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The Essence of Anarchy America’s long, sordid affair with nullification.

Thursday, April 1st, 2010

Politics

The Essence of Anarchy

America’s long, sordid affair with nullification.

Sean Wilentz

Contributing Editor

view bio

 

Historical amnesia is as dangerously disorienting for a nation as for an individual. So it is with the current wave of enthusiasm for “states’ rights,” “interposition,” and “nullification”-the claim that state legislatures or special state conventions or referendums have the legitimate power to declare federal laws null and void within their own state borders. The idea was broached most vociferously in defense of the slave South by John C. Calhoun in the 1820s and 1830s, extended by the Confederate secessionists in the 1850s and 1860s, then forcefully reclaimed by militant segregationists in the 1950s and 1960s. Each time it reared its head, it was crushed as an assault on democratic government and the nation itself-in Abraham Lincoln’s words, “the essence of anarchy.” The issue has been decided time and again-not least by the deaths of more than 618,000 Americans on Civil War battlefields. Yet there are those who now seek to reopen this wound in the name of resisting federal legislation on issues ranging from gun control to health care reform. Proclaiming themselves heralds of liberty and freedom, the new nullifiers would have us repudiate the sacrifices of American history-and subvert the constitutional pillars of American nationhood.

The origins of nullification date back to the stormy early decades of the republic. In 1798, a conservative Federalist Congress, fearing the rise of a political opposition headed by Thomas Jefferson, passed the Alien and Sedition Acts outlawing criticism of the federal government. Coming before the Supreme Court had assumed powers of judicial review, the laws, signed by President John Adams, were steps toward eradicating political dissent. In a panic, Jefferson and his ally James Madison wrote sets of resolutions duly passed by the legislatures of Virginia and Kentucky, which called upon the state governments to resist and, as Madison put it, “interpose” themselves between the federal government and the citizenry. But the other state legislatures either ignored or repudiated the resolutions as affronts to the Constitution, and the crisis was ended by the democratic means of an election when Jefferson won the presidency two years later-the wholly peaceable and constitutional “revolution of 1800.”

The concept was revived by John C. Calhoun, who expanded it into a theory of nullification and Southern states’ rights in 1828. The specific issue at stake was a protective tariff that Southerners believed unfair to their section, but behind it lay a growing fear that the federal government might interfere with the institution of slavery. Calhoun declared that as “irresponsible power is inconsistent with liberty,” individual states had the right to nullify laws they deemed unconstitutional. He asserted further that should the federal government try to suppress nullification, individual states had the right to secede from the Union. In 1832, the South Carolina legislature passed a formal ordinance nullifying the tariff. But President Andrew Jackson proclaimed nullification pernicious nonsense. The nation, Jackson proclaimed, was not created by sovereign state governments-then, as now, a basic misunderstanding propagated by pro-nullifiers. Ratified in order “to form a more perfect union,” the Constitution was a new framework for a nation that already existed under the Articles of Confederation. “The Constitution of the United States,” Jackson declared, created “a government, not a league.”

Although state governments had certain powers reserved to them, these did not include voiding laws duly enacted by the people’s representatives in Congress and the president. Calhoun and South Carolina were isolated by Jackson’s firm stand. The aging James Madison sided with the president, deploring “the strange doctrines and misconceptions” of the South Carolinians, charging that they were a perversion of the Virginia Resolutions, and insisting that the “Constitution & laws of the U. S. should be the supreme law of the Land.” (Madison also wrote of nullification that “[n]o man’s creed was more opposed to such an inversion of the Repubn. order of things” than Thomas Jefferson’s.) Other southern states refused to join in the nullification movement, and the Congress approved a compromise tariff bill.

Calhoun’s radical ideas about states’ rights resurfaced during the sectional crisis over slavery in the 1850s. The Civil War began as a struggle over democracy and American government, focused on a key question: could the slave power in individual states, dissatisfied with the outcome of a presidential election, declare that election null and void and secede from the Union? Lincoln, like Jackson before him, declared such extreme views of state sovereignty a direct attack on democratic republican government.

After four years of Civil War, in a “new birth of freedom” that resurrected the Union, Calhoun’s states’ rights doctrines were utterly disgraced-but they did not disappear forever. Nearly a century later they were exhumed to justify the so-called “massive resistance” of the segregationist South against civil rights and, in particular, the Supreme Court’s ruling in Brown v. Board of Education in 1954. The current rage for nullification is nothing less than another restatement, in a different context, of musty neo-Confederate dogma.

Following the Brown decision, James J. Kilpatrick, the pro-segregationist editor of the The Richmond News Leader, dressed up nullification under the milder sounding “interposition,” borrowed from Madison’s Virginia resolutions. Kilpatrick hoped that adopting lofty Madisonian language would lift resistance to Brown “above the sometimes sordid level of race and segregation.” Despite his rhetorical sleight of hand, his intent was radical-supporting resistance not only to acts of Congress or the outcome of a presidential election, but also to the decisions of the ultimate court. Not surprisingly, not a single Supreme Court justice then or since, including the fiercest advocates of states’ rights, has ever ruled the concept a valid response to federal law or judicial rulings. All have recognized that nullification under any name would leave controversial laws or court decisions open to state-by-state popular referendums-a recipe for chaos that would undercut judicial review, the cornerstone of American constitutional jurisprudence. And the justices have recognized the explicit language of Article VI of the U.S. Constitution, that federal laws made in pursuance of the Constitution “shall be the supreme Law of the Land; and the Judges of every State shall be bound thereby.” Yet in their last-ditch efforts to save Jim Crow, segregationists like Kilpatrick grasped and distorted the words of James Madison from 1798. In the spirit of John C. Calhoun and the Confederacy, they then vaunted their idea of “interposition”  above the words of the Constitution, of which Madison is considered the father.

