[Federal Register Volume 80, Number 248 (Monday, December 28, 2015)]
[Proposed Rules]
[Pages 80737-80741]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-32411]


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DEPARTMENT OF TRANSPORTATION

Surface Transportation Board

49 CFR Part 1040

[Docket No. EP 726]


On-Time Performance Under Section 213 of the Passenger Rail 
Investment and Improvement Act of 2008

AGENCY: Surface Transportation Board.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Surface Transportation Board (Board) is proposing a 
definition of ``on-time performance'' for purposes of Section 213 of 
the Passenger Rail Investment and Improvement Act of 2008 (PRIIA).

DATES: Comments are due by February 8, 2016. Reply comments are due by 
February 29, 2016.

ADDRESSES: Comments and replies may be submitted either via the Board's 
e-filing format or in the traditional paper format. Any person using e-
filing should attach a document and otherwise comply with the 
instructions at the ``E-FILING'' link on the Board's Web site, at 
``http://www.stb.dot.gov.'' Any person submitting a filing in the 
traditional paper format should send an original and 10 copies to: 
Surface Transportation Board, Attn: Docket No. EP 726, 395 E Street 
SW., Washington, DC 20423-0001.
    Copies of written comments and replies will be posted to the 
Board's Web site and will be available for viewing and self-copying at 
the Board's Public Docket Room, Room 131. Copies will also be available 
(for a fee) by contacting the Board's Chief Records Officer at (202) 
245-0238 or 395 E Street SW., Washington, DC 20423-0001.

FOR FURTHER INFORMATION CONTACT: Scott M. Zimmerman at (202) 245-0386. 
Assistance for the hearing impaired is available through the Federal 
Information Relay Service (FIRS) at (800) 877-8339.

SUPPLEMENTARY INFORMATION: By decision served on May 15, 2015, the

[[Page 80738]]

