Passenger Rail Update

This edition of the Passenger Rail Update highlights how the Surface Transportation Board (STB) has come to serve as an increasingly important venue for the National Railroad Passenger Corporation (“Amtrak”) to assert federal statutory rights and obligations aimed at improving intercity passenger rail service across the country. The shift can be seen in the STB’s establishment of a new Office of Passenger Rail and in Amtrak’s ongoing bid to restart its Gulf Coast service.

Surface Transportation Board Introduces New Office of Passenger Rail
On October 13, 2022, the STB introduced its new Office of Passenger Rail (OPR). The STB announced the establishment of OPR. OPR will be responsible for investigating and analyzing issues regarding Amtrak on-time performance (OTP).

The STB’s responsibilities regarding Amtrak’s OTP stem from the Passenger Rail Investment and Improvement Act of 2008 (PRIIA). Section 213 of PRIIA (codified at 49 U.S.C. § 24308(f)) authorizes the STB to receive and investigate complaints regarding substandard Amtrak OTP, and to award damages and prescribe any relief as it determines to be reasonable and appropriate to rectify Amtrak’s OTP. Under section 24308(f), complaints may be brought by Amtrak, an intercity passenger rail operator, a host freight railroad over which Amtrak operates, or an entity for which Amtrak operates intercity passenger rail service.  In addition, the Board may initiate an investigation on its own accord. Section 24308(f) provides for an investigation if Amtrak’s OTP for any intercity passenger train averages less than 80 percent for any two consecutive calendar quarters, or if service quality standards established by the Federal Railroad Administration (FRA) are not met for two consecutive calendar quarters. 

In November 2020, the FRA published a rule for service standards that included a performance metric for determining OTP (85 Fed. Reg. 72,971 (Nov. 16, 2020)). The FRA’s rule, provided at 49 C.F.R. part 273, defines OTP as the percentage of all customers on an intercity passenger rail train who arrive at their detraining point no later than 15 minutes after their published scheduled arrival time, reported by train and by route. FRA’s rule also provided details regarding FRA’s quarterly publication of OTP data, which FRA is required to publish under PRIIA. Issuance of the FRA’s OTP performance metric comes after a protracted process of their development spanning more than a decade, which included legal challenges by the freight rail industry of previous metrics established by the FRA and STB that reached the Supreme Court several times

In order to meet the challenge of investigating Amtrak’s OTP, STB staff has been working with the U.S. Department of Transportation’s Volpe National Transportation Systems Center to develop tools to analyze FRA’s OTP quarterly data. In conjunction with formation of OPR, the STB will be creating a passenger rail advisory committee to advise on passenger rail transportation issues. The STB’s announcement also notes that it is in the process of hiring a director for OPR. 

Surface Transportation Board Extends Period for Mediation between Amtrak and Freight Railroads in Proceeding for Amtrak’s Request to Restart Gulf Coast Service.
As covered in an earlier edition of the Passenger Rail Update and elsewhere on the ATLP Highlights Blog, Amtrak has requested that the STB require CSX Transportation, Inc. and Norfolk Southern Railway Company to allow Amtrak to restart intercity passenger rail service between Mobile, Alabama and New Orleans, Louisiana, pursuant to authority granted to Amtrak and the Board under 49 U.S.C. § 24308(e). Section 24308(e) provides that Amtrak may apply to the STB for an order requiring a rail carrier to provide or allow for the operation of additional Amtrak trains. On October 11, 2022, the STB issued an order at the request of the parties to extend the period for Board-sponsored mediation to October 25, 2022. While observers wait to see the results of the mediation, the case has brought Amtrak’s statutory remedies into sharp focus as Amtrak prepares to use funds and resources made newly available to it under the recently passed Infrastructure Investment and Jobs Act (“IIJA”). The results could mark an important precedent for Amtrak and the rail industry more broadly. Amtrak’s STB case is docketed under Finance Docket No. 36496.

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