FRA to Take Another Crack at Amtrak On-Time Rule

Federal regulators are taking another stab at promulgating rules to define on-time standards for Amtrak.

The Federal Railroad Administration last week suggested that the rule would set a minimum performance standard of 80 percent.

In a news release, the FRA said its proposal would give Amtrak, its passengers, service providers, the FRA and others a common tool to help objectively gauge intercity passenger rail travel.

“Eighty percent is a minimum standard,” said FRA Administrator Ronald Batory. “We expect many routes will be much more reliable. Clarity should help all parties ensure compliance.”

To develop the standard, FRA said it and Amtrak consulted with many stakeholders, including the Class I railroads that host Amtrak trains, states, labor unions, an advocacy group that represents Amtrak riders, and the U.S. Surface Transportation Board.

The rule would contain additional measurements for evaluating how well Amtrak serves the public, including financial performance and customer service metrics.

The FRA said the proposed rule is expected to be published in the Federal Register in the near future.

Public hearings, likely to be held online, will also follow a 60-day public comment period.

Appeals Court Allows FRA to Set On-Time Standards

The struggle to create on-time standards for Amtrak took another turn on Friday when the U.S. Court of Appeals for the District of Columbia voted 2-1 in favor of allowing the Federal Railroad Administration to set those standards.

The decision followed earlier setbacks including one in which the Eighth U.S. Circuit Court of Appeals said the Surface Transportation Board had exceeded its authority in seeking to set on-time standards.

The legal fight dates to 2011 when the Association of American Railroads commenced legal action to overturn a federal law that allowed Amtrak to participate in the rule-making process.

In a statement, Amtrak hailed the decision of the District of Columbia Court, saying that since the on-time standards law was overturned the passenger carrier has seen continued deterioration of on-time performance over freight railroads driven primarily by freight train interference.

“This decision will allow the FRA to set on-time and other performance standards that would help ensure that our customers and the American taxpayer get the high-quality passenger service they deserve,” Amtrak said in the statement.

The latest decision is not necessarily the last word in the fight. AAR could seek a rehearing by the full appeals court or appeal the decision to the U.S. Supreme Court.

Amtrak Wants Right to Sue Host Railroads Over on-Time Performance

Tucked away in Amtrak’s budget request for fiscal year 2019 is a plea to Congress to give the passenger carrier the legal right to sue its host railroads for delaying its trains.

Amtrak wants to be able to seek legal remedies to protect its statutory right of preference by bringing “an action for equitable or other relief in the U.S. District Court for the District of Columbia, or in any jurisdiction where Amtrak resides or is found, to enforce preference rights granted under this subsection.”

The request follows setbacks in the courts stemming from lawsuits challenging certain provisions of the Passenger Rail Investment and Improvement Act of 2008.

The Association of American Railroads challenged the process whereby on-time metrics were to be developed by the Federal Railroad Administration.

Specifically the AAR objected to allowing Amtrak to play a role in establishing the standards.

AAR won that battle when the courts ruled that the law had unlawfully granted Amtrak regulatory power over the industry in which it participates.

When Amtrak brought three cases against its host railroads using a Surface Transportation Board metric of 80 percent on-time performance in deciding pending cases, an appeals court ruled that the 80 percent standard had been tainted by the previous rulings.

Testifying before the Senate Commerce Committee recently, Amtrak CEO Richard Anderson said, “We’ve never been able to get the preference right that Amtrak has, enforced . . . and we’d like a private right of action.”

Amtrak also is seeking legislative action to overturn a law that prohibits it from hiring lobbyists. It noted that its host railroads and labor unions are able to hire lobbyists.

The passenger carrier also wants changes to streamline its compliance with at-odds reporting requirements from multiple federal agencies, an exemption from Freedom of Information Act requests, and a law that will make it a federal crime to assault an Amtrak crew member.

Supreme Court Won’t Take On-Time Case

The U.S. Supreme Court has rejected a request by Amtrak to review a lower court decision that found the Surface Transportation Board cannot assume regulatory authority that is granted to Congress.

The high court’s decision means that a last effort by the federal government to revive the delegated authority will be decided by the U.S. District Court for the District of Columbia.

