Federal Register, Volume 85 Issue 62 (Tuesday, March 31, 2020)

[Federal Register Volume 85, Number 62 (Tuesday, March 31, 2020)]
[Proposed Rules]
[Pages 17835-17847]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-06245]

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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 273

[Docket No. FRA-2019-0069]
RIN 2130-AC85

Metrics and Minimum Standards for Intercity Passenger Rail
Service

AGENCY: Federal Railroad Administration (FRA), Department of
Transportation (DOT).

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: FRA proposes metrics and minimum standards for measuring the
performance and service quality of intercity passenger train
operations. Consistent with the statutory mandate, FRA and Amtrak
jointly developed the proposed metrics and minimum standards.

DATES: Written comments on this proposed rule must be received on or
before June 1, 2020. Comments received after that date will be
considered to the extent possible without incurring additional expense
or delay. FRA intends to hold a public hearing to allow interested
parties the opportunity to comment on specific issues addressed in the
NPRM. The date and location of the hearing will be set forth in a
forthcoming notice in the Federal Register.

ADDRESSES: You may submit comments identified by the docket number FRA-
2019-0069 by any one of the following methods:
Federal eRulemaking Portal: Go to http://www.regulations.gov and follow the online instructions for submitting
comments;
Mail: U.S. Department of Transportation, Docket
Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey
Avenue SE, Washington, DC 20590; or
Hand Delivery: U.S. Department of Transportation, Docket
Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey
Avenue SE, Washington, DC 20590, between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays.
Instructions: All submissions must include the agency name and
docket number or Regulatory Identification Number (RIN) for this
rulemaking (RIN 2130-AC85). Note that all comments received will be
posted without change to http://www.regulations.gov, including any
personal information provided. Please see the Privacy Act heading in

[[Page 17836]]

the SUPPLEMENTARY INFORMATION section of this document for Privacy Act
information related to any submitted comments or materials.
Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov at any time or to
U.S. Department of Transportation, Docket Operations, M-30, West
Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE,
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays.

FOR FURTHER INFORMATION CONTACT: Kristin Ferriter, Transportation
Industry Analyst, Office of Railroad Policy and Development, FRA, 1200
New Jersey Avenue SE, Washington, DC 20590 (telephone (202) 493-0197);
or Zeb Schorr, Assistant Chief Counsel, Office of Chief Counsel, FRA,
1200 New Jersey Avenue SE, Washington, DC 20590 (telephone (202) 493-
6072).

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Executive Summary
II. Background
III. Customer On-Time Performance
IV. OTP, Train Schedules, and STB Investigations of Performance
V. Section-by-Section Analysis
VI. Regulatory Impact and Notices
A. Executive Order 12866 and DOT Regulatory Policies and
Procedures
B. Regulatory Flexibility Act and Executive Order 13272; Initial
Regulatory Flexibility Assessment
C. Paperwork Reduction Act
D. Federalism Implications
E. Environmental Impact
F. Executive Order 12898 (Environmental Justice)
G. Executive Order 13175 (Tribal Consultation)
H. Unfunded Mandates Reform Act of 1995
I. Energy Impact
J. Trade Impact
K. Privacy Act

I. Executive Summary

On October 16, 2008, President George W. Bush signed the Passenger
Rail Investment and Improvement Act of 2008, Public Law 110-432, 122
Stat. 4907 (PRIIA) into law. Section 207 of PRIIA requires FRA and
Amtrak jointly to develop new or improved metrics and minimum standards
for measuring the performance and service quality of intercity
passenger train operations (the Metrics and Standards).
In compliance with the statutory directive, FRA and Amtrak jointly
developed the Metrics and Standards proposed here. The Metrics and
Standards are generally organized into four categories: On-time
performance and train delays, customer service, financial, and public
benefits.

II. Background

A. PRIIA

Section 207 of PRIIA requires FRA and Amtrak to act jointly, in
consultation with the Surface Transportation Board (STB), rail carriers
over whose rail lines Amtrak trains operate, States, Amtrak employees,
and groups representing Amtrak passengers, as appropriate, to develop
new or improved metrics and minimum standards for measuring the
performance and service quality of intercity passenger train
operations, including cost recovery, on-time performance and minutes of
delay, ridership, on-board services, stations, facilities, equipment,
and other services.
Section 207 further provides that the metrics, at a minimum, must
include: The percentage of avoidable and fully allocated operating
costs covered by passenger revenues on each route; ridership per train
mile operated; measures of on-time performance and delays incurred by
intercity passenger trains on the rail lines of each rail carrier; and,
for long-distance routes, measures of connectivity with other routes in
all regions currently receiving Amtrak service and the transportation
needs of communities and populations that are not well-served by other
forms of intercity transportation.
Section 207 also provides that the Federal Railroad Administrator
must collect the necessary data and publish a quarterly report on the
performance and service quality of intercity passenger train
operations, including Amtrak's cost recovery, ridership, on-time
performance and minutes of delay, causes of delay, on-board services,
stations, facilities, equipment, and other services.
Finally, Section 207 provides that, to the extent practicable,
Amtrak and its host rail carriers shall incorporate the Metrics and
Standards into their access and service agreements.
The Metrics and Standards also relate to Section 213 of PRIIA.
Section 213 states that if the on-time performance of any intercity
passenger train averages less than 80 percent for any 2 consecutive
calendar quarters, or the service quality of intercity passenger train
operations for which minimum standards are established under Section
207 fails to meet those standards for 2 consecutive calendar quarters,
STB may initiate an investigation. STB shall also initiate such an
investigation upon the filing of a complaint 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. Section 213 further describes the STB investigation and
STB's related authority to identify reasonable measures and make
recommendations to improve the service, quality, and on-time
performance of the train and to award damages and prescribe other
relief.

B. 2010 Metrics and Standards

In March 2009, FRA published proposed Metrics and Standards, which
were jointly developed with Amtrak. After receiving and considering
comments, FRA published final Metrics and Standards in May 2010.
However, the 2010 Metrics and Standards were subject to a legal
challenge on the basis that Section 207 of PRIIA was unconstitutional.
After protracted litigation, the United States Court of Appeals for the
District of Columbia Circuit found that paragraph (d) of Section 207
was unconstitutional, and this holding had the effect of voiding in
part the 2010 Metrics and Standards. Following additional litigation,
that Court also found that paragraphs (a) through (c) of Section 207
were constitutional and remained in effect (this decision became final
on June 3, 2019). As a result, in July 2019, FRA and Amtrak once again
began the process of developing joint Metrics and Standards as required
by Section 207(a).
For reference, FRA will place a copy of the 2010 Metrics and
Standards in the docket for this rulemaking (FRA-2019-0069). The 2010
Metrics and Standards were organized into five categories--financial,
on-time performance, train delays, other service quality, and public
benefits--and set forth multiple on-time performance and train delays
standards. FRA received comments on each of these categories, with on-
time performance and train delays receiving the most attention.
The 2010 Metrics and Standards differ from the Metrics and
Standards proposed in this rulemaking in several ways, including the
following:

(1) The 2010 Metrics and Standards set forth 3 on-time
performance metrics and standards--effective speed, endpoint, and
all-stations;
(2) the 2010 Metrics and Standards set forth standards in
connection with the train delays metrics (e.g., 900 minutes per
10,000 train-miles for host-responsible train delays);
(3) the 2010 Metrics and Standards set forth standards in
connection with many of the service quality metrics (e.g., 90
percent by 2014) and set forth metrics regarding equipment
reliability and customer comments received;

[[Page 17837]]

(4) the 2010 Metrics and Standards set forth standards in
connection with the financial metrics (e.g., continuous year-over-
year improvement) and set forth financial metrics regarding adjusted
loss per passenger-mile and long-term avoidable operating loss per
passenger mile; and
(5) the 2010 Metrics and Standards did not include metrics
regarding missed connections, service availability, average minutes
late per late customer, and cost recovery.

This NPRM sets forth a single on-time performance standard
(customer on-time performance). FRA believes this single standard is
the most effective manner to achieve dedicated focus on improving on-
time performance. FRA invites comments on whether any metrics or
standards included in the 2010 Metrics and Standards should be
included.

