July 8, 2024
John Karl Alexy
Associate Administrator for Railroad Safety
Federal Railroad Administration
1200 New Jersey Avenue, SE
Washington, DC 20590
Re: Docket No. FRA-2003-15010
Mr. Alexy:
On behalf of the Transportation Trades Department, AFL-CIO (TTD), I am pleased to respond to the Federal Railroad Administration’s (FRA) notice concerning the Canadian Pacific Kansas City Railway Company’s (CPKC) petition to extend its waiver of compliance from certain provisions contained at 49 C.F.R. Part 241, United States Locational Requirement for Dispatching of United States Rail Operations. Specifically, CPKC requests an extension of relief pursuant to 49 CFR 241.7(c), Fringe border dispatching, to allow the continuation of Canadian dispatching of three locations in the United States: (1) 1.8 miles of the Windsor Subdivision between Windsor, Ontario, Canada, and Detroit, Michigan, United States; and (2) two track segments totaling 23.44 miles on the Newport Subdivision between Richford, Vermont, and East Richford, Vermont, United States and between North Troy, Vermont, and Newport, Vermont, United States. TTD consists of 37 affiliated unions representing the totality of rail labor, including rail workers who operate on these lines.[1] For the reasons outlined below, we respectfully request that the FRA deny CPKC’s petition to extend its waiver.
In 2003, the FRA solidified the importance of safety and security of the United States Rail Network through 49 C.F.R. Part 241 (“Part 241”), which ensured that all rail operations conducted in the United States were controlled by Train Dispatchers located in the United States. This rule supplanted a similar interim rule instituted in the months following the September 11, 2001 terror attacks. In short, Part 241 mandated that the railroads, facilities, and individuals responsible for the dispatching of trains operating within the United States will be held to the stringent safety, security, and operational standards that have been instituted by the United States Government and its agencies that make the National Rail Network the safest in the world.
The requirement under Part 241 that the dispatching of U.S. rail operations is managed from within the country is intended to maintain a high level of safety and security for the transportation of goods and passengers. Furthermore, Part 241 does not take into account the potential impact that train dispatcher certification would have on fringe boarder operations. CPKC offers no explanation for how Canadian train dispatchers will be held to the same level of standards as U.S. train dispatchers under Part 245. Due consideration must be given to the potential implications of permitting CPKC to evade the requirements of Part 245 in addition to Part 241.
The continued allowance of CPKC to dispatch these operations from locations outside of the United States would undermine the safety and security of US rail operations. For the reasons outlined herein, we strongly urge the FRA to reject CPKC’s request for relief.
Canadian Train Dispatching Operations Lack Necessary Regulatory Oversight
The regulatory and safety oversight systems in the United States and Canada differ in a number of important ways. These differences are even more pronounced following the promulgation of certification standards for train dispatchers in the United States. Certification programs will include a number of provisions intended to ensure that American train dispatchers are trained, qualified, and do not have a record of drug or alcohol violations, among other requirements. Train dispatcher certification programs will fundamentally improve rail safety in the United States, and unfortunately, these same standards cannot be applied to train dispatchers located in Canada.
Notably, Canadian train dispatchers are not subject to the same critical drug and alcohol testing mandate as their U.S. counterparts. Most notably, Canadian Train Dispatchers are not subject to random testing under Canadian Law. Given the potential impairment of cognitive function of an individual under the influence of drugs or alcohol, testing is an essential element in ensuring that railroads operate as safely as possible. As such, all U.S. railroad employees in safety sensitive positions, including Train Dispatchers, are subject to mandatory random drug and alcohol testing, as well as reasonable suspicion, reasonable cause, post-accident, and pre-employment testing under 49 C.F.R. Part 219.