Board instituted a rulemaking proceeding to define ``on-time 
performance'' for purposes of Section 213 of PRIIA, 49 U.S.C. 24308(f). 
The Board instituted this proceeding in response to a petition for 
rulemaking filed by the Association of American Railroads (AAR). Any 
rule promulgated in this proceeding would apply to complaints under 
24308(f) currently pending before the Board, as well as future 
complaints or investigations under that section.\1\
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    \1\ AAR requested a rulemaking only if the Board did not grant 
Canadian National Railway's (CN's) petition for reconsideration in 
Docket No. NOR 42134 and the motions to dismiss in Docket No. NOR 
42141--the two complaint cases under 24308(f) now pending before the 
Board. While the Board has not ruled on those pleadings, the Board 
decided to institute a rulemaking proceeding and invite public 
participation because AAR's petition raised a number of important 
issues.
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    Background. The National Railroad Passenger Corporation (Amtrak) 
was established by Congress in 1970 to preserve passenger services and 
routes on the Nation's railroads. See Lebron v. Nat'l R.R. Passenger 
Corp., 513 U. S. 374, 383-384 (1995); Nat'l R.R. Passenger Corp. v. 
Atchison, Topeka, & Santa Fe R.R., 470 U. S. 451, 454 (1985); see also 
Rail Passenger Serv. Act of 1970, Public Law 91-518, 84 Stat. 1328 
(1970). As a condition of relieving the freight railroads of their 
common carrier obligation to provide passenger service, Congress 
required that the freight railroads permit Amtrak to operate over their 
tracks and use their facilities. See 45 U.S.C. 561, 562 (1970 ed.). 
Since 1973, Congress has required freight railroads to give Amtrak 
trains preference over freight trains when using the lines and 
facilities of freight railroads: ``Except in an emergency, intercity 
and commuter rail passenger transportation provided by or for Amtrak 
has preference over freight transportation in using a rail line, 
junction, or crossing. . . .'' 49 U.S.C. 24308(c); see Amtrak 
Improvement Act of 1973, Public Law 93-146, 10(2), 87 Stat. 552 
(initial version).
    In 2008, Congress enacted PRIIA to address, among other things, 
issues related to the performance of passenger rail service, including 
the concern that one cause of Amtrak's inability to achieve reliable 
on-time performance was the failure of host freight railroads to honor 
Amtrak's right to preference. See Passenger Rail Inv. & Improvement 
Act, Public Law 110-432, Div. B, 122 Stat. 4907 (2008); S. Rep. No. 67, 
110th Cong., 1st Sess. 25-26 (2007). Section 207 of PRIIA charged 
Amtrak and the Federal Railroad Administration (FRA) with ``jointly'' 
developing new, or improving existing, metrics and standards for 
measuring the performance of intercity passenger rail operations, 
including on-time performance and train delays incurred on host 
railroads.
    Under Section 213(a) of PRIIA, if the on-time performance of any 
intercity passenger train averages less than 80% for any two 
consecutive calendar quarters, the Board may initiate an investigation, 
or Amtrak and other eligible complainants may file a complaint with the 
Board requesting that the Board initiate an investigation. The purpose 
of such an investigation is to determine whether and to what extent 
delays are due to causes that could reasonably be addressed by the 
passenger rail operator or the host railroad. Following the 
investigation, should the Board determine that Amtrak's substandard 
performance is ``attributable to'' the rail carrier's ``failure to 
provide preference to Amtrak over freight transportation as required'' 
by 49 U.S.C. 24308(c), the Board may choose to ``award damages'' or 
other appropriate relief from a host railroad to Amtrak. 49 U.S.C. 
24308(f[hairsp])(2). If the Board finds it appropriate to award damages 
to Amtrak, Amtrak must use the award ``for capital or operating 
expenditures on the routes over which delays'' were the result of the 
host railroad's failure to grant the statutorily required preference to 
passenger transportation. 49 U.S.C. 24308(f[hairsp])(4).
    On August 19, 2011, AAR filed a lawsuit in the United States 
District Court for the District of Columbia challenging the 
constitutionality of Section 207 of PRIIA. See Ass'n of Am. R.Rs. v. 
Dep't of Transp., 865 F. Supp. 2d 22 (D.D.C. 2012). On January 19, 
2012, prior to the issuance of a decision in that case, Amtrak filed a 
complaint with the Board pursuant to Section 213 of PRIIA in Docket No. 
NOR 42134, requesting that the Board initiate an investigation into 
alleged ``substandard performance of Amtrak passenger trains'' on 
certain rail lines owned by CN.\2\ Amtrak's complaint was subsequently 
held in abeyance for the purposes of mediation; the mediation period 
expired on October 4, 2012. Later, the Board granted the parties' 
request that the case again be held in abeyance to permit them to 
continue discussions and potentially reach a settlement. This abeyance 
was extended several times; most recently, on August 19, 2013, the 
Board extended the abeyance period to July 31, 2014, which the parties 
argued was warranted by their ongoing discussions and to provide 
additional time that may be necessary for final resolution of the 
lawsuit challenging the constitutionality of Section 207(a) of PRIIA. 
Ultimately, however, the mediation and discussions were unsuccessful.
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    \2\ Amtrak Complaint, NOR 42134, at 2 (Jan. 19, 2012).
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    Meanwhile, on May 31, 2012, the District Court upheld the 
constitutionality of Section 207. Ass'n of Am. R.Rs. v. Dep't of 
Transp., 865 F. Supp. 2d at 25. AAR then appealed to the United States 
Court of Appeals for the District of Columbia Circuit (the D.C. 
Circuit). The D.C. Circuit reversed the District Court, holding that 
Section 207 of PRIIA impermissibly delegates regulatory authority to a 
``private entity'' (Amtrak) and, therefore, is an unconstitutional 
delegation of legislative power. Ass'n of Am. R.Rs. v. Dep't of 
Transp., 721 F.3d 666 (D.C. Cir. 2013). The D.C. Circuit's decision was 
then appealed to the United States Supreme Court, which agreed to 
review the case.
    While review was pending before the Supreme Court, on August 29, 
2014, Amtrak filed a motion to amend its complaint against CN in Docket 
No. 42134 (the ``Illini/Saluki'' case). Specifically, Amtrak sought to 
narrow the focus of the complaint to the performance of Amtrak's 
Illini/Saluki service rather than all of the Amtrak services on lines 
owned by CN addressed in the original complaint. In addition, on 
November 17, 2014, Amtrak filed a new complaint under Section 213 of 
PRIIA in Docket No. NOR 42141, alleging ``substandard performance of 
Amtrak's Capitol Limited service between Chicago, IL and Washington, 
D.C.'' on rail lines owned by CSX Transportation, Inc. and Norfolk 
Southern Railway Company (the ``Capitol Limited'' case).\3\
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    \3\ Amtrak Complaint, NOR 42141, at 2 (Nov. 17, 2014).
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    On December 19, 2014, while the Supreme Court case was still 
pending, the Board issued a decision in the Illini/Saluki case 
(December 2014 Decision) (1) granting Amtrak's motion to amend its 
complaint against CN, and (2) concluding that the pending court 
litigation involving the constitutionality of Section 207 did not 
preclude Amtrak's complaint before the Board from moving forward. The 
Board also directed the parties to provide arguments and replies 
addressing how to construe the term ``on-time performance'' as the term 
is used in Section 213. In dissent, Commissioner Begeman stated that 
the Board would best fulfill its obligations under the law by 
initiating a rulemaking to establish clear standards by which on-time