Kirkpatrick’s gambit caught on among his fellow white supremacists in southern state governments-most notably Virginia’s-and they passed resolutions of interdiction in defiance of the Brown decision. (The Alabama legislature went further, bluntly declaring Brown, “as a matter of right, null, void, and of no effect.”) Those resolutions came to lie at the heart of what Senator Harry F. Byrd of Virginia announced in February 1956 as a policy of “massive resistance” to Brown. For several years, the strategy succeeded in fending off federal authority, resulting in mob violence against blacks and federal officials as well as the closure of entire public school systems in the South, including the shutdown of public education in Virginia’s Prince Edward County for five years beginning in 1959. But determined efforts by the administrations of Dwight D. Eisenhower, John F. Kennedy, and Lyndon B. Johnson eventually broke the back of the segregationist campaign. And as early as January 1960, state and federal courts negated the Virginia nullification laws meant to implement massive resistance. Segregationists found other temporary means to preserve racial separation in the schools, including, for a time, the creation of private “segregation academies.” But, in time, Virginia, as well as the rest of the South, finally acceded to the legitimacy of the Brown decision. The repudiated doctrines of interposition and nullification were repudiated once more.

Less than a year ago, on July 16, 2009, the Richmond Times-Dispatch ran an editorial apologizing for its role and that of its sister newspaper, the News Leader, in instigating and supporting massive resistance, which it called “a dreadful doctrine.” It is all the more ironic that the legal fictions used to justify that doctrine should now be reappearing in new circumstances. “Who is the sovereign, the state or the federal government?” State Representative Chris N. Herrod, a Republican, declared amid a recent session of the Utah legislature that nullified, among other federal measures, health care reform. Earlier this month, Governor Mike Rounds of South Dakota, a Republican, signed into law a bill that invalidated all federal regulation of firearms regarding weapons manufactured and used in South Dakota. A few days later, Wyoming’s governor, Dave Freudenthal, a Democrat, signed similar legislation for his state. Meanwhile, the Oklahoma House of Representatives resolved that Oklahomans should be permitted to vote on a state constitutional amendment which would allow them to ignore the impending reform of the health care system. And in Virginia, the home of massive resistance, Attorney General Ken Cuccinelli II, a Republican, has argued that a recently enacted state law prohibiting the government from requiring the people to buy health insurance counters federal health care reform which, he insists, is unconstitutional.

Now, as in the 1860s and 1960s, nullification and interposition are pseudo-constitutional notions taken up in the face of national defeat in democratic politics. Unable to prevail as a minority and frustrated to the point of despair, its militant advocates abandon the usual tools of democratic politics and redress, take refuge in a psychodrama of “liberty” versus “tyranny,” and declare that, on whatever issue they choose, they are not part of the United States or subject to its laws-that, whenever they say so, the Constitution in fact forms a league, and not a government. Although not currently concerned with racial supremacy, the consequence of their doctrine would uphold an interpretation of the constitutional division of powers that would permit the majority of any state to reinstate racial segregation and inequality up to the point of enslavement, if it so chose.  

That these ideas resurfaced 50 years ago, amid the turmoil of civil rights, was as harebrained as it was hateful. But it was comprehensible if only because interposition and nullification lay at the roots of the Civil War. Today, by contrast, the dismal history of these discredited ideas resides within the memories of all Americans who came of age in the 1950s and 1960s-and ought, on that account, to be part of the living legacy of the rest of the country. Only an astonishing historical amnesia can lend credence to such mendacity.                      

Sean Wilentz is a contributing editor to The New Republic, and the author of The Rise of American Democracy: Jefferson to Lincoln (Norton).  

John P. Tolman

Vice President and National Legislative Representative

Brotherhood of Locomotive Engineers and Trainmen

Teamsters Rail Conference

25 Louisiana Ave. NW

Washington, D.C. 20001

Office: (202) 624-8776

Cell: (216) 272-1246

Fax: (202) 624-3086

tolman@ble.org

www.bletdc.org

Railroads have until April 16 to submit PTC roll-out plans

Sunday, February 28th, 2010

By Jeff Stagl, Managing Editor

The months-long wait for the Federal Railroad Administration (FRA) to issue a final implementation rule on positive train control (PTC) ended for U.S. railroads on Jan. 12. Now, the 30 roads affected by the federal PTC mandate – including the Class Is, Amtrak and 22 commuter railroads – have a few months to pore over the rule and ensure their implementation plans comply before they submit them to the FRA by the April 16 deadline.

The final rule governs PTC implementation on major U.S. freight-rail lines, as well as commuter and intercity passenger-rail routes. PTC systems, which feature digital radio links, global positioning systems and wayside computer control systems, are designed to help dispatchers and train crews safely manage train movements.

The Rail Safety Improvement Act of 2008 mandates that interoperable PTC systems be installed on most passenger-rail routes and lines used to move certain hazardous materials by 2015’s end. Closed passenger-rail systems, such as light-rail, rapid transit and subway systems, will not be required to adopt PTC.

The final rule builds on a Notice of Proposed Rulemaking that the FRA issued in July 2009. The rule specifies PTC systems’ required functionalities, including interoperability; the means by which the systems will be certified; the contents of implementation plans required by the statute; and the process for submitting implementation plans to the FRA for review and approval.

Computer Screen for Each Crew Member

For example, the rule stipulates that railroads must provide separate onboard screens for the engineer and conductor so each crew member in the locomotive cab can receive the same PTC information displayed in the same manner.

“The FRA pushed aside railroad arguments against requiring a separate PTC screen display for each crew member in a cab,” said United Transportation Union officials in a news item posted on the union’s Web site on Jan. 13.

The result of more than a decade of work by the FRA and various stakeholders, in partnership with the Railroad Safety Advisory Committee, the final rule serves as the “end of the beginning of the process” for PTC, FRA officials said during a media teleconference held Jan. 12.

