June 13, 2023

Rail labor rejects CPKC’s request for safety waiver


Rail labor groups are rejecting efforts by CPKC to extend and potentially make permanent a waiver that enables the Class I railroad from its Calgary, Alberta, office to dispatch trains at three locations near the U.S.-Canada border. Labor groups say allowing the waiver to become permanent would set a bad precedent and encourage other Class I railroads to use waivers as a way to evade safety regulations.

“CP’s request for a permanent waiver from these requirements, if granted, would not only degrade rail safety, but set a dangerous precedent that would open Pandora’s box to all sorts of similar requests to sidestep and undermine the regulatory process,” said a submission last week from the Transportation Trades Department of the AFL-CIO to Karl Alexy, who serves as associate administrator for rail safety at the Federal Railroad Administration.

CPKC (NYSE: CP) currently has a waiver that enables the railway to not be bound to comply with federal regulations requiring the dispatching of U.S. rail operations to occur on U.S. soil. That regulation was created following the Sept. 11, 2001, terrorist attacks, according to 14 labor groups that signed the submission to FRA. 

CPKC uses the waiver for three locations: 1.8 miles on CPKC’s Windsor subdivision between Windsor, Ontario, and Detroit and 23.44 miles on the Newport subdivision in Vermont.

The waiver for the portion between Windsor and Detroit was first granted in 2003, and FRA has approved extensions of that waiver three times since then.

Dispatching for the three locations occurs at CPKC’s operations center in Calgary. In its Feb. 28 request to extend the waiver, CPKC wrote, “In the approximately twenty years since the original waiver was granted, CP has operated safely on the Windsor Subdivision and has operated safe[ly] on the Newport Subdivision since the acquisition of this territory in 2020. We would also submit that there has been no substantial change to operating practices, programs or procedures.” 

But the labor groups take issue with the inclusion of the Newport subdivision in the waiver. 

That’s because regulations overseeing train dispatching in the U.S. and Canada differ slightly, the groups said. U.S.-based train dispatchers are subject to random drug and alcohol testing, and they are subject to regulations that dictate the maximum amount of hours they can work in a 24-hour period. While Canada’s labor code has limits on how many hours Canadian employees can work weekly, the Canadian labor code doesn’t address restrictions within the 24-hour period, nor does it address random drug testing, according to the unions. 

FRA granted the Newport subdivision to be included in 2020 following Canadian Pacific’s acquisition of the Central Maine and Quebec Railway earlier that year, according to the groups. 

CP “argued in its May 19, 2020 filing that having the line under the control of one operations center would allow for consistent operations over the entire line. … [But] If the Petitioner truly believes that having the line controlled from a single location would be in the public interest, it was and is still free to transfer control of the entire Newport Subdivision to its U.S. Operations Center in Minneapolis, MN,” the groups said.

The unions also argued in their submission last week that making the waiver permanent would set a precedent in which the freight railroads pursue waivers as a way to release them from certain safety regulations. 

“As CP and other carriers are keenly aware, requests for permanent waivers are akin to seeking permanent changes to regulations and only serve to circumvent the proper regulatory process,” the groups said. “Allowing railroads to obtain permanent waivers would arbitrarily and capriciously remove transparency, accountability, and opportunity for public comment, likely violating the Administrative Procedures Act.”

In a response to the unions’ issues, CPKC told FreightWaves that its request to FRA is for a waiver extension for the three locations. CP’s Feb. 28 submission to FRA also calls for a waiver extension or a permanent waiver that would allow CPKC to continue dispatching from Calgary after this latest waiver expires on Aug. 29.

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