STB Forms Rail Passenger Working Group

A working group has been created by the U.S. Surface Transportation Board to develop plans to enforce on-time performance rules for intercity passenger-rail service.

The STB said the group will oversee a rule formulated in November 2020 by the Federal Railroad Administration that established metrics and minimum standards.

In a news release, the STB said Frank O’Connor will serve as chair of the passenger rail working group.

Frank O’Connor is deputy director of the STB’s Office of Economics.

The Passenger Rail Investment and Improvement Act of 2008 gave the STB authority to investigate and adjudicate issues related to on-time performance of Amtrak’s intercity service under the new metrics and standards.

Those rules will be implemented on July 1, with quarterly reporting by the FRA to begin the following month.

The FRA rule defines on-time as the arrival of passengers at their destination station no later than 15 minutes after their published scheduled arrival time.

The FRA’s rule requires Amtrak and its host railroads to certify Amtrak schedules and sets an on-time performance minimum standard of 80 percent for any two consecutive calendar quarters.

Under federal law, the STB is authorized to investigate a failure to meet the on-time performance standard, either on its own initiative or upon complaint by Amtrak or another eligible complainant, to determine whether and to what extent that failure is due to causes that could be reasonably addressed by a rail carrier over whose tracks the intercity passenger train operates or by Amtrak or other intercity passenger rail operators.

The STB may identify reasonable measures and make recommendations to improve train service, quality and on-time performance.

Federal regulators may also award damages and prescribe other relief should the STB determine that failure to meet the on-time performance standard was attributable to a host railroad’s failure to provide preference to Amtrak over freight transportation.

The on-time passenger standards have been a decade in the making.

Earlier attempts to create an on-time standard were challenged by the Association of American Railroads in court and the case twice reached the U.S. Supreme Court.

The working group will also “explore the feasibility of creating an office at the STB focused on passenger rail issues and the creation of a Passenger Rail Advisory Committee under the Federal Advisory Committee Act,” among other functions.

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 Strikes Down STB On-Time Standards

Another federal court has struck a blow to the efforts of the U.S. Surface Transportation Board to establish on-time standards for Amtrak trains.

The Eighth U.S. Circuit Court of Appeals found the STB standards to be unconstitutional, saying that the STB had “exceeded its authority” in creating the standards.

The appeals court ruling came in the wake of a similar U.S. Supreme Court decision that development of on-time metrics by the Federal Railroad Administration and Amtrak as directed by Section 207 of 2008’s Passenger Rail Investment and Improvement Act was unconstitutional.

In the Eighth Circuit ruling, Chief Judge Lavenski R. Smith acknowledged that the absence of on-time standards would make it impossible for the STB to investigate or adjudicate disputes brought by Amtrak against its host railroads in the event that punctuality fell below 80 percent for two consecutive quarters.

However, the court in essence decided that the STB’s inability to measure on-time performance is not a problem for the judiciary to solve.

There are two cases pending before the STB in which Amtrak alleges that host railroads needlessly delayed Amtrak trains.

One case involves the handling by Canadian National of the Saluki and Illini between Chicago and Carbondale, Illinois, while the other regards Norfolk Southern’s handling of the Capitol Limited west of Pittsburgh.

In both cases, Amtrak contends that dispatching decisions made by the host railroads are delaying its trains.

The STB had contended that it had the legal right to establish on-time standards “by virtue of its authority to adjudicate complaints brought by Amtrak. Any other result would gut the remedial scheme, a result Congress clearly did not intend.”

Supporting the STB’s position were 13 intervenors, including the National Association of Railroad Passengers and its state affiliates, and the U.S. Conference of Mayors.

Challenging the on-time standards were Union Pacific, CSX, CN and the Association of American Railroads.

They argued that the “gap-filling rationale does not allow one agency to assume the authority expressly delegated to another.”

The court found that the only place in federal law where the 80 percent standard was spelled out was in section 207, which the Supreme Court ruled unconstitutional because Amtrak had a hand in developing it.