The FRA estimates it will collectively cost the railroads about $5.5 billion to install PTC on 69,000 miles of track, including onboard components for 30,000 rail vehicles. In addition, railroads will spend about $820 million annually to maintain and refurbish the systems.

The high price tag will force railroads to forego major capital expenditures in critical areas over the five-plus-year period, said Norfolk Southern Corp. Chairman, President and Chief Executive Officer Wick Moorman during an earnings conference held Jan. 27.

“And the result may well be less capacity than is required to handle traffic volumes, a diminished ability to provide good service, and even possibly a less-safe working environment than we might have had otherwise,” he said.

As of press time, railroads continued to review the final rule and declined to comment until they had more time to examine the 475-page document. Ditto for the Association of American Railroads (AAR).

“We plan to issue a detailed response to the rule at a later time,” AAR officials said in a prepared statement issued on Jan. 14.

Short-line Exceptions

One part of the final rule they’re apt to review is various exceptions granted to Class II and III railroads. For example, the rule enables regionals and short lines to operate non-PTC-controlled locomotives for up to four origin-destination movements daily and for trip distances up to 20 miles on PTC-equipped lines.

Until Dec. 31, 2020, those locomotives also will be permitted on PTC-equipped lines for more than 20 miles; afterwards, regionals and short lines must install PTC devices on locomotives to operate them more than 20 miles on PTC-equipped lines.

In August 2009, the AAR objected to the FRA’s proposal to allow Class IIs and IIIs to operate non-PTC-controlled locomotives on PTC-equipped lines. The association disputed the FRA’s claim that the financial burden on small railroads would outweigh safety benefits.

“Surely Congress did not require Class Is to spend billions of dollars on PTC systems only to allow Class II and III railroads to operate trains without the technology on our tracks equipped with PTC,” AAR officials said at the time.

The FRA will accept additional comments on a few specific provisions of the final rule until March 12 to determine “whether clarity can be improved, and whether further opportunities for cost savings, consistent with safety, are available,” according to the agency.

The AAR plans to “continue to participate in the rulemaking process,” association officials said in the Jan. 14 statement.

Excise Tax Loses Support Amid White House Push (New York Times)

Wednesday, February 24th, 2010

Excise Tax Loses Support Amid White House Push (New York Times)

New York Times

By: Robert Pear

February 15, 2010

WASHINGTON – An agreement to tax high-cost, employer-sponsored health insurance plans, announced with fanfare by the White House and labor unions last month, is losing support from labor leaders, who say the proposal is too high a price to pay for the limited health care package they expect to emerge from Congress.

But the White House is still urging Congress to adopt the excise tax as a way to help pay for President Obama‘s ambitious health care proposals.

With support for the tax eroding, Congressional leaders are searching for alternative sources of revenue.

The search has some urgency because Mr. Obama has said he hopes House and Senate Democrats can resolve their differences and come up with a final version of the legislation before he convenes a bipartisan meeting on the issue on Feb. 25.

When the tax agreement was announced on Jan. 14, White House officials described it as a breakthrough that would help clear the way for passage of sweeping health legislation.

Besides producing a substantial amount of revenue, they said, the excise tax on the most expensive insurance plans would slow the growth of health costs by giving consumers a powerful incentive to shop for cheaper policies.

Under the agreement, which builds on a provision in the larger health bill passed by the Senate on Dec. 24, the federal government would impose a 40 percent tax on the value of employer-sponsored health coverage exceeding certain thresholds. To win the endorsement of labor leaders, White House officials agreed to changes in the tax that would lessen its impact on workers, including union members with collectively bargained health benefits.

But labor leaders have backed away from the proposal in the wake of the special Senate election in Massachusetts.

“I do not believe there will be an excise tax enacted,” said Larry Cohen, president of the Communications Workers of America. “It appears that the administration and Congress will be taking a much more modest approach to health care reform. The cost and value of such reform would not justify using an excise tax.”

A wide range of House Democrats continue to criticize the tax as bad policy, even with the changes negotiated by labor leaders and the White House.

Moreover, House Democrats said, the tax is bad politics because it would set the middle class against the poor – people struggling to keep health insurance against people struggling to get it.

Revenue raised by the tax would help finance coverage for people who are uninsured.

Reid H. Cherlin, a White House spokesman, said he was not aware of any erosion in support for the tax among administration officials.

“The president,” he said, “continues to believe that charging insurance companies a fee for their most expensive polices – an idea that has the support of experts from both parties – will help achieve the core goal of health insurance reform: putting downward pressure on long-term health costs while ensuring that we aren’t placing new burdens on hard-working middle-class families.”

But as a practical matter, labor leaders said, the excise tax was killed by the election in Massachusetts, where the Republican candidate, Scott Brown, won the Senate seat long held by Edward M. Kennedy.

In opinion polls and in conversations with lawmakers, Massachusetts voters expressed deep hostility to the excise tax.

Members of union households voted for Mr. Brown over his Democratic opponent, Martha Coakley, according to a telephone poll conducted on election night for the A.F.L.-C.I.O. He won 49 percent of the vote from union households, while she got 46 percent, the survey found.

Michael A. Podhorzer, deputy political director of the A.F.L.-C.I.O., said Massachusetts should be a warning to Democrats, like “a canary in a coal mine.”

“Fully 42 percent of voters believed the health care bill would tax employer health benefits, and these voters supported Brown by two to one,” Mr. Podhorzer said.

Because details of the proposed tax were complex and continually changing, it was difficult for people to know whether they would be affected. Technically, insurers would be responsible for paying the tax, but economists say the cost would be passed on to workers.

Senator Kent Conrad, Democrat of North Dakota, supports the tax but said the outlook for it was “very cloudy.”

The House speaker, Nancy Pelosi of California, said, “The excise tax has no support, very little support, in our caucus.”

