[Federal Register Volume 85, Number 221 (Monday, November 16, 2020)]
[Rules and Regulations]
[Pages 72971-73002]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-25212]


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 273

[Docket No. FRA-2019-0069; Notice No. 3]
RIN 2130-AC85


Metrics and Minimum Standards for Intercity Passenger Rail 
Service

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

ACTION: Final rule.

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SUMMARY: This final rule establishes metrics and minimum standards for 
measuring the performance and service quality of intercity passenger 
train operations.

DATES: This final rule is effective on December 16, 2020.

FOR FURTHER INFORMATION CONTACT: Kristin Ferriter, Transportation 
Industry Analyst, telephone (202) 493-0197; or

[[Page 72972]]

Zeb Schorr, Assistant Chief Counsel, telephone (202) 493-6072.

SUPPLEMENTARY INFORMATION:

Table of Contents for Supplementary Information

I. Executive Summary
II. Background
III. Response to Comments on On-Time Performance and Train Delays
IV. FRA Quarterly Reporting
V. Section-by-Section Analysis of Comments and Revisions From the 
NPRM
VI. Regulatory Impact and Notices
    A. Executive Order 12866, Executive Order 13771, 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

I. Executive Summary

A. Overview of the Final Rule

    This final rule establishes metrics and minimum standards for 
measuring the performance and service quality of Amtrak's intercity 
passenger train operations (Metrics and Standards). The Metrics and 
Standards are organized into four categories: On-time performance (OTP) 
and train delays, customer service, financial, and public benefits. 
With respect to on-time performance and train delays, this final rule 
sets forth a customer on-time performance metric, defined as the 
percentage of all customers on an intercity passenger rail train who 
arrive at their detraining point no later than 15 minutes after their 
published scheduled arrival time, reported by train and by route. This 
final rule establishes a customer on-time performance minimum standard 
of 80 percent for any 2 consecutive calendar quarters, and sets forth 
when the standard begins to apply. In addition, this final rule 
includes the following related metrics: Ridership data, certified 
schedule, train delays, train delays per 10,000 train miles, station 
performance, and host running time.

B. Procedural History

    By notice of proposed rulemaking (NPRM) published on March 31, 2020 
(85 FR 17835), FRA proposed metrics and minimum standards for measuring 
the performance and service quality of intercity passenger train 
operations. FRA held a telephonic public hearing on April 30, 2020. 
Written comments on the proposed rule were required to be submitted no 
later than June 1, 2020.
    FRA received more than 320 comments, including comments from: 
Alabama State Port Authority, Alaska Railroad, American Association of 
State Highway and Transportation Officials, Association of American 
Railroads, Association of Independent Passenger Rail Operators, BNSF 
Railway Company, California State Transportation Agency, Canadian 
National Railway Company, Canadian Pacific, Capitol Corridor Joint 
Powers Authority, CSX Transportation, Environmental Law and Policy 
Center, Metropolitan Transportation Authority, Midwest Interstate 
Passenger Rail Commission, New York State Department of Transportation 
(DOT), NJ Transit, Norfolk Southern Railway Company, North Carolina 
DOT, Rail Passengers Association, San Joaquin Regional Rail Commission, 
Southeastern Pennsylvania Transportation Authority, Southern Rail 
Commission, States for Passenger Rail Coalition, Surface Transportation 
Board (STB), Transportation for America, Union Pacific Railroad 
Company, Utah Rail Passengers Association, Virginia Department of Rail 
and Public Transportation, Virginia Railway Express, Washington State 
DOT, the Honorable U.S. Representative Sam Graves, the Honorable U.S. 
Representative Rick Crawford, and more than 290 other individuals. 
Comments are addressed in the preamble.

C. Economic Analysis

    All costs of this final rule are expected to be incurred during the 
first year. The following table shows the total 10-year costs of this 
final rule.

                                               Total 10-Year Costs
----------------------------------------------------------------------------------------------------------------
                                                                                   Annualized, 7   Annualized, 3
                            Category                              Total cost ($)    percent ($)     percent ($)
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Cost of Meetings................................................         473,473          67,412          55,505
Internal Staff Time (Preparation for Meetings)..................         296,991          42,285          34,816
Monthly Letters.................................................          50,328           7,166           5,900
Arbitration.....................................................         714,030         101,662          83,706
Ridership Data..................................................           6,198             882             727
                                                                 -----------------------------------------------
    Total.......................................................       1,541,020         219,407         180,655
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    This final rule may result in lower operational costs for Amtrak to 
the extent it results in improved OTP, which may reduce labor costs, 
fuel costs, and expenses related to passenger inconvenience, and 
provide benefits to riders from improved travel times and service 
quality. Due to the difficulty in quantifying future benefits to rail 
routes from 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 improved service that may result from 
the final rule.

II. Background

A. PRIIA

    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 to develop jointly 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 also calls for consultation with STB, rail carriers 
over whose rail lines Amtrak trains operate, States, Amtrak employees, 
and groups representing Amtrak passengers, as appropriate.
    Section 207 further provides that the metrics, at a minimum, must 
include: The percentage of avoidable and fully allocated operating 
costs covered by

[[Page 72973]]

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 requires Amtrak to provide 
reasonable access to FRA to carry out its duty under section 207.
    Section 207 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 (also referred to as 
operating agreements).
    The Metrics and Standards also relate to section 213 of PRIIA 
(codified at 49 U.S.C. 24308(f)). 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. Under 
section 213, 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 STB's 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. 
In 2016, 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, in part, of voiding 
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 upon 
the U.S. Supreme Court's denial of certiorari on June 3, 2019). As a 
result, in July 2019, FRA and Amtrak once again began the process of 
developing joint Metrics and Standards under section 207(a).

C. Stakeholder Consultation

    Consistent with section 207(a), FRA and Amtrak consulted with many 
stakeholders to develop the Metrics and Standards.
    Specifically, in August and September, 2019, FRA met individually 
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 
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.\1\ FRA and Amtrak also sought input from other 
potentially interested entities who did not express interest in 
consulting at that time.\2\
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    \1\ One commenter stated that FRA should have also consulted 
with heavy tonnage seaports with terminal and switching railroads. 
FRA notes that, while such specific consultation was not required by 
the statute, FRA had many in-depth meetings with Class I railroads 
who are well-versed in the issues related to providing rail service 
to seaports; indeed Class I railroad comments mirrored those from 
this commenter.
    \2\ FRA sought input from certain rail labor groups that did not 
express interest in consulting at the time.
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    After publishing the NPRM, FRA invited each of the stakeholders to 
meet again. As a result of this invitation, on April 23, 2020, FRA met 
via telephone 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. Representatives of the Association 
of American Railroads and Amtrak also attended this meeting. On May 6, 
2020, FRA met via telephone with representatives of the American 
Association of State Highway Transportation Officials, Capitol Corridor 
Joint Powers Authority, Connecticut DOT, California DOT, Illinois DOT, 
Michigan DOT, Missouri DOT, North Carolina DOT, New York State DOT, 
Northern New England Passenger Rail Authority, Oklahoma DOT, Oregon 
DOT, San Joaquin Joint Powers Authority, Vermont Agency of 
Transportation, Virginia Department of Rail and Public Transportation, 
Washington State DOT, Wisconsin DOT, State Amtrak Intercity Passenger 
Rail Committee, and States for Passenger Rail Coalition. 
Representatives of Amtrak also attended this meeting. Lastly, on May 8, 
2020, FRA met with representatives of STB. Representatives of Amtrak 
also attended this meeting. FRA placed summaries of each of these 
meetings, including the presentation material, in the NPRM's rulemaking 
docket (FRA-2019-0069-0013, FRA-2019-0069-0022, and FRA-2019-0069-
0028).
    In addition, on June 17, 2020, FRA met individually via telephone 
with BNSF Railway, Canadian National Railway, CSX Transportation, 
Norfolk Southern Railway Company, and Union Pacific Railroad. 
Representatives of

[[Page 72974]]

Amtrak attended each of these meetings. On June 19, 2020, FRA met via 
telephone with Canadian Pacific Railway. Representatives of Amtrak 
attended this meeting. In these six meetings, FRA sought collaborative 
commitment to affirm or adjust the intercity passenger train schedules 
published for stations served across the railroad's network, and 
continued discipline to maintaining schedules, in order to expand the 
growing data pool that would support any necessary schedule change. 
Subsequent FRA letters to these parties summarizing the discussion were 
placed in the NPRM's rulemaking docket (FRA-2019-0069-0379). On July 
31, 2020, FRA met collectively via telephone with Amtrak, BNSF Railway, 
Canadian National Railway, Canadian Pacific Railway, CSX 
Transportation, Norfolk Southern Railway Company, and Union Pacific 
Railroad regarding reaffirmation or reconciliation of Amtrak's 
published train schedules. FRA's subsequent letter to those parties 
summarizing the discussion was placed in the NPRM's rulemaking docket 
(FRA-2019-0069-0382).

D. Amtrak's Role in the Metrics and Standards Rulemaking

    Beginning in July 2019, FRA and Amtrak began the process of 
developing the Metrics and Standards under section 207(a) of PRIIA. FRA 
and Amtrak held an executive kick-off meeting to initiate the effort, 
which was followed by a regular cadence of staff level meetings. As 
described above, FRA and Amtrak then conducted an extensive 
consultation process with many stakeholders to develop the Metrics and 
Standards. After the conclusion of the consultation process, FRA worked 
with Amtrak to develop the Metrics and Standards, which included 
extensive Amtrak input that was reflected in the Metrics and Standards 
NPRM. After publication of the NPRM, FRA met with various stakeholders 
(Class I railroads, States, and the STB) together with Amtrak, as 
described above. FRA then sought (and received) Amtrak's input on the 
draft Metrics and Standards final rule, considered Amtrak's input, and 
then, as the agency with rulemaking authority, FRA ultimately 
determined the contents of this final rule.

III. Response to Comments on On-Time Performance and Train Delays

A. Customer On-Time Performance

    As proposed in the NPRM, this final rule measures the OTP element 
of intercity passenger train performance using a customer OTP metric, 
defined as the percentage of all customers on an intercity passenger 
rail train who arrive at their detraining point no later than 15 
minutes after their published scheduled arrival time, reported by train 
and by route.\3\ 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.
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    \3\ This definition reflects a minor revision to the NPRM's 
definition of customer OTP, which clarifies that early trains are 
counted as on-time. FRA made this revision in response to a comment 
seeking this clarification.
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    The customer OTP metric is calculated as follows: The total number 
of customers on an intercity passenger rail train who arrive at their 
detraining point no later than 15 minutes after their published 
scheduled arrival time, divided by the total number of customers on the 
intercity passenger rail train.\4\ For example:
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    \4\ 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 for their original trip but 
would be counted for customer OTP for the rescheduled trip. 
Customers on bus bridges (transportation on buses for a portion of a 
regularly scheduled train route) are excluded from the calculation.
[GRAPHIC] [TIFF OMITTED] TR16NO20.004

    The following table provides a hypothetical customer OTP 
calculation for a single train on two separate 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] TR16NO20.005


[[Page 72975]]