C. Stakeholder Consultation

Consistent with Section 207(a), FRA and Amtrak consulted with many
stakeholders to develop the Metrics and Standards proposed in this
NPRM.
Specifically, in August and September, 2019, FRA met separately
with representatives of the following Class I railroads that host
Amtrak trains: BNSF Railway, Canadian National Railway, Canadian
Pacific Railway, CSX Transportation, Norfolk Southern Railway Company,
and Union Pacific Railroad. On September 5, 2019, FRA and Amtrak met
with representatives of the Rail Passengers Association. On September
10, 2019, FRA and Amtrak met with representatives of the Metro-North
Railroad. On September 12, 2019, FRA and Amtrak met with
representatives of the Transport Workers Union. On September 13, 2019,
FRA and Amtrak met with Surface Transportation Board staff. On
September 18, 2019, FRA and Amtrak convened a meeting with members of
the State-Amtrak Intercity Passenger Rail Committee, whose members
include: Caltrans, Capitol Corridor Joint Powers Authority, Connecticut
Department of Transportation (DOT), Illinois DOT, Los Angeles-San
Diego-San Luis Obispo Joint Powers Authority, Massachusetts DOT,
Michigan DOT, Missouri DOT, New York State DOT, North Carolina DOT,
Northern New England Passenger Rail Authority, Oklahoma DOT, Oregon
DOT, Pennsylvania DOT, San Joaquin Joint Powers Authority, Texas DOT,
Vermont Agency of Transportation, Virginia Department of Rail and
Public Transportation, Washington State DOT, and Wisconsin DOT. On
September 20, 2019, Amtrak met separately with representatives of the
Union Pacific Railroad. On September 24, 2019, FRA and Amtrak met with
representatives of the Vermont Railway. On November 15, 2019, Amtrak
met separately with representatives of the BNSF Railway. On November
19, 2019, in two different meetings, FRA met separately with, first,
representatives of the International Association of Sheet Metal, Air,
Rail, and Transportation Workers, Transportation Division, and, second,
with members of the Surface Transportation Board. FRA and Amtrak also
sought input from other potentially interested entities who did not
express interest in consulting at that time.

D. FRA and Amtrak Joint Development

In compliance with Section 207 of PRIIA, FRA and Amtrak jointly
developed the Metrics and Standards proposed in this NPRM, in
consultation with the stakeholders described in subsection (C) above.

E. FRA Quarterly Reporting

Section 207(b) requires FRA to publish a quarterly report on the
performance and service quality of intercity passenger train
operations, including Amtrak's cost recovery, ridership, on-time
performance and minutes of delay, causes of delay, on-board services,
stations, facilities, equipment, and other services. FRA's first
quarterly report would be issued after the first full calendar quarter
3 months after the date of publication of the final rule in the Federal
Register. For example, if the final rule was published on July 10,
2020, 3 months after that date would be October 10, 2020, and the first
full calendar quarter after that would run from January 1, 2021 to
March 31, 2021.

III. Customer On-Time Performance

This NPRM proposes to measure the on-time performance (OTP) element
of intercity passenger train performance using the customer OTP metric,
defined as the percentage of all customers on an intercity passenger
rail train who arrive at their detraining point within 15 minutes of
their published scheduled arrival time, reported by train and by route.
The customer OTP metric focuses on intercity passenger train
performance as experienced by the customer. Customer OTP measures the
on-time arrival of every intercity passenger customer, including those
who detrain at intermediate stops along a route and those who ride the
entire route.
FRA recognizes that the proposed customer OTP metric should be
accompanied by metrics that provide additional useful information about
a train's performance. There are factors that could contribute to poor
OTP on a route that are not evident from measuring station arrival
times alone. For example, an intercity passenger rail train dispatched
by multiple hosts may experience delays on one host railroad but not on
another host railroad. Since the customer OTP metric does not easily
distinguish performance on individual host railroads (including
Amtrak), this NPRM also proposes metrics to measure the degree of
customer lateness and train delays to provide more information about
the customer experience and train performance on an individual host
railroad.\1\
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\1\ To the customer, there may be no discernable difference as
to whether they are in one host railroad's territory or another's
while traveling on a route. However, most intercity passenger rail
routes involve interchanges between one or more host railroads.
Thus, as stated, FRA proposes metrics that measure both route-level
performance that reflect the customer experience, as well as metrics
that more directly relate to the individual host railroads within
the route segments that they control.
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The customer OTP metric would be calculated as follows: The total
number of customers on an intercity passenger rail train who arrive at
their detraining point within 15 minutes of their published scheduled
arrival time divided by the total number of customers on such intercity
passenger rail train.\2\ For example:
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\2\ There are several uncommon situations that can affect the
calculation of customer OTP. Customers on canceled trains (less than
4 hours advance notice) are counted as late customer arrivals at
their ticketed station if service to their ticketed station is
canceled. Customers that are carried beyond their ticketed off-point
are included in the customer arrival count at their ticketed off-
points. Re-accommodated customers not due to the suspension of a
train are excluded from the calculation. Customers on bus bridges
(transportation on buses for a portion of a regularly scheduled
train route) are excluded from the calculation. If the time that a
train arrives at a station is not recorded, ticketed customers
detraining at that station are excluded from the customer OTP
calculation.

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[[Page 17838]]

[GRAPHIC] [TIFF OMITTED] TP31MR20.003

The following table provides a hypothetical customer OTP
calculation for a single train over two days. The table provides the
minutes late, arrival status (``OT'' for on-time, ``LT'' for late),
total number of customer arrivals, and number of on-time customer
arrivals, by station, for each day of operation and the two days
overall.
[GRAPHIC] [TIFF OMITTED] TP31MR20.004

In this example, customer OTP is 100% on day 1, 68% on day 2, and
84% for the two days combined. Because the number of customers on this
train is different by station and by day, the aggregate customer OTP
over the period is not a straight average of the daily numbers.
In addition, FRA is proposing a minimum standard for customer OTP
of 80 percent for any 2 consecutive calendar quarters. FRA is proposing
only one standard in connection with the OTP and train delays metrics
to promote clarity and compliance. FRA emphasizes that 80 percent would
be a minimum standard, and FRA would expect that some intercity
passenger rail services should reliably achieve a higher standard of
performance. The proposed 80 percent customer OTP standard is
consistent with the statutory requirement in 49 U.S.C. 24308(f)(1).

IV. OTP, Train Schedules, and STB Investigations of Performance

A. In General

The proposed Metrics and Standards are connected to STB's
investigation of substandard intercity passenger train performance
under 49 U.S.C. 24308(f) ``to determine whether and to what extent
delays or failure to achieve minimum standards are due to causes that
could reasonably be addressed by a rail carrier over whose tracks the
intercity passenger train operates or reasonably addressed by Amtrak or
other intercity passenger rail operators.'' Specifically, the proposed
customer OTP metric and standard would inform when STB could initiate
such an investigation and the proposed train delays metrics would
likely be relevant to the investigation itself. In addition, Sec.
24308(f) states that, ``[a]s part of its investigation, the Board has
authority to review the accuracy of the train performance data and the
extent to which scheduling and congestion contribute to delays.''
A train's schedule can affect the performance of a train. As a
result, and as recognized in Sec. 24308(f), a train's schedule can be
relevant to an STB investigation. FRA believes it is helpful here to
describe the relationship between a train schedule and its OTP, as well
as several important train scheduling principles, and how these issues
may ultimately inform an STB investigation of substandard intercity
passenger train performance.

B. OTP and Train Schedules

The proposed Metrics and Standards in part seek to measure
intercity passenger train OTP and to set a minimum OTP standard. Where
a train's OTP is measured against the train schedule provided to the
public (the published train schedule), the train's schedule should be
aligned with the particular OTP measure used to evaluate the train's
performance.
As discussed, this NPRM proposes a customer OTP metric and
standard. Train schedules, and, in particular, the distribution of the
recovery time element of those schedules, should be aligned with the
customer OTP metric. Historically, Amtrak's published train schedules
have not been designed with a customer OTP metric in mind. As such, FRA
recommends that Amtrak and the host railroads identify the current
Amtrak published train schedules that do not currently align fully with
the customer OTP metric and discuss how to align them.\3\ To facilitate
this collaboration, FRA would suggest emphasizing the 3 train schedule
principles in section (C) below.\4\
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\3\ It should be noted that schedules are agreed upon by Amtrak
and the host railroads as part of their bilateral access and service
agreements.
\4\ These principles are purely for the purpose of facilitation.
FRA is not requiring that the parties use them.
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C. Train Schedule Principles

FRA has identified the following 3 train schedule principles: (1)
Redistribute recovery time in the published train schedules to improve
alignment with the proposed customer OTP metric; (2) when supported,
modify the published train schedule to accommodate temporarily changed
conditions on the rail line; and (3) when supported, modify the
published train schedule to accommodate long-term or permanently
changed conditions on the rail line.\5\ Each principle is further