At meetings of the House Democratic Caucus, lawmakers from Massachusetts, including Representatives Edward J. Markey and Richard E. Neal, said they were struck by the vehemence of opposition to the tax in their districts.

Mr. Markey recalled that a constituent had poked him in the chest and said: “Eddie, I’ve voted for you my whole life. But if you think you will tax my benefits and give the money to Ben Nelson in Nebraska, you’re crazy.” Senator Nelson, Democrat of Nebraska, voted for the bill after it was rewritten to provide extra Medicaid money to his state.

Labor leaders described the excise tax as part of a deal that emerged last month from marathon negotiations with the White House. Other provisions, not made public at the time, included a national health insurance exchange, or marketplace, and tougher penalties on employers who do not offer insurance to their employees.

The Senate bill called for an insurance exchange in each state. But labor leaders and administration officials said a single national exchange could exert more power over insurance companies and provide better protection to consumers.

Under the Senate bill, if an employer with more than 50 workers does not offer coverage, and if any of its workers obtain subsidized coverage through an exchange, the company would have to pay a penalty – a tax – of up to $750 for each full-time employee. Labor leaders and White House officials agreed that the penalty should be increased to about $2,000 per employee.

Congressional Democrats have not agreed on a source of revenue to replace the tax on high-cost health plans. One possibility is to increase the Medicare payroll tax and extend it to some investment income, like dividends and capital gains. The payroll tax now applies only to wages.

In its annual report last week, the president’s Council of Economic Advisers defended the excise tax. Insurers, they said, will hold down premiums to avoid the tax, and workers will get higher wages because their health benefits will cost less.

But Denise Mitchell, a spokeswoman for the A.F.L.-C.I.O., said it was more likely that insurers would reduce premiums by cutting benefits and by charging higher co-payments and deductibles.

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February 9, 2010

HEALTH INSURANCE REFORM

BREAKING NEWS

new poll: Nearly Two-Thirds of Americans Say Congress Should Continue Working on Comprehensive Health Reform
According to a new Washington Post poll released this afternoon, Americans strongly support Congress continuing to work on comprehensive health insurance reform (63 percent support) – including a majority of  Independents.   Work continues between the House and Senate, and President Obama will convene a bipartisan, bicameral meeting on February 25 to move forward with a solution for American families and American small businesses.
Other findings from the poll:

·       Among Independents, 56 percent supported continued action to pass health insurance reform.  

·       58 percent in the new poll say the Republicans aren’t doing enough to forge compromise with President Obama on important issues.

·       88 percent of Democrats think lawmakers in Washington should continue to press forward with comprehensive health care reform.          
                       
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        Visit Speaker.gov      

NTSB blames engineer for crash; Federal panel calls for video monitoring of train crews, citing widespread problem of on-duty texting.

Tuesday, February 2nd, 2010

NTSB blames engineer for crash; Federal panel calls for video monitoring of train crews, citing widespread problem of on-duty texting.
BY Robert J. Lopez and Dan Weikel and Rich Connell

Los Angeles Times
January 22, 2010

   Federal safety officials called for railroads to install cameras and voice recorders in every locomotive control cab in the nation as they publicly warned Thursday that cellphone texting by engineers and conductors was a growing and lethal danger.

   The call came as members of the National Transportation Safety Board publicly concluded their investigation into the deadly collision of a commuter train and a freight train in Chatsworth in 2008 — a crash they blamed on a Metrolink engineer who passed a stop signal as he sent a message from his phone.

   The engineer’s prolific text messaging was “egregious,” NTSB Chairwoman Deborah A.P. Hersman said, citing records of his phone use. “This was an accident waiting to happen.”

   In general, text messaging by train crews “is becoming more widespread,” Hersman told reporters after the board’s public session in Washington ended its 16-month Chatsworth inquiry. “I think we have to nip this in the bud right now.”

   The board’s sharp language and findings blaming the engineer could shift tens of millions of dollars in liability away from Metrolink, a taxpayer-subsidized five-county agency, and onto the private contractor that hired and supervised the engineer, Connex Railroad, some officials said. Connex and Metrolink have sued each other over financial responsibility, and Metrolink has noted that the contractor is responsible for the “willful misconduct” of its employees.

   The collision, which left 25 dead and 135 injured, could have been prevented by an automatic braking system that NTSB regulators had long recommended, board members noted after the daylong meeting. The Chatsworth crash prompted Congress to pass a bill requiring railroads to install such systems within six years.

   The panel’s call for video surveillance of train crews in tens of thousands of locomotive control cabs moves a hotly contested Southern California issue to the national stage. After the accident, Metrolink put cameras in its trains. The powerful Brotherhood of Locomotive Engineers and Trainmen challenged the action in court, claiming cameras are an invasion of privacy and won’t prevent accidents.

   But the safety board found Thursday that other forms of enforcing bans on electronic devices, chiefly field inspections, have proved inadequate. Metrolink had a policy that prohibited cellphones from even being turned on in control cabs.

   Only constant monitoring would have stopped engineer Robert M. Sanchez, who died in the collision, Hersman said. Cameras would mean “management cannot turn a blind eye to bad actors who are not doing their job,” she said.

   Records also show the Union Pacific conductor on the train that Metrolink 111 slammed into was improperly texting, Hersman noted.

   The board’s video camera recommendation could have a dramatic effect on the industry. “This is a game changer,” she said. “We’re still riding on 19th century technology that relies on using an extra person in the cab” to ensure compliance with some key safety rules.

   Whether the recommendations will be implemented depends on the Federal Railroad Administration, which regulates the industry. Both the railroad administration and the American Assn. of Railroads said Thursday they would study the issue.

   Experts say legal claims by survivors of those killed or injured in the crash could exceed a $200-million federal liability cap. Metrolink had $150 million in insurance at the time of the crash.

   R. Edward Pfiester Jr., a lead attorney representing crash victims and relatives, said the NTSB’s findings could bolster lawsuits against Connex because of the engineer’s misconduct and the company’s lack of effective enforcement.

