropriate to allow the public to comment on this proposed rule. FRA will consider comments received after that date to the extent practicable.
Comments: Comments related to Docket No. FRA-2019-0075 may be submitted by going to http://www.regulations.gov and following the online instructions for submitting comments.
Instructions: All submissions must include the agency name, docket number (FRA-2019-0075), and Regulation Identifier Number (RIN) for this rulemaking (2130-AC75). All comments received will be posted without change to https://www.regulations.gov; this includes any personal information. Please see the Privacy Act heading in the SUPPLEMENTARY INFORMATION section of this document for Privacy Act information related to any submitted comments or materials.
Docket: For access to the docket to read background documents or comments received, go to https://www.regulations.gov and follow the online instructions for accessing the docket.
Fatigue risk management programs for certain passenger and freight railroads (notice of proposed rulemaking) – published 12/22/2020
Pursuant to the Rail Safety Improvement Act of 2008, FRA proposes to issue regulations requiring certain railroads to develop and implement a Fatigue Risk Management Program, as one component of the railroads’ larger railroad safety risk reduction programs.
Written comments must be received by February 22, 2021. Comments received after that date will be considered to the extent practicable without incurring additional expense or delay.
Comments related to Docket No. FRA-2015-0122 may be submitted by going to http://www.regulations.gov and follow the online instructions for submitting comments.
Instructions: All submissions must include the agency name, docket name and docket number or Regulatory Identification Number (RIN) for this rulemaking (2130-AC54). Note that all comments received will be posted without change to http://www.regulations.gov, including any personal information provided. Please see the Privacy Act heading in the SUPPLEMENTARY INFORMATION section of this document for Privacy Act information on any submitted comments or materials.
This proposed rule is part of FRA’s efforts to improve rail safety continually and to satisfy the statutory mandate of Section 103 of the Rail Safety Improvement Act of 2008 (RSIA). That section, codified at 49 U.S.C. 20156, requires Class I railroads; railroad carriers with inadequate safety performance (ISP), as determined by the Secretary; and railroad carriers that provide intercity rail passenger or commuter rail passenger transportation to develop and implement a safety risk reduction program to improve the safety of their operations. The section further requires a railroad’s safety risk reduction program to include a “fatigue management plan” meeting certain requirements.
This proposed rule, if finalized, would fulfill RSIA’s mandate for railroads to include fatigue management plans in their safety risk reduction programs by requiring railroads to develop and implement Fatigue Risk Management Programs (FRMPs). As proposed, a railroad would implement its FRMP through an FRMP plan.
Under this proposed rule, consistent with the mandate of Section 20156, an FRMP is a comprehensive, system-oriented approach to safety in which a railroad determines its fatigue risk by identifying and analyzing applicable hazards and takes action to mitigate, if not eliminate, that fatigue risk. As proposed, a railroad would be required to prepare a written FRMP plan and submit it to FRA for review and approval. A railroad’s written FRMP plan would become part of its existing safety risk reduction program plan. A railroad would also be required to implement its FRA-approved FRMP plan, conduct an internal annual assessment of its FRMP, and consistent with Section 20156’s mandate, update its FRMP plan periodically. As part of a railroad safety risk reduction program, a railroad’s FRMP would also be subject to assessments by FRA.
As we find ourselves amid what is historically the most dangerous season of the year, I must unfortunately caution you of new additional intensified dangers borne from the Federal Railroad Administration’s (FRA) most recent Final Rulemaking. On Friday, December 11, 2020, the FRA granted an extensive and exhaustive list of regulation changes, the vast majority of which served to lower the bar of safety and increase the profit margin for this nation’s rail carriers. This is evidenced in the no less than two dozen references of cost savings to the carriers as a result of this rulemaking. Not only has the FRA once again vacated its role as the country’s chief safety regulator, but it has also failed in its own mission statement, vision, and purpose.