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described below. The defined terms below are used to ensure a
consistency of understanding (and are for the sole purpose of
describing terms used in the OTP, Train Schedules, and STB
Investigations of Performance section of this preamble).
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\5\ FRA recognizes that Amtrak and individual host railroads
have existing agreements that contain agreed-upon schedules as well
as procedures and processes for modifying those schedules, and that
those agreements remain in place and are not altered or negated by
any principle proposed in this NPRM. FRA also recognizes that there
are contractual and statutory remedies for parties to those
agreements to pursue in the event of a dispute regarding the terms
of those agreements, including terms regarding performance, and
nothing in this NPRM would be intended to conflict with those
remedies. It should also be noted that Sec. 207(c) states that, to
the extent practicable, Amtrak and its host rail carriers shall
incorporate the metrics and standards into their access and service
agreements.
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1. Definitions
a. ``Dwell time'' means the scheduled time assigned to stations and
servicing stops to account for normal work, including handling
passengers and baggage, scheduled switching of equipment in or out of
consist, scheduled locomotive and train servicing, and scheduled crew
changes.
b. ``Host railroad'' means any railroad over which intercity
passenger trains operate.
c. ``Miscellaneous time'' means a time classification other than
Pure Running Time, Dwell Time, or Recovery Time that may be added to a
schedule on a route-specific basis (such as planned meets with other
Amtrak trains).
d. ``Pure running time'' or ``PRT'' means the minimum amount of
time required for a train to operate between two locations via its
normal routing. PRT of a route is the sum of the PRTs of location-to-
location segments on the route. PRT is based solely on the physical
characteristics of the route and train attributes. Segment (and route)
characteristics include distance, track gradient, speed limits
(including permanent, but not temporary, speed restrictions), signal
aspects, and acceleration/deceleration time required at stations. Train
attributes include the number and weight of cars in the train, the
horsepower per ton ratio, and the acceleration/deceleration
capabilities of the equipment.
e. ``Recovery time'' means time added to a schedule to help a train
``recover'' to published schedule on-time operation in the event that
it encounters delays.
f. ``Replay'' means an electronic recreation and display of train
movements and dispatcher's actions over a period of time on a track
diagram emulating the dispatcher's working screen. This data file can
be played back at various speeds for the purpose of reviewing track
occupancy, movement authority, and train movement information.
g. ``Schedule skeleton'' means a schedule grid used by Amtrak and
host railroads to communicate: (i) The public schedule of an Amtrak
train; and (ii) the schedule of operations of an Amtrak train on host
railroads. Schedule skeletons indicate, for each train, the: (a) Time
of arrival at the point of entry to the rail lines of a host railroad,
and time of departure from the point of exit from the rail lines of a
host railroad; (b) dwell time at each station and servicing location on
the rail lines of a host railroad; and (c) pure running time, recovery
time, and miscellaneous time within a segment.
2. Train Schedule Principle: Recovery Time Redistribution
Published train schedules that are not currently aligned with the
proposed customer OTP metric should be adjusted by redistributing the
current recovery time. Recovery time redistribution should not add time
to the current published train schedule.
3. Train Schedule Principle: Temporary Modifications
When supported, a published train schedule should be modified to
accommodate temporary changed conditions on the rail line. Temporary
modifications are typically for a period of less than 3 months and may
include: Major maintenance and construction projects; \6\ expected and
unexpected environmental conditions or disruptions; and factors outside
of the direct control of the host railroad. Aligning the published
train schedule with such changed conditions provides a more predictable
travel experience for the customer.
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\6\ Major maintenance and construction projects are typically
characterized by sufficient scale and scope that: (i) Resulting
delays from the project cannot be absorbed by existing recovery
time; (ii) the project is performed by ``system'' gangs rather than
``division'' gangs; (iii) the host railroad is modifying freight
schedules to accommodate the project; (iv) the project duration is
at least 4 days; (v) the project is planned sufficiently in advance
to allow at least 4 weeks advance notice to Amtrak to allow
schedules to be adjusted and passengers notified, as appropriate;
and (vi) the project work is limited in both time and geography (the
project has dedicated resources, a timeline, and a planned
conclusion date).
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Temporary schedule modification requests should be supported by:
(i) A current and proposed schedule skeleton; (ii) a detailed
description of the temporary conditions, including: The specific
location of the temporary conditions; the circumstances surrounding the
temporary conditions; any operational adjustments implemented or
planned for implementation for any trains (freight or passenger) in
response to the temporary conditions; any infrastructure modifications
implemented or planned for implementation in response to the temporary
conditions; and the expected duration of the temporary conditions; and
(iii) where available, (A) replay files from the host railroad's
dispatching systems that are sufficient to demonstrate the change in
condition for the Amtrak route, (B) data to support operations analyses
of current and proposed conditions, including traffic data, analysis
inputs and assumptions, data relating to capital expenditures affecting
capacity, or other equivalent data, and (C) data collected through
field checks.\7\
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\7\ A field check is a technique used to evaluate the
performance of an Amtrak train, typically by riding onboard the
Amtrak locomotive.
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4. Train Schedule Principle: Long-Term and Permanent Modifications
When supported, a published train schedule should be modified to
accommodate long-term or permanently changed conditions on the rail
line. Long-term and permanent modifications have an expected duration
of 6 months or more. For example, a long-term or permanent change in
conditions may include: Changes to the physical characteristics of the
rail lines of the host railroad, or factors outside of the direct
control of the host railroad. Aligning the published train schedule
with such changed conditions provides a more predictable travel
experience for the customer.
Long-term and permanent schedule modification requests should be
supported by: (i) A current and proposed schedule skeleton for the
affected train; (ii) a detailed description of the long-term or
permanent change of conditions; and (iii) where available, (A) 36
months of replay files from the host railroad's dispatching system that
are sufficient to demonstrate the change in condition on the Amtrak
route, (B) data to support operations simulation analyses of current
and anticipated future conditions, including traffic data, analysis
inputs and assumptions, data relating to capital expenditures affecting
capacity, or other equivalent data, and (C) data collected through
field checks.

D. FRA Engagement

FRA understands that implementing these principles may be
challenging. To assist, FRA invites Amtrak and the host railroads to
meet with FRA on an as-needed basis regarding their progress.

E. FRA Reporting

As discussed above, FRA's first quarterly report on intercity
passenger

[[Page 17840]]

train performance would cover the first full calendar quarter 3 months
after the date of publication of the final rule in the Federal
Register. From that full calendar quarter onward, whether or not a
train schedule is modified, that train's performance may be the subject
of an investigation under 49 U.S.C. 24308(f) if the customer OTP
averages less than 80 percent for any 2 consecutive calendar
quarters.\8\
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\8\ This NPRM would not require published train schedule
modifications or implementation of the published train schedule
principles. Rather, these principles would be intended as a
resource, and a starting point, for Amtrak and the host railroads to
discuss train schedules (in the context of their existing bilateral
access and service agreements). It is possible that Amtrak and one
or more host railroad may not agree to modify certain train
schedules.
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F. STB Investigations of Train Performance

In light of the relationship between this NPRM and STB's train
performance investigations, FRA invites STB to submit comments
regarding the NPRM. In particular, FRA encourages any suggested
revisions and/or clarifications (to the NPRM's preamble and/or
regulatory text) that could improve STB's ability to conduct a train
performance investigation.
FRA believes that certain information could be particularly
relevant to STB in determining whether and to what extent delays or
failures to achieve minimum standards are due to causes that could
reasonably be addressed by a host railroad or by the intercity
passenger rail operator. For example, host railroad dispatching records
and replay files may be quite relevant to such an inquiry. In addition,
if published train schedules are relevant to a performance
investigation, then it would be useful for STB to examine evidence in
connection with the scheduling principles described above.

V. Section-by-Section Analysis

Section 273.1 Purpose

This section provides that the proposed rule would carry out the
statutory mandate in Section 207 of the Passenger Rail Investment and
Improvement Act of 2008 requiring FRA and Amtrak jointly to develop
metrics and minimum standards for measuring the performance and service
quality of intercity passenger train operations.