   “Metrolink’s part of the system worked, but not our contractor’s oversight,” said the commuter agency’s chairman, Keith Millhouse. “It was apparent that Connex knew the engineer was a problem and either did not take it seriously or didn’t enforce the rules.”

   A Connex spokeswoman said such comments were false. Although Sanchez had been counseled twice about cellphone rules, “at no time did Connex management have a report or knowledge that Mr. Sanchez ever used a cellphone while operating a moving train,” said spokeswoman Erica Swerdlow. A company consultant this week suggested that Metrolink’s failure to install a collision-avoidance braking system was a major factor in the crash.

   Although board members urged deployment of so-called positive train control, they were reminded of the difficulties Metrolink faces in fulfilling its commitment to install the system by 2012. The commuter agency still needs $100 million for the project, said NTSB investigator Wayne Workman. “That is a tough challenge.”

   The NTSB also concluded Thursday that witness statements that the final track signal light was green for Metrolink 111 were not considered reliable, given technical data that indicated the light was red.

 robert.lopez@latimes.com
dan.wiekel@latimes.com
rich.connell@latimes.com

NTSB blames engineer for crash; Federal panel calls for video monitoring of train crews, citing widespread problem of on-duty texting.

Tuesday, February 2nd, 2010

BY Robert J. Lopez and Dan Weikel and Rich Connell

Los Angeles Times
January 22, 2010

   Federal safety officials called for railroads to install cameras and voice recorders in every locomotive control cab in the nation as they publicly warned Thursday that cellphone texting by engineers and conductors was a growing and lethal danger.

   The call came as members of the National Transportation Safety Board publicly concluded their investigation into the deadly collision of a commuter train and a freight train in Chatsworth in 2008 — a crash they blamed on a Metrolink engineer who passed a stop signal as he sent a message from his phone.

   The engineer’s prolific text messaging was “egregious,” NTSB Chairwoman Deborah A.P. Hersman said, citing records of his phone use. “This was an accident waiting to happen.”

   In general, text messaging by train crews “is becoming more widespread,” Hersman told reporters after the board’s public session in Washington ended its 16-month Chatsworth inquiry. “I think we have to nip this in the bud right now.”

   The board’s sharp language and findings blaming the engineer could shift tens of millions of dollars in liability away from Metrolink, a taxpayer-subsidized five-county agency, and onto the private contractor that hired and supervised the engineer, Connex Railroad, some officials said. Connex and Metrolink have sued each other over financial responsibility, and Metrolink has noted that the contractor is responsible for the “willful misconduct” of its employees.

   The collision, which left 25 dead and 135 injured, could have been prevented by an automatic braking system that NTSB regulators had long recommended, board members noted after the daylong meeting. The Chatsworth crash prompted Congress to pass a bill requiring railroads to install such systems within six years.

   The panel’s call for video surveillance of train crews in tens of thousands of locomotive control cabs moves a hotly contested Southern California issue to the national stage. After the accident, Metrolink put cameras in its trains. The powerful Brotherhood of Locomotive Engineers and Trainmen challenged the action in court, claiming cameras are an invasion of privacy and won’t prevent accidents.

   But the safety board found Thursday that other forms of enforcing bans on electronic devices, chiefly field inspections, have proved inadequate. Metrolink had a policy that prohibited cellphones from even being turned on in control cabs.

   Only constant monitoring would have stopped engineer Robert M. Sanchez, who died in the collision, Hersman said. Cameras would mean “management cannot turn a blind eye to bad actors who are not doing their job,” she said.

   Records also show the Union Pacific conductor on the train that Metrolink 111 slammed into was improperly texting, Hersman noted.

   The board’s video camera recommendation could have a dramatic effect on the industry. “This is a game changer,” she said. “We’re still riding on 19th century technology that relies on using an extra person in the cab” to ensure compliance with some key safety rules.

   Whether the recommendations will be implemented depends on the Federal Railroad Administration, which regulates the industry. Both the railroad administration and the American Assn. of Railroads said Thursday they would study the issue.

   Experts say legal claims by survivors of those killed or injured in the crash could exceed a $200-million federal liability cap. Metrolink had $150 million in insurance at the time of the crash.

   R. Edward Pfiester Jr., a lead attorney representing crash victims and relatives, said the NTSB’s findings could bolster lawsuits against Connex because of the engineer’s misconduct and the company’s lack of effective enforcement.

   “Metrolink’s part of the system worked, but not our contractor’s oversight,” said the commuter agency’s chairman, Keith Millhouse. “It was apparent that Connex knew the engineer was a problem and either did not take it seriously or didn’t enforce the rules.”

   A Connex spokeswoman said such comments were false. Although Sanchez had been counseled twice about cellphone rules, “at no time did Connex management have a report or knowledge that Mr. Sanchez ever used a cellphone while operating a moving train,” said spokeswoman Erica Swerdlow. A company consultant this week suggested that Metrolink’s failure to install a collision-avoidance braking system was a major factor in the crash.

   Although board members urged deployment of so-called positive train control, they were reminded of the difficulties Metrolink faces in fulfilling its commitment to install the system by 2012. The commuter agency still needs $100 million for the project, said NTSB investigator Wayne Workman. “That is a tough challenge.”

   The NTSB also concluded Thursday that witness statements that the final track signal light was green for Metrolink 111 were not considered reliable, given technical data that indicated the light was red.

 robert.lopez@latimes.com
dan.wiekel@latimes.com
rich.connell@latimes.com

Accident investigators uncovered such egregious behavior by train operators in the fatal 2008 accident near Los Angeles that they suggested Thursday that all railroads monitor crews with video surveillance.

