FRA must hate passenger trains

I have gotten from three state government sources some clarification of what the real issue is between the Federal Railroad Administration and the Indiana Department of Transportation, and it is a bit bizarre. By the end of this year, the FRA expects to have rules in effect that require all state governments that subsidize passenger train services to register with the agency as railroads. FRA’s intentions were revealed to state transportation officials on February 17 at a meeting in Washington, D.C.

This strange and abrupt course of action is almost certain to ignite a firestorm of protests. Already, Indiana, the first state to be confronted by this requirement, has said it will drop support for the Hoosier State and that the Chicago-to-Indianapolis train will cease to exist at the end of this month (see "The Great Hoosier State Fiasco"). Besides Indiana, seven other states that underwrite Amtrak trains are led by Republican governors, few of whom are likely to welcome this intrusion of the federal government into the affairs of their administrations.

It is unclear whether the new policy would also apply to state or local agencies that underwrite commuter train railroads, but logic suggests that it would. States and cities also subsidize buses and ferries that are regulated by the federal government, so that same logic might compel Washington to order these governments to become bus companies and ferry services. But I digress.       

In addition, Amtrak should find this turn of affairs unsettling. A concerted effort by states to scuttle their state-supported Amtrak trains rather than comply with the FRA order could throw the National Railroad Passenger Corporation into a financial tailspin.           

The FRA, which regulates railroad safety practices, cites safety concerns for its new policy. In a January 26 letter to an attorney for the Indiana Department of Transportation, FRA’s chief safety officer, Robert Lauby, reaffirmed that the agency considers INDOT to be the “principal entity of record for purposes of ensuring compliance with federal railroad safety requirements.” In other words, Indiana would become a railroad in the eyes of the federal government.          

Indiana intended for Iowa Pacific Holdings, a short line conglomerate, to manage the Hoosier State service and provide equipment. Iowa Pacific would use Amtrak operating personnel on the train, which runs primarily over tracks of CSX Transportation. FRA’s Lauby said any of these entities could be considered a railroad for FRA purposes, “but ultimately the entity contracting for the railroad service is responsible for compliance with FRA’s safety regulations.”          

Then last month in Washington, at a meeting of the American Association of State Transportation Officials, Paul Nissenbaum, FRA’s deputy administrator for railroad policy, laid out the plan going forward. By late spring, he said, FRA will publish its interim policy in the Federal Register, starting a 60-day comment period. A final policy will be issued late this summer or early fall. “We want to get this right,” he told the meeting, inviting feedback and comments.           

The Federal Railroad Administration has tried this before. In 2008, it confronted the state of North Carolina with exactly this edict. North Carolina took the matter to the U.S. Court of Appeals for the District of Columbia Circuit. The appeal was dismissed by the court as moot when FRA admitted the whole matter was still under internal study and that a mid-level official had prematurely confronted North Carolina.          

But if you wonder what impact this policy would have on state departments of transportation, FRA in 2008 said NCDOT would become responsible for drug testing of rail workers on trains it subsidizes and also for rules compliance and engineer certification. These are, of course, things that real railroads do.          

It’s not a future that will appeal to very many state bureaucrats. Paul Worley, rail director for NCDOT, is upset at the prospect. “We are a national leader on safety,” he says, “but we are not a railroad, and if someone believes this makes NCDOT less interested in safety for that reason, I am personally hurt.”           

Asked whether he would recommend that North Carolina walk away from passenger rail over the new FRA policy, as Indiana is doing, Worley replied, “I don’t know. We would have to evaluate this. We have projects to build and deliver on a tight timeframe, trains to run, and a service to grow and market. We need to focus on doing that and not all these other continuous distractions that have been put upon us.”          

Then he added, “This is not the program we signed up for.” --Fred W. Frailey