Section 273.3 Definitions

This section contains the definitions FRA proposes to use in this
rule for the following terms: Adjusted operating expenses; adjusted
operating revenue; Amtrak; Amtrak's customer satisfaction survey;
Amtrak-responsible delays; avoidable operating costs; fully allocated
core operating costs; host-responsible delays; not well-served
communities; passenger revenue; and third party delays.
This section proposes to define the term ``adjusted operating
expenses'' to mean Amtrak's operating expenses adjusted to exclude
certain expenses that are not considered core to operating the
business. The major exclusions are depreciation, capital project
related expenditures not eligible for capitalization, non-cash portion
of pension and post-retirement benefits, and Amtrak's Office of
Inspector General expenses (which are separately appropriated).
This section proposes to define the term ``adjusted operating
revenue'' to mean Amtrak's operating revenue adjusted to exclude
certain revenue that is associated with capital projects. The major
exclusions are the amortization of State capital payments and capital
project revenue related to expenses not eligible for capitalization.
This section proposes to define the term ``Amtrak'' to mean the
National Railroad Passenger Corporation.
This section proposes to define the term ``Amtrak's customer
satisfaction survey'' to mean a market-research survey that measures
Amtrak's satisfaction score as measured by specific service attributes
that cover the entire customer journey.
This section proposes to define the term ``Amtrak-responsible
delays'' to mean delays recorded by Amtrak, in accordance with Amtrak
procedures, as Amtrak-responsible delays, including passenger-related
delays at stations, Amtrak equipment failures, holding for connections,
injuries, initial terminal delays, servicing delays, crew and system
delays, and other miscellaneous Amtrak-responsible delays.
This section proposes to define the term ``avoidable operating
costs'' to mean costs incurred by Amtrak to operate train service along
a route that would no longer be incurred if the route were no longer
operated.
This section proposes to define the term ``fully allocated core
operating costs'' to mean Amtrak's total costs associated with
operating an Amtrak route, including direct operating expenses, a
portion of shared expenses, and a portion of corporate overhead
expenses. Fully allocated core operating costs exclude ancillary and
other expenses that are not directly reimbursed by passenger revenue to
match revenues with expenses.
This section proposes to define the term ``host-responsible
delays'' to mean delays recorded by Amtrak, in accordance with Amtrak
procedures, as host-responsible delays, including freight train
interference, slow orders, signals, routing, maintenance of way,
commuter train interference, passenger train interference, catenary or
wayside power system failure, and detours.
This section proposes to define the term ``not well-served
communities'' to mean those rural communities: Within 25 miles of an
intercity passenger rail station; more than 75 miles from a large
airport; and more than 25 miles from any other airport with scheduled
commercial service or an intercity bus stop.\9\
---------------------------------------------------------------------------

\9\ The proposed definition relies on research completed by the
Bureau of Transportation Statistics on access to intercity
transportation in rural areas. For this research, large airports are
defined as airports with at least 0.25 percent of total U.S.
passenger boardings in a year. See https://datahub.transportation.gov/stories/s/gr9y-9gjq.
---------------------------------------------------------------------------

This section proposes to define the term ``passenger revenue'' to
mean intercity passenger rail revenue generated from passenger train
operations, including ticket revenue, food and beverage sales,
operating payments collected from States or other sponsoring entities,
special trains, and private car operations.
This section proposes to define the term ``third party delays'' to
mean delays recorded by Amtrak, in accordance with Amtrak procedures,
as third party delays, including bridge strikes, debris strikes,
customs, drawbridge openings, police-related delays, trespassers,
vehicle strikes, utility company delays, weather-related delays
(including heat or cold orders, storms, floods/washouts, earthquake-
related delays, slippery rail due to leaves, flash-flood warnings,
wayside defect detector actuations caused by ice, and high-wind
restrictions), acts of God, or unused recovery time.

Section 273.5 On-Time Performance and Train Delays

Paragraph (a)(1) of this section proposes that the customer on-time
performance metric is the percentage of all customers on an intercity
passenger rail train who arrive at their detraining point within 15
minutes of their published scheduled arrival time, reported by train
and by route.
Paragraph (a)(2) of this section proposes a minimum standard for
customer on-time performance of 80 percent for any 2 consecutive
calendar quarters. This standard is consistent with the statutory
requirement in 49 U.S.C. 24308(f)(1).
Paragraph (b) of this section proposes that the train delays metric
is the total

[[Page 17841]]

minutes of delay for all Amtrak-responsible delays, host-responsible
delays, and third party delays, for the host railroad territory within
each route. Minutes of delay are measured against a route's pure
running time and provide information about train delays that may signal
a need to modify operating practices, make infrastructure investments,
or investigate other issues that Amtrak and a host railroad could use
to improve train performance. Train delays for the Northeast Corridor
(NEC) would also be reported.
Paragraph (c) of this section proposes that the train delays per
10,000 train miles metric is the minutes of delay per 10,000 train
miles for all Amtrak-responsible and host-responsible delays, for the
host railroad territory within each route. The metric is calculated by
dividing minutes of delay (both Amtrak-responsible delays and host-
responsible delays) by the number of Amtrak train miles operated over a
host railroad multiplied by 10,000, for the host railroad territory
within each route. Minutes of Amtrak-responsible delay and host-
responsible delay have historically been normalized by 10,000 train
miles to compare performance more easily on routes of varying length.
This calculation is helpful when assessing an individual railroad's
performance on a route that has more than one host. Train delays per
10,000 train miles for the NEC would also be reported. FRA invites
comments on alternative methods for comparing delay minutes among
different hosts and routes.
Paragraph (d) of this section proposes that the average minutes
late per late customer metric is the average minutes late that late
customers arrive at their detraining stations, reported by route. This
metric excludes on-time customers that arrive within 15 minutes of
their scheduled time. This metric provides information about the
severity of lateness encountered by Amtrak customers on each route.

Section 273.7 Customer Service

Paragraph (a) of this section proposes that the customer
satisfaction metric is the percent of respondents to Amtrak's customer
satisfaction survey who provided a score of 70 percent or greater for
their ``overall satisfaction'' on their most recent trip, by route,
shown both adjusted for performance and not adjusted for performance.
Amtrak's customer satisfaction survey is a market-research survey that
measures more than fifty specific service attributes that cover the
entire customer journey. FRA will place the customer satisfaction
survey in the docket for this rulemaking (FRA-2019-0069). It should be
noted that Amtrak can change the customer satisfaction survey, and such
changes could in turn impact the information reported for the customer
service metrics proposed in this NPRM. However, in the event Amtrak
changes the survey, the new survey would continue to seek information
in connection with the proposed customer satisfaction metrics (a survey
change would just modify how the survey solicits this information). FRA
seeks comment on whether the customer satisfaction survey should
include any additional questions to inform a better understanding of
customer satisfaction.
Amtrak adjusts overall satisfaction score performance by removing
passengers who arrive at their destinations on State-supported and
long-distance routes excessively late (30 minutes late for State-
supported routes and 120 minutes for long-distance routes) from the
system-wide calculation. Typically, on these routes, the major causes
of passenger lateness are beyond Amtrak's control. By removing these
customer responses from the calculations, most of the impact from these
significantly late customers (whose responses may be overly influenced
by the train's late arrival) is removed. Both the performance adjusted
and non-performance adjusted overall satisfaction scores would be
provided to reflect the responses of all Amtrak customers.
Paragraph (b) of this section proposes that the Amtrak personnel
metric is the average score from respondents to the Amtrak customer
satisfaction survey for their review of Amtrak personnel on their most
recent trip, by route, updated on an annual basis.
Paragraph (c) of this section proposes that the information given
metric is the average score from respondents to the Amtrak customer
satisfaction survey for their review of information provided by Amtrak
on their most recent trip, by route, updated on an annual basis.
Paragraph (d) of this section proposes that the on-board comfort
metric is the average score from respondents to the Amtrak customer
satisfaction survey for their review of on-board comfort on their most
recent trip, by route, updated on an annual basis.
Paragraph (e) of this section proposes that the on-board
cleanliness metric is the average score from respondents to the Amtrak
customer satisfaction survey for their review of on-board cleanliness
on their most recent trip, by route, updated on an annual basis.
Paragraph (f) of this section proposes that the on-board food
service metric is the average score from respondents to the Amtrak
customer satisfaction survey for their review of on-board food service
on their most recent trip, by route, updated on an annual basis.
FRA seeks comment on whether the customer service category of
metrics should include metrics with quantitative measurements that are
not based on a survey score (e.g., a metric measuring time taken for
the boarding process, time in line waiting for customer service, or
time on hold waiting for customer service).