    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 simple average of the daily numbers.
    As also proposed in the NPRM, this final rule establishes a minimum 
standard for customer OTP of 80 percent for any 2 consecutive calendar 
quarters. To promote clarity and compliance, the customer OTP standard 
is the only standard set forth in connection with the OTP and train 
delays metrics. FRA believes this single standard is the most effective 
way to achieve dedicated focus on improving on-time performance. FRA 
emphasizes that 80 percent is a minimum standard, and FRA expects some 
intercity passenger rail services will reliably achieve a higher 
standard of performance. The 80 percent customer OTP standard is 
consistent with the statutory requirement in 49 U.S.C. 24308(f)(1).
    Lastly, the final rule includes a provision not proposed in the 
NPRM, which provides that the customer OTP standard shall apply to a 
train beginning on the first full calendar quarter after May 17, 2021. 
For example, if the final rule is published on December 10, 2020, 6 
months after that date would be June 10, 2021, and the first full 
calendar quarter after that would run from July 1, 2021 to October 31, 
2021. FRA also understands that in some instances the alignment of a 
train schedule with the customer OTP metric may require additional 
time. As such, if Amtrak and a host railroad do not agree on a new 
train schedule and the schedule is reported as a disputed schedule on 
or before May 17, 2021, then the customer OTP standard for the disputed 
schedule shall apply beginning on the second full calendar quarter 
after May 17, 2021. FRA added these provisions to the final rule to 
ensure host railroads and Amtrak have sufficient time to align their 
train schedules before FRA begins reporting the customer OTP metric 
data.
    FRA received hundreds of comments on customer OTP. Some commenters 
supported the customer OTP metric and standard and some disapproved of 
it. Many commenters generally supported the use of a single metric to 
measure OTP and the use of a single OTP standard.
    Several commenters stated that section 207 requires the OTP metric 
to show OTP by host railroad in routes with multiple host railroads. In 
support, these commenters cited language in section 207(a), which 
states that the metrics ``at a minimum, shall include . . . measures of 
on-time performance and delays incurred by intercity passenger trains 
on the rail lines of each rail carrier . . . .'' FRA disagrees. As 
further described below, PRIIA calls for measuring the intercity 
passenger train's OTP performance, not the host railroad's performance 
in hosting the intercity passenger train. Section 207, when viewed in 
its entirety, does not require distinguishing OTP by host railroad. 
Sec. 207(a) (Requiring the development of metrics and minimum standards 
``including on-time performance and minutes of delay . . . .''); Sec.  
207(b) (Requiring FRA quarterly reporting on intercity passenger train 
operations, ``including . . . on-time performance and minutes of delay 
. . . .''). Indeed, other sections in PRIIA require an OTP metric that 
measures a train's performance over an entire route, and not just route 
segments by host railroad. 49 U.S.C. 24710(a) and (b); see also 49 
U.S.C. 24308(f)(1). Furthermore, an OTP metric that measures a host 
railroad's performance would not depict the customer's experience as 
passenger trains that arrive late at their destinations may be reported 
as ``on-time.'' Lastly, Congress emphasized the importance of measuring 
delays by host railroad as evidenced in section 213, which requires the 
STB to investigate whether and to what extent delays are due to causes 
that could reasonably be addressed by a host railroad. Thus, in 
compliance with section 207(a), this final rule does include train 
delay metrics that describe train performance on individual host 
railroads (e.g., the host running time metric shows train performance 
over a host railroad as compared to the train's scheduled running time, 
thereby distinguishing host railroads on multi-host railroad routes).
    Regardless of whether the statute requires it, several commenters 
stated that the final rule should distinguish OTP by host railroad.\5\ 
In support, these commenters noted that the OTP metric determines when 
a host railroad may be subjected to an STB investigation (and other 
delay metrics could not prevent the initiation of an investigation). In 
other words, these commenters expressed concern that a host railroad 
could be subject to an STB investigation and/or reputational harm even 
if its own performance did not cause the train to operate below the 
standard.\6\ In related comments, commenters stated that the OTP 
calculation should exclude certain delays for which the host railroad 
was not responsible (e.g., third party delays or Amtrak-responsible 
delays) and give host railroads in dense metro territories an ``out-of-
slot delay tolerance'' in connection with the OTP calculation.
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    \5\ For example, one commenter stated that OTP on multi-host 
routes should be measured against the run time for each host 
railroad line segment (and not against the scheduled departure and 
arrival time at each station).
    \6\ One commenter also stated that the customer OTP metric would 
harm the morale of the host railroad's employees who take pride in 
achieving good OTP. FRA appreciates the commitment of all employees, 
at Amtrak and the host railroads, and understand they work hard in 
support of Amtrak trains.
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    In this final rule, FRA's approach to OTP follows the framework 
Congress set forth in PRIIA. Section 207 calls for measuring the 
intercity passenger train's OTP performance, not the host railroad's 
performance in hosting the intercity passenger train.\7\ A host 
railroad-specific measurement of OTP, accounting for late handoffs, 
slot time adjustments, and other methods of relief, would result in a 
system that is misaligned with the customer experience: passenger 
trains that arrive late at their destinations but are reported as ``on-
time.'' Other sections in PRIIA also require an OTP metric that 
measures a train's performance over an entire route (that can be 
compared to other routes), and not just route segments by host 
railroad.\8\ In addition, Congress specifically identified the OTP 
metric as a trigger for an STB investigation.\9\ 49 U.S.C. 24308(f)(1).
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    \7\ FRA's quarterly reports do not exist solely to serve as a 
trigger for an STB investigation. These reports also provide 
information for policymakers and the public, consistent with the 
data reporting for other modes of transportation, such as air 
travel. See https://www.transportation.gov/individuals/aviation-consumer-protection/air-travel-consumer-reports.
    \8\ See 49 U.S.C. 24710(a) (Requiring Amtrak to use the section 
207 performance metrics to evaluate annually the operating 
performance of each long-distance train); 49 U.S.C. 24710(b) 
(Requiring Amtrak to develop a performance improvement plan for its 
long-distance routes based on the data collected from the section 
207 performance metrics, to include OTP); 49 U.S.C. 24308(f)(1) 
(Referring to the on-time performance of an ``intercity passenger 
train''); see also Union Pac. R.R. Co. v. Surface Transp. Bd., 863 
F.3d 816, 826 (8th Cir. 2017).
    \9\ FRA's quarterly reports showing Amtrak's performance under 
the OTP metric are relied upon to determine whether a train is below 
the standard. See Union Pac. R.R. Co. v. Surface Transp. Bd., 863 
F.3d 816, 826 (8th Cir. 2017). Congress also assigned STB with the 
responsibility to determine whether and to what extent delays . . . 
are due to causes that could reasonably be addressed'' by the host 
railroad or by Amtrak. 49 U.S.C. 24308(f)(1).
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    In any event, the train performance metrics in this final rule do 
not penalize host railroads for train delays for which they are not 
responsible. As described below, the final rule's train delays metric 
and host running time metric speak to the individual host railroad's

[[Page 72976]]

performance. One commenter stated that the NPRM's train delays metrics 
are likely to get little attention compared to the customer OTP metric. 
FRA strongly disagrees. While the customer OTP metric provides a train-
level view of actual passenger train performance focused on the 
customer experience, the train delays metric and the host running time 
metric can help identify certain categories of delays, their frequency, 
and their duration, which are central inquiries to understanding and 
improving passenger train performance, as well as an STB investigation 
under 49 U.S.C. 24308(f).
    In addition, that STB can initiate an investigation certainly does 
not mean that an investigation will be sought. As acknowledged by 
several commenters, an STB investigation results in resource 
expenditures for affected entities, and it has an uncertain outcome. A 
decision to initiate such an investigation is not made lightly. As a 
result, it is not reasonable to assume that every train below the 
minimum OTP standard would be investigated. Furthermore, it is also not 
reasonable to assume that an STB investigation would be sought against 
a host railroad where the train delays metric and the host running time 
metric data do not support an investigation. FRA is confident STB can 
identify delays for which host railroads are not responsible when armed 
with data from these metrics.
    In lieu of a customer OTP metric, several commenters proposed a key 
stations OTP metric that would measure train performance at key 
stations on a host railroad.\10\ The customer OTP metric measures train 
OTP for every passenger at every station (not just passengers at 
designated stations), recognizes the relative importance of reliability 
at stations serving more passengers, and provides flexibility if demand 
changes. In contrast, a key stations OTP metric fails to recognize the 
importance of customers who do not use a key station. Such a metric 
would have additional challenges, including how to identify key 
stations. For these reasons, FRA determined that the customer OTP 
metric is superior to a key stations OTP metric. With that said, the 
customer OTP metric resembles a key stations OTP metric because 
stations with many detraining passengers have greater influence on the 
train's customer OTP and serve as de facto key stations.\11\ As 
discussed elsewhere in this final rule, FRA finds that, aside from 
predictable and broadly understood seasonal trends and short-term 
variability, the percentage of a train's detraining passengers at 
stations on a route is stable for purposes of calculating customer OTP; 
therefore, host railroads can identify key stations to maximize 
performance under the customer OTP metric.
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    \10\ Another commenter suggested a key stations OTP metric 
combined with changes to the Amtrak-host railroad operating 
agreement to preserve a similar contractual performance payment 
regime. As stated elsewhere in this final rule, this final rule does 
not prohibit Amtrak and a host railroad from revising their 
operating agreement.
    \11\ See Application of the National Railroad Passenger 
Corporation Under 49 U.S.C. 24308(a)--Canadian National Railway 
Company, STB Docket No. FD 35743 at 11, FN 25 (Aug. 9, 2019) (``An 
OTP metric that measures the percentage of passengers that arrive at 
their destination stations on time could--in some circumstances--
allow for greater host railroad operational flexibility and create 
an incentive structure more closely tied to the service delivery to 
the end consumer, the passenger.'').
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    Another commenter suggested that the existing, contractually 
negotiated Amtrak train performance provisions found in the host 
railroads' operating agreements with Amtrak are preferable to the 
customer OTP metric because the host railroads often perform well under 
those contract terms (whereas these same trains don't perform as well 
when measured by the customer OTP metric). The commenter stated that 
Amtrak and a host railroad should be allowed to develop and apply 
alternative OTP standards, such as the existing contractual performance 
provisions, or use mutually agreed upon times as a baseline to measure 
OTP. The commenter's proposal is counter to section 207's requirement 
to establish a metric to measure intercity passenger train performance, 
as it would result in many different measures of performance that would 
be, at best, difficult to understand and, at worst, entirely 
misleading. A single OTP metric and standard allows stakeholders to 
compare train performance, which may be important to evaluating 
connectivity information, among other things, and ensures all trains 
are held to the same standard.
    Furthermore, FRA believes the OTP metric should measure train 
performance from the eyes of the customer. The customer OTP metric is 
meaningful, precisely because it is reflective of the passenger train's 
actual performance. The commenter's proposal would routinely produce 
the anomalous result stated elsewhere in this final rule of a passenger 
train that arrives late at stations yet has good ``OTP.'' See 
Application of the National Railroad Passenger Corporation Under 49 
U.S.C. 24308(a)--Canadian National Railway Company, STB Docket No. FD 
35743 at 10 (Aug. 9, 2019) (``In general, if an OTP metric only 
includes checkpoints at the final station and two or three select 
intermediate points, . . . , the metric does not measure performance in 
a way that captures whether a significant portion of Amtrak's 
passengers actually arrived at their selected destinations on time. 
Such a metric would be an unrepresentative measure of performance.'').
    Another commenter stated the final rule should adopt an all-
stations OTP metric that would measure train performance at all 
stations on a route. Like an all-stations OTP metric, the customer OTP 
metric measures train performance at every station, and it also 
recognizes the importance of reliability at stations serving more 
passengers. Customer OTP also offers host railroads more flexibility in 
adjusting recovery time \12\ based on passenger load versus recovery 
needed for every station stop.\13\ For these reasons, FRA determined 
that the customer OTP metric is preferable to an all-stations OTP 
metric, and is adopting a customer OTP metric as proposed in the NPRM.
---------------------------------------------------------------------------

    \12\ 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.
    \13\ One commenter stated that under a customer OTP metric it is 
not reasonable to believe a host railroad would agree to a schedule 
that did not achieve OTP at all stations. Although Amtrak and a host 
railroad may agree on a schedule that reliably achieves OTP at all 
stations, the customer OTP metric provides greater flexibility to 
the parties by allowing them to focus on those stations with greater 
numbers of detraining passengers.
---------------------------------------------------------------------------

    A commenter stated that FRA should have considered the impact of 
the customer OTP metric and standard on the host railroads' various 
operating agreements with Amtrak, including the performance incentive 
payments made under such agreements. FRA is not a party to these 
agreements, nor does FRA have knowledge of their details, as the 
parties consider the details of the agreements confidential business 
information, and have not shared them with FRA. More importantly, this 
final rule does not require a change to the performance incentive 
payment provisions in these operating agreements; Amtrak and the host 
railroads may continue to maintain those provisions as they see fit.
    In addition, to the extent a host railroad is concerned with 
receiving lower performance incentive payments as a result of this 
final rule, this final rule does not prohibit a host railroad and 
Amtrak from revising the performance incentive payments to align better 
with the customer OTP metric and standard.\14\ Indeed, section

[[Page 72977]]

207(c) 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 operating agreements). See also 
Union Pac. R.R. Co. v. Surface Transp. Bd., 863 F.3d at 826 (``The 
Sec.  207 on-time-performance metric was, to the extent practicable, to 
be incorporated into Amtrak's contracts with host railroads.'').
---------------------------------------------------------------------------