In a July 2017 decision, the Eighth Circuit Court of Appeals decided that the STB lacked the authority to establish regulatory standards for “on-time performance” in exercising its power to require freight railroads to give “preference” to Amtrak trains. See, Union Pacific Railroad Co. v. Surface Transportation Board, 863 F.3d 816 (8th Cir. 2017).

The Union Pacific case was one of two in which courts considered challenges to a portion of the Passenger Rail Investment and Improvement Act of 2008.

That law delegated to the Federal Railroad Administration and Amtrak the joint power to establish metrics and standards to define “on-time performance,” and gave the STB power to penalize railroads that fail to meet the standards.

The other case was Association of American Railroads vs. U.S. Department of Transportation.

In the latter case, the railroad trade organization challenged the joint FRA/Amtrak authority as an unconstitutional delegation of governmental power to Amtrak because it is a for profit entity.

The appellate court in that case sided with the AAR, ruling that the law constituted a violation of the Fifth Amendment’s due process clause to give Amtrak, “an economically self-interested actor,” the power to regulate its competitors.

Following that decision, the STB sought to establish the on-time standards itself, which led to the Union Pacific case.

The district court in Washington has set oral arguments for March 5 in what remains of the AAR case.

During that hearing, the federal government and Amtrak will be seeking to have the court reinstate the joint rule-making authority of the FRA and Amtrak by narrowing the court’s previous decision and striking down only a portion of the offending PRIIA provision.

Appeals Court Sides With AAR in Amtrak Case

A federal appeals court ruled last week that a 2008 law unconstitutionally gave Amtrak regulatory power over its contract railroads.

The U.S. Court of Appeals for the District of Columbia sided with the Association of American Railroads in saying that the Passenger Rail Investment and Improvement Act of 2008 gave Amtrak too much power when it comes to writing regulations pertaining to on-time performance metrics.

It was the second time that the appeals court has ruled in favor of the AAR.

An earlier decision was overturned by the U.S. Supreme Court which sent the case back to the appeals court for further review.

AAR had brought suit against the U.S. Department of Transportation in an effort to invalidate Section 207 of the 2008 PRII law.

In its latest ruling, the appeals court said the law’s giving Amtrak the authority to write regulations that affect its host railroads is in violation of the Constitution’s Due Process clause.

The court also knocked down the clause that gives the Surface Transportation Board the authority to appoint a mediator to arbitrate disputes between Amtrak and a host railroad over on-time performance.

The case has a long history that began with a federal district court siding with the U.S. DOT in favor of the law.

AAR appealed that decision to the appeals court, which said in July 2013 that Amtrak is a private company.

The Supreme Court ruled unanimously in March 2015 that Amtrak must be considered a governmental entity but instructed the appeals court to decide the question of the propriety of a government entity that is a participant in a private marketplace being able to regulate that marketplace.

However, concurring opinions by justices Samuel Alito and Clarence Thomas noted that the situation might violate a host railroad’s right to due process.

Those opinions said that regulators must be “disinterested” government bodies rather than competitors in the business.

In its latest ruling, the appeals court cited the Alito and Thomas’s opinions, but conceded that Amtrak and its contract railroads are not competing for the same customers.

They are, however, the court said, competing for the same scarce railroad route capacity and therefore must be considered economic competitors.

As for the STB’s authority under the 2008 law to appoint an arbitrator, the appeals court said that an independent arbitrator appointed by the STB cannot make final regulations because he or she is not a duly appointed or sworn Officer of the United States, as the Constitution requires.

The AAR originally filed suit acted after the U.S. DOT began to promulgate regulations under Section 207 if the PRII with the railroad trade group arguing that the law was an unconstitutional delegation of rule-making to a private company.

In briefs to the court, the AAR relied on the congressional proclamation of the Rail Passenger Service Act of 1970 creating the National Railroad Passenger Corporation (Amtrak) not be treated as a government entity but instead be operated as a for-profit business.

Although the appeals court last week struck down Section 207, it left the rest of the 2008 PRII intact and did not disturb Amtrak’s statutory rights to access of freight railroad tracks on an incremental cost basis.

Nor did the appeals court set aside laws that give Amtrak trains “preference over freight transportation.”