Section 273.9 Financial

Paragraph (a) of this section proposes that the cost recovery
metric is Amtrak's adjusted operating revenue divided by Amtrak's
adjusted operating expense. This metric would be reported at the
corporate level/system-wide and for each route and would be reported in
constant dollars of the reporting year based on the Office of
Management and Budget's gross domestic product chain deflator.
Paragraph (b) of this section proposes that the avoidable operating
costs covered by passenger revenue metric is the percent of avoidable
operating costs divided by passenger revenue for each route, shown with
and without State operating payments. Each route's operating costs can
be separated into three components: Frequency variable costs, route
variable costs, and system/fixed costs. Avoidable operating costs are
the sum of frequency and route variable costs. Frequency variable costs
are costs that vary based on short-term decisions to adjust a route's
schedule or frequency, not as a result of long-term decisions to add or
eliminate a service permanently. Frequency variable costs typically
occur directly and immediately with the service change. Frequency
variable costs may include train and engine crew labor, on-board
service labor, fuel and power, commissary provisions, specific yard
operations, connecting motor coaches, and station staffing expenses.
Route variable costs are costs that vary based on long-term
decisions to add or eliminate service and have a broader impact. Route
variable costs typically require a separate management action to
achieve a change in cost. Route variable costs may include car and
locomotive maintenance turnaround, on-board passenger technology,
commissary operations, direct advertising, specific reservations and
call centers costs, station facility operations, station technology,
maintenance of way, block and tower operations, regional/local police,
and insurance expenses. These costs do not

[[Page 17842]]

vary with individual train frequencies but may vary if service is
increased or reduced on a larger scale. For example, costs for food and
beverages stocked on a train would be avoidable if a single train were
cancelled, but the commissary supporting the route would continue
operations if other trains remained. Route variable costs attempt to
capture the potential costs that would vary if the entire route were
suspended or eliminated and the commissary supporting it no longer
operated. Over time, or with a large enough expansion or reduction in
service, the shared costs would be expected to change.
System/fixed costs are not likely to vary with smaller service
changes and would not change if a single route were added or
eliminated. System/fixed costs may include marketing and distribution,
national police, environmental and safety, and general and
administrative expenses.
Adding frequency variable and route variable costs to calculate
avoidable operating costs does not make any distinction between short-
and long-term avoidable costs, but results in a single avoidable cost
figure for a single route at a future time. This approach represents a
maximum saving, or cost avoided, and may be lower depending on the
specific context of each individual route. The results of this approach
are limited to the costs avoided if a single service is permanently
eliminated. If multiple routes are eliminated, it is likely that some
fixed costs will also decrease. Corporate-wide costs such as general
and administrative expenses may shrink to reflect the size of the
smaller business. In the event an actual elimination in service is
contemplated, a detailed planning analysis would be required,
considering the location of the route and the facilities that serve it,
to determine the cost impacts.
The metric reflects avoidable operating costs as a percentage of
passenger revenue, which, when shown at the route level, provides
information about cost recovery, or the ability of the route to cover
avoidable operating costs with revenue generated. States or other
sponsoring entities also provide operating payments to Amtrak to
provide service for trains on State-supported routes, which is
classified as passenger revenue. To understand better the impact of
these State payments, the metric avoidable operating costs covered by
passenger revenue would be calculated in two ways: First, as a percent
dividing avoidable operating costs by passenger revenue, and second, as
a percent dividing avoidable operating costs by passenger revenue
without State operating payments.
Paragraph (c) of this section proposes that the fully allocated
core operating costs covered by passenger revenue metric is the percent
of fully allocated core operating costs divided by passenger revenue
for each route, shown with and without State operating payments. Fully
allocated core operating costs include the fully-loaded share of
overhead-type costs that pertain to more than one route or to the
company as a whole. Costs are limited to ``core'' expenses (i.e.,
related to the provision of intercity passenger trains) to match
expenses with passenger revenue.
Paragraph (d) of this section proposes that the ridership metric is
the number of passenger-miles divided by train-miles for each route.
The proposed metric measures the average number of passengers on each
of the route's trains.
The definitions of terms in section 273.9 are only intended to
apply to this NPRM and Amtrak financial reporting herein.

Section 273.11 Public Benefits

Paragraph (a) of this section proposes that the connectivity metric
is the percent of passengers connecting to and from other Amtrak
routes, updated on an annual basis. The metric will report passengers
making connections between NEC, State-supported, and long distances
routes, or any combination thereof. Under this metric, a connection
would mean a passenger arriving on one train and connecting to a
departing train within 23 hours. Section 207 of PRIIA specifies that
the metrics shall include ``measures of connectivity with other routes
in all regions currently receiving Amtrak service'' for long distance
routes. The proposed connectivity metric would provide connectivity
information for the entire Amtrak network, including by route for long
distance routes.
Paragraph (b) of this section proposes that the missed connections
metric is the percent of passengers connecting to/from other Amtrak
routes who missed connections due to a late arrival from another Amtrak
train, reported by route and updated on an annual basis. A missed
connection, particularly in a location with one daily train frequency,
can result in a significant impact to the customer.
Paragraph (c) of this section proposes that the community access
metric is the percent of Amtrak passenger-trips to and from not well-
served communities, updated on an annual basis.
Paragraph (d) of this section proposes that the service
availability metric is the total number of daily Amtrak trains per
100,000 residents in a metropolitan statistical area (MSA) for each of
the top 100 MSAs in the United States, shown in total and adjusted for
time of day, updated on an annual basis. Many MSAs are served regularly
by Amtrak trains, but during inconvenient travel times. The metric, as
adjusted for time of day, would show only those trains that arrive or
depart between 5:00 a.m. and 11:00 p.m.

VI. Regulatory Impact and Notices

A. Executive Order (E.O.) 12866, E.O. 13771, and DOT Regulatory
Policies and Procedures

This rule is not a significant regulatory action within the meaning
of Executive Order 12866 and DOT regulatory policies and
procedures,\10\ and is not subject to the requirements of Executive
Order 13771. FRA has provided an assessment of the costs and cost
savings expected to result from implementation of this proposed rule
below.
---------------------------------------------------------------------------

\10\ See 5 CFR part 5.
---------------------------------------------------------------------------

As described, FRA and Amtrak jointly developed metrics and minimum
standards for measuring the performance and service quality of
intercity passenger train operations (the Metrics and Standards) as
required by Section 207 of PRIIA. The Metrics and Standards are
generally organized into four categories: On-time performance and train
delays, customer service, financial, and public benefits.
Other than the OTP metric, the Metrics and Standards proposed in
this NPRM would not pose an additional burden on Amtrak or host
railroads. Data such as customer satisfaction and financial information
are currently collected by Amtrak and submitted to FRA on a quarterly
basis. As a result of the NPRM's customer OTP metric, Amtrak and host
railroads may adjust Amtrak's published train schedules to align them
with the customer OTP metric. As part of that effort, Amtrak and host
railroads may meet to discuss such schedule modifications, and Amtrak
may consequently revise the published train schedules.
For purposes of this analysis, FRA assumed that Amtrak and each of
the host railroads would meet twice during the first year to discuss
revising Amtrak's published train schedules. Amtrak currently has
agreements with 31 host railroads. However, eight of these railroads
are switching and terminal railroads that would not likely be involved
in revising schedules, as Amtrak only operates over those

[[Page 17843]]

railroads for short distances with very few, if any, stops. If there
were discussions between Amtrak and any switching and terminal
railroads, then it would be expected to occur during regularly
scheduled meetings and would not add any additional burden.
As to the other 23 host railroads, schedule discussions would add
time to the current regular meetings held with Amtrak. FRA estimates
that such schedule alignment discussions would require an additional
ten hours of time for each meeting between Amtrak and a host railroad.
FRA estimates that Amtrak would have approximately three employees at
each meeting, while host railroads would have approximately three
employees at each meeting. FRA estimates the additional meeting time
cost to Amtrak would be approximately $70,107,\11\ while the additional
meeting time cost to host railroads would be approximately $59,457.\12\
That cost would be borne both by Amtrak and the host railroads.
Further, to prepare for these meetings, Amtrak and the 23 host
railroads would need to perform the necessary groundwork, such as
historical data analysis of schedules and train performance, as well as
analysis of current and future operations, to determine how train
schedules should be adjusted. FRA estimates that the cost of this
groundwork to Amtrak to be $27,279 \13\ and the cost to the host
railroads to be $20,459.\14\
---------------------------------------------------------------------------

\11\ 23 meetings * 10 hours per meeting * [Amtrak employees'
wages: ($114.52 burdened wage rate, STB Group #100 Executives,
Officials, & Staff Assistants * 2 employees) + ($75.78 burdened wage
rate, STB Group #200, Professional & Administrative * 1 employee)]
[ap] $70,108.
\12\ 23 meetings * 10 hours per meeting * [Host railroads'
employees' wages: ($114.52 burdened wage rate, STB Group #100
Executives, Officials, & Staff Assistants * 1 employee) + ($75.78
burdened wage rate, STB Group #200, Professional & Administrative *
1 employee) + ($68.22 burdened wage rate, STB Group #500,
Transportation (Other than Train & Engine) * 1 employee)] [ap]
$59,457.
\13\ 3 employees * 40 hours per week * 12 weeks * $75.78
burdened wage rate, STB Group #200, Professional & Administrative *
25% (percent of time spent on work related to schedule adjustments
and preparation for meetings) [ap] $27,279.
\14\ $27,279 (Amtrak labor cost for schedule adjustments) * 75%
(estimated amount of time spent by host railroads in relation to
Amtrak's cost) = $20,459.
---------------------------------------------------------------------------