    \14\ As STB stated, ``[i]t is not reasonable for an incentives 
and penalties system to have at its foundation a performance metric 
that fails to account for the OTP at stations central to the 
passenger experience for a significant portion of Amtrak 
passengers.'' Application of the National Railroad Passenger 
Corporation Under 49 U.S.C. 24308(a)--Canadian National Railway 
Company, STB Docket No. FD 35743 at 10 (Aug. 9, 2019).
---------------------------------------------------------------------------

    A commenter stated that because the customer OTP metric is based on 
passenger loads it may be an unstable metric (as it may vary on a daily 
basis). Another commenter stated that this instability would result in 
lengthening schedules. A commenter also stated that the aggregation of 
customer OTP data could produce distorted results showing a train 
service as more reliable or less reliable than is actually the case. 
And, another commenter stated that the customer OTP metric will likely 
result in false positives for trains that depart late from congested 
Amtrak terminals. FRA does not agree with these commenters that 
customer OTP will be unreliable for two reasons. First, Amtrak has 
provided some ridership data to host railroads and the ridership data 
metric in this final rule requires Amtrak to provide additional data to 
host railroads to allow them to understand and monitor passenger 
loads.\15\ Second, while the actual number of detraining passengers may 
change at a station over time, the percentage of passengers detraining 
at a station is generally stable.\16\ Based on FRA's review of the non-
public ridership data Amtrak made available to the host railroads,\17\ 
FRA found little movement in a station's relative volume of detraining 
passengers. For example, there were 15,714 total passengers on Amtrak 
train #391 (on the Illini/Saluki route) in the fourth quarter of 2019, 
and 10,481 total passengers in the first quarter of 2020, a difference 
of 5,233 passengers or 33%. Passengers detraining at Champaign-Urbana, 
IL represented 47.8% of the total passengers on the train in the fourth 
quarter 2019, and 50.4% of total passengers in the first quarter 2020. 
Despite this variation in ridership, Champaign-Urbana ranked as the 
highest volume station for detraining passengers for these two quarters 
compared to all other stations on the route. Similarly, Carbondale, IL 
ranks as the second highest volume station for detraining passengers, 
with 27.1% of the total passengers on the train in the fourth quarter 
2019, and 25.6% of total passengers in the first quarter 2020. The 
relative importance of the station (i.e., the station rank) along the 
route seldom changes despite fluctuation in the percentage of 
detraining passengers. As stated above, if carefully analyzed, the 
ridership data will allow host railroads to identify de facto ``key 
stations'' to concentrate performance to ensure most passengers arrive 
at their destination on-time (thereby meeting the 80% standard).
---------------------------------------------------------------------------

    \15\ The percentage of detraining passengers to each station on 
a route can be calculated from the information Amtrak is currently 
providing to host railroads for their internal use. See FRA-2019-
0069-0295. This data provides quarterly detraining totals by station 
by train.
    \16\ Station rank in absolute terms may also be a helpful tool 
for schedule planning in connection with the customer OTP metric.
    \17\ While Amtrak does not make this ridership data publicly 
available, Amtrak shared this data with relevant host railroads. See 
FRA-2019-0069-0295. Amtrak also consented to this minimal public 
disclosure of ridership data to provide this illustrative example.
---------------------------------------------------------------------------

    A commenter stated that host railroads do not have adequate notice 
of the customer OTP metric because the metric is based on the number of 
detraining passengers at a station, which the host railroads would 
receive after the fact. As noted above, there is generally not much 
change in proportional ridership by station by route (real-time 
ridership data is of limited utility), and host railroads already 
received a year of performance data on May 18, 2020. Furthermore, as 
described below, this final rule includes a ridership data metric that, 
in part, requires Amtrak to provide ridership data to host railroads. 
In addition, the final rule provides that the customer OTP standard 
shall apply to a train beginning, at the earliest, on the first full 
calendar quarter after May 17, 2021. Amtrak and the host railroads will 
also have at least a further five months to evaluate two years of 
relevant ridership data to work towards certifying train schedules, 
consistent with the data sharing requirement in this final rule. This 
commenter further suggested an alternative OTP metric that measures OTP 
by the train's arrival at designated check-points (similar to the 
approach used in the commenter's operating agreement with Amtrak), 
which it alleged would provide adequate notice. For the reasons stated 
above, FRA disagrees with this approach and believes that the OTP 
standard should be based on the passenger experience.
    A commenter stated that a single OTP metric may fail to address 
certain State-supported trains that have negotiated local expectations 
of performance with a host railroad and that currently serve passengers 
reliably above the 80 percent OTP standard. Similarly, another 
commenter stated that where an existing partnership exists between a 
State and a railroad, such as a service outcome agreement, the OTP 
metric and standard should be used to inform and complement that 
agreement, rather than to supersede it. As stated, the 80 percent 
customer OTP standard is a minimum standard. FRA expects many services 
to operate more reliably and this final rule is not intended to 
obstruct the unique performance arrangements that may exist between 
host railroads and States.
    Some commenters expressed concern that the customer OTP metric 
would delay commuter rail trains sharing the right-of-way with Amtrak 
trains due to Amtrak trains ``waiting for time'' (i.e., when a train 
arrives early to a station and waits until its scheduled departure 
time) at intermediate stations. A commenter stated that such an action 
in high density territory could create a net reduction in rail line 
capacity. Similarly, other commenters stated that aligning schedules to 
a customer OTP metric enlarges an Amtrak train's dispatch footprint by 
redistributing recovery time across intermediate stations, which 
threatens overall network fluidity, decreases the host railroad's 
ability to manage slow orders, and will result in longer schedules. FRA 
disagrees. First, delays waiting for time at intermediate stations can 
be foreclosed by an accurate schedule. Second, adjusting train 
schedules to align with the customer OTP standard does not mean that 
recovery time must be added for each station. Recovery time should, for 
example, be included across a schedule to protect performance at larger 
volume stations, locations where passenger trains can wait clear of 
main tracks, where stations are farther apart, or where trains are more 
likely to incur operational delays. However, spreading existing 
recovery time linearly across a schedule would be inefficient and would 
be more likely to result in trains waiting at stations for departure 
times if a train performed well on a given segment that included 
additional, unnecessary recovery time. Furthermore, in the case of 
capacity impacts great enough to warrant schedule change, reductions of 
time to remove these waits would be in both parties' favor. Third, 
Amtrak trains on many routes avoid large numbers of station stops in 
districts already well served by commuter operations. Lastly, Amtrak 
trains should not be given more time between stations in commuter train 
territory than the commuter trains themselves. In these types of 
territories

[[Page 72978]]

there should be little slack time written into the schedule, consistent 
with standard railroad operating best practices. For all these reasons, 
FRA is confident that the professional railroaders at Amtrak and the 
host railroads, whose daily job it is to develop train schedules, can 
account for the issues raised by these commenters.
    Another commenter suggested that the customer OTP metric penalizes 
trains that perform well according to the performance provisions in 
their Amtrak-host railroad bilateral operating agreement and is not 
consistent with the intent of section 207. In support, the commenter, a 
host railroad, stated that it receives payments under its contract with 
Amtrak for the performance of trains operating on its right-of-way, but 
is concerned these same trains will not perform well as measured by a 
customer OTP metric. FRA disagrees. Put simply, a measure that is not 
focused on when a passenger train arrives at a station is not measuring 
the on-time performance of the passenger train. FRA encourages Amtrak 
and the host railroads to work toward aligning the bilateral operating 
agreements with the customer OTP metric and standard to ensure 
performance is measured, and appropriately incentivized, in a 
consistent manner. See PRIIA Sec.  207(c).
    A commenter sought clarity regarding whether the customer OTP 
metric is measured by the actual number of passengers detraining at a 
station, or by the number of tickets that Amtrak sells to a specific 
arrival station. Amtrak measures detraining passengers by the number of 
passengers actually traveling on the train, as determined by conductor 
ticket collections via electronic ticket scanning for a specific 
arrival station. Passengers who have reserved a seat, but elect not to 
travel, are not reflected in passenger counts. Another commenter 
wondered whether it is possible for Amtrak to calculate customer OTP 
accurately where Amtrak customers share tickets in metro areas with 
commuter passenger railroads (e.g., in Los Angeles with Metrolink 
commuter rail services). Most passengers traveling on Amtrak under a 
cross-honor arrangement with a commuter rail operator are included in 
the customer OTP calculation (in most cases, the conductor records the 
origin and destination station for the cross-honor rider as they 
board). Amtrak maintains cross-honor agreements with several commuter 
passenger railroads across the country, and riders traveling under 
those arrangements represent 2.4% of total Amtrak ridership. 
Approximately two-thirds of these cross-honor passengers are included 
in Amtrak detraining counts, including Metrolink and Virginia Railway 
Express cross-honors.
    A commenter stated a concern that, under the customer OTP metric, 
Amtrak passengers on cancelled trains would be counted as late customer 
arrivals at their ticketed station if service to their ticketed station 
is cancelled. In this case, a passenger on a train that has had their 
ticket scanned and the service to their ticketed station canceled on 
less than four hours advance notice is counted as a late customer 
arrival at their ticketed station by design, as it reflects the 
customer's experience.\18\ In Amtrak fiscal year 2019, the number of 
passengers impacted by en route cancellations to their detraining 
stations was 0.04% of Amtrak ridership (14,439 impacted passengers 
divided by 32,519,241 total passengers).
---------------------------------------------------------------------------

    \18\ In Amtrak's system, a cancellation with less than four 
hours advance notice represents an unplanned en route event. Amtrak 
established the four-hour benchmark to recognize that a cancellation 
with less than four hours advance notice would not give the customer 
sufficient time to make alternative travel arrangements. The four-
hour benchmark is the same used for several other measures of Amtrak 
performance. The cancellation need not include the entire train or 
trip such as in an emergency detour situation, where selected 
stations may be bypassed (and passengers bussed to their original 
detraining location) but the train continues to its final 
destination. Passengers who are required to take a bus bridge to 
their final destination as a result of an unplanned cancellation are 
counted as late. Amtrak makes every effort to get these passengers 
to their desired destination, typically by bus or by re-
accommodation on another train. Implementing these alternative 
travel plans due to an en route event nearly always results in 
passengers arriving late to their final destination. They are 
therefore counted as late to their detraining station and are 
included as such in customer OTP calculations.
---------------------------------------------------------------------------

    A commenter stated that the customer OTP metric should be reported 
by train only, and not by train and by route. However, it is important 
to maintain route reporting because the customer is less likely to know 
what train number they are on, and are more likely to know the route 
they travel.
    Lastly, a commenter stated that the customer OTP metric and 
standard should consider the fluidity of the entire network in 
determining whether a host railroad has given an Amtrak train 
preference. Preference under 49 U.S.C. 24308(c) is determined by STB, 
not FRA. See 49 U.S.C. 24308(c) and (f)(2). The commenter also stated 
that the customer OTP metric should consider non-Amtrak passengers, in 
addition to Amtrak passengers. As described further below, FRA 
developed the metrics for Amtrak intercity passenger train operations, 
which is consistent with section 207.

