STB Late Trains Case Should Be Worth the Wait

By Jim Mathews / President & CEO

The Surface Transportation Board won’t make a finding on Union Pacific’s responsibility for the Sunset Limited’s horrible delays until at least the first quarter of next year – as much as 15 months after Amtrak first filed its complaint, the Board’s Sunset investigation schedule suggests.

Moreover, a second phase to assess damages might not be complete until close to the end of 2024.

And regardless of the outcome, UP says it plans to challenge STB’s authority to award damages in connection with metrics and standards investigations, claiming the PRIIA law’s language granting STB that authority is unconstitutionally vague.

What does it all mean? It seems that both Amtrak and the freights may be girding for yet-another epic, costly, and prolonged legal battle over the metrics and standards guaranteeing passengers’ rights to be on time, which themselves only took effect at the end of 2020 after some 15 years of litigation that included two trips to the Supreme Court.

Fortified by the strong new customer-service rules, Amtrak filed a blunt attack last December on the pervasive delays plaguing long-distance trains, fingering dispatching practices and the reliance on extra-long freight trains driven by precision-scheduled railroading, or PSR.

The freight railroads are fighting back like cornered honey badgers. And it’s no wonder. A look at the initial round of questions STB has posed to all the big players in this case suggests that they’ll be looking at a lot more than just a disputed schedule. Two long-festering controversies will effectively be on trial in this proceeding: one, who’s really to blame for chronic lateness and two, whether extra-long trains can ever be made to work for shippers and passengers as well they do for accountants and investors.

STB will be putting the accuracy of Amtrak’s internal recordkeeping under the microscope, probing deeply into how Amtrak counts late minutes and assigns blame. But perhaps even more far-reaching are STB’s raft of questions to UP about sidings, siding lengths, and management decision-making, which would seem to get to the very heart of the freight railroads’ reliance on extra-long trains without enough sidings to handle them. That core feature of the Class I railroads’ recently evolved business model often makes it physically impossible for the freight carriers to comply with the nearly 50-year-old law compelling those railroads’ freight trains to make way for Amtrak.

Despite pleas for a speedy proceeding – from Amtrak, the U.S. Dept. of Transportation, the Federal Railroad Administration, and your Association – it looks as if STB is gearing up for an investigation that will look far beyond Union Pacific’s simple and undisputed violation of the standards. Instead, a wide-ranging probe would seem to be on offer, whose scope will demand significant time and care. Though time-consuming, it will develop a robust evidentiary record, answering the crucial questions of not just whether Union Pacific is chronically delaying those passengers, but how and why.

And as one of those who has clamored loudly for rapid intervention in this dispute, I will be the first to admit that even though I wish this wasn’t going to drag on so long, I’m very encouraged by the depth and detail of STB’s questions to all sides. It seems that after nearly two decades of finger-pointing and he-said-she-said, a neutral body with legal authority finally is going to get to the bottom of some of the most persistent questions surrounding late trains and the freights’ responsibilities to honor passengers’ legal right to be on time. On balance, this will be a good thing.

What STB Has Already Decided

In its decision last week to conduct a formal PRIIA Section 213 probe of the terrible on-time performance of Amtrak’s Union Pacific-hosted Sunset Limited route, STB accepted Amtrak’s petition to open an investigation, but rejected Amtrak’s proposed 60-day investigation and proceeding timeframe.

The Board also rejected UP’s request for mediation in place of this proceeding, and decided it will impose a document preservation/retention order to the freight railroads, asking Amtrak to draft and submit that order to STB.

The Board also partly rejected a Union Pacific proposal – which BNSF, Canadian National, and the American Association of Railroads all supported – that the Board use the same trial-like procedure it used ten years ago to examine CN’s performance with Amtrak routes. That proceeding relied on the parties, rather than STB staff, to use traditional legal discovery processes to build up the factual record by themselves.

“The Board’s approach here contains both the critical elements of the [2013] CN Investigation procedural schedule that the freight railroads have requested and a Board-led component,” STB said in its order. STB reasoned that not only do the new PRIIA metrics and standards that took effect in 2021 include investigative requirements, but the Board now has a staff of investigators prepared to carry out the investigation as envisioned in those new rules.

“The Board concludes that certain aspects of the data and information development in this proceeding should be directed by the Board rather than the parties, as there have been significant developments in the regulatory structure and data environment related to” on-time performance since the CN investigation, STB said in its order.

“Over ten years have passed since the procedural schedule in CN Investigation was ordered. In that time, Congress directed the agency to create a passenger rail program ‘with primary responsibility for carrying out the Board’s passenger rail responsibilities,’” the Board said, referring to the Investment in Infrastructure and Jobs Act (IIJA), which President Biden signed into law in November 2021 as the Bipartisan Infrastructure Law.

Not only has STB set up a new Office of Passenger Rail to carry that out, but it has also “continued to develop data expertise within its Office of Economics, which now has a Section of Data Analytics,” the Board said in its order. “In addition, pursuant to FRA Metrics, unprecedentedly detailed passenger train performance data are now publicly available from FRA, with statistics covering service quality, OTP, financial metrics, run-time metrics, station-specific performance, and delays. Access to this data and the Board’s increased capabilities regarding data analytics and passenger rail will enable the Board to further focus the investigation.”

The Board used those additional legal authorities, internal capabilities, and public data to “guide development of the record” and to shape the precise and hard-hitting questions now being put before all the parties.