All costs would be incurred during the first year. The total cost
of this proposed rule would be approximately $177,303.\15\ Over a 10-
year analysis period, the annualized cost would be approximately
$25,244 (present value, 7 percent) and $20,785 (present value, 3
percent).
---------------------------------------------------------------------------

\15\ $129,569 (cost of meetings) + $27,279 (Amtrak preparation
cost) + $20,459 (Host railroads' preparation cost) [ap] $177,303.
---------------------------------------------------------------------------

This proposed rule may result in lower operational costs for Amtrak
to the extent it results in improved OTP, which would potentially
reduce labor costs, fuel costs, and expenses related to passenger
inconvenience, as well as providing benefits to riders from improved
travel times and service quality. FRA seeks comments on this assumption
and other potential effects of the proposed rule.
Using the third and fourth quarters of fiscal year 2019 as
representative performance information, 35 of 45 Amtrak routes
performed below 80 percent customer OTP for these two consecutive
calendar quarters. With that said, the schedules for at least some of
these routes were likely not aligned to a customer OTP metric. FRA
seeks comment on how the proposed rule would impact the number of
Amtrak routes in compliance with the proposed customer OTP standard.
Due to the difficulty in precisely quantifying future benefits to
rail routes for improved OTP, combined with the inability to quantify
the potential synergistic effects that improved OTP reliability could
have across Amtrak's network, FRA has not quantified any potential
benefits from lower operational costs or increased revenue that may
result from the proposed rule. FRA seeks comments as to any other
benefits that could result from the rule, as well as any other
quantifiable costs.

B. Regulatory Flexibility Act and Executive Order 13272; Initial
Regulatory Flexibility Assessment

The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) and
Executive Order 13272 (67 FR 53461, Aug. 16, 2002) require agency
review of proposed and final rules to assess their impacts on small
entities. An agency must prepare an Initial Regulatory Flexibility
Analysis (IRFA) unless it determines and certifies that a rule, if
promulgated, would not have a significant economic impact on a
substantial number of small entities. FRA has not determined whether
this proposed rule would have a significant economic impact on a
substantial number of small entities.
Therefore, FRA is publishing this IRFA to aid the public in
commenting on the potential small business impacts of the requirements
in this NPRM. FRA invites all interested parties to submit data and
information regarding the potential economic impact on small entities
that would result from the adoption of the proposals in this NPRM. FRA
will consider all information and comments received in the public
comment process when making a determination regarding the economic
impact on small entities.
1. Reasons for Considering Agency Action
The Metrics and Standards are being proposed to comply with Section
207 of PRIIA. The Metrics and Standards are generally organized into
four categories: On-time performance and train delays, customer
service, financial, and public benefits. This NPRM proposes a customer
on-time performance (OTP) metric to measure intercity passenger train
performance, and proposes to define the customer OTP metric as the
percentage of all customers on an intercity passenger rail train who
arrive at their detraining point within 15 minutes of their published
scheduled arrival time.
2. A Succinct Statement of the Objectives of, and the Legal Basis for,
the Proposed Rule
Section 207 requires FRA and Amtrak jointly to develop new or
improve existing metrics and minimum standards for measuring the
performance and service quality of intercity passenger train
operations. As required by Section 207(b), FRA would publish a
quarterly report on the performance and service quality of intercity
passenger train operations based on the Metrics and Standards proposed
in this NPRM. The proposed Metrics and Standards are intended to
measure intercity passenger train performance and service quality. The
proposed Metrics and Standards may lead to improvements in intercity
passenger train performance and service quality.
3. A Description of, and Where Feasible, an Estimate of the Number of
Small Entities To Which the Proposed Rule Would Apply
The Regulatory Flexibility Act of 1980 requires a review of
proposed and final rules to assess their impact on small entities,
unless the Secretary certifies that the rule would not have a
significant economic impact on a substantial number of small entities.
``Small entity'' is defined in 5 U.S.C. 601 as a small business concern
that is independently owned and operated, and is not dominant in its
field of operation. The U.S. Small Business Administration (SBA) has
authority to regulate issues related to small businesses, and
stipulates in its size standards that a ``small entity'' in the
railroad industry is a for profit ``line-haul railroad'' that has fewer
than 1,500 employees, a ``short line railroad'' with fewer than 500
employees, or a ``commuter rail system'' with annual receipts of less
than seven million dollars. See ``Size Eligibility

[[Page 17844]]

Provisions and Standards,'' 13 CFR part 121, subpart A.
Federal agencies may adopt their own size standards for small
entities in consultation with SBA and in conjunction with public
comment. Pursuant to that authority, FRA has published a final
statement of agency policy that formally establishes ``small entities''
or ``small businesses'' as railroads, contractors, and hazardous
materials shippers that meet the revenue requirements of a Class III
railroad as set forth in 49 CFR 1201.1-1, which is $20 million or less
in inflation-adjusted annual revenues, and commuter railroads or small
governmental jurisdictions that serve populations of 50,000 or less.
See 68 FR 24891 (May 9, 2003) (codified at appendix C to 49 CFR part
209).
The $20 million limit is based on the Surface Transportation
Board's revenue threshold for a Class III railroad carrier. Railroad
revenue is adjusted for inflation by applying a revenue deflator
formula in accordance with 49 CFR 1201.1-1. The current threshold is
$39.2 million or less.\16\ FRA is using this definition for the
proposed rule. For other entities, the same dollar limit in revenues
governs whether a railroad, contractor, rail equipment supplier, or
other respondent is a small entity.
---------------------------------------------------------------------------

\16\ The current Class III revenue threshold is $39,194,876 or
less. See https://www.stb.gov/econdata.nsf/M%20Railroad%20Revenue%20Deflator%20Factors?OpenPage.
---------------------------------------------------------------------------

This proposed rule would impact Amtrak and Amtrak's host railroads.
This rule would establish a new on-time performance metric, which would
likely result in revisions to some of Amtrak's published train
schedules. Amtrak is not a small entity and the majority of host
railroads are Class I railroads or State Departments of Transportation,
none of which are small entities. There are currently twelve host
railroads that are small entities, including approximately eight
switching and terminal railroads and four short line or regional
railroads. There are approximately 695 class III railroads on the
general system. Therefore, the twelve small entities potentially
affected by this proposed rule would not be considered a substantial
number of small entities.
4. A Description of the Projected Reporting, Recordkeeping, and
Other Compliance Requirements of the Rule, Including an Estimate of the
Class of Small Entities That Will Be Subject to the Requirements and
the Type of Professional Skill Necessary for Preparation of the Report
or Record
This NPRM does not require published train schedule modifications.
However, FRA assumes that, as a result of the Metrics and Standards,
Amtrak would engage with many host railroads to discuss potential
published train schedule adjustments to align the schedules with the
proposed customer OTP metric.
There are currently twelve host railroads that are small entities,
including approximately eight switching and terminal railroads and four
short line and regional railroads. The impact on those small entities
would be very minimal. The switching and terminal railroads would not
likely be burdened by this proposed rule because Amtrak only operates
over those routes for short distances and has very few stops along
those sections of track. Those railroads already meet with Amtrak on a
periodic basis so any discussions regarding their schedule would take
place at that time. It is likely that no schedule adjustments would be
required along those routes.
As for the four short line and regional railroads, Amtrak has
limited stops along those routes so, similarly, discussions regarding
published train schedule adjustments would also be brief. Those
railroads also already meet with Amtrak on a periodic basis and
discussions regarding schedules would take place at that time. Such
discussions may add a minimal amount of time to those meetings.
However, published train schedule adjustments may not even be necessary
for these railroads.
Other than the proposed customer OTP metric, the NPRM would not be
an additional burden on Amtrak or the host railroads. Amtrak already
collects the data to support these new metrics; therefore, there would
be no additional burden.
5. Identification, to the Extent Practicable, of All Relevant Federal
Rules That May Duplicate, Overlap, or Conflict With the Proposed Rule
FRA is not aware of any relevant Federal rules that duplicate,
overlap with, or conflict with the proposed regulations in this NPRM.
FRA invites all interested parties to submit comments, data, and
information demonstrating the potential economic impact on any small
entities that would result from the adoption of the proposed language
in this NPRM. FRA particularly encourages small entities that could
potentially be impacted by the proposed amendments to participate in
the public comment process. FRA will consider all comments received
during the public comment period for this NPRM when making a final
determination of the rule's economic impact on small entities.
6. A Description of Significant Alternatives to the Rule
As required by Section 207 of PRIIA, FRA is proposing the Metrics
and Standards. The main alternative to this rulemaking would be to
maintain the status quo (i.e., do nothing). However, as required by
PRIIA, FRA must develop the Metrics and Standards. The number of
entities affected by this proposed rule would not be substantial. FRA
anticipates that the impact on those small entities would be very
minimal.