As you are aware, a known unsafe condition exists with the DB-10 brake valves in cold weather conditions. In fact your Union, on December 15, 2019, petitioned the FRA to issue an Emergency Order that would prioritize safety over productivity by requiring the replacement of the defective valves and disallow the railroads’ attempts to apply stopgap procedures that only camouflage and exacerbate the seriousness of the situation. That petition was unfortunately denied by the FRA muzzling our request for the safest course of action.
Due to the FRA’s reckless action, rolling stock is now permitted to be off-air for 24 hours before requiring a new brake inspection. This means that the only true method of identifying the faulty brake valves has been reduced immeasurably, if not eliminated altogether on certain properties. As a result, the regularity of brake inspections has now been reduced to a fraction of the previous standard, and, thus defective brake valves will be permitted to remain in service longer and be more apt to adversely affect a train’s braking capabilities. Given the consequence of these faulty valves remaining in place is that they render a train’s emergency brake feature inoperative, I am asking all to please remain diligent in your daily duties and to take nothing for granted. This includes railroad workarounds designed to mask flawed brake valves like drawing the brake pipe pressure down to zero before making a separation. Should a carrier official ask you to perform such a task, please notify my office as soon as it is safe and proper to do so, so that we may address it with the carrier and applicable government agencies.
The railroads have historically had trouble maintaining an accurate record of when a train or car(s) initiates its “off air” status (and that was with the four-hour limit). I highly anticipate major complications regarding the determination of actual time off air when going on-duty or making a pick-up. If you feel as though you are being instructed to move equipment that has been off air greater than twenty-four hours, please report it to your supervisor and to my office. Do not be insubordinate, but also do not allow the instance to go unreported or undocumented. We will progress the report accordingly.
In addition to the time off-air regulation, the FRA has also made changes to regulations regarding single-car air brake tests, end-of-train devices, helper service, brake maintenance, additional brake-related items, utility employee duties, and various other rules and/or processes.
It is clear the intent of these changes was not to improve safety, but rather to widen the avenue in which railroads can operate without oversight or guidance – a devastating scenario we just experienced with the Boeing 737 Max. As such, please rest assured that our legal department is currently in the process of filing a formal appeal and petition of reconsideration to overturn this extremely dangerous and egregious action. However, until a recourse can be achieved, it is on all of us to have our brothers’ and sisters’ backs. It is clear that the FRA and carriers do not.
Jeremy R. Ferguson
President – Transportation Division
The Federal Transit Administration (FTA) posted its 2021 drug and alcohol testing rates in the Federal Register Nov. 24. According to the notice, the minimum random drug testing rate will remain at 50%, while the random alcohol testing rate will remain at 10% for the year. The notice applies to employers subject to 49 CFR part 655. The rates are effective January 1, 2021.
In its preliminary financial report, Amtrak said that the COVID-19 pandemic has reduced ridership on the national passenger carrier by about 75% from pre-COVID levels.
While Amtrak leadership expects a slow rebound in ridership, with forecasts seeing an increase to about 40% of pre-pandemic levels by the close of the 2021 fiscal year as COVID-19 abates, the coronavirus has been a massive shock to the carrier.
Members of SMART-TD and other labor unions rallied in late September urging Congress to avoid Amtrak job cuts.
“Our dedicated employees continue to work tirelessly through the pandemic to keep this country moving, advance critical infrastructure and update technology and services, and provide safe transportation to customers,” said Amtrak President & CEO William Flynn. “However, without additional funding for 2021, we will be forced to further reduce service, defer critical capital projects and make more job reductions despite this important progress.”
The Republican-controlled Senate did not act on a pair of bills — the HEROES Act and the Moving Forward Act — passed by the U.S. House of Representatives that would have provided additional emergency funding for Amtrak to maintain employment and service levels as the nation continues to cope with the coronavirus. Instead, funding was maintained at 2020 levels by Congress.