B. Train Schedules

    While the NPRM did not propose any metrics related to train 
schedules, FRA received many comments about train schedules. Some 
commenters stated that the final rule should require Amtrak and a host 
railroad to certify that a train's schedule aligns with the customer 
OTP metric and standard before the customer OTP standard takes effect. 
STB, for example, supported requiring properly aligned schedules before 
an OTP standard takes effect. In support, commenters stated that many 
of Amtrak's existing schedules are not a meaningful benchmark for 
measuring customer OTP because they were not designed for a customer 
OTP metric, and they are outdated and unrealistic. As a result, these 
commenters stated, the use of the customer OTP metric to measure Amtrak 
schedules would produce misleading train performance data, and may 
result in unnecessary STB litigation.
    Further, some commenters stated that it would be challenging to 
renegotiate some schedules due to disagreements about train scheduling 
and challenges with existing schedules, among other reasons. Several 
commenters stated that the final rule should provide an initial six-
month period for Amtrak and the host railroads to certify schedules, 
and should extend this period for the pendency of any dispute 
resolution process. Commenters also stated that the final rule should 
incorporate a dispute resolution process to address schedules in 
dispute. Several commenters also stated that the dispute resolution 
process should automatically certify a schedule if the host railroad 
refused to participate and, conversely, should withhold certification 
if Amtrak refused to participate. Some commenters stated that the final 
rule should include a schedule recertification process to ensure 
ongoing schedule validity.
    FRA generally agrees with many of these observations (although not 
all). FRA agrees that Amtrak and the host railroads should align 
schedules with the customer OTP metric.\19\ Where a train's OTP is 
measured against the train schedule provided to the public, the train's 
schedule should be aligned with the OTP measure used to evaluate the 
train's performance. Historically,

[[Page 72979]]

Amtrak's published train schedules have not been designed with a 
customer OTP metric in mind. Accordingly, this final rule: Establishes 
a certified schedule metric that addresses alignment with the customer 
OTP metric and standard; provides more time for Amtrak and the host 
railroads to negotiate schedules; and allows for a dispute resolution 
process if the parties disagree.\20\
---------------------------------------------------------------------------

    \19\ An OTP metric, in part, can inform the formulation of a 
train schedule. For example, a customer OTP metric may encourage a 
schedule with more recovery time at those stations with more de-
boarding passengers, while an endpoint OTP metric may encourage a 
schedule with more recovery time at the endpoints of a line segment.
    \20\ A certified schedule metric is consistent with section 
207's direction to measure on-time performance, as the schedule is a 
benchmark of train performance.
---------------------------------------------------------------------------

    The certified schedule metric first requires Amtrak to report the 
number of certified schedules, uncertified schedules, and disputed 
schedules, by train, by route, and by host railroad.\21\ This 
information is reported monthly for six months, at 12 months, and 
yearly thereafter. Second, the final rule provides more time to 
negotiate schedules by delaying application of the customer OTP 
standard until the first full calendar quarter six months after 
publication of the final rule. Third, the final rule encourages the 
parties to certify schedules timely and to resolve disagreements by 
further delaying application of the OTP standard when a non-binding 
dispute resolution process is engaged. Specifically, if a train 
schedule is reported as a disputed schedule during the first six 
months, then the customer OTP standard does not apply until the second 
full calendar quarter following those six months.\22\ Fourth, the 
certified schedule metric further encourages the parties to certify 
schedules by requiring Amtrak and a host railroad to transmit monthly 
letters signed by their chief executive officers to Congress (and 
others) when they have an uncertified schedule after six months.\23\ 
These letters will make policymakers aware of the status of the train 
schedule,\24\ and help ensure that a sense of urgency is maintained by 
the parties to resolve the disagreement. Lastly, the certified schedule 
metric recognizes that ongoing coordination between Amtrak and a host 
railroad is needed as certified schedules are impacted by future 
events.\25\ The graphic below provides an overview of the certified 
schedule metric process.
---------------------------------------------------------------------------

    \21\ Although the certified schedule metric is reported by host 
railroad (excluding switching and terminal railroads), FRA 
encourages all the host railroads for a route to work together in 
aligning the train schedule.
    \22\ The final rule defines the term disputed schedule to mean a 
published train schedule for which a specific change is sought: (1) 
That is the only subject of a non-binding dispute resolution process 
led by a neutral third-party and involving Amtrak and one or more 
host railroads; (2) that is the only subject of a non-binding 
dispute resolution process led by a neutral third-party that has 
been initiated by one or more host railroads and Amtrak has not 
consented to participate in the process within 30 calendar days; or 
(3) that is the only subject of a non-binding dispute resolution 
process led by a neutral third-party that has been initiated by 
Amtrak and the host railroad has not consented to participate in the 
process within 30 calendar days. The written decision resulting from 
a non-binding dispute resolution process is admissible in Surface 
Transportation Board investigations under 49 U.S.C. 24308(f). If a 
published train schedule is reported as a disputed schedule under 
subsection (c)(1), then it remains a disputed schedule until 
designated as a certified schedule.
    \23\ If a train schedule is reported as an uncertified schedule 
at six months, twelve months, or yearly thereafter, then Amtrak and 
the host railroad must transmit a joint letter and status update, 
signed by their respective chief executive officers, to each U.S. 
Senator and U.S. Representative whose district is served by the 
train, in addition to several other government offices. This joint 
letter and status update must identify the Amtrak published train 
schedule(s) at issue and the plan and expectation date to resolve 
the disagreement(s), among other details.
    \24\ In addition, FRA will post such joint letters on its 
website.
    \25\ FRA recognizes the importance of reviewing schedules 
periodically to ensure their integrity. However, the customer OTP 
standard would continue to apply during a schedule review period. In 
addition, the customer OTP standard will apply to any new Amtrak 
train service initiated after application of the customer OTP 
standard (and that train will be subject to the certified schedule 
metric).
[GRAPHIC] [TIFF OMITTED] TR16NO20.006

    A commenter stated that a schedule dispute resolution process 
should allow for both non-binding and binding dispute resolution (and 
should not require binding dispute resolution only). Here, the final 
rule does not require Amtrak or a host railroad to engage in a dispute 
resolution process, nor does the final rule attempt to prescribe the 
process the parties use if they do choose to engage a dispute 
resolution process. However, the final rule only affords delay of the 
customer OTP standard beyond six months for engagement of a non-binding 
dispute resolution process.\26\ The resolution of a schedule 
disagreement must be achieved as quickly as possible. The final rule 
encourages Amtrak and host railroads who are serious about finding 
common ground on a schedule to

[[Page 72980]]

engage in a dispute resolution process if they are unable to reach 
agreement amongst themselves.\27\ While non-binding, the written 
decision resulting from a non-binding dispute resolution process may 
facilitate resolution and may also assist the Surface Transportation 
Board in a 49 U.S.C. 24308(f) investigation. While parties may seek 
binding dispute resolution, this final rule does not include that 
process given the broad array of impacts that may occur from a schedule 
required by arbitration, such as, among other things, significant 
additional operating expenses or revenue losses (for Amtrak and its 
partners), commercially infeasible times of operation or duration, and 
conflicting schedules on multi-host railroad routes.
---------------------------------------------------------------------------

    \26\ The final rule only affords delay of the customer OTP 
standard beyond six months for disputed schedules. After the six-
month period, the customer OTP standard applies to both certified 
schedules and uncertified schedules. There may be a scenario where 
one host railroad for a train has a disputed schedule (to which the 
customer OTP standard is not yet applied) and another host railroad 
for that train has either a certified schedule or an uncertified 
schedule. As the customer OTP metric is reported by train (and by 
route), in this situation, FRA will not include customer OTP metric 
data in the quarterly report for that train during the time when 
there is a disputed schedule (to which the customer OTP standard is 
not yet applied) for some portion of the train's route. FRA 
encourages Amtrak and all of the host railroads of a train to work 
together when evaluating the published train schedules.
    \27\ The final rule does not dictate a specific process beyond 
that it is a non-binding dispute resolution process led by a neutral 
third-party. For example, the final rule does not address how the 
parties pay the fees and costs associated with such a process 
(although an equal share of such costs would be one reasonable 
approach), nor does the final rule address the number of arbitrators 
(although the associated costs for an arbitration in the final 
rule's section regarding economic impacts are based on a panel of 
three arbitrators).
---------------------------------------------------------------------------

    Some commenters stated it would be unfair to apply a customer OTP 
standard to a schedule that is not aligned with the customer OTP metric 
(because the metric could produce misleading train performance data 
that could ultimately result in an STB investigation).\28\ A commenter 
also stated that Amtrak has no incentive to adjust its schedules, and 
other commenters expressed concern about lengthening schedules. FRA 
understands that Amtrak and host railroads have some competing 
interests. This final rule balances those interests consistent with 
section 207. As explained, the final rule encourages the parties to 
agree on certified schedules while not explicitly requiring them. In 
addition, a host railroad or Amtrak may initiate a timely non-binding 
dispute resolution process (regardless of whether the other party 
agrees to participate in that process), which would temporarily delay 
application of the OTP standard to a train. The non-binding dispute 
resolution process will produce a written decision that will inform 
Amtrak and a host railroad in aligning the schedule with the customer 
OTP metric. The final rule empowers Amtrak and the host railroads to 
resolve schedule disputes without being overly prescriptive (and 
without government involvement that could hamper the parties' ability 
to engage in confidential discussions, among other things). Section 207 
does not require schedule certification and, indeed, section 213 
acknowledges that STB investigations may include STB review of the 
extent to which scheduling contributed to delay. 49 U.S.C. 24308(f)(1).
---------------------------------------------------------------------------

    \28\ In a related comment, a commenter stated that Congress only 
intended for a limited number of Amtrak trains to be subject to an 
STB investigation. FRA is not aware of any language in section 207, 
or PRIIA, to support this interpretation.
---------------------------------------------------------------------------

    Many comments addressed the NPRM's train schedule principles, which 
recommended, but did not require, alignment of train schedules with the 
customer OTP metric. Some commenters stated that the principles should 
be removed, others supported their inclusion, and still others 
suggested adding to the principles. This final rule does not include 
the train schedule principles. FRA determined these principles are no 
longer necessary given the final rule's inclusion of a certified 
schedule metric; the NPRM's train schedule principles would only serve 
to complicate the process of determining train schedules for Amtrak and 
the host railroads.
    Several commenters stated that State sponsors of intercity 
passenger rail should be included in Amtrak and host railroad schedule 
alignment discussions. FRA agrees that State sponsors are important 
stakeholders in these discussions. Although the final rule does not 
require nor prohibit a State sponsor's involvement, FRA expects that a 
State sponsor may be invited to participate consistent with their 
existing agreement(s). Based on the comments received, FRA understands 
that Amtrak and many of the host railroads have existing agreements 
with State sponsors that relate to schedules. Those agreements remain 
in place and are not altered or negated by this final rule.
    Commenters also stated that Amtrak schedule modifications should 
not compromise the standardized schedules Amtrak has agreed to with 
commuter agencies in dense commuting territories, as these existing 
schedules allow for the optimal use of capacity and ensure reliable 
operations for both Amtrak and commuter rail operations. Similarly, a 
commenter stated that Amtrak, host railroads, and commuter services 
must work cooperatively to update schedules in the interest of 
providing achievable OTP goals. FRA recognizes the important role 
commuter rail services play in the passenger rail network. This final 
rule does not prohibit commuter agency involvement in Amtrak-host 
railroad schedule discussions, and any Amtrak and/or host railroad 
agreements with commuter agencies remain in place and are not altered 
or negated by this final rule.
    A commenter stated that there should be a test period for new 
schedules. With the application provisions for the OTP standard in this 
final rule, FRA believes Amtrak and the host railroads have sufficient 
time to test and negotiate train schedules. FRA will not dictate a 
process for negotiating schedules, but it expects both parties will use 
data-driven processes, such as modeling, simulation, and real-world 
testing to validate any proposed schedule changes.
    One commenter stated that a new schedule aligned with the customer 
OTP metric should take into account the existing contractual 
performance payments that may exist between Amtrak and a host railroad 
under their operating agreement. It is unnecessary to require new 
schedules to account for contractual performance payments because any 
new schedule will be agreed to by Amtrak and the host railroad, and 
they may consider the implications of the schedule on future 
performance payments, and can work to adjust those payments to align 
with the new schedule.
    A commenter stated that Amtrak must provide the same consideration 
to other host railroads that Amtrak grants itself on the Northeast 
Corridor (NEC) and adjust scheduled running times to accommodate 
infrastructure work as appropriate. The commenter stated that Amtrak 
regularly adjusts scheduled running times for its trains on the 
segments of the NEC that it maintains and dispatches but does not grant 
similar running-time adjustments to Amtrak trains traversing other host 
railroad territory on the NEC. Considerations for running time impact 
are more properly addressed in the operating agreement between the 
parties.
    Lastly, a commenter stated that Amtrak must provide the percentage 
of recovery time per route segment. FRA sees limited value in this 
metric and it is not included in this final rule. Together, a host 
railroad and Amtrak can arrive at an efficient use of recovery time, 
which is an inherent element in any schedule. Once a schedule is 
completed, a host railroad will know how much recovery time exists on 
each line segment for each train and between which stations the 
recovery time has been placed.