Congress could revise the 2008 law to grant the U.S. DOT the sole power to write on-time performance metrics and standards, in consultation with Amtrak and other others.

In doing so, Congress could give the authority to mediate between Amtrak and a contract railroad to the STB, whose members are duly sworn Officers of the United States, appointed by the president with the advice and consent of the Senate.

The court did not say that it was improper for the federal government to promulgate on-time performance regulations.

AAR Opposes ‘All Station’ OT Metrics

The Association of American Railroads has told the Surface Transportation Board that it opposes use of “all stations metrics” in setting on-time performance standards for passenger trains.

AAR submitted its comments as part of an STB proceeding that was mandated by federal law.

Instead of using an “all stations metric” as Amtrak has proposed, AAR said the STB should use the on-time performance metrics that Amtrak and its host railroads have adopted in their operating agreements, if applicable.

“Switching to an all-stations metric would create false positives for investigation because of the back-loading of recovery time in many of Amtrak’s schedules, in addition to conflicting with the operating agreements,” AAR said. “All-stations OTP (on-time performance) is a deficient metric.”

Amtrak has contended that an all-stations metric is the best way to measure on-time performance.

However, the AAR noted that the passenger carrier did not advocate for an all-stations metric in its operating agreements with the freight railroads even though virtually all of the arguments that Amtrak now makes in its comments to the STB were available when it negotiated those agreements.

The on-time standards the STB is considering would come into play if a passenger carrier such as Amtrak felt that its trains were consistently being delayed by a host railroad.

Amtrak or another passenger carrier could ask the STB to launch an investigation and sanction a railroad if it was found to have violated the on-time performance standards.

In its comments to the STB, AAR noted that most operating agreements measure on-time performance through arrival at the endpoint of each host’s segment or at specified checkpoints rather than at all intermediate stations.

The AAR comments also noted that contrary to the belief of some, Congress has not adopted the all-stations metric for on-time performance in legislation it has adopted over the years, going back to 1976.

In its comments to the STB, Amtrak said an endpoint metric “ignores the experience’ of Amtrak passengers who disembark at an intermediate station.”

In response, the AAR said Amtrak and its host carriers have long recognized that the on-time performance measures in many of their operating agreements and endpoint OTP both provide strongly correlated indications of overall on-time performance on a route, including performance at intermediate stations.

“And in cases where endpoint on-time performance is satisfactory but all-stations on-time performance is not, the immediate focus should not be a full investigation of all operations for the train, but review and consideration of whether recovery time for that train has been appropriately set for the entire route.”

AAR spokesman Ed Greenberg told Railway Age magazine that the nation’s freight railroads recognize the importance of Amtrak.

“We are committed to a reliable passenger rail service,” he said.  “It is a delicate balance in this country where the majority of passenger rail operates on tracks owned by freight railroads, which means trying to find that right transportation mix of serving the needs of passenger rail while ensuring our industry is continuing to meet the shipping requirements of freight customers in moving the country’s economy. Freight railroads take their contractual obligations seriously and comply with the law.”

Greenberg said on-time performance measurement is complicated and involves many factors that are negotiated between Amtrak and its host railroads.

Amtrak Protests STB Policy Statement

Amtrak is arguing that a proposed U.S. Surface Transportation Board policy statement would give freight trains priority over passenger trains rather than the other way around.

In a Feb. 22 statement to the STB, Amtrak asked the federal regulatory agency to withdraw the policy statement because it  “ignores the plain and unequivocal language of Amtrak’s statutory right to preference, creates a new definition that eviscerates the right to preference, and draws broad, erroneous conclusions about relevant evidence based on that fundamental misinterpretation.”

Amtrak’s letter was referring to a statutory right of preference for passenger trains contained in the Amtrak Improvement Act of 1973.

The passenger carrier believes that if the policy change is approved then passenger trains running on tracks owned by freight railroads will experience a substantial increase in delays.

Nearly 97 percent of Amtrak’s route miles use tracks not owned by Amtrak.

The STB launched a rule making proceeding last year that seeks to create a definition of on-time performance for passenger trains hosted by freight railroads.