What STB Wants to Know

STB staff posed a comprehensive – though not necessarily final – set of questions to Amtrak, Union Pacific, BNSF, CN, the New Orleans Public Belt Rail Corp. (NOPB), and the Southern California Rail Road Authority (SCRRA), with answers due by August 18th. In addition, by Tuesday, July 18th, all the parties must submit a list of all stations and mileposts along the Sunset Limited route to STB using a standardized naming and numbering convention.

This formal list of questions, which lawyers call “interrogatories,” includes hard-hitting questions to all sides, including a few that passenger advocates have asked among themselves for many years about dispatching protocols, the availability of passing sidings, and the details around adhering to the 45-year-old legal requirement to give passenger trains preference.

STB staff posed 44 specific questions to Amtrak under six broad categories: Delay causes and treatments; Delays to the Sunset Limited in the Relevant Period; Data Accuracy; Internal Controls for Data Quality Assurance; Scheduling, and; Improving Service, Quality, and On-time Performance.

For example, STB wants “further explanation” of each delay Amtrak cited in its December complaint and wants to understand what kinds of plans Amtrak has to “proactively minimize the consequences of planned and/or anticipated delays.” The Board staff also asked whether Amtrak maintained a fully operable reserve train set at either end of the Sunset route and wants to see conductors’ own delay reports as entered.

The first question to Amtrak under Data Accuracy involves customer on-time performance data: “Provide all standard operating procedures, employee training manuals, guidelines, instructions, and other relevant materials that describe the processes for gathering, calculating, recording, and storing on-time performance and station-by-station alighting traffic data, and all other data submitted to FRA on a quarterly basis. Documentation should also include how often the data is updated, who is responsible for updating the data, and /or the systems used.”

They’ve asked Amtrak for similarly detailed information on train delay data, data review and revisions of delay data, documentation around host-railroad delay disputes, and deviations from delay dispute protocols.

It also seems STB staff want to know why the run times in Amtrak’s December complaint don’t jibe with the FRA’s revised run-time metric workbooks. Fiscal 2022’s third-quarter run-time summary for the Sunset showed a scheduled run time of 4,005 minutes – just under 67 hours – while the Schedule Skeleton Amtrak included in its complaint to STB showed 2,795 minutes, or just over 46 hours. That’s nearly a full day’s difference.

“Explain if the need for changes resulted from errors on Amtrak’s part, and if so, explain the steps subsequently taken to prevent their recurrence,” STB asked Amtrak. “In addition, review your Run Time data for the Relevant Period (all worksheets and parameters) and identify any remaining needed changes, in Amtrak’s view. Produce revised data workbooks with changed run times.”

There are four more questions about how carefully Amtrak handles data it reports to the Federal Railroad Administration.

Drilling Down on Sidings, Schedules, and Dispatching

For Union Pacific and BNSF, the STB staff is zeroing in on why schedules continue to be disputed, what kind and how many alternative schedules have been proposed, and a specific question asking what steps the freight railroads take to avoid delaying the Sunset.

Interestingly, there are also ten specific questions designed to get to the nub of Class I railroads’ standard excuse for delaying passenger trains: congestion. STB investigators want maps showing, by milepost, where the stations are, where the territories are single-tracked versus double-tracked, and the locations and lengths of passing sidings. “Identify any passing siding that was not long enough to accommodate all trains that traveled on the [Sunset Limited] Route during the Relevant Period,” the Board said in its queries to UP and BNSF.

STB also wants to know how many freight trains couldn’t fit on passing sidings that the train went past, as well as a list of each time that the length of a passing siding caused an Amtrak train to stop or slow during the period of Amtrak’s complaint. The list must detail the schedule skeleton segment or skeleton-station involved, how long the Amtrak train was delayed, and the Amtrak train number affected, with its date of departure from its origin terminal.

The Board is also probing how much of this capacity crunch could be self-inflicted, asking UP and BNSF whether they removed or shortened passing sidings or double-tracked segments during the five years leading up to Amtrak’s December 8, 2022, complaint, and if so, a list showing the removed segments by milepost number and “the circumstances leading to their removal.” In a similar vein, the Board’s investigators want lists of blocked or unavailable passing sidings, along with detailed explanations of why that was so, along with dates.

Nine separate questions revolve around Preference, including queries about dispatching protocols, computer-automated dispatching, dispatching algorithms, train length and priority, how the railroad handles expiring crews, and how they coordinate with other railroads.

CN, NOPB, and SCRRA all come in for similar questioning around preference, siding length, capacity removals, delay causes, congestion, and scheduling.

So, we’ll all be watching the docket closely between now and August 18th. The answers and documents from all the parties in this case should be made public, or at least redacted versions of them, and that could shed considerable light on not just the Sunset dispute but on the late-trains problem generally.

This will be a departure from more traditional STB-initiated investigations which aren’t public until the Board issues a show-cause order and begins a formal proceeding. In this instance, however, the investigation is happening under a different section of the law, and the existence of the complaint is already a matter of public record.

STB’s order said that “in the interest of transparency...the Board will make the investigative record public.” All of us who care about making passenger trains better will look forward to what that record produces.

You can read the full text of STB's order from last week opening the investigation at this link. You can read DOT’s April comment to the docket at this link. And you can read Amtrak’s first motion from December here at this link. If you want to look at all of the filings in the docket for this case from all the parties, visit this STB link and search under docket NOR 42175.And you can look at the detailed quarterly Federal Railroad Administration metrics and standards reports covering on-time performance, customer satisfaction scores, performance at individual stations, and more, at this link.