WASHINGTON – U.S. Senators Rob Portman (R-Ohio) and Amy Klobuchar (D-Minn.) introduced S. 4860, the Railroad Employee Equality and Fairness Act or the REEF Act, which would end the sequester on the Railroad Retirement Board’s (RRB) Unemployment Insurance Account. Due to the Budget Control Act of 2011, and a subsequent sequestration order to implement mandated spending cuts, railroad unemployment benefits have been reduced by a set percentage that is subject to revision at the beginning of each fiscal year. Currently, the sequester, as it relates to the RRB, continues until fiscal year 2030. Without this legislation, it is expected that the sequestration will result in a 5.7 percent reduction in railroad unemployment benefits through fiscal year 2030.
Since most interstate railroad workers’ payroll taxes are diverted to the RRB, unemployed railroad workers are not eligible for federal unemployment insurance benefits, which was not subject to the sequester. This resulted in railroad workers taking a cut in expected benefits that the general public was not subject to. This is particularly concerning during the ongoing COVID-19 pandemic. In 2019, the RRB received 35,030 unemployment claims. As of September 2020, it has received 133,899 claims, nearly a fourfold increase.
“I’m proud to introduce this bipartisan legislation to ensure that unemployed railroad workers receive fair and equal unemployment benefits. This legislation would remove the harmful sequester that largely singled out railroad workers’ unemployment benefits during the ongoing COVID-19 pandemic. The impact of the sequester has meant these railroad workers have not received the full unemployment insurance benefits that are due to them. The COVID-19 pandemic has caused nearly five times as many Ohio railroad workers to lose their jobs through no fault of their own and I urge my colleagues to join me in ensuring they are eligible for the same full unemployment benefits as all Americans,” said Portman.
“Our workers are facing enormous challenges due to the coronavirus pandemic and railroad workers have been hit particularly hard,” Klobuchar said. “This legislation ensures railroad employees are eligible for the same benefits as other workers and will help them get through these trying times.”
S. 4860 was read twice before the Senate Oct. 26 and referred to the Committee on the Budget. No other actions have taken place.
SMART-TD retiree Gregg Weaver, left, and his wife Carol wear SMART “Blue Collar Biden” shirts as they watch Democratic presidential candidate former Vice President Joe Biden speak Saturday, Oct. 24, in Bristol, Pa.
SMART representatives had a front-row seat as Democratic presidential candidate former Vice President Joe Biden spoke Oct. 24 at Bristol Community College in Bristol, Pa.
SMART-TD New Jersey State Legislative Director Ron Sabol and Gregg Weaver, a retired TD Local 838 member and former Local 1390 officer who served as a conductor for many Amtrak rides taken by Biden, were in the front row at the “drive-in” rally that was broadcast live on CNN from the town outside Philadelphia.
“What we heard from Joe Biden today was a concrete plan,” Sabol said. “He has a strategy to address the virus. He has a plan to repair the economy. He has ideas and has a strategy to make things better going forward with a focus on transportation and infrastructure.”
Weaver, who worked the rails on both the passenger and freight side with Conrail for 42 years, said Biden has proven his concern for the working people. Weaver’s son, Blake, a Local 838 member, followed in his father’s path and has been an Amtrak conductor for more than 16 years.
Gregg Weaver, a retiree from TD Local 838, and his son Blake, a member of TD Local 838 and an Amtrak conductor, attend Joe Biden’s rally on Saturday, Oct. 24.
“Everybody wants to talk to him (Joe Biden) after the speech – there were politicians, the big-money donors who have millions,” Weaver said. “He didn’t go after the big donors. He picked a blue-collar working man to come talk to him. He has time for us.”
Biden addressed the COVID pandemic at the outset, mentioning that the country had set a record for daily cases with more than 80,000. The Biden campaign has observed social-distancing and mask protocols at its rallies to avoid the transmission of COVID-19. Most of the attendees participated in the rally from their cars, honking their horns in unison to show appreciation during the speech.
“I will shut down the virus, not the economy,” Biden said. “We can build back better.”
With just days until Election Day, Biden’s speech touched upon a number of union-related issues, such as infrastructure, the gigantic $1.5 trillion corporate tax cuts in late 2017 that remain the signature legislative accomplishment of the current administration and the worsening COVID-19 pandemic.
“This guy’s not on the level. He thinks Wall Street built thus country,” Biden said. “You and I know who built this country … working people built it — the middle class, and unions built the middle class.”
