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Re: You're missing the point
Author: Mark
Date: 07-05-2013 - 13:15
Dr Zarkoff Wrote:
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> Synopsis:
>
> (a) says: the FRA and Amtrak shall consult with
> the STB, host rrs, funding agencies, unions, etc.
> to establish/improve the yardstick(s) used for
> measuring the standards of quality of inter-city
> train ops, including this list of aspects and
> things to be examined and measured.
>
> (b) says: the FRA must publish quarterly reports
> based on data which results from these metrics and
> standards.
>
> (c) says: if at all possible, Amtrak and the host
> RRs shall include the jointly developed metrics
> and standards of (a) in their operating
> contracts.
>
> (d) specifies a time limit to developing these
> standards in order to keep any of the parties
> involved from sandbagging the process.
>
> I don't disagree with the Court's concern about a
> corporation being granted regulatory authority.
> What I don't see is how they reached this
> conclusion with section 207's wording.
>
> For example, both the engineer's and trainmen's
> Union contracts with Amtrak contain sentences
> requiring jointness-of-discussion when setting up
> the way runs are structured, essentially the same
> process described in 207 (a). However, the very
> next sentence in both contracts says that in the
> event that no agreement is reached, Amtrak can go
> ahead and do what it wants over the objections of
> the Unions. It's this type of veto power the Court
> was concerned about. Where does any language even
> remotely resembling this appear 207?
I think the court reached their conclusion from the first sentence or two of part (a) and maybe parts (c) and (d).
Part (a) puts the FRA and Amtrak on the same level to develop the performance metrics. It instructs them to "consult" with the freight carriers, employee groups, the public, etc. This instruction frequently appears in legal documents and is a joke IMHO. I'm not sure what qualifies as consultation. Would a five minute phone call suffice? How about a letter telling the other party to go kick rocks?
I think you're overlooking the purpose of part (d)? The binding arbitration exists in the event Amtrak and the FRA disagree on the performance metrics. This is not arbitration to settle differences between other interested parties and Amtrak/FRA. Other than offering the freight railroads a chance to "consult" with Amtrak and the FRA, section 207 cuts them out of the metric development process altogether.
Not sure what to make of part (c) because it opens with the all too vague "To the extent practicable" phrase. What if Amtrak and the freight railroads cannot agree on what is and isn't practicable, then what?
Section 207 doesn't explicitly give the freight railroads the authority to opt out. I think if that right existed, or at least was implied, there would be no reason for the lawsuit and subsequent appeal.
-------------------------------------------------------
> Synopsis:
>
> (a) says: the FRA and Amtrak shall consult with
> the STB, host rrs, funding agencies, unions, etc.
> to establish/improve the yardstick(s) used for
> measuring the standards of quality of inter-city
> train ops, including this list of aspects and
> things to be examined and measured.
>
> (b) says: the FRA must publish quarterly reports
> based on data which results from these metrics and
> standards.
>
> (c) says: if at all possible, Amtrak and the host
> RRs shall include the jointly developed metrics
> and standards of (a) in their operating
> contracts.
>
> (d) specifies a time limit to developing these
> standards in order to keep any of the parties
> involved from sandbagging the process.
>
> I don't disagree with the Court's concern about a
> corporation being granted regulatory authority.
> What I don't see is how they reached this
> conclusion with section 207's wording.
>
> For example, both the engineer's and trainmen's
> Union contracts with Amtrak contain sentences
> requiring jointness-of-discussion when setting up
> the way runs are structured, essentially the same
> process described in 207 (a). However, the very
> next sentence in both contracts says that in the
> event that no agreement is reached, Amtrak can go
> ahead and do what it wants over the objections of
> the Unions. It's this type of veto power the Court
> was concerned about. Where does any language even
> remotely resembling this appear 207?
I think the court reached their conclusion from the first sentence or two of part (a) and maybe parts (c) and (d).
Part (a) puts the FRA and Amtrak on the same level to develop the performance metrics. It instructs them to "consult" with the freight carriers, employee groups, the public, etc. This instruction frequently appears in legal documents and is a joke IMHO. I'm not sure what qualifies as consultation. Would a five minute phone call suffice? How about a letter telling the other party to go kick rocks?
I think you're overlooking the purpose of part (d)? The binding arbitration exists in the event Amtrak and the FRA disagree on the performance metrics. This is not arbitration to settle differences between other interested parties and Amtrak/FRA. Other than offering the freight railroads a chance to "consult" with Amtrak and the FRA, section 207 cuts them out of the metric development process altogether.
Not sure what to make of part (c) because it opens with the all too vague "To the extent practicable" phrase. What if Amtrak and the freight railroads cannot agree on what is and isn't practicable, then what?
Section 207 doesn't explicitly give the freight railroads the authority to opt out. I think if that right existed, or at least was implied, there would be no reason for the lawsuit and subsequent appeal.