Tuesday, February 2nd, 2010

NTSB recommends video on trains; Distractions blamed in ‘08 fatal crash
BYLINE: Alan Levin

   In a recommendation intended to draw a line in the sand against the rapid rise in accidents triggered by distractions from cellphones and other technology, the National Transportation Safety Board (NTSB) not only endorsed placing video cameras in train cabs, but also said railroads should regularly monitor the videos to ensure that engineers follow safety rules.

   The NTSB found that the Sept. 12, 2008, collision of commuter and freight trains, which killed 25 people, was caused by an engineer who sped through a stop signal as he was texting. The engineer, who died in the crash, had been warned about cellphone use twice before.

   “This is becoming widespread,” NTSB Chairwoman Debbie Hersman said. “We need to nip this in the bud.”

   The NTSB investigation into the wreck revealed numerous other examples of safety violations.

   The engineer had previously invited teens to ride on the train with him in violation of rules. The conductor on the other train in the collision had also been sending text messages and tested positive for marijuana.

   “The performance of operators of both trains was just egregious,” said NTSB member Robert Sumwalt. “Something does need to be done across the nation to try to discourage this type of behavior.”

   The NTSB, which has no regulatory power, made its recommendation to the Federal Railroad Administration. The agency said in a statement that it will review the recommendation.

   Last October, Metrolink, which operates the Los Angeles commuter line, became the first railroad in the nation to install surveillance cameras. The Brotherhood of Locomotive Engineers and Trainmen sued to halt the surveillance.

   NTSB members said that they recommended widespread video surveillance reluctantly because of privacy concerns.

   However, similar lapses have repeatedly triggered accidents and safety concerns on trains, motor vehicles and aircraft.

   Traditional methods of oversight have done little to prevent this new category of accidents, the NTSB said.

   “This is a game changer,” Hersman said. “This is a watershed investigation for us.”

   The action marks a significant departure for the NTSB. The agency has supported installation of cockpit sound recorders in aircraft, but only to assist investigators once an accident has occurred.

   However, several recent crashes focusing on pilot violations have prompted calls by some airlines for routine monitoring of cockpit recorders.

   The NTSB will meet Feb. 2 about a regional plane crash near Buffalo last February in which the pilots repeatedly violated a rule banning extraneous conversations during critical phases of flight.

White House announces stimulus funding for major high-speed corridors

Thursday, January 28th, 2010

White House announces stimulus funding for major high-speed corridors last night, the White House issued fact sheets containing basic details on high-speed stimulus grants that are scheduled to be announced by President Obama today at a town hall meeting being held at the University of Tampa.

Following is a list of the grant recipients, divided by region, and the amount they will receive. For more specific details on what the funds will cover, click on the individual regions to link back to the White House fact sheets.

HSR updates will be covering the grant awards in the days and weeks ahead. Check the site often for more details on the grant awards, information on how the money will be spent, and interviews with state DOTs and high-speed rail authorities.

California <http://www.whitehouse.gov/the-press-office/fact-sheet-high-speed-intercity-passenger-rail-program-california>
Awardees: California Department of Transportation; California High-Speed Rail Authority
Total Approximate Funding (all corridors): $2.34 billion

Tampa-Orlando-Miami <http://www.whitehouse.gov/the-press-office/fact-sheet-high-speed-intercity-passenger-rail-program-tampa-orlando-miami>
Awardee: Florida Department of Transportation
Total Approximate Funding (entire corridor): $1.25 billion

Chicago-St. Louis-Kansas City <http://www.whitehouse.gov/the-press-office/fact-sheet-high-speed-intercity-passenger-rail-program-chicago-st-louis-kansas-city>
Awardees: Illinois Department of Transportation, Missouri Department of Transportation
Total Approximate Funding (entire corridor): $1.13 billion

Minneapolis/St. Paul-Madison-Milwaukee-Chicago <http://www.whitehouse.gov/the-press-office/fact-sheet-high-speed-intercity-passenger-rail-program-minneapolisst-paul-madison-m>
Awardees: Wisconsin Department of Transportation; Minnesota Department of Transportation
Total Approximate Funding (entire corridor): $823 million

Charlotte-Raleigh-Richmond-Washington, D.C. <http://www.whitehouse.gov/the-press-office/fact-sheet-high-speed-intercity-passenger-rail-program-charlotte-raleigh-richmond-w>
Awardees: North Carolina Department of Transportation, Virginia Department of Transportation
Total Approximate Funding (entire corridor): $620 million

Eugene-Portland-Seattle-Vancouver, B.C. <http://www.whitehouse.gov/the-press-office/fact-sheet-high-speed-intercity-passenger-rail-program-eugene-portland>
Awardees: Washington State Department of Transportation, Oregon Department of Transportation
Total Approximate Funding (entire corridor): $598 million

Northeast Region <http://www.whitehouse.gov/the-press-office/fact-sheet-high-speed-intercity-passenger-rail-program-northeast>
Awardees: Northern New England Passenger Rail Authority; Vermont Agency of Transportation, Massachusetts DOT, Rhode Island DOT, Connecticut DOT, New York State DOT, New Jersey Transit, Pennsylvania DOT, Delaware DOT, Maryland DOT, District of Columbia DOT
Total Approximate Funding (entire corridor): $485 million in ARRA high-speed grants; $706 million in ARRA Amtrak grants ($1.2 billion total)

Cleveland-Columbus-Dayton-Cincinnati <http://www.whitehouse.gov/the-press-office/fact-sheet-high-speed-intercity-passenger-rail-program-cleveland-columbus>
Awardee: Ohio Department of Transportation
Total Approximate Funding (entire corridor): $400 million

Pontiac-Detroit-Chicago <http://www.whitehouse.gov/the-press-office/fact-sheet-high-speed-intercity-passenger-rail-program-pontiac-detroit>
Awardees: Michigan Department of Transportation, Indiana Department of Transportation, Illinois Department of Transportation
Total Approximate Funding (entire corridor): $244 million