In the April 2018 SMART Transportation Division News reported how Class I rail carriers reaped great benefits from those Republican tax cuts.
Union Pacific (UP) received a $5.8 billion boost. CSX saved $3.6 billion, Norfolk Southern (NS) about $3.48 billion and Kansas City Southern (KCS) $488 million. BNSF, a Berkshire Hathaway subsidiary, reported in its Form 10-K filing to the U.S. Securities and Exchange Commission that it received a tax benefit of $7.4 billion. Savings for the two Canadian-based Class I railroads also increased, reported at $1.4 billion (U.S.) for Canadian National (CN) and about $406 million (U.S.) for Canadian Pacific.
“Vice President Biden understands where working people are coming from. He’s been there. He knows what kind of struggle the working people of country are going through,” Sabol said. “With Biden, SMART members, labor and the middle class will absolutely have a seat at the table.”
Today, thousands of SMART members and other unionized essential frontline employees still are waiting for additional assistance and protections that are being blocked by the Republican-controlled Senate. For others, enhanced unemployment and sickness benefits that were in effect and a lifeline early in the pandemic have expired.
“How many [parents] a day can look at their kids and say with confidence, ‘everything’s going to be OK’ and mean it?” Biden asked. “Times are hard. Unemployment is way up. Folks are worried about making their next rent or mortgage payment, whether their health care will be ripped away in the middle of a pandemic. Worried about sending their kids to school … worried about not sending them to school.
“They see folks at the top doing much better while the rest are wondering who’s looking out for me. That’s Donald Trump’s presidency.”
Legislation to help union workers such as the HEROES Act and the Moving Forward Act has been stopped by Trump and his Republican allies, including Majority Leader Mitch McConnell in the Senate.
Attendees of the Joe Biden rally in Bristol take a group photo before the former vice president’s speech. From left are Mary Kate Weaver; Carol Weaver; TD Local 838 retiree Gregg Weaver; Tyler Hutchinson; SMART-TD New Jersey State Legislative Director Ron Sabol and TD Local 838 member Blake Weaver.
Weaver reminds his SMART-TD brothers and sisters that railroaders especially need to keep in mind that their benefits are vulnerable to the whims of Capitol Hill.
A vote for Trump and for his Republican allies is opening the door for workers’ health care, jobs and pensions to be targeted, he said. Children would be off their parents’ health coverage at age 18 instead of being covered until age 26 under the Affordable Care Act.
Weaver said a vote for Democrats would protect union jobs and railroaders. Biden would not be hostile to Amtrak, whereas Trump and Republicans have habitually tried to cut funding for the national passenger rail network.
“Joe Biden has got their backs. He’s not going to make things worse for them,” Weaver said. “There will be a lot less fighting with the Democrats than with the Republicans.”
Biden gave a brief outline of his economic recovery plan — taxes would not be raised on any family making less than $400,000, while making corporations pay their fair share.
“It’s time for working people and the middle class to get tax relief,” Biden said.
He also said his administration would focused on job creation and education.
“We’re going to create millions of union jobs modifying the infrastructure to modernize it, “ he said.
Biden also emphasized in the speech that he is not banning fracking, an accusation leveled by Trump lately on the campaign trail.
Amtrak’s financial situation and the freight rail industry’s continued use of Precision Scheduled Railroading (PSR) practices were the focus of a U.S. Senate Commerce Committee hearing Oct. 21.
Amtrak President and CEO William Flynn repeated his plea for almost $5 billion in emergency funding to help the nation’s passenger carrier weather the continued downturn in ridership caused by the COVID-19 pandemic. The carrier has made drastic long-distance service cuts, going from daily to three trips per week on many routes. Furloughs for almost 2,000 Amtrak employees are scheduled to take effect in November.
“Virtually all of the CARES Act money has been spent,” Flynn told the committee. “These workforce adjustments are essential with current financial funding.”