C. Paperwork Reduction Act

In accordance with the Paperwork Reduction Act of 1995, 44 U.S.C
3501-3520, and its implementing regulations, 5 CFR part 1320, when
information collection requirements pertain to nine or fewer entities,
Office of Management and Budget (OMB) approval of the collection
requirements is not required. Here, information collection only
pertains to one railroad, Amtrak. Therefore, OMB approval of the
paperwork collection requirements in this proposed rule is not
required.

D. Federalism Implications

Executive Order 13132, ``Federalism'' (64 FR 43255, Aug. 10, 1999),
requires FRA to develop an accountable process to ensure ``meaningful
and timely input by State and local officials in the development of
regulatory policies that have federalism implications.'' ``Policies
that have federalism implications'' are defined in the Executive Order
to include regulations that have ``substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government.'' Under Executive Order 13132, the agency
may not issue a regulation with federalism implications that imposes
substantial direct compliance costs and that is not required by
statute, unless the Federal Government provides the funds necessary to
pay the direct compliance costs incurred by State and local
governments, or the agency consults with State and local government
officials early in the process of developing the regulation. Where a
regulation has federalism implications and preempts State law, the
agency seeks to consult with State and local officials in the process
of developing the regulation.
FRA has analyzed this NPRM under the principles and criteria
contained in Executive Order 13132. This NPRM could affect State and
local governments to the extent that they sponsor, or

[[Page 17845]]

exercise oversight of, intercity passenger rail service. Because this
proposed rule is required by Federal statute, the consultation and
funding requirements of Executive Order 13132 do not apply.
In sum, FRA has analyzed this proposed rule under the principles
and criteria in Executive Order 13132. As explained above, FRA has
determined this proposed rule has no federalism implications.
Therefore, preparation of a federalism summary impact statement for
this proposed rule is not required.

E. Environmental Impact

FRA has evaluated this proposed rule consistent with the National
Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.), other
environmental statutes, related regulatory requirements, and its NEPA
implementing regulations at 23 CFR part 771. Under NEPA, categorical
exclusions (CEs) are actions identified in an agency's NEPA
implementing regulations that do not normally have a significant impact
on the environment and therefore do not require either an environmental
assessment (EA) or environmental impact statement (EIS). See 40 CFR
1508.4. FRA has determined that this proposed rule is categorically
excluded from detailed environmental review pursuant to 23 CFR
771.116(c)(15), ``Promulgation of rules, the issuance of policy
statements, the waiver or modification of existing regulatory
requirements, or discretionary approvals that do not result in
significantly increased emissions of air or water pollutants or
noise.''
In analyzing the applicability of a CE, FRA must also consider
whether unusual circumstances are present that would warrant a more
detailed environmental review through the preparation of an EA or EIS.
See 23 CFR 771.116(b). FRA has concluded that no unusual circumstances
exist with respect to this proposed regulation that would trigger the
need for a more detailed environmental review. The purpose of this
rulemaking is to propose metrics and standards to measure the
performance and service quality of intercity passenger train
operations. FRA does not anticipate any environmental impacts from this
proposal and finds there are no unusual circumstances present in
connection with this proposed rule.
Pursuant to Section 106 of the National Historic Preservation Act
and its implementing regulations, FRA has determined this undertaking
has no potential to effect historic properties. See 16 U.S.C. 470. FRA
has also determined that this rulemaking does not approve a project
resulting in a use of a resource protected by Section 4(f). See
Department of Transportation Act of 1966, as amended (Pub. L. 89-670,
80 Stat. 931); 49 U.S.C. 303.

F. Executive Order 12898 (Environmental Justice)

Executive Order 12898, Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations, and DOT
Order 5610.2(a) (91 FR 27534 May 10, 2012) require DOT agencies to
achieve environmental justice as part of their mission by identifying
and addressing, as appropriate, disproportionately high and adverse
human health or environmental effects, including interrelated social
and economic effects, of their programs, policies, and activities on
minority populations and low-income populations. The DOT Order
instructs DOT agencies to address compliance with Executive Order 12898
and requirements within the DOT Order in rulemaking activities, as
appropriate. FRA has evaluated this proposed rule under Executive Order
12898 and the DOT Order and has determined it would not cause
disproportionately high and adverse human health and environmental
effects on minority populations or low-income populations.

G. Executive Order 13175 (Tribal Consultation)

FRA has evaluated this proposed rule under the principles and
criteria in Executive Order 13175, Consultation and Coordination with
Indian Tribal Governments, dated November 6, 2000. The proposed rule
would not have a substantial direct effect on one or more Indian
tribes, would not impose substantial direct compliance costs on Indian
tribal governments, and would not preempt tribal laws. Therefore, the
funding and consultation requirements of Executive Order 13175 do not
apply, and a tribal summary impact statement is not required.

H. Unfunded Mandates Reform Act of 1995

Under Section 201 of the Unfunded Mandates Reform Act of 1995 (Pub.
L. 104-4, 2 U.S.C. 1531), each Federal agency ``shall, unless otherwise
prohibited by law, assess the effects of Federal regulatory actions on
State, local, and tribal governments, and the private sector (other
than to the extent that such regulations incorporate requirements
specifically set forth in law).'' Section 202 of the Unfunded Mandates
Reform Act (2 U.S.C. 1532) further requires that before promulgating
any general notice of proposed rulemaking that is likely to result in
the promulgation of any rule that includes any Federal mandate that may
result in expenditure by State, local, and tribal governments, in the
aggregate, or by the private sector, of $100,000,000 or more (adjusted
annually for inflation) in any 1 year, and before promulgating any
final rule for which a general notice of proposed rulemaking was
published, the agency shall prepare a written statement detailing the
effect on State, local, and tribal governments and the private sector.
This proposed rule will not result in the expenditure, in the
aggregate, of $100,000,000 or more (as adjusted annually for inflation)
in any one year, and thus preparation of such a statement is not
required.

I. Energy Impact

Executive Order 13211 requires Federal agencies to prepare a
Statement of Energy Effects for any ``significant energy action.'' 66
FR 28355 (May 22, 2001). Under the Executive Order, a ``significant
energy action'' is defined as any action by an agency (normally
published in the Federal Register) that promulgates or is expected to
lead to the promulgation of a final rule or regulation, including
notices of inquiry, advance notices of proposed rulemaking, and notices
of proposed rulemaking: (1)(i) That is a significant regulatory action
under Executive Order 12866 or any successor order, and (ii) is likely
to have a significant adverse effect on the supply, distribution, or
use of energy; or (2) that is designated by the Administrator of the
Office of Information and Regulatory Affairs as a significant energy
action. FRA has evaluated this proposed rule in accordance with
Executive Order 13211. FRA has determined that the proposals in this
rule are not likely to have a significant adverse effect on the supply,
distribution, or use of energy. Consequently, FRA has determined that
this proposed rule is not a ``significant energy action'' within the
meaning of Executive Order 13211.
Executive Order 13783, ``Promoting Energy Independence and Economic
Growth,'' requires Federal agencies to review regulations to determine
whether they potentially burden the development or use of domestically
produced energy resources, with particular attention to oil, natural
gas, coal, and nuclear energy resources. 82 FR 16093 (March 31, 2017).
Executive Order 13783 defines ``burden'' to mean unnecessarily
obstruct, delay, curtail, or otherwise impose significant costs on the
siting, permitting, production, utilization, transmission, or delivery
of

[[Page 17846]]

energy resources. FRA determined this proposed rule will not
potentially burden the development or use of domestically produced
energy resources.

J. Trade Impact

The Trade Agreements Act of 1979 (Pub. L. 96-39, 19 U.S.C. 2501 et
seq.) prohibits Federal agencies from engaging in any standards setting
or related activities that create unnecessary obstacles to the foreign
commerce of the United States. Legitimate domestic objectives, such as
safety, are not considered unnecessary obstacles. The statute also
requires consideration of international standards and, where
appropriate, that they be the basis for U.S. standards. FRA has
assessed the potential effect of this proposed rule on foreign commerce
and believes that its requirements are consistent with the Trade
Agreements Act of 1979.

