STB Appoints Moyer to Oversee Passenger OTP Matters

The U.S. Surface Transportation Board had named a senior staff member to oversee its review of passenger rail on-time performance.

Neil Moyer will coordinate preparation efforts. The STB said in a news release that Section 213 of the Passenger Rail Investment and Improvement Act of 2008 authorizes the STB to investigate the causes of substandard passenger rail on-time performance.

The law provides authority to the STB to identify mitigating measures and, under specified conditions, to prescribe relief.

The standards the STB will oversee were drawn up and approved on Nov. 16, 2020, by the Federal Railroad Administration.

The standards are expected to primarily apply to Amtrak operations and establish metrics and minimum standards for measuring on-time performance.

Creating the standards was a 10-year process that included lawsuits launched by the Association of American Railroads that twice reached the U.S. Supreme Court.

The FRA standards require 80 percent of passenger arrivals at stations to occur within 15 minutes of the scheduled time for any two consecutive calendar quarters.

The standards became effective on July 1, 2021. Under federal law, there must be two consecutive quarters of “substandard OTP.”

The earliest  the STB might begin reviewing a complaint from Amtrak about subpar handling of its trains by a host railroad is January 2022.

The STB said the appointment of Moyers as Passenger Rail Unit Development Coordinator will help the agency to prepare for upcoming investigations.

His efforts are expected to build on those of the STB’s Passenger Rail Working Group, which was created in April 2021.

In its news release, the STB said  Moyer will work closely with STB members and staff to “develop and begin to implement a comprehensive plan for OTP investigation processing and resource allocation. These activities will include specifying and filling staffing and contracting needs, including forming a unit at the STB focused on passenger rail issues and analysis, developing database capabilities, creating an action plan for addressing potential OTP investigations, and coordinating interagency communications regarding OTP implementation issues.”

Moyer is currently passenger rail advisor in the STB’s Office of Public Assistance, Governmental Affairs, and Compliance.

Before joining the STB, he served as Chief of the Intercity Passenger Rail Analysis Division and Chief of the Financial and Economic Analysis Division at the FRA. 

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.

STB Issues Two Rulings in Passenger Cases

The U.S. Surface Transportation Board this week decided that it would consider on-time arrival and departure performance at all stations along a passenger train’s route for purposes of assessing overall on-time performance.

The STB said in a news release that it deem a train to be “on time” if it arrives at or departs from a station no more than 15 minutes after its scheduled arrival or departure time.

In a related decision, the STB said it is withdrawing a proposed policy statement on issues that may arise and evidence to be presented in proceedings under the Passenger Rail Investment and Improvement Act of 2008 in favor of a case-by-case approach.

“Reflecting careful consideration of an extensive public and stakeholder response to our most recent passenger rail proposals, these decisions will better position the Board to implement its responsibilities under the Passenger Rail Investment and Improvement Act of 2008,” said Board Chairman Daniel R. Elliott III in a statement. “Improved passenger train on-time performance is an important goal, and the Board’s decisions will support that goal by clarifying the trigger for starting a proceeding, while allowing more complex and detailed issues to be resolved in the context of individual cases.”

STB to Begin Rule Making on Train OT Standards

The federal agency that oversees transportation will begin a rule-making process designed to define intercity passenger railroad on-time performance for purposes of Section 213 of the Passenger Rail Investment and Improvement Act of 2008.

“The Board intends to issue in a subsequent decision a notice of proposed rule making in this matter, inviting public participation and comment,” said Surface Transportation Board spokesman Dennis Watson. “This decision follows a series of events surrounding the constitutionality of Section 207 of PRIIA in the federal courts, as well as a petition filed by the Association of American Railroads requesting a rule making on this matter.”

“The Board fully recognizes that when Congress enacted PRIIA, it placed importance on the efficient and timely adjudication of on-time performance,” said Watson. “Therefore, the Board will develop a definition of on-time performance with public participation through a formal rulemaking so that a process will be in place as Congress intended.”

The board’s notice can be viewed at

http://www.stb.dot.gov/decisions/readingroom.nsf/WebDecisionID/44440?OpenDocument