Iowa <http://www.whitehouse.gov/the-press-office/fact-sheet-high-speed-intercity-passenger-rail-program-iowa>
Awardee: Iowa Department of Transportation
Total Approximate Funding (entire corridor): $17 million

Fort Worth, Texas, area <http://www.whitehouse.gov/the-press-office/fact-sheet-high-speed-intercity-passenger-rail-program-texas>
Awardee: Texas Department of Transportation
Total Approximate Funding (entire corridor): $4 million

REP. OBERSTAR CONTINUES TO PUSH AGGRESSIVE TRANSPORTATION AGENDA

Monday, January 18th, 2010

US Fed News
January 12, 2010

REP. OBERSTAR CONTINUES TO PUSH AGGRESSIVE TRANSPORTATION AGENDA

   WASHINGTON, Jan. 11 — Rep. James L. Oberstar, D-Minn. (8th CD), issued the following news release:

   Congressman Jim Oberstar has used his chairmanship to dramatically increase the workload of the Transportation and Infrastructure Committee (T&I Committee). In Oberstar’s first three years at the helm, the committee has surpassed the 2003-2005 productivity levels established under Republican control.

   “This is not the time to be idle – our national transportation systems have been neglected over the past ten years,” said Oberstar. “Maintenance has not kept pace with the deterioration of our roads and bridges; we have not been upgrading locks and dams and investments in new technologies like high speed rail have been delayed. I am determined to address these issues with an aggressive legislative schedule.”

   In the first session of the 111th Congress, the T&I Committee moved 68 bills and resolutions through the full House. The following are among the key pieces of T&I legislation passed by the House and transmitted to the Senate:

   * H.R. 915, the Federal Aviation Administration Authorization Act of 2009;
   * H.R. 1062, the Water Quality Investment Act of 2009;

  * H.R. 3619, the Coast Guard Authorization Act of 2010;
   * H.R. 3371, the Airline Safety and Pilot Training Act of 2009;
   * H.R. 1746, the Pre-Disaster Mitigation Act of 2009;
   * H.R. 1665, the Coast Guard Acquisition Reform Act of 2009;
   * H.R. 2093, the Clean Coastal Environment and Public Health Act of 2009;
   * H.R. 2651, the Maritime Workforce Development Act;
   * H.R. 3360, the Cruise Vessel Safety Act of 2009; and
   * H.R. 1700, the National Women’s History Museum Act of 2009.

  Other important legislation moved through the House by the Committee includes extensions of authorizations for federal surface transportation and aviation programs into 2010. The Committee also developed a blueprint for a six-year, $500 billion surface transportation authorization bill.

   In addition, the Committee made significant contributions to H.R. 1, the American Recovery and Reinvestment Act, H.R. 146; the Omnibus Land Management Act of 2009; and H.R. 2868, the Chemical and Water Security Act of 2009.

   Oversight of the Recovery Act was and continues to be a high priority for the Committee. T&I held a total of 13 full committee and subcommittee oversight hearings on the Recovery Act through the end of 2009, questioning 103 witnesses over a span of 54 hours. The Committee also collected data from state and federal agencies on the use of Recovery Act funds and published monthly reports
on those figures.

   Through the 110th Congress and now midway through the 111th Congress, the T&I Committee has held a total of 257 hearings in just three years, compared to 143 in the comparable three-year period of the 108th and 109th Congresses. 

US Fed News

“EXCISE TAX WILL BOOST WAGES,” “A CHEVY IS A CADILLAC,” AND OTHER HEALTH CARE URBAN LEGENDS DEBUNKED

Sunday, January 10th, 2010
NEWS FROM EPI FOR IMMEDIATE RELEASEWednesday, January 6, 2010
“EXCISE TAX WILL BOOST WAGES,” “A CHEVY IS A CADILLAC,” AND OTHER HEALTH CARE URBAN LEGENDS DEBUNKED

 

Robert Reich, Rep. Joe Courtney, and EPI’s Lawrence Mishel and Josh Bivens review, refute non-factual “facts” in lead-up to Senate-House health care debate

 As the national wrestling match over the future of the nation’s health care system moves to its new conference committee arena, there are growing signs that some essential facts are already on the ropes.

 

In a news conference call today experts including Robert Reich, Labor Secretary in the Clinton administration; Rep. Joe Courtney (D-CT); and Lawrence Mishel and Josh Bivens, president and economist/health care expert, respectively, at the Economic Policy Institute sought to give the facts a fighting chance by sharing their expertise and research findings.

Mishel took on one of the latest claims by excise tax supporters, which has been espoused by a range of public officials, journalists and pundits: the argument that an excise tax will rein in health care costs and that those savings will lead to much higher wage growth. Those who make this argument point to the latter half of the ‘90s – a time when health costs were relatively stable and wages rose – as their evidence. While that argument seems logical, Mishel pointed out on the call and in a detailed paper issued concurrently that the logic is only skin deep and doesn’t pass the test of deeper examination.

Rep. Joe Courtney, who represents Connecticut’s Second District, released the text of his letter to Speaker Nancy Pelosi, which he has spearheaded in the House, urging leadership to abandon the excise tax idea, given its well-documented pitfalls.

“One-hundred-ninety House Democrats have joined my effort to stop the proposed ‘Cadillac’ tax on health care plans, which is a number that cannot be ignored during health care reform negotiations,” Rep. Courtney said. “The Economic Policy Institute’s report should serve as another red flag to the misguided Senate-backed excise tax on health care benefits because there is no question that the tax will hurt the wages of working families. The House must stand firm in its opposition to the tax.”

Mishel’s paper, “Employer Health Costs Do Not Drive Wage Trends”, notes that the size of health care costs, large as it is, is too small to explain the magnitude of the rise that occurred in wages during the late ‘90s. What’s more, the rise in wages was most dramatic among lower-paid workers, who are much less likely to have any health care coverage on the job at all. He notes that about half of all U.S. workers currently do not receive health care coverage from their employers and, thus, could not have benefited from the theoretical health care-wages trade-off.