[[Page 80739]]

performance cases could be fairly processed.
    CN filed a petition for reconsideration in the Illini/Saluki case 
on January 7, 2015. AAR also submitted a conditional petition for 
rulemaking in this docket on January 15, 2015. In response, the Board, 
on January 16, 2015, served a decision postponing the filing deadlines 
in the Illini/Saluki case established by the December 2014 Decision, 
pending further order of the Board. In the Capitol Limited case, the 
Board served a decision on April 7, 2015, directing the parties to 
engage in mediation. The mediation period concluded on August 14, 2015, 
without success.
    On March 9, 2015, the Supreme Court reversed the D.C. Circuit's 
decision, finding that Amtrak is a governmental entity for purposes of 
analyzing the constitutional issues surrounding the delegation of 
authority in Section 207. Dep't of Transp. v. Ass'n of Am. R.Rs., 135 
S. Ct. 1225 (2015). However, the Court remanded the case to the D.C. 
Circuit for consideration of AAR's other arguments regarding the 
constitutionality of Section 207, which the D.C. Circuit had declined 
to reach. Id. at 1234. Currently, the legality of Section 207 of PRIIA 
remains in dispute.
    As noted, on May 15, 2015, the Board instituted this rulemaking 
proceeding in response to a petition filed by AAR. In that decision, 
the Board stated that it intended to issue a notice of proposed 
rulemaking and a procedural schedule in a subsequent decision. The 
Board found persuasive the arguments regarding the advantages of 
rulemaking in this situation: There are multiple on-time performance 
cases pending in which the Board's definition could apply; it would be 
efficient to obtain the full range of stakeholder perspectives in one 
docket, rather than piecemeal on a case-by-case basis; and defining on-
time performance by rulemaking would provide clarity regarding the 
trigger for potential adjudications and would avoid the potential 
relitigation of the issue in each case, thereby conserving party and 
agency resources.
    The Proposed Rule. The proposed rule's definition of on-time 
performance, which is derived from a previous definition of on-time 
performance used by the Interstate Commerce Commission (ICC), reads as 
follows:

a train is deemed to be ``on time'' if it arrives at its final 
destination within five minutes of its scheduled arrival time per 
one hundred miles of operation (capped at 30 minutes).