A number of legislative actions, including the HEROES Act and the INVEST in America Act, while passed by the U.S. House of Representatives, have been stalled by Majority Leader Mitch McConnell in the GOP-controlled Senate. The emergency funding provided by such legislation would help the carrier rebound, Flynn said.
“Once the pandemic eases, Amtrak plans to grow,” he said.
A second panel featured a discussion of PSR.
Rudy Gordon, CEO of the National Grain and Feed Association, expressed concerns from a shipper perspective about the redeployment of furloughed railroad workers, saying that he fears delays in service and shipments on the part of rail carriers when the economy rebounds.
PSR has caused “a tipping point” at the expense of customer service, Gordon said, and said that if rail service erodes further at the expense of the carriers obtaining lower operating ratios (ORs) that the Surface Transportation Board should intervene.
“Across the sector, the pandemic continues to wreak havoc, threatening both the health and livelihoods of employees,” Willis stated. “At the same time, freight railroads, at the insistence of Wall Street investors and hedge fund managers, have pursued operating practices that undermine basic tenets of rail safety, ask frontline workers to do more with less, and threaten the reliable and efficient customer service that should be the hallmark of this industry.”
The lone labor representative invited to testify in person was Dennis Pierce, president of the Teamsters Rail Conference.
Other industry stakeholders appearing were:
Paul Tuss, executive director, Bear Paw Developing Corporation and Member, Montana Economic Developers Association
Frank Chirumbole, vice president global supply chain, Olin Corporation on behalf of American Chemistry Council
Kent Fountain, chairman, National Cotton Council
Ian Jefferies, president and chief executive officer, Association of American Railroads
On Wednesday, Sept. 30, members of SMART Transportation Division led the way, along with members of the BLET and TCU/IAM,uniting in cities across America to spread awareness about cuts coming to Amtrak if the Senate fails to act now.
On Sept. 9, Amtrak President and CEO William Flynn appeared before a U.S. House committee saying that the carrier needs approximately $5 billion in emergency funding to deal with the effects of the COVID-19 pandemic.
If no additional funding is provided by the federal government, the carrier has announced cuts, effective Oct. 1, of approximately 2,000 unionized employees and a planned reduction of service that would hit long-distance and state-run routes that serve rural areas especially hard.
Rallies were scheduled by SMART-TD and other unions to take place a day before the planned cuts in four major cities: Washington, D.C., New York City, Chicago and Los Angeles.
In a show of supportfor Amtrak funding and in an effort to raise awareness, Wisconsin State Legislative Director Andy Hauck and Michigan State Legislative Director Donald Roach, with the help of Local 168 member Nate Hatton (Dearborn, Mich.),also led the members in conductingpop-up rallies in Milwaukee and Dearborn, Mich., respectively.
SMART-TD President Jeremy Ferguson accused Amtrak management of setting up the nation’s major passenger carrier to fail at the rally in Chicago, “They [Amtrak’s Flynn and his board] want to take Amtrak and reduce it to a three-day-a-week service for a long-haul with a two-day layover here in Chicago when you’re trying to go from New York to L.A. How is that fair to the ridership? There’s no way that’s going to survive. That’s set up to fail. The couplets aren’t there. They can’t keep people moving. They’re setting us up to fail.”
Ferguson continued to address the assembled crowd, “We bust our butts, day in and day out, to give our country this service, and this is what the board wants to do. Now you guys have gone one step further, you Amtrak employees. You voted to waive off your pay increase this past July. You did what was best for this country and for Amtrak, didn’t you? How did you get repaid? With the threat of furlough tomorrow, right? Twothousand people could be in the streets tomorrow!”
Ferguson also pointed out that Amtrak management is restarting their salaries and 401(k) contributions coinciding with the Oct. 1 scheduled implementation date of furloughs of 2,000 union members. He also stated that Amtrak management has restructured their bonus program to better benefit themselves.
“We’re not going to take that! We’re not going to stand for that! Not when you gave up your pay raises to protect this country and this service! Unheard of! So, let’s get busy out there! Let’s get fired up!”
Meanwhile, at a rally outside the U.S. Capitol building, SMART General President Joe Sellers gave a rousing speech to the crowd featuring many members employed by Amtrak who might lose their jobs.