“Just as the sun doesn’t rise because the rooster crows, moderating health care costs had little to do with why wages rose in the late ‘90s,” Mishel said.

“Many economic benefits will flow to the nation as a whole and to working people from sound health care reform, but there’s precious little evidence that these benefits will be driven by the proposed excise tax on high-cost plans and its effect on workers’ wages,” he added. “In fact, recent history would argue that any reduction in businesses costs for health care will more likely go to boost income for CEOs and top managers, at least in the short run, not to raise wages across the workplace. Even if workers’ wages eventually manage to claim some of the gains from lower health costs, these costs just aren’t large enough to make a significant contribution to their paychecks.”

Economist Josh Bivens focused his remarks on a particularly persistent and misleading claim by supporters of the excise tax that it will only affect the highest paid workers with the most generous insurance plans, which they refer to as “Cadillac” plans to reinforce their point. The fallacy in this argument, as Bivens pointed out, is that the cost of health care coverage is not a reliable indicator of its quality. Far more important in determining the price of an insurance plan are factors like the size of the workplace and the age and health care needs of its workers. He noted that insurance companies charge small businesses 18% more than big companies for identical coverage. [See further analysis here: “House Health Bill is Right on the Money: Taxing High Incomes Better Than Taxing High Premiums”.)

“The excise tax proponents say their target is a Cadillac, but in reality they’re about as likely to hit a Chevy,” Bivens explained. “The excise tax is not a progressive levy on lavish plans, instead it’s a tax that will hit small businesses, older workers, and those most in need of health care the hardest.” 

CONTACT

Nancy Coleman

Karen Conner

202-775-8810 news@epi.org

# # #

Here is the summary of the transportation provisions in the Jobs Bill as well as some other information that may be of interest to our affiliates:

Saturday, December 26th, 2009

Brothers and Sisters,

 

 

 

Here is the summary of the transportation provisions in the Jobs Bill as well as some other information that may be of interest to our affiliates:

Summary of Transportation Provisions of

H.R. 2847 – The Jobs for Main Street Act, 2010

 

The bill redirects $48.3 billion which flowed into the Treasury from Wall Street toward infrastructure and jobs investment, including:

 

Highway Infrastructure: $27.5 billion to make additional highway infrastructure investments.

 

Transit: $8.4 billion for public transportation investments including $6.15 billion for urban and rural formula grants; $500 million for capital investment grants for new or expanded fixed guide way projects; and $1.75 billion in formula funds to address repair needs of existing subway, light rail and commuter rail systems. Recipients and Sub recipients of these funds may use up to 10% towards operating expenses.

 

Amtrak: $800 million for capital grants to Amtrak for the acquisition and rehabilitation of rolling stock and passenger equipment to improve the speed and capacity of intercity passenger rail service. Amtrak must use these funds to purchase new equipment that is domestically manufactured, as 49 USC 24305(f)(4)(B) will not apply to funds in this bill.  This will prevent the Secretary from granting Amtrak an exemption from its domestic purchasing requirement.

 

Airport Improvement Grants: $500 million for airport improvement projects.

 

Maritime Administration: $100 million for the Maritime Guaranteed Loan (Title XI) program to allow vessel and shipyard owners to obtain long-term financing for growth and modernization projects.

 

Corps of Engineers: $715 million for environmental restoration, flood protection, hydropower, and navigation infrastructure projects by the Corps of Engineers.

 

Surface Transportation Authorization Extension: Extends the authorization for the highway, transit, highway safety and motor carrier safety programs of the Department of Transportation until September 30, 2010. In addition, the bill includes language that provides 100% federal share for the transportation programs authorized in the title, repeals the provision that prohibits Highway Trust Fund balances from earning interest, and restores $20 billion to the Highway Trust Fund.

 

Buy America:  The bill includes improved Buy America Language, which will go into effect when DOT issues implementing rules, which they have 120 days to issue.

 

  • As mentioned above, Amtrak must use funds in the bill to purchase new equipment that is domestically manufactured, as 49 USC 24305(f)(4)(B) will not apply to funds in this bill.  This will prevent the Secretary from granting Amtrak an exemption from its domestic purchasing requirement.

 

  • The loophole for transit vehicle manufacturing closed, but not for prototypes.  The loophole allowing the States and Localities the ability to segment projects into smaller dollar amounts below the amount where Buy America would apply is closed for bridges, not for highways. 

 

  • As for waivers, all Buy America waivers must be posted on the internet. Waivers for lack of domestic suppliers require 5 day posting to see if supplier turns up and any public interest waiver requires an employment impact statement. Additionally, the GAO will report on all waivers every six months.

 

 

Other Provisions of Interest

 

Firefighter Jobs: $500 million to retain, rehire, and hire firefighters across the United States.

According to the International Association of Firefighters, nearly 6,000 firefighters have been laid off or are subject to layoffs. An additional 6,000 positions have been lost through attrition. Any unused funds may be transferred to firefighter assistance equipment grants.

 

Job Training for High Growth Fields: $750 million for competitive grants to support job training for approximately 150,000 individuals in high growth and emerging industry sectors, particularly in the health care and green industries that are adding jobs despite difficult economic conditions. Grants for job training in green industries will focus on programs that train workers living in areas of high poverty.

 

Unemployment Insurance: $41 billion to extend, for six months, expanded unemployment benefits, including increased payouts and longer duration of benefits.

 

Help with Health Insurance for Unemployed Workers (COBRA): $12.3 billion to extend from nine to 15 months the 65% COBRA health insurance subsidy for individuals who have lost their jobs. The job lost eligibility date is extended in the provision to June 30, 2010. Approximately seven million people benefited from the premium subsidy provided in the Recovery Act.