    The ICC's on-time performance regulations (former 49 CFR 1124.6) 
provided that an intercity passenger train ``shall arrive at its final 
terminus no later than 5 minutes after scheduled arrival time per 100 
miles of operation, or 30 minutes after scheduled arrival time, 
whichever is the less.'' The ICC explained that ``[t]he public should 
be able to rely on the established train schedule so that plans can be 
made with a modicum of certainty and trains may once again be 
attractive to travelers for whom on-time performance is imperative.'' 
Adequacy of Intercity Rail Passenger Serv., 344 I.C.C. 758, 776 
(1973).\4\ We believe that the ICC's prior sentiment is equally valid 
today.
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    \4\ Subsequently, in the Amtrak Reorganization Act of 1979, Pub. 
L. 96-73, 96 Stat. 537, Congress repealed the ICC's adequacy-of-
service jurisdiction over Amtrak while establishing an internal 
Amtrak organization with similar functions. This transfer of 
responsibilities, however, implied no Congressional judgment on the 
merits of the ICC's definition of on-time performance.
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    Under Section 1040.2 of the proposed rule, Definition of ``On 
Time,'' a train would be considered ``on time'' if it arrives at its 
final terminus no more than five minutes after its scheduled arrival 
time for each 100 miles the train operated, or 30 minutes after its 
scheduled arrival time, whichever is less. Section 1040.3 of the 
proposed rule, Table of Maximum Allowances, sets forth the following 
table specifying the maximum number of minutes after a scheduled 
arrival time that an ``on-time'' train may arrive at its final terminus 
for each distance-variable band.

------------------------------------------------------------------------
                Distance operated (miles)
---------------------------------------------------------     Maximum
                                             Up to and       allowance
                  Over                       including       (minutes)
------------------------------------------------------------------------
0.......................................             100               5
100.....................................             200              10
200.....................................             300              15
300.....................................             400              20
400.....................................             500              25
500.....................................        No limit              30
------------------------------------------------------------------------

    As set forth in the table, a train operating up to 100 miles would 
be ``on time'' if it arrives at its final terminus no more than five 
minutes after its scheduled arrival time. Likewise, a train operating 
over 100 miles but no more than 200 miles would be considered ``on 
time'' if it arrives at its final terminus no more than 10 minutes 
after its scheduled arrival time, and a train operating a distance over 
500 miles would be considered ``on time'' if it arrives at its final 
terminus no more than 30 minutes after its scheduled arrival time.
    The proposed rule also provides a framework for calculating 
quarterly on-time performance for purposes of filing or initiating a 
complaint. As proposed in Section 1040.4, Calculation of Quarterly On-
Time Performance, on-time performance would be calculated as a 
percentage for each individual calendar quarter (e.g., January 1 
through March 31, April 1 through June 30, and so on) by dividing the 
total number of ``on-time'' trains that calendar quarter, as determined 
by distance-variable thresholds in Sections 1040.2 and 1040.3, by the 
total number of trains that operated during that calendar quarter. 
Trains that did not operate from scheduled origin to scheduled 
destination would be excluded from this calculation.\5\ If the on-time 
performance percentage, calculated as described above, falls below 80% 
in each calendar quarter for two consecutive calendar quarters, an 
eligible complainant could file a complaint requesting an investigation 
pursuant to Section 213(a) of PRIIA, or the Board could initiate an 
investigation on its own.
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    \5\ Thus, excluded from the calculation would be, for example, 
trains that do not operate, for any reason; trains that terminate 
prematurely at an intermediate point rather than the scheduled final 
terminus; and trains that originate at an intermediate point rather 
than the scheduled origin.
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    The Board proposes to adopt the ICC's definition because relying on 
a comparison between Amtrak's scheduled arrival time and the time an 
Amtrak train actually arrives at its final destination would be clear 
and relatively easy to apply. In particular, adoption of this 
definition would simplify the record-keeping and production of evidence 
that may otherwise be necessary for Amtrak and the host carriers if on-
time performance were defined using a number of additional factors, 
such as the amount of delay at intermediate stops or construction on 
the host carrier's line.
    The Board seeks comments from all interested persons on the 
proposed rule. Importantly, the Board encourages interested persons to 
propose and discuss potential modifications or alternatives to the 
proposed rule. Examples of such alternatives might include, but are not 
limited to: Factoring into the calculation of on-time performance a 
train's punctuality at intermediate stops, rather than the final 
terminus only; implementing alternative tables of maximum allowances 
with respect to either the distance-variables or the maximum allowance 
of minutes for each distance-variable band; or calculating the ``on-
time'' thresholds under an entirely different methodology, such as 
approaches that Amtrak or other public agencies and host carriers have 
implemented. The