A 2021 collision on Canadian National Railway’s (CN) track in Canada highlighted the potentially disastrous effects of train dispatchers working under the influence of alcohol. As a result of the collision, two crew members sustained minor injuries, and one crew member was admitted to hospital with serious injuries. The Transportation Safety Board of Canada, the Canadian equivalent of the National Transportation Safety Board (NTSB), released a report detailing the specifics of the incident, stating, “The RTC’s [Rail Traffic Controller] performance and level of attention were likely affected by the persistent effects of alcohol consumption.”[2] The United States’ strict drug and alcohol testing requirements for safety-critical personnel, including train dispatchers, exist precisely to prevent incidents like this one. The FRA must not continue to allow Canadian dispatchers, who are not subject to the same or similar drug and alcohol standards as their U.S. counterparts, to dispatch trains operating in the United States.
In its request for relief, CPKC highlights, “CPKC’s drug and alcohol policies and testing procedures, in combination with Canadian law, continue to satisfy the core requirements of the US regulations.”[3] However, CPKC then states that this policy is proprietary and confidential information, thus exempting them from disclosure to the public. This assertion functionally prevents public review and verification of CPKC’s claim that its existing procedures, in conjunction with Canadian law, satisfy the core requirements of U.S. regulations. The FRA must not allow such a precedent to be set.
Another significant deficiency in Canadian regulation concerns the number of hours a Train Dispatcher may work in a given 24-hour period. Transport Canada currently has no restrictions on the number of hours a Train Dispatcher may work. This constitutes a serious and unacceptable safety risk that is forbidden under U.S. regulation. In the United States, Title 49 U.S.C. §21105(b) limits the total number of hours an employee in train dispatching service may work to no more than nine (9) hours in any continuous twenty-four (24) hour period. The purpose of these limitations is well established and necessary for the safe operation of a railroad. As the FRA itself stated in its reasoning for 49 C.F.R. part 241, fatigue can cause dispatchers to make mistakes which may lead to catastrophic railroad accidents, much the same as alcohol or drug impairment (67 Fed. Reg. 75948).
While the Canada Labour Code places a limit on the number of hours worked in weekly (48) and biweekly (80) periods, there are no protections in place ensuring that Canadian Train Dispatchers are not subject to excessively long hours and/or multiple contiguous tours of duty. This is of particular significance when considering this petitioner’s request given its recent history of 49 U.S.C. §21105 violations at its U.S. based Minneapolis Operations Center where, in a period of just ninety (90) days (August – October 2022), the FRA documented 130 occurrences of excessive service. Had such serious safety violations occurred outside of the U.S., the FRA would have no ability to intervene as it did then to halt such egregious violations.
Finally, in its letter granting CPKC’s one-year extension of this relief, the FRA stated it would “conduct a comprehensive review of the subject dispatching operations.” The FRA also stipulated that CPKC must allow the FRA unrestricted access to the Canadian dispatch offices so that it may “ensure the same level of regulatory oversight exists that occurs in the U.S. with respect to the overall safety and integrity of dispatching functions directly affecting rail operations conducted in the U.S. and to confirm compliance with Federal standards.”[4] It is unclear if the FRA has visited any of these facilities to confirm such compliance.
Conclusion
49 C.F.R. Part 241 was promulgated for the purpose of establishing a U.S. locational requirement for the dispatching of all U.S. Rail Operations. The position of the American Train Dispatchers Association in particular, and rail labor in general, is that the requirements of these regulations must not be waived. Such waivers will only serve to erode the safety and security of the operations that regulations have been established to protect. We therefore oppose the relief sought by CPKC and strongly urge the FRA to deny its request.
Thank you for your consideration.
Sincerely,
Greg Regan
President
[1] Attached is a complete list of unions affiliated with TTD.
[2] https://www.tsb.gc.ca/eng/rapports-reports/rail/2021/r21h0114/r21h0114.pdf
[3] https://downloads.regulations.gov/FRA-2003-15010-0030/attachment_1.pdf
[4] https://downloads.regulations.gov/FRA-2003-15010-0029/attachment_1.pdf