The proposed rule would only take into account a train arrival time at end points of the route.

Amtrak wants delays at en route stations to also be taken into account. The STB continues to solicit public comments on its proposals.

The National Association of Railroad Passengers also is calling for the STB to withdraw its policy statement on the preference change, saying the statement “overreaches federal law.”

NARP also believes that a change in policy would cause passenger rail-line delays, hinder on-time performance and lead to a costly toll on the rail-riding public.

“The STB issued this ‘policy statement’ behind closed doors and without any input from any outside parties and outside the formal rule-making process that is required,” said NARP President and Chief Executive Officer Jim Mathews in a statement. “As a result, regulators will change how intercity passenger services like Amtrak will be treated by host railroads, which have legal obligations to give passenger trains right of way.”

The Association of American Railroads has filed a statement in favor of the STB policy statement.

The railroad trade association argues that the passenger train preference legal standard is not absolute and “a host rail carrier need not resolve every individual dispatching decision between freight and passenger movements in favor of the passenger train.” The AAR’s statement can be found at:

Click to access 240185.pdf

Amtrak Wants Intermediate Station Performance to be Part of STB On-Time Performance Rule

In the ongoing battle before the Surface Transportation Board over on-time performance rules for Amtrak trains, the passenger carrier is arguing that the standards must also encompass intermediate stations as well as endpoint terminals.

Amtrak contends that measuring on-time performance at all stations located on a host railroad is the only viable method of measuring passenger train performance.

That assertion was made to the STB as part of its proceeding in Ex Parte 726, Notice of Proposed Rulemaking on On-Time Performance under Section 213 of the Passenger Rail Investment and Improvement Act of 2008.

The law allows Amtrak to ask for an STB investigation in cases in which freight train operations deny Amtrak’s right of preference as contained in the 1970 Rail Passenger Service Act that created Amtrak.

Citing STB decisions as well as rulings by its predecessor, the Interstate Commerce Commission, Amtrak told the STB “[T]he only measurement that meets all these requirements is the one that measures performance of Amtrak trains on host railroads at all intermediate stations as well as at endpoint stations . . .”

The Amtrak brief said that incorporating on-time performance at all stations “is the most inclusive and revealing measurement of Amtrak train performance.”

The freight railroad industry, though, has a different take on the issue.

Norfolk Southern told the STB that its proposed rule implicitly adopts Amtrak’s published timetable as the on-time standard.

“[M]any, if not most, Amtrak schedules cannot and have not provided a meaningful or realistic standard for assessing on-time performance,” NS said in its brief.

NS argued for a rule that factors in calculations of “allowances” or “thresholds” for determining if a train is on time.

The Southern Rail Commission supported Amtrak, saying, “the proposed rule for measuring on-time performance is inadequate and doesn’t come close to providing the full picture of the performance of the system.”

The Commission said that Amtrak has been forced to pad schedules to provide the host railroads ample flexibility in hitting on-time performance metrics.

“Much of the padding builds in ample recovery time for the host railroads’ lack of preference for passenger trains, and still arrive at the endpoint destination on-time,” the Commission said in its brief.

The rule proposed by the STB would only take into account on-time performance at endpoint terminals, which Amtrak argued would mean that only 10 percent of Amtrak stations were being taken into account.

It said that would result in an incomplete and in some instances distorted view of actual performance that would not accurately reflect the experience of two-thirds of Amtrak passengers.

Furthermore, Amtrak said, it would leave on-time performance within 24 states unmeasured because those states have no endpoint stations and leaves unaddressed the many routes where performance appears to be above 80 percent when measured only at the last station on the route, but is significantly and chronically less than 80 percent at stations all along the route.

A spokesman for the Association of American Railroads told Railway Age magazine that host railroads “recognize the importance of Amtrak and are committed to a reliable passenger rail service while still meeting the shipping needs of the nation’s freight customers.”

John D. Heffner, a partner at Strasburger & Price, told the magazine that Amtrak’s agreements with its host railroads impose penalties for poor performance and incentives for good performance.

“What seems to be lost on everybody, lost on the individual and lost on the STB, is that by and large today’s freight railroads don’t really have any desire to run passenger trains late because running them late screws up their network,” he said.