C. Train Delays

    FRA recognizes that the customer OTP metric and standard should be 
accompanied by metrics that provide additional useful information about 
a train's performance. There are factors that contribute to poor OTP on 
a route

[[Page 72981]]

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. Because the customer OTP metric does not easily distinguish 
performance on individual host railroads (including Amtrak), this final 
rule also establishes metrics to measure train delays, station 
performance, and host running time, to provide more information about 
the customer experience, train performance on individual host 
railroads,\29\ and the minutes and causes of delay.
---------------------------------------------------------------------------

    \29\ To the customer, there may be no discernable difference as 
to whether they are on one host railroad's territory or another's 
while traveling on a route. However, most intercity passenger rail 
routes involve one or more host railroads. This final rule 
establishes metrics that measure route-level performance reflecting 
the customer experience and that measure aspects of performance of 
the individual host railroads within the route segments that they 
control.
---------------------------------------------------------------------------

1. Train Delays
    The NPRM proposed to define a train delays metric as 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.\30\ The NPRM further proposed to define the terms ``Amtrak-
responsible delays,'' ``host-responsible delays,'' and ``third party 
delays.''
---------------------------------------------------------------------------

    \30\ In response to a comment seeking clarification, the train 
delays metric measures the minutes of delay for each individual host 
railroad territory within a route.
---------------------------------------------------------------------------

    Many commenters stated that the train delays metric should report 
delays by delay category (i.e., Amtrak-responsible delays, host-
responsible delays, and third party delays). Several commenters also 
stated that the train delays metric should measure Amtrak delays as 
operator and as host railroad, in total and separately. Some commenters 
also stated that the final rule should report delays by root cause and 
that, in instances where Amtrak and the host railroads disagree on the 
causes of delay, FRA should publish both findings. In addition, several 
commenters stated that Amtrak and the host railroad should work 
together on a regular basis to identify and agree on the delay data and 
the delay causes.
    In response to comments on the NPRM, the final rule includes a 
revised train delays metric. First, the train delays metric in the 
final rule reports disputed delay minutes, which are those non-Amtrak 
host responsible delays disputed by the host railroad and not resolved 
by Amtrak. This additional information captures host-responsible delays 
disputed by the host railroad pursuant to its operating agreement with 
Amtrak and not resolved by Amtrak. It is important to note that FRA 
views the host railroad's National Railroad Passenger Corporation 
(NRPC) operations officer as a critically important position at the 
host railroad that demands direct access to the host railroad's chief 
operations officer and other senior leadership.\31\ In addition to 
reporting the number of disputed delay minutes, the final rule also 
provides that the train delays metric is reported by delay code by: 
Total minutes of delay; Amtrak-responsible delays; Amtrak's host-
responsible delays; Amtrak's host-responsible delays and Amtrak-
responsible delays, combined; non-Amtrak host-responsible delays; and 
third party delays. The table below is a sample train delay metric 
chart to further illustrate the metric.
---------------------------------------------------------------------------

    \31\ If the host railroad does not have an NRPC officer, then 
another officer with the appropriate expertise and authority at the 
host railroad would fulfill this responsibility.

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[[Page 72982]]

[GRAPHIC] [TIFF OMITTED] TR16NO20.007

    One commenter stated that all departure and arrival times at each 
Amtrak station should be automated so that manual data collections by 
Amtrak conductors are minimized or eliminated. FRA agrees that Amtrak 
should use automated methods to collect data to the greatest extent 
practicable. In fact, Amtrak currently uses an automated electronic 
delay reporting system based primarily on a GPS-based system that 
automatically logs arrival, departure, and passing times at stations 
and other locations, and calculates the number of minutes of delay 
above pure run time within each segment of an Amtrak route. See 
Application of the National Railroad Passenger Corporation Under 49 
U.S.C. 24308(a)--Canadian National Railway Company, STB Docket No. FD 
35743 at 23 (Aug. 9, 2019).
    Several commenters gave examples of types of delays that should not 
be designated as host-responsible delays, such as passenger delays to 
Amtrak trains while at a station, and other commenters expressed 
concern about Amtrak's identification of root causes of delay. FRA 
understands that Amtrak and the host railroads may disagree on how to 
assign responsibility for any particular delay. FRA also understands 
that some host railroads have processes and data systems in place 
through which they look closely at delay causes, and that other host 
railroads do not have such processes or systems and approach the issue 
in a different way. The train delays metric includes the reporting of 
disputed delays where Amtrak and the host railroad are unable to agree 
on a delay category pursuant to the existing process for delay 
attribution in the Amtrak-host railroad operating agreement.\32\ The 
metric's reporting of disputed delays ensures transparent reporting, 
while not prescribing an additional process for the parties to use to 
reach agreement or inserting FRA in the process to adjudicate disputes. 
FRA expects that Amtrak and the host railroad's NRPC officer (or 
equivalent) will be in frequent communication about train delays.
---------------------------------------------------------------------------

    \32\ See Application of the National Railroad Passenger 
Corporation Under 49 U.S.C. 24308(a)--Canadian National Railway 
Company, STB Docket No. FD 35743 at 23-24 (Aug. 9, 2019) (Describing 
the delay cause identification process under an existing operating 
agreement).
---------------------------------------------------------------------------

    Lastly, one commenter stated that in other FRA and Amtrak reports, 
delay metrics have not been published for segments that are less than 
15 miles in length. The commenter proposed that minutes of delay should 
be reported for each host railroad territory that exceeds 0.1 miles in 
length to ensure that delays on short segments (frequently near 
terminals) are also reflected, as these delays can have an outsized 
effect on customer OTP. FRA agrees. Amtrak collects delay data on all 
segments of a route regardless of segment length. The delay data for 
all segments are available to all host railroad partners via on-line 
access, and in some cases, automated data feeds. FRA's quarterly 
reports will include delays for all segments of the route.
2. Station Performance
    The NPRM proposed an average minutes late per late customer metric 
as the average minutes late that late customers arrive at their 
detraining stations, reported by route (excluding on-time customers 
that arrive within 15 minutes of their scheduled time). A commenter 
stated that this metric does not provide information about the location 
of problems causing the delay or how to fix them, and that it does not 
differentiate between the performance of individual host railroads. 
Another commenter proposed that this metric

[[Page 72983]]

should reflect average minutes late of all customers (not just the late 
customers).
    In response to these comments, FRA is renaming the metric as a 
station performance metric, and revising it to measure the number of 
detraining passengers, the number of late passengers, and the average 
minutes late that late customers arrive at their detraining stations, 
reported by route, by train, and by station. The average minutes late 
per late customer calculation excludes on-time customers that arrive 
not later than 15 minutes after their scheduled time and reflects the 
severity of the delayed train, as experienced by the customer. To 
clarify, a customer who arrives at their detraining station 16 minutes 
late would be included in this calculation and would be recorded as 16 
minutes late. The revised metric expands upon the proposed metric by 
providing information on all passengers, not just late passengers, by 
route, train, and station. It will offer FRA, hosts, and Amtrak 
customers more information on the location of performance problems and 
allow them to calculate the customer OTP metric.
    The table below is a sample station performance metric chart to 
further illustrate the metric.
[GRAPHIC] [TIFF OMITTED] TR16NO20.008

3. Host Running Time
    The final rule establishes a host running time metric to measure 
the average actual running time and the median actual running time 
compared with the scheduled running time between the first and final 
reporting points for a host railroad segment set forth in the Amtrak 
schedule skeleton,\33\ reported by route, by train, and by host 
railroad (excluding switching and terminal railroads). For a given host 
railroad, the scheduled running time is defined as the scheduled 
duration of a train's travel on a host railroad, as set forth in the 
Amtrak schedule skeleton, and the actual running time is defined as the 
actual elapsed travel time of a train's travel on a host railroad, 
between the departure time at the first reporting point for a host 
railroad segment and the arrival time at the reporting point at the end 
of the host railroad segment. As delays may or may not cause a train to 
be late on its schedule, it is important to measure the performance of 
host railroads against the scheduled operation. The host running time 
metric shows the performance of a host railroad against the time 
allowed for in the schedule and provides more insight into a host 
railroad's operating impact on OTP. This metric is an indication of 
which host railroads may be responsible for chronic performance below 
standard and which ones are not. The metric will not explain the cause 
of delays, nor will it assign responsibility for them.
---------------------------------------------------------------------------

    \33\ The final rule defines schedule skeleton to mean a schedule 
grid used by Amtrak and host railroads to communicate the public 
schedule of an Amtrak train and 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.
---------------------------------------------------------------------------

    The table below is a sample host running time metric chart to 
illustrate the metric.

[[Page 72984]]

[GRAPHIC] [TIFF OMITTED] TR16NO20.009

    Several commenters stated that the NPRM did not distinguish between 
host railroads on multi-host railroad routes, and that delays on one 
host railroad can be carried over to a subsequent host railroad. FRA 
believes the host running time metric specifically addresses this 
concern by showing train performance over a host railroad as compared 
to the train's scheduled running time, thereby distinguishing host 
railroads on multi-host railroad routes.
    Lastly, two commenters also stated that a late, out-of-slot Amtrak 
train can itself cause additional delays on the receiving host 
railroad.\34\ One commenter stated that the final rule should provide 
host railroads with an ``out-of-slot delay tolerance'' in calculating 
OTP that would account for Amtrak trains that arrive late to the host 
railroad and miss their scheduled slot. FRA disagrees. Amtrak trains 
that operate out-of-slot may pose operating issues in certain scheduled 
network areas where train operation distances are very short, dense, 
and tightly scheduled (i.e., commuter train territory around major 
metropolitan areas). However, outside of that situation, effective 
communication between a host railroad and Amtrak regarding an impending 
delay is generally the key to mitigate the impact of an out-of-slot 
Amtrak train. Further, as stated elsewhere in this final rule, FRA 
believes the most meaningful measurement of OTP is based on the 
customer experience of actually arriving at their destination on time, 
not obscured by other tolerance or relief.
---------------------------------------------------------------------------

    \34\ FRA understands an out-of-slot train to be a train that 
arrives after the time the host railroad anticipated and planned for 
the train in its operating plan.
---------------------------------------------------------------------------

4. Train Delays per 10,000 Train Miles
    The NPRM proposed a train delays per 10,000 train miles metric as 
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. Several commenters stated that this metric is not 
informative as it does not provide data about the location of delays or 
how to fix them. One commenter stated that the metric can be helpful 
when comparing delays among different routes. The final rule includes 
this metric. 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.

D. Ridership Data

    Many commenters stated that the final rule must require Amtrak to 
provide host railroads with sufficient data to calculate and monitor 
customer OTP. Without this information, these commenters stated, host 
railroads would not be able to verify the accuracy of customer OTP 
data, monitor their performance, identify improvement opportunities, or 
take corrective action. Commenters requested ridership data, such as: 
Close to real-time access to daily, station-specific Amtrak ridership 
data, including late arriving customers and the degree of lateness; 
daily numbers of detraining passengers for each Amtrak train on a 
station-by-station basis; four years of historical ridership data; the 
data underlying the customer OTP metric calculation; relevant route 
data on performance and Amtrak customer travel; and Amtrak's ridership 
projections.
    During the NPRM's comment period, Amtrak agreed to provide some 
ridership data to the host railroads. See FRA-2019-0069-0295. In 
response, some commenters stated that this data was not sufficient 
because it was aggregated and did not show station-specific performance 
or the number of passengers detraining at each station.
    In consideration of these comments, the final rule includes a 
ridership data metric. The ridership data metric is the number of host 
railroads to whom Amtrak has provided ridership data, reported by host 
railroad and by month. In addition, the ridership data metric requires 
that, not later than December 16, 2020, Amtrak must provide host 
railroad-specific ridership data to each host railroad for the 
preceding 24 months. Also, on the 15th day of every month following 
December 16, 2020, Amtrak must provide host railroad-specific ridership 
data to each host railroad for the preceding month. The final rule 
defines the term ridership data to mean, in a machine-readable format: 
The total number of passengers, by train and by day; the station-
specific number of detraining passengers, reported by host railroad 
whose railroad right-of-way serves the station, by train, and by day; 
and the station-specific number of on-time passengers reported by host 
railroad whose railroad right-of-way serves the station, by train, and 
by day.
    A commenter stated that ridership data should be available to the 
public. FRA's quarterly reports will be publicly available. FRA also 
recognizes that the ridership data may include information that Amtrak 
views as confidential/competitively sensitive. Although this final rule 
requires Amtrak to provide ridership data to host railroads, Amtrak may 
impose reasonable conditions on the host railroad's use of these data. 
With that said, at a minimum, the host railroad should be able to use 
these data in connection with negotiation, review, adjustment, or 
analysis of relevant Amtrak train schedules, or in connection with an 
STB proceeding

[[Page 72985]]

under 49 U.S.C. 24308(f) involving the host railroad.
    The tables below are samples of ridership data to illustrate 
further the format and data that Amtrak will share with host railroads 
under this metric (however, this supporting data will not be publicly 
available).
BILLING CODE 4910-06-P
[GRAPHIC] [TIFF OMITTED] TR16NO20.010