“You are our essential workers. You are moving our essential workers. Every day, to the hospitals, to the first responders, to the police. You are moving America! We need to continue to make sure that you have the funding, to continue to make sure that you continue to move America through this pandemic! We need you! And we need Congress to make sure that they pass the HEROES Act.”
Sellers pointed out that the HEROES Act, or H.R. 6800, was relaunched on May 15, 2020, and has yet to be voted on by the U.S. Senate. “We need to make sure that the new relaunched HEROES Act is passed. To protect you. To protect essential workers. To protect the job that you do, day in and day out,” Sellers said.
Sellers concluded his fiery speech by thanking our essential Amtrak members, “I want to thank you for the work that you do, and Congress should be thanking you for the work that you do day in and day out! We need the Senate to make sure that they take this seriously. The White House is dragging their feet. The Senate is dragging their feet. That is unacceptable! Thank you, brothers and sisters. We are going to make a difference and we are going to effect change. We are going to effect change in November, and we are going to carry this through.”
SMART-TD Alternate National Legislative Director Jared Cassity was also featured in a report that aired on Fox 5 News in D.C. at the rallyand U.S. Reps. Tim Ryan of Ohio and Stephen Lynch of Massachusetts also spoke at the rally.
New York City and Los Angeles, Calif.
General Chairperson Anthony Simon (Long Island Railroad) and Scott Carey, legislative representative of Local 95 (Albany, N.Y.), took part in a rally with BLET and TCU members outside Penn Station, while California State Legislative Director Louis Costa led a morning demonstration in front of L.A.’s Union Station.
In Dearborn, Hatton told the Arab American News, “This is a slap in the face to all the essential workers who have been serving the public throughout the pandemic — sacrificing their health and time with their families and loved ones. In 2019, we moved a total of 1,540,972 passengers on the Michigan Corridor. In Dearborn alone, we boarded and deboarded 73,589 passengers. When this pandemic first began, we were told not to wear masks or gloves as it would frighten passengers, while management was told to work from home. As a union, in good faith, we decided to give up pay to help the company only now to be furloughed.”
SLD Donald Roach also pointed out to the news outlet that H.R. 2, the Moving Forward Act,which included funding for Amtrak, passed the House on July 1 and has stalled on U.S. Senate Majority Leader Mitch McConnell’s desk.
“This cut from Amtrak is not just employees being furloughed, it’s reducing service from three trains a day in both directions, east and west, to one train a day to Chicago and the shutdown of the Grand Rapids–to–Chicago line,” Roach said.
Local 168 member Joel Myers was there rallying along with one of his two children. Myers stands to lose a lot if furloughed with one of his sons currently going through chemotherapy treatments.
“If we are all furloughed, we will need to figure out how to keep food on the table for our families,” Hattontold the Arab American News. “We will be losing a great public utility. This will greatly impact Dearborn and the Metro Detroit area as this is a mode of transportation that people rely on.”
In Wisconsin, SMART members along with All Aboard Wisconsin boarded the Amtrak Empire Builder and rode to Wisconsin Dells, SLD Andy Hauck told SMART-TD. “We had press coverage at both locations and an event in Wisconsin Dells. The train crew was excellent. [The riders] included six legislators and prospective legislators that SMART-TD has supported.”
The rallies caught the notice of Democratic presidential candidate Joe Biden, who embarked on a whistle-stop tour aboard an Amtrak train that departed from Cleveland the day after the first presidential debate and later went into Pennsylvania.
“It’s safe to say I’ve gotten to know the hardworking men and women of @Amtrakover the years — I’m proud to stand with them as they face furloughs due to funding cuts. These essential workers have kept us moving during this pandemic –– now it’s time we have their backs,” Biden’s tweet the evening of Sept. 30 read.
SMART-TD is urging members to contact Congress about passing emergency funding for Amtrak. Not only are the livelihoods of SMART and other union members at stake, but Railroad Retirement will also take a huge hit to its funding if these layoffs stick.