Although the court let stand Congress’ setting a statutory right of passenger train “priority” over freight trains, the practical effect of the court decision is that Amtrak has no way to challenge a host railroad’s systematic denial of that right.

Instead, the only motivation for railroads to keep Amtrak trains on time are the proprietary and confidential incentive contracts Amtrak has been able to negotiate with its host railroads pertaining to on-time handling.

The only action Amtrak can take against a host railroad would be to refuse to make incentive payments due to non-performance under the terms of its operating contract with a host railroad.

The court rulings do suggest that Congress could give the FRA a mandate to establish on-time standards provided that Amtrak was not a participant in the writing of those standards.

AAR Appeals STB Passenger Train Ruling

Displeased with the outcome of a U.S. Surface Transportation Board ruling on passenger train on-time standards, the Association of American Railroads has asked the U.S. Court of Appeals for the District of Columbia to review the ruling.

AAR maintains in its appeal that federal law gives the Federal Railroad Administration and Amtrak — but not the STB — the legal authority to define on-time performance.

The ruling in question involved an STB determination that on-time arrivals and departures at all stations along a passenger train’s route should be used for the purpose of determining on-time performance.

The STB also said it was dropping a proposal that would have allowed railroads to give higher priority to some freight trains over passenger trains.

The AAR asserted in its appeal that it is not challenging the rule that gives preference to passenger trains on freight-rail lines, said AAR spokesman Ed Greenberg.

“Freight railroads take contractual obligations seriously and comply with the law in giving Amtrak preference,” said Greenberg. “That has never been contested by freight railroads.”

But the AAR said it is disappointed that the STB “has decided to add mid-point on-time performance measures, which could result in negative impacts for freight rail customers and consumers.”

STB Passenger Rulings Panned, Applauded

Rail passenger advocates were pleased but the Association of American Railroads was disappointed with rulings issued last week by the U.S. Surface Transportation Board pertaining to Amtrak’s on-time performance.

In one decision, the STB said it would not institute a proposed policy statement that would have given Amtrak’s contract railroads more freedom to determine dispatching preferences.

Instead, the STB said it would consider on a case-by-case basis Amtrak complaints about its trains not being given preferential treatment as required by federal law.

In the second case, the STB said it would consider arrivals and departures at intermediate stations in investigations of on-time performance.

The Passenger Rail Investment and Improvement Act of 2008 mandates an average 80 percent on-time requirement for Amtrak trains.

The STB is authorized to investigate instances in which a host railroad is not dispatching Amtrak trains in a way as to reach that standard.

“It is a disappointment the [board] has decided to add mid-point on-time performance measures, which could result in negative impacts for freight rail customers and consumers,” the AAR said in a statement. “But the freight rail industry will continue to work with Amtrak to provide dependable passenger service in the country. In the meantime, we will review the two decisions and evaluate our further legal options.”

On the other hand, Jim Mathews, president of the National Association of Railroad Passengers, said in a statement, “NARP congratulates the STB for coming to the correct decision in these important rulemakings. The STB plays a crucial role in ensuring that the national rail system operates both fairly and efficiently, and in ensuring that Congressional mandates are respected and enforced.”

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.”

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

STB Seeking Comment on Passenger OT Rule

The Surface Transportation Board has issued a proposed rule regarding passenger train on-time performance and is seeking public comment on it.

The rule would consider a train to be on time if it arrives at its final terminus no more than five minutes after its scheduled arrival time for each 100 miles that the train operated or 30 minutes after its scheduled arrival time, whichever is less.

The board said it is acting under Section 213 of the Passenger Rail Investment and Improvement Act of 2008.

That law states that if the on-time performance of an intercity passenger train averages less than 80 percent for any two consecutive calendar quarters, the STB may launch an investigation or Amtrak and others may file a complaint with the board requesting that it initiate an investigation.

The Board also issued a proposed policy statement that interprets the statutory preference accorded to Amtrak trains over freight trains, and the phrase “attributable to a . . . failure to provide preference.”

The statement also provides guidance regarding the evidence that may be most useful in proceedings.