[[Page 72986]]


[GRAPHIC] [TIFF OMITTED] TR16NO20.011

BILLING CODE 4910-06-C
    A commenter stated that Amtrak must share the ridership data with 
its State-supported route partners. FRA encourages Amtrak to share 
ridership data with its State-supported route partners; however, a 
requirement to share such data is not directly related to this 
rulemaking. Amtrak's provision of data to its State partners should be 
consistent with existing agreements. State entities that provide 
payments to Amtrak under PRIIA section 209 currently have access to 
some of Amtrak's online data systems, which include train delay 
information and ridership information.
    Some commenters stated that the host railroad's current lack of 
access to station-specific ridership data limited their ability to 
comment on the NPRM, and that the customer OTP metric would not provide 
host railroads adequate notice. As discussed, above, any OTP standard 
adopted in this final rule must be relevant to the actual passenger 
experience; the most relevant of which is whether a passenger arrived 
at the destination on time. As noted previously, FRA finds that, aside 
from predictable and broadly understood seasonal trends, the percentage 
of a train's detraining passengers at stations on a route is stable for 
purposes of calculating customer OTP. In addition, host railroads have 
received some additional ridership data and will receive more ridership 
data under this final rule.
    A commenter stated that Amtrak should describe how it collects the 
ridership data and its passenger-counting methodology. As stated, 
Amtrak measures detraining passengers by the number of passengers 
actually traveling on the train, as determined by conductor ticket 
collections via electronic ticket scanning for a specific arrival 
station. Passengers who have

[[Page 72987]]

reserved a seat, but elect not to travel, are not reflected in 
passenger counts.
    Lastly, a commenter stated that host railroads should be able to 
audit the ridership data provided by Amtrak. FRA determined the 
ridership data required by this final rule will allow a host railroad 
to calculate the customer OTP independently. In addition, Amtrak's 
reported ridership data is subject to verification by Amtrak's Office 
of the Inspector General.

IV. 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 on intercity passenger train performance will cover 
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 is published on December 10, 2020, three months after that date 
would be March 10, 2021, and the first full calendar quarter after that 
would run from April 1, 2021 to June 30, 2021.
    The first quarterly report will include data on the customer 
service metrics, the financial metrics, the public benefits metrics, 
the certified schedule metric, the ridership data metric, the train 
delays metric, and the train delays per 10,000 train miles metric, but 
will not include data on the customer OTP metric, the station 
performance metric, or the host running time metric. Beginning with the 
second quarterly report, FRA will report data on all of the final 
rule's metrics, unless a train schedule is a disputed schedule on or 
before May 17, 2021. In that circumstance, FRA will report customer OTP 
metric data for that particular train beginning with the second full 
calendar quarter after May 17, 2021. In addition, in that circumstance, 
FRA will also not report data for the station performance metric or the 
host running time metric in connection with the host railroad(s) party 
to the disputed schedule. Unless otherwise specified, FRA will update 
metrics on a quarterly basis.

V. Section-by-Section Analysis of Comments and Revisions From the NPRM

    This section responds to public comments and identifies any changes 
made from the provisions as proposed in the NPRM. Provisions that 
received no comment, and are otherwise being finalized as proposed, are 
not discussed again here. To review the complete section-by-section 
analysis in the NPRM, see 85 FR 20466.

Section 273.1 Purpose

    This section provides that the final rule establishes metrics and 
minimum standards for measuring the performance and service quality of 
intercity passenger train operations.
    A commenter sought clarity regarding non-Amtrak operators of 
intercity passenger rail trains and the metrics (and under what 
circumstances the STB may initiate an investigation of substandard 
performance). FRA developed the metrics for Amtrak intercity passenger 
train operations, which is consistent with section 207's many 
references to Amtrak, including: The development of the metrics; the 
entities to consult regarding the development of the metrics; specific 
metrics; FRA's access to information; and FRA's quarterly reports. This 
final rule does not apply to non-Amtrak operators of intercity 
passenger rail trains. Lastly, investigations of substandard 
performance under 49 U.S.C. 24308(f) are conducted by STB, and as such, 
STB alone determines when to initiate an investigation.
    A commenter stated that FRA should put this rulemaking on hold and, 
together with the Federal Transit Administration and STB, convene a 
seminar with freight and passenger stakeholders to address 
comprehensively issues relating to the shared use of rail right-of-way. 
FRA appreciates the comment, and while such a meeting is outside the 
scope of this rulemaking, FRA is always working to advance rail policy 
and development, both on its own and in partnership with other federal 
agencies.
    A commenter stated that the Metrics and Standards should not create 
a statutory preference for Amtrak over commuter operations or intercity 
passenger service operated by non-Amtrak carriers. Amtrak does have 
certain statutory rights regarding the use of facilities and preference 
over freight transportation in using a rail line, among other things. 
See, e.g., 49 U.S.C. 24308. The Metrics and Standards do not create any 
additional preference in law for Amtrak. Another commenter stated that 
FRA should identify actions that exhibit preference in the operating 
environment to facilitate identification of those actions that do not 
exhibit preference and should be the subject of enforcement. As an 
initial matter, STB is responsible for investigating substandard train 
performance under PRIIA section 213. Further, FRA believes the metrics 
in this final rule provide sufficient information to assist in such an 
STB investigation.
    A commenter also proposed that FRA research the development of an 
``assignable tax credit'' for passenger and highway competitive 
intermodal freight routes to generate funding for rail infrastructure. 
FRA appreciates the comment; however, it is outside the scope of this 
rulemaking.
    Lastly, several commenters expressed support for additional rail 
infrastructure funding. The metrics in this final rule may assist 
decision makers in identifying rail projects.

Section 273.3 Definitions

    This final rule includes several new and revised definitions, which 
are described here.
    This section defines the term ``actual running time'' to mean the 
actual elapsed travel time of a train's travel on a host railroad, 
between the departure time at the first reporting point for a host 
railroad segment and the arrival time at the reporting point at the end 
of the host railroad segment. This definition is new to the final rule 
and supports the host running time metric.
    This section defines the term ``adjusted operating expenses'' to 
mean Amtrak's operating expenses adjusted to exclude certain Amtrak 
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). Adjusted operating expenses do not 
include any operating expenses for State-supported routes that are paid 
for separately by States. This definition is a revision of the 
definition proposed in the NPRM to clarify its intent in response to 
commenters.
    This section defines the term ``certified schedule'' to mean a 
published train schedule that Amtrak and the host railroad jointly 
certify is aligned with the customer on-time performance metric and 
standard in Sec.  273.5(a)(1) and (2). If a published train schedule is 
reported as a certified schedule under Sec.  273.5(c)(1), then it 
cannot later be designated as an uncertified schedule. This definition 
is new to the final rule in support of certified schedule metric.
    This section defines the term ``disputed schedule'' to mean a 
published train schedule for which a specific change is sought: (i) 
That is the only subject of a non-binding dispute resolution process 
led by a neutral

[[Page 72988]]

third-party and involving Amtrak and one or more host railroads; (ii) 
that is the only subject of a non-binding dispute resolution process 
led by a neutral third-party that has been initiated by one or more 
host railroads and Amtrak has not consented to participate in the 
process within 30 calendar days; or (iii) that is the only subject of a 
non-binding dispute resolution process led by a neutral third-party 
that has been initiated by Amtrak and the host railroad has not 
consented to participate in the process within 30 calendar days. The 
written decision resulting from a non-binding dispute resolution 
process is admissible in Surface Transportation Board investigations 
under 49 U.S.C. 24308(f). If a published train schedule is reported as 
a disputed schedule under Sec.  273.5(c)(1), then it remains a disputed 
schedule until reported as a certified schedule. This definition is new 
to the final rule and supports the certified schedule metric.
    This section defines the term ``host railroad'' to mean a railroad 
that is directly accountable to Amtrak by agreement for Amtrak 
operations over a railroad line segment. Amtrak is a host railroad of 
Amtrak trains and other trains operating over an Amtrak owned or 
controlled railroad line segment. For purposes of the certified 
schedule metric under Sec.  273.5(c), Amtrak is not a host railroad. 
This definition is new to the final rule and supports several new and 
revised metrics.
    This section defines the term ``ridership data'' to mean, in a 
machine-readable format: The total number of passengers, by train and 
by day; the station-specific number of detraining passengers, reported 
by host railroad whose railroad right-of-way serves the station, by 
train, and by day; and the station-specific number of on-time 
passengers reported by host railroad whose railroad right-of-way serves 
the station, by train, and by day. This definition is new to the final 
rule and supports the ridership data metric.
    This section defines the term ``scheduled running time'' to mean 
the scheduled duration of a train's travel on a host railroad, as set 
forth in the Amtrak schedule skeleton. This definition is new to the 
final rule and supports the host running time metric.
    This section defines the term ``schedule skeleton'' to mean a 
schedule grid used by Amtrak and host railroads to communicate the 
public schedule of an Amtrak train and the schedule of operations of an 
Amtrak train on host railroads. This definition is new to the final 
rule and supports the host running time metric.
    This section defines the term ``uncertified schedule'' to mean a 
published train schedule that has not been reported as a certified 
schedule or a disputed schedule under Sec.  273.5(c)(1). This 
definition is new to the final rule and supports the certified schedule 
metric.

Section 273.5 On-Time Performance and Train Delays

    Paragraph (a)(1) of this section provides 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 no later than 
15 minutes after their published scheduled arrival time, reported by 
train and by route.
    Paragraph (a)(2) of this section provides 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 (a)(3)(i) of this section provides that, except as 
provided in paragraph (a)(3)(ii), the customer on-time performance 
standard shall apply to a train beginning on the first full calendar 
quarter after May 17, 2021.
    Paragraph (a)(3)(ii) of this section provides that, if a train 
schedule is a disputed schedule on or before May 17, 2021, then the 
customer on-time performance standard for the disputed schedule shall 
apply beginning on the second full calendar quarter after May 17, 2021.
    Paragraph (b) of this section provides that the ridership data 
metric is the number of host railroads to whom Amtrak has provided 
ridership data consistent with this paragraph (b), reported by host 
railroad and by month. Not later than December 16, 2020, Amtrak must 
provide host railroad-specific ridership data to each host railroad for 
the preceding 24 months. On the 15th day of every month following 
Decmeber 16, 2020, Amtrak must provide host railroad-specific ridership 
data to each host railroad for the preceding month.
    Paragraph (c)(1) of this section provides that the certified 
schedule metric is the number of certified schedules, uncertified 
schedules, and disputed schedules, reported by train, by route, and by 
host railroad (excluding switching and terminal railroads), identified 
in a notice to the Federal Railroad Administrator by Amtrak monthly, 
for the first six months following publication of the final rule, and 
then annually on the anniversary of the final rule's publication on 
November 16, 2020.
    Paragraph (c)(2) of this section provides that, if a train schedule 
is reported as an uncertified schedule under paragraph (c)(1)(vi), 
(vii), or (viii), then Amtrak and the host railroad must transmit a 
joint letter and status report on the first of each month following the 
report, signed by their respective chief executive officers to each 
U.S. Senator and U.S. Representative whose district is served by the 
train, the Chairman and Ranking Member of the Committee on 
Transportation and Infrastructure of the House of Representatives, the 
Chairman and Ranking Member of the Committee on Commerce, Science, and 
Transportation of the Senate, the Chairman and Ranking Member of the 
Committee on Appropriations of the House of Representatives, the 
Chairman and Ranking Member of the Committee on Appropriations of the 
Senate, the Secretary of Transportation, and the Chairman of the 
Surface Transportation Board, which states: (i) The Amtrak train 
schedule(s) at issue; (ii) the specific components of the train 
schedule(s) on which Amtrak and host railroad cannot reach agreement; 
(iii) Amtrak's position regarding the disagreed upon components of the 
train schedule(s); (iv) host railroad's position regarding the 
disagreed upon components of the train schedule(s); and (v) Amtrak and 
the host railroad's plan and expectation date to resolve the 
disagreement(s). The requirement to transmit this joint letter and 
status report ends for the train schedule at issue when the uncertified 
schedule becomes a certified schedule.
    Paragraph (c)(3) of this section provides that, when conditions 
have changed that impact a certified schedule, Amtrak or a host 
railroad may seek to modify the certified schedule. The customer on-
time performance standard in subsection (a)(2) remains in effect during 
the schedule negotiation process.
    Paragraph (d) of this section provides that the train delays metric 
is the minutes of delay for all Amtrak-responsible delays, host-
responsible delays, and third party delays, for the host railroad 
territory within each route. The train delays metric is reported by 
delay code by: Total minutes of delay; Amtrak-responsible delays; 
Amtrak's host-responsible delays; Amtrak's host responsible delays and 
Amtrak-responsible delays, combined; non-Amtrak host-responsible 
delays; and third party delays. The train delays metric is also 
reported by the number of non-Amtrak host-responsible delay minutes 
disputed by host railroad and not resolved by Amtrak.