[[Page 80740]]

Board will carefully consider all recommended proposals, and may take 
further comment, if appropriate, in an effort to establish the most 
meaningful and straightforward definition of on-time performance.
    Procedural Schedule. On June 12, 2015, Amtrak requested that the 
Board limit the comment period in this proceeding to 30 days. AAR filed 
a request for procedural schedule on July 16, 2015, in which it 
requested that the Board schedule two rounds of pleadings (opening 
comments and replies) before issuing a proposed rule and allow 45 days 
for parties to submit each (essentially, an Advanced Notice of Proposed 
Rulemaking).
    The Board will allow six weeks for parties to file opening comments 
in response to this notice of proposed rulemaking and three weeks for 
parties to file reply comments. Given the significance of the issue at 
hand, the Board finds that the 30-day comment period requested by 
Amtrak would provide insufficient time for parties to provide comments 
on the proposed rule. A procedural schedule allowing reply comments is 
appropriate because the Board here invites comments on not only the 
proposed rule, but potential modifications or alternatives (on which 
the Board may take further comment if appropriate). This approach is 
intended to balance the need to provide sufficient opportunity for 
public comments, as urged in part by AAR, with the need to complete 
this proceeding as expeditiously as possible.
    Regulatory Flexibility Act. The Regulatory Flexibility Act of 1980 
(RFA), 5 U.S.C. 601-612, generally requires a description and analysis 
of new rules that would have a significant economic impact on a 
substantial number of small entities. In drafting a rule, an agency is 
required to: (1) Assess the effect that its regulation will have on 
small entities; (2) analyze effective alternatives that may minimize a 
regulation's impact; and (3) make the analysis available for public 
comment. 601-604. In its notice of proposed rulemaking, the agency must 
either include an initial regulatory flexibility analysis, 603(a), or 
certify that the proposed rule would not have a ``significant impact on 
a substantial number of small entities.'' 605(b). The impact must be a 
direct impact on small entities ``whose conduct is circumscribed or 
mandated'' by the proposed rule. White Eagle Coop. v. Conner, 553 F.3d 
467, 480 (7th Cir. 2009).
    The proposed regulation would not create a significant impact on a 
substantial number of small entities. As noted above, host carriers 
have been required to allow Amtrak to operate over their rail lines 
since the 1970s. Moreover, an investigation concerning delays to 
intercity passenger traffic is a function of Section 213 of PRIIA 
rather than this rulemaking. The proposed rule seeks only to define 
``on-time performance'' for the purpose of implementing the rights and 
obligations already established in Section 213 of PRIIA. Thus, the 
proposed rule does not place any additional burden on small entities, 
but rather clarifies an existing obligation.
    Even assuming for the sake of argument that the proposed regulation 
were to create an impact on small entities, which it does not, the 
number of small entities so affected would not be substantial. The 
proposed definition of on-time performance would apply in proceedings 
involving Amtrak, currently the only provider of intercity passenger 
rail transportation subject to PRIIA, and its host railroads. For 
almost all of its operations, Amtrak's host carriers are Class I rail 
carriers,\6\ and Class I carriers generally do not fall within the 
Small Business Administration's definition of a small business for the 
rail transportation industry.\7\ Of a total of approximately 560 
smaller carriers that do fall within the SBA's definition of a small 
entity, only approximately 10 currently host Amtrak traffic.\8\ 
Therefore, the Board certifies under 5 U.S.C. 605(b) that this proposed 
rule will not have a significant economic impact on a substantial 
number of small entities within the meaning of the RFA. A copy of this 
decision will be served upon the Chief Counsel for Advocacy, Office of 
Advocacy, U.S. Small Business Administration, Washington, DC 20416.
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    \6\ Under the Board's regulations, Class I carriers have annual 
carrier operating revenues of $250 million or more in 1991 dollars 
(adjusted for inflation using 2014 data, the revenue threshold for a 
Class I rail carrier is $475,754,803).
    \7\ The Small Business Administration's Office of Size Standards 
has established a size standard for rail transportation, pursuant to 
which a line-haul railroad is considered small if its number of 
employees is 1,500 or less, and a short line railroad is considered 
small if its number of employees is 500 or less. 13 CFR 121.201 
(industry subsector 482).
    \8\ This number is derived from Amtrak's Monthly Performance 
Report for May 2015, historical on-time performance records, and 
system timetable, all of which are available on Amtrak's Web site.
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    This proposal would not significantly affect either the quality of 
the human environment or the conservation of energy resources.

List of Subjects in 49 CFR Part 1040

    On-time performance of intercity passenger rail service.

    It is ordered:
    1. Comments are due by February 8, 2016. Reply comments are due by 
February 29, 2016.
    2. A copy of this decision will be served upon the Chief Counsel 
for Advocacy, Office of Advocacy, U.S. Small Business Administration.
    3. Notice of this decision will be published in the Federal 
Register.
    4. This decision is effective on its service date.
    Decided: December 16, 2015.
    By the Board, Chairman Elliott, Vice Chairman Begeman, and 
Commissioner Miller.

Brendetta S. Jones,
Clearance Clerk.
    For the reasons set forth in the preamble, the Surface 
Transportation Board proposes to amend title 49, chapter X, subchapter 
A, of the Code of Federal Regulations by adding part 1040 as follows:

PART 1040--ON-TIME PERFORMANCE OF INTERCITY PASSENGER RAIL SERVICE

Sec.
1040.1 Purpose.
1040.2 Definition of ``on time.''
1040.3 Table of maximum allowances.
1040.4 Calculation of quarterly on-time performance.

    Authority: 49 U.S.C. 721 and 24308(f).


Sec.  1040.1  Purpose.

    This section defines ``on-time performance'' for the purpose of 
implementing Section 213 of the Passenger Rail Investment and 
Improvement Act of 2008, 49 U.S.C. 24308(f).


Sec.  1040.2  Definition of ``on time.''

    A train is ``on time'' if it arrives at its final terminus no more 
than five minutes after its scheduled arrival time per 100 miles of 
operation, or 30 minutes after its scheduled arrival time, whichever is 
less. This definition shall be implemented in accordance with the table 
provided in Sec.  1040.3.


Sec.  1040.3  Table of maximum allowances.

    The following table sets forth the maximum number of minutes after 
the scheduled arrival time that a train may arrive at its final 
terminus and be considered on time for the purpose of implementing 49 
U.S.C. 24308(f).

------------------------------------------------------------------------
                Distance operated (miles)
---------------------------------------------------------     Maximum
                                             Up to and       allowance
                  Over                       including       (minutes)
------------------------------------------------------------------------
0.......................................             100               5
100.....................................             200              10

[[Page 80741]]

 
200.....................................             300              15
300.....................................             400              20
400.....................................             500              25
500.....................................        No limit              30
------------------------------------------------------------------------

Sec.  1040.4  Calculation of quarterly on-time performance.

    In any given calendar quarter, on-time performance shall be 
calculated as a percentage using the following formula:
    (a) The denominator shall be the number of trains that operated 
during that calendar quarter, excluding any train not operating from 
its scheduled origin to its scheduled destination; and
    (b) The numerator shall be the number of trains included in the 
denominator that also satisfy the definition of ``on-time 
performance,'' as set forth in Sec. Sec.  1040.2 and 1040.3.

[FR Doc. 2015-32411 Filed 12-24-15; 8:45 am]
 BILLING CODE 4915-01-P