K. Privacy Act

In accordance with 5 U.S.C. 553(c), DOT solicits comments from the
public to better inform its rulemaking process. DOT posts these
comments, without edit, to www.regulations.gov, as described in the
system of records notice, DOT/ALL-14 FDMS, accessible through
www.dot.gov/privacy. In order to facilitate comment tracking and
response, we encourage commenters to provide their name, or the name of
their organization; however, submission of names is optional. Whether
or not commenters identify themselves, all timely comments will be
fully considered. If you wish to provide comments containing
proprietary or confidential information, please contact the agency for
alternate submission instructions.

List of Subjects in 49 CFR Part 273

Railroads, Transportation.

The Proposed Rule

For the reasons discussed in the preamble, FRA proposes to amend
chapter II, subtitle B of title 49, Code of Federal Regulations, as
follows:

0
1. Add a new part 273 to read as follows:

PART 273--METRICS AND MINIMUM STANDARDS FOR INTERCITY PASSENGER
TRAIN OPERATIONS

Sec.
273.1 Purpose.
273.3 Definitions.
273.5 On-time performance and train delays.
273.7 Customer service.
273.9 Financial.
273.11 Public benefits.

Authority: Sec. 207, Div. B, Pub. L. 110-432; 49 U.S.C. 24101,
note; and 49 CFR 1.89.

Sec. 273.1 Purpose.

The purpose of this part is to carry out the statutory mandate in
Section 207 of the Passenger Rail Investment and Improvement Act of
2008, Pub. L. 110-432, 122 Stat. 4916-4917 (Oct. 16, 2008) requiring
metrics and minimum standards for measuring the performance and service
quality of intercity passenger train operations.

Sec. 273.3 Definitions.

As used in this part--
Adjusted operating expenses means Amtrak's operating expenses
adjusted to exclude certain expenses that are not considered core to
operating the business. The major exclusions are depreciation, capital
project related expenditures not eligible for capitalization, non-cash
portion of pension and post-retirement benefits, and Amtrak's Office of
Inspector General expenses.
Adjusted operating revenue means Amtrak's operating revenue
adjusted to exclude certain revenue that is associated with capital
projects. The major exclusions are the amortization of State capital
payments and capital project revenue related to expenses not eligible
for capitalization.
Amtrak means the National Railroad Passenger Corporation.
Amtrak's customer satisfaction survey means a market-research
survey that measures Amtrak's satisfaction score as measured by
specific service attributes that cover the entire customer journey.
Amtrak-responsible delays means delays recorded by Amtrak, in
accordance with Amtrak procedures, as Amtrak-responsible delays,
including passenger-related delays at stations, Amtrak equipment
failures, holding for connections, injuries, initial terminal delays,
servicing delays, crew and system delays, and other miscellaneous
Amtrak-responsible delays.
Avoidable operating costs means costs incurred by Amtrak to operate
train service along a route that would no longer be incurred if the
route were no longer operated.
Fully allocated core operating costs means Amtrak's total costs
associated with operating an Amtrak route, including direct operating
expenses, a portion of shared expenses, and a portion of corporate
overhead expenses. Fully allocated core operating costs exclude
ancillary and other expenses that are not directly reimbursed by
passenger revenue to match revenues with expenses.
Host-responsible delays means delays recorded by Amtrak, in
accordance with Amtrak procedures, as host-responsible delays,
including freight train interference, slow orders, signals, routing,
maintenance of way, commuter train interference, passenger train
interference, catenary or wayside power system failure, and detours.
Not well-served communities means those rural communities: Within
25 miles of an intercity passenger rail station; more than 75 miles
from a large airport; and more than 25 miles from any other airport
with scheduled commercial service or an intercity bus stop.
Passenger revenue means intercity passenger rail revenue generated
from passenger train operations, including ticket revenue, food and
beverage sales, operating payments collected from States or other
sponsoring entities, special trains, and private car operations.
Third party delays means delays recorded by Amtrak, in accordance
with Amtrak procedures, as third party delays, including bridge
strikes, debris strikes, customs, drawbridge openings, police-related
delays, trespassers, vehicle strikes, utility company delays, weather-
related delays (including heat or cold orders, storms, floods/washouts,
earthquake-related delays, slippery rail due to leaves, flash-flood
warnings, wayside defect detector actuations caused by ice, and high-
wind restrictions), acts of God, or unused recovery time.

Sec. 273.5 On-time performance and train delays.

(a) Customer on-time performance--(1) Metric. The customer on-time
performance metric is the percentage of all customers on an intercity
passenger rail train who arrive at their detraining point within 15
minutes of their published scheduled arrival time, reported by train
and by route.
(2) Standard. The customer on-time performance minimum standard is
80 percent for any 2 consecutive calendar quarters.
(b) Train delays. The train delays metric is the total minutes of
delay for all Amtrak-responsible delays, host-responsible delays, and
third party delays, for the host railroad territory within each route.
(c) Train delays per 10,000 train miles. The train delays per
10,000 train miles metric is the minutes of delay per 10,000 train
miles for all Amtrak-responsible and host-responsible delays, for the
host railroad territory within each route.
(d) Average minutes late per late customer. The average minutes
late per late customer metric is the average

[[Page 17847]]

minutes late that late customers arrive at their detraining stations,
reported by route. This metric excludes on-time customers that arrive
within 15 minutes of their scheduled time.

Sec. 273.7 Customer service.

(a) Customer satisfaction. The customer satisfaction metric is the
percent of respondents to the Amtrak customer satisfaction survey who
provided a score of 70 percent or greater for their ``overall
satisfaction'' on their most recent trip, by route.
(b) Amtrak personnel. The Amtrak personnel metric is the average
score from respondents to the Amtrak customer satisfaction survey for
their review of Amtrak personnel on their most recent trip, by route,
updated on an annual basis.
(c) Information given. The information given metric is the average
score from respondents to the Amtrak customer satisfaction survey for
their review of information provided by Amtrak on their most recent
trip, by route, updated on an annual basis.
(d) On-board comfort. The on-board comfort metric is the average
score from respondents to the Amtrak customer satisfaction survey for
their review of on-board comfort on their most recent trip, by route,
updated on an annual basis.
(e) On-board cleanliness. The on-board cleanliness metric is the
average score from respondents to the Amtrak customer satisfaction
survey for their review of on-board cleanliness on their most recent
trip, by route, updated on an annual basis.
(f) On-board food service. The on-board food service metric is the
average score from respondents to the Amtrak customer satisfaction
survey for their review of on-board food service on their most recent
trip, by route, updated on an annual basis.

Sec. 273.9 Financial.

(a) Cost recovery. The cost recovery metric is Amtrak's adjusted
operating revenue divided by Amtrak's adjusted operating expense. This
metric is reported at the corporate level/system-wide and for each
route and is reported in constant dollars of the reporting year based
on the Office of Management and Budget's gross domestic product chain
deflator.
(b) Avoidable operating costs covered by passenger revenue. The
avoidable operating costs covered by passenger revenue metric is the
percent of avoidable operating costs divided by passenger revenue for
each route, shown with and without State operating payments.
(c) Fully allocated core operating costs covered by passenger
revenue. The fully allocated core operating costs covered by passenger
revenue metric is the percent of fully allocated core operating costs
divided by passenger revenue for each route, shown with and without
State operating subsidies.
(d) Ridership. The ridership metric is the number of passenger-
miles divided by train-mile for each route.

Sec. 273.11 Public benefits.

(a) Connectivity. The connectivity metric is the percent of
passengers connecting to and from other Amtrak routes, updated on an
annual basis.
(b) Missed connections. The missed connections metric is the
percent of passengers connecting to/from other Amtrak routes who missed
connections due to a late arrival from another Amtrak train, reported
by route and updated on an annual basis.
(c) Community access. The community access metric is the percent of
Amtrak passenger-trips to and from not well-served communities, updated
on an annual basis.
(d) Service availability. The service availability metric is the
total number of daily Amtrak trains per 100,000 residents in a
metropolitan statistical area (MSA) for each of the top 100 MSAs in the
United States, shown in total and adjusted for time of day, updated on
an annual basis.

Issued in Washington, DC.
Ronald L. Batory,
Administrator.
[FR Doc. 2020-06245 Filed 3-30-20; 8:45 am]
BILLING CODE 4910-06-P