[[Page 72989]]

    Paragraph (e) of this section provides 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. Paragraph (f) of this 
section provides that the station performance metric is the number of 
detraining passengers, the number of late passengers, and the average 
minutes late that late customers arrive at their detraining stations, 
reported by route, by train, and by station. The average minutes late 
per late customer calculation excludes on-time customers that arrive 
within 15 minutes of their scheduled time. A customer who arrives at 
their detraining station 16 minutes late would be included in this 
calculation and would be recorded as 16 minutes late.
    Paragraph (g) of this section provides that the host running time 
metric is the average actual running time and the median actual running 
time compared with the scheduled running time between the first and 
final reporting points for a host railroad set forth in the Amtrak 
schedule skeleton, reported by route, by train, and by host railroad 
(excluding switching and terminal railroads).

Section 273.7 Customer Service

    Paragraph (a) of this section provides 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 a 100 point scale for their most 
recent trip, by route, shown both adjusted for performance and 
unadjusted. Amtrak's customer satisfaction survey is a market-research 
survey that measures more than fifty specific service attributes that 
cover the entire customer journey. 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. 
However, in the event Amtrak changes the survey, the new survey would 
continue to seek information in connection with the customer 
satisfaction metrics required in this final rule (a survey change would 
just modify how the survey solicits this information). FRA will publish 
information about Amtrak's survey (including the survey questions and 
methodology) annually as an appendix to the quarterly report.
    Several commenters provided feedback on Amtrak's customer 
satisfaction survey, including stating that the survey: Does not 
address accessibility concerns for disabled or elderly passengers 
(e.g., at the boarding station, on board the train, and at the 
destination station); and does not address ticket-purchase methods 
(e.g., phone, in-person agent, or website). First, as discussed above, 
Amtrak may change the customer satisfaction survey in the future. FRA 
understands that Amtrak is evaluating these suggestions and is 
committed to working with stakeholders to address these comments in 
future survey updates and/or by regularly providing related information 
on accessibility for disabled and elderly passengers that it collects 
already. A commenter also stated that Amtrak should offer additional 
contact methods for passengers to complete the customer satisfaction 
survey, such as postal mail and telephone. However, most Americans have 
access to the internet and there would be a substantial additional cost 
to providing surveys by postal mail or telephone with a corresponding 
limited benefit to the statistical sample of respondents.\35\
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    \35\ In 2016, the U.S. Census reported that eighty-one percent 
of American households had a broadband internet subscription. See 
https://www.census.gov/content/dam/Census/library/publications/2018/acs/ACS-39.pdf.
---------------------------------------------------------------------------

    A commenter stated that the survey should directly ask whether the 
customer was satisfied with the train's on-time performance. The Amtrak 
CSI Survey, which FRA included in docket number FRA-2019-0069-0004 for 
reference, does have a question asking respondents to rate their 
satisfaction with the reliability or on-time performance of the train 
on which they traveled. A commenter stated that the survey should 
include questions about customer/passenger interactions with Amtrak 
customer relations to evaluate this customer-facing service. FRA 
understands that Amtrak is evaluating this suggestion.
    A commenter stated that a net promoter score or a median survey 
response should be used instead of the customer satisfaction survey. As 
noted, Amtrak may change the customer satisfaction survey. With that 
said, FRA considered several approaches to measuring customer service, 
including the net promoter score, but determined that the customer 
satisfaction survey offers an accurate assessment of the customer 
experience. Specifically, the customer satisfaction metric measures the 
percentage of respondents who provided a score of 70 percent or greater 
for their overall satisfaction. The use of 70 percent as the threshold 
is based on Amtrak's analysis of the relationship between customer 
satisfaction and the likelihood of future travel. As reported by 
Amtrak, the historical data suggests that customers who rate their 
overall satisfaction as 70 percent or greater are likely to travel on 
Amtrak again. In addition, Amtrak reports it adheres to industry best 
practices and solicits feedback from a random selection of riders, with 
a sample size of survey responses far greater than industry minimum 
standards. Lastly, FRA further understands that Amtrak distributes 
email surveys from a centralized database to ensure that employees are 
unable to provide surveys to targeted customers.
    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, many of 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 will be reported under this final rule to reflect the responses 
of all Amtrak customers.
    A commenter stated that there should be a performance adjusted 
customer service metric and a separate non-performance adjusted 
customer service metric. FRA revised the final rule to clearly state 
that the customer satisfaction metric will be shown both adjusted for 
performance and not adjusted for performance. A commenter stated that 
the customer satisfaction metric should also be adjusted to show 
customer satisfaction surveys in which the excessive delays are Amtrak-
related. FRA does not believe this would provide useful information. 
The intent of the customer satisfaction metric is to understand the 
experience of customers and measure ``overall satisfaction,'' not to 
determine the impacts of delay responsibility. Information on minutes 
of delay by category, responsible party, route and host territory, 
including Amtrak-responsible delays, are reported by other metrics in 
this final rule.
    A commenter stated that the definition of excessively late should 
be changed to match the definition of late used in the customer OTP 
metric. However, aligning these two definitions would render the 
customer service metric less meaningful by significantly decreasing the 
number of survey responses included in the performance

[[Page 72990]]

adjusted customer service score (on some routes, more than 70 percent 
of current customers would be excluded). FRA determined reporting both 
performance adjusted and non-performance adjusted customer service 
scores best provides a full and accurate view of customer satisfaction 
while also accounting for the impact of poor performance on customers' 
scores.
    Several commenters stated that there should be additional customer 
service metrics with quantitative measurements not based on a survey 
score regarding: Mishandled bags; denied boardings; consumer 
complaints; riders needing assistance; riders using mobility-enhancing 
devices; and riders who paid for their tickets in cash. As a 
counterpoint, one commenter noted that including customer service 
metrics with quantitative measurements may require significant time and 
cost to build specific monitoring systems. FRA agrees that the cost to 
implement these metrics is unduly burdensome in cases where Amtrak does 
not already collect the data. In addition, FRA did not include a 
mishandled bags metric in the final rule because, unlike air and bus 
travel, Amtrak reported that the majority of intercity rail passengers 
handle their own bags. FRA believes the additional cost to collect this 
information is not warranted as Amtrak does not already collect the 
data on a routine basis. FRA did not include a denied boardings metric 
because the final rule's missed connections metric offers a broader 
measurement of customers who do not travel on their originally ticketed 
itinerary. FRA did not include a consumer complaints metric in the 
final rule because the customer satisfaction survey offers a more 
comprehensive quantitative measurement of customer satisfaction for the 
overall trip, as well as specific attributes of the experience, as 
compared to the number of complaints received. FRA did not include 
metrics about riders needing assistance, riders using mobility-
enhancing devices, and riders who paid for their tickets in cash 
because, while these metrics may provide information about the 
customers Amtrak serves, these metrics do not measure the quality of 
service provided.
    Finally, a commenter stated that all customer service metrics 
should be reported on a quarterly basis. FRA agrees and the final rule 
establishes quarterly reporting of all customer service metrics.
    Paragraph (b) of this section provides that the Amtrak personnel 
metric is the average score from respondents to the Amtrak customer 
satisfaction survey for their overall review of Amtrak personnel on 
their most recent trip, by route.
    Paragraph (c) of this section provides that the information given 
metric is the average score from respondents to the Amtrak customer 
satisfaction survey for their overall review of information provided by 
Amtrak on their most recent trip, by route.
    Paragraph (d) of this section provides that the on-board comfort 
metric is the average score from respondents to the Amtrak customer 
satisfaction survey for their overall review of on-board comfort on 
their most recent trip, by route.
    Paragraph (e) of this section provides that the on-board 
cleanliness metric is the average score from respondents to the Amtrak 
customer satisfaction survey for their overall review of on-board 
cleanliness on their most recent trip, by route.
    Paragraph (f) of this section provides 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.

Section 273.9 Financial

    Paragraph (a) of this section provides that 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.
    A commenter stated that the definition of the cost recovery metric 
presumes that Amtrak is responsible for all operating expenses over 
State-supported routes, which does not accurately represent the cost of 
service delivery routes where States cover the cost of some of the 
component services. FRA acknowledges that some States have separate 
arrangements to pay for operating expenses that are not reflected in 
Amtrak's adjusted operating expenses. Section 273.3 of the final rule 
includes a revised definition of the term ``adjusted operating 
expenses'' to clarify that the cost recovery metric does not include 
operating expenses for State-supported routes paid for separately by 
States.
    Paragraph (b) of this section provides 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 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

[[Page 72991]]

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 is 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.
    One commenter stated general support for segregating State 
operating payments from passenger revenue for this metric (and for the 
fully allocated core operating costs covered by the passenger revenue 
metric). Another commenter stated that the avoidable operating costs 
and the fully allocated core operating costs covered by the passenger 
revenue metric should be reported by the specific sub-categories listed 
in the definition of passenger revenue. FRA disagrees. The final rule 
establishes metrics that report passenger revenue as a percent of 
avoidable costs and, separately, as a percent of fully allocated costs 
per route. Consistent with section 207, these metrics do not show the 
actual amount of revenue generated, but rather set forth a ratio of 
revenue to cost. In addition, the purpose of representing passenger 
revenue with and without State operating payments is to understand 
better the impact of State payments on route financial performance.
    A commenter stated that the proposed avoidable cost metric is 
deficient and that the final rule should instead include a short-term 
avoidable cost metric, a long-term avoidable cost metric, and a long-
term average infrastructure cost metric. FRA believes the avoidable 
cost metric is appropriate. Section 207 requires a metric that measures 
``the percentage of avoidable and fully allocated operating costs 
covered by passenger revenues on each route . . . .'' The statute does 
not specify the time horizon of the metric or differentiate between 
short-term and long-term avoidable costs. The commenter also asserted 
that the proposed definition of avoidable costs includes some costs 
that may not be fully avoidable for a single route because they are 
shared among multiple routes. Although some costs are shared, FRA 
believes that these costs are avoidable, as over time they will scale 
to the size of the service provided. The commenter also proposed 
definitions of long-term avoidable costs and long-term average 
infrastructure costs that equate them with above-the-rail costs and 
below-the-rail costs, respectively. However, these proposed definitions 
do not align with the way Amtrak is organized as a business or the way 
that it allocates costs across its service lines and routes. In 
addition, the commenter proposed that the long-term avoidable cost 
definition include off-book equipment interest and depreciation 
expenses, but as equipment is shared across Amtrak's network, these 
costs likely are not avoidable because equipment may be used on other 
routes.
    Paragraph (c) of this section provides that the fully allocated 
core operating costs covered by the 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. Several commenters stated general 
support for this metric, especially when reported alongside the 
avoidable operating costs covered by the passenger revenue metric.
    Paragraph (d) of this section provides that the average ridership 
metric is the number of passenger-miles divided by train-miles for each 
route. This metric measures the average number of passengers on each of 
the route's trains. One commenter proposed that FRA also report an 
additional ridership metric to reflect total passengers by route 
alongside the passenger-miles per train-miles metric for convenience in 
comparing ridership data in FRA's quarterly report. FRA agrees, and the 
final rule includes such an additional metric in paragraph (e).
    Paragraph (e) of this section provides that the total ridership 
metric is the total number of passengers on Amtrak trains, reported by 
route.
    The definitions of terms in section 273.9 are only intended to 
apply to this final rule and the Amtrak financial reporting herein.

Section 273.11 Public Benefits

    Paragraph (a) of this section provides that the connectivity metric 
is the percent of passengers connecting to and from other Amtrak 
routes, updated on an annual basis. The metric reports passengers 
making connections between the Northeast Corridor, State-supported, and 
long distances routes, or any combination thereof. Under this metric, a 
connection means 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 connectivity metric provides connectivity information for 
the entire Amtrak network, including by route for long distance routes. 
One commenter expressed support for the connectivity metric, stating 
that it would give States more granular data with which to adjust 
schedules and build more regional-scale service.
    Paragraph (b) of this section provides 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 only one daily train, can 
result in a significant impact to the customer. A commenter stated that 
FRA should revise the missed connections metric to include the 
financial impact of missed connections and to report the results more 
frequently than once per year. FRA does not have the economic data to 
quantify the total financial impact of missed connections, and 
acquiring such data and methodologies would be challenging and 
burdensome, as FRA does not believe these data are readily available.
    Paragraph (c) of this section provides that the community access 
metric is the percent of Amtrak passenger-trips to and from not well-
served communities, updated on an annual basis. While one commenter 
expressed general support for this metric, another commenter stated 
that the community access metric does not adequately measure 
transportation needs because it does not identify communities that do 
not have access to intercity passenger rail or airports, nor does it 
address the convenience of train arrival times at

[[Page 72992]]

rural stations. However, section 207(a) requires ``measures of . . . 
the transportation needs of communities and populations that are not 
well-served by other forms of intercity transportation.'' The final 
rule's definition of not well-served communities identifies rural 
communities that are not well-served by other intercity transportation 
modes (air and bus), but that do have regularly scheduled intercity 
passenger rail service, using distance from airports or station stops 
as a proxy for access. FRA recognizes the importance of understanding 
how to improve intercity passenger rail service to these communities, 
and views the current metric as an initial step in identifying the 
communities and analyzing their current use of Amtrak service. In 
addition, Amtrak is required to consider the transportation needs of 
not well-served communities in their route and service planning 
decisions. Fixing America's Surface Transportation Act, Public Law 114-
94, 11206 (2015); 49 U.S.C. 24101, note.
    Paragraph (d) of this section provides 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, shows only those trains that arrive or depart 
between 5:00 a.m. and 11:00 p.m.
    A commenter stated that there should be two economic and station 
development metrics to measure the annual total economic value to 
communities served by the intercity passenger rail service, accounting 
for factors such as labor, value-added benefits, and increased tax 
revenue, and to report that value as a ratio to the investment made in 
a route. The commenter also stated that these metrics should be based 
on an economic model developed by the Rail Passengers Association for 
such a purpose. FRA declines to include these metrics in this final 
rule. The final rule addresses service quality metrics that measure the 
actual provision of rail service. Although important, economic and 
station development metrics are indirectly related to intercity 
passenger rail service. In addition, measures of economic and 
development activity often require detailed information on local market 
conditions, and as such, are not well-suited for national metrics and 
may rely too heavily on general assumptions. Finally, these metrics 
would impose a significant burden on FRA to identify the appropriate 
data, obtain and track the detailed economic data, as well as to 
develop modeling capabilities.
    A commenter stated that there should be an overlapping corridors 
metric to measure the number and economic value of passenger trips 
dependent upon intermediate connections on long-distance corridors. The 
commenter stated that the data for this metric could be gathered using 
the commenter's proposed economic and station development metric, with 
underlying community economic data updated annually, as well as the 
connections data from the final rule's missed connections metric. FRA 
declines to include this metric in the final rule. 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. 
The reported data from the missed connections metric would not 
comprehensively identify intermediate connections on long-distance 
corridors. FRA selected metrics to measure the public benefit of 
intercity rail across all services and routes for the entire nation; 
this commenter's proposed metric would focus exclusively on long-
distance routes. In addition, and as noted above, the proposed economic 
and station development metric would impose a significant burden on FRA 
to identify the appropriate data, obtain and track the detailed 
economic data, as well as to develop modeling capabilities.
    A commenter stated that there should be a normalized route 
performance metric, reported quarterly, which would measure route 
performance for all routes on a per-passenger-mile basis and on a 
passengers-per-departure from each originating station basis. FRA 
declines to include this metric in the final rule and believes 
presenting the route-level information without any normalization is the 
most straight-forward method. The final rule does include a route-level 
ridership metric (the number of passenger miles divided by train-
miles), which is consistent with section 207. Parties seeking 
additional information about Amtrak's operating statistics may also 
view Amtrak's monthly performance report, which includes seat miles and 
passenger miles by route.
    Several commenters expressed general support for metrics that would 
measure the public benefit of passenger rail service. One commenter 
stated that the public benefits metrics listed in paragraphs (a) 
through (d) should be reported by route and updated quarterly, on a 
rolling previous 12-month basis. FRA recognizes the value of providing 
data more frequently to measure performance and to identify trends; 
however, the metrics listed in paragraphs (a) through (d) require 
significant effort to compile and calculate, and as such, the final 
rule provides that these metrics will be updated annually.

VI. Regulatory Impact and Notices

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

    This final rule is a significant regulatory action within the 
meaning of Executive Order 12866 and DOT regulatory policies and 
procedures.\36\ Although the economic effects of this regulatory action 
would not exceed the $100 million annual threshold defined by Executive 
Order 12866, the rule is significant because of the substantial public 
interest in this rulemaking. Pursuant to the Congressional Review Act 
(5 U.S.C. 801 et seq.), the Office of Information and Regulatory 
Affairs designated this rule as not a 'major rule', as defined by 5 
U.S.C. 804(2). Additionally, this final rule is considered an E.O. 
13771 regulatory action. FRA has provided an assessment of the costs 
and cost savings expected to result from implementation of this final 
rule.
---------------------------------------------------------------------------

    \36\ See 5 CFR part 5.
---------------------------------------------------------------------------

    The Metrics and Standards measure the performance and service 
quality of intercity passenger train operations 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 and train delays metrics, the Metrics and 
Standards in this final rule will 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. Other data, such as train delays and on-
time performance, are already shared between Amtrak, host railroads, 
and State partners under their various agreements, and the parties have 
established protocols for data collection, distribution, and 
reconciliation. While the final rule establishes a new data-sharing 
requirement to assist with calculating the customer OTP metric 
(specifically, ridership data), this information is already collected 
by

[[Page 72993]]

Amtrak. FRA expects that Amtrak will develop additional procedures for 
sharing the data, but once established, this data sharing will not 
burden Amtrak's routine operations. Lastly, as a result of the final 
rule's customer OTP metric and certified schedule 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 and agree upon schedule 
modifications to the published train schedules.
    FRA received several comments addressing the NPRM's cost estimates. 
A commenter stated that the NPRM did not consider the impacts on 
commerce and a host railroad's operations and network fluidity. A 
commenter stated that a customer OTP metric enlarges an Amtrak train's 
dispatch footprint (i.e., it would cause the Amtrak train to take up 
additional capacity on the rail line) by redistributing recovery time 
across intermediate stations, which threatens overall network fluidity, 
among other things. A commenter also stated that FRA did not consider 
payments made under the Amtrak-host railroad operating agreement 
(stating that the host railroad would receive less performance payments 
under the existing operating agreement).
    With respect to operational impacts, as discussed above, delays 
waiting for time at intermediate stations can be foreclosed by an 
accurate schedule, and adjusting train schedules to align with the 
customer OTP metric does not mean that recovery time will be added for 
each station. In the case of capacity impacts great enough to warrant 
schedule change, reductions of time to remove these waits would be in 
both parties' interests. In addition, with respect to impacts on 
commerce specifically, Congress has accounted for such impacts by 
providing that STB's enforcement of the preference requirement not 
``materially lessen the quality of freight transportation provided to 
shippers.'' 49 U.S.C. 24308(c).
    With respect to operating agreement payments, as noted previously, 
FRA is not a party to these agreements, nor does FRA have knowledge of 
their details. More importantly, this final rule does not require a 
change to the performance payment provisions in these operating 
agreements; Amtrak and the host railroads may continue to maintain 
those provisions as they see fit. In addition, to the extent a host 
railroad is concerned with receiving lower performance payments as a 
result of this final rule, this final rule likewise does not prohibit a 
host railroad and Amtrak from revising the performance payments to 
align better with the customer OTP metric and standard. In fact, 
section 207(c) provides that, to the extent practicable, Amtrak and its 
host rail carriers shall incorporate the metrics and standards into 
their operating agreements. Also, performance payments, even if they 
change as a result of the final rule, would not change the estimate of 
costs due to the rule. Such payments represent transfers rather than 
economic costs or benefits.
    One Class I host railroad stated that the NPRM's costs are too low 
and their railroad alone would require more than 10 hours of meetings 
to discuss schedule revisions. Another commenter stated that the NPRM 
substantially underestimates the cost of attempting to negotiate 
schedule adjustments. Based on both comments, FRA has increased the 
estimate of meeting time and number of employees present at those 
meetings. Additionally, FRA has substantially increased the estimated 
time spent on preparations for those meetings.
    For purposes of this analysis, FRA assumed that Amtrak and each of 
the host railroads will meet five times 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 will not likely be 
involved in revising schedules, as Amtrak only operates over those 
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.
    For the other 23 host railroads, schedule discussions will add time 
to the current regular meetings held with Amtrak. FRA estimates that 
such schedule alignment discussions will require 40 hours of additional 
meeting time between Amtrak and each host railroad. FRA estimates that 
Amtrak and the host railroad will each have approximately three to six 
employees at the meetings. The following table shows the total cost of 
additional meetings between Amtrak and host railroads. Wage rates for 
this analysis are from the Surface Transportation Board.\37\ Over the 
course of the first year, the total cost of all additional meetings is 
estimated to be $473,473.
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    \37\ 2019 STB wage rates: Group #100 (Executives, Officials, & 
Staff Assistants) Wage Rate: $68.81 or $120.42 with a 75% burden 
factor. Group #200 (Professional & Administrative) Wage Rate: $44.27 
or $77.47 with a 75% burden factor. Group #500 (Transportation 
(Other than Train & Engine)) Wage Rate: $40.27 or $70.47 with a 75% 
burden factor.

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[[Page 72994]]

[GRAPHIC] [TIFF OMITTED] TR16NO20.012

    Further, to prepare for these meetings, Amtrak and the 23 host 
railroads will 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.
    The cost for host railroads preparing for meetings will vary 
depending on the complexity of the route. FRA estimates that Class I 
host railroads will have more extensive discussions than non-Class I 
host railroads, based largely on the greater amount of route miles 
hosted. The following table shows the estimated costs of preparing for 
meetings. Amtrak and host railroads will spend $296,991 over the first 
year to prepare for meetings.
[GRAPHIC] [TIFF OMITTED] TR16NO20.013

    In addition, this final rule requires Amtrak and a host railroad to 
transmit a monthly joint letter and status report, signed by their 
respective chief executive officers, to certain members of Congress and 
other Federal Agencies, in the event a published train schedule is not 
certified or disputed by May 17, 2021. Preparing a letter will require 
staff time by Amtrak and a host railroad, as well as briefings with the 
chief executive officers. Each letter is estimated to require $656 in 
labor on Amtrak's part and $1,022 on the host railroad's part. FRA 
estimates that five

[[Page 72995]]

routes will be uncertified in the first year; each of which will 
require six letters. The following table shows the cost of the monthly 
letters. The total estimated cost to Amtrak and host railroads for the 
monthly letters will be $50,328.
[GRAPHIC] [TIFF OMITTED] TR16NO20.014

    Due to this final rule, some railroads will likely initiate a non-
binding dispute resolution process to resolve scheduling disputes. 
Based on an analysis by FRA subject matter experts, FRA estimates that 
approximately eight routes will be the subject of such a non-binding 
dispute resolution process. The total cost of such a non-binding 
dispute resolution process per route is approximately $52,200, and 
includes arbitration fees and compensation for the arbitrators. The 
arbitration fees include administrative fees,\38\ arbitrator travel 
fees, and the rental fee for the hearing room. The table below shows 
the estimated costs for arbitration fees.
---------------------------------------------------------------------------

    \38\ Source: American Arbitration Association. See 
``Undetermined Monetary Claims'' Standard Fee Schedule at https://www.adr.org/sites/default/files/Commercial_Arbitration_Fee_Schedule_1.pdf
[GRAPHIC] [TIFF OMITTED] TR16NO20.015

    The compensation paid to the arbitrator includes time spent by each 
arbitrator to prepare for the hearing, attend the hearing, and review 
the hearing after completion. The table below shows the costs for 
arbitrator compensation.

[[Page 72996]]

[GRAPHIC] [TIFF OMITTED] TR16NO20.016

    The cost paid to the arbitrator for their fees would likely be 
split between Amtrak and the host railroad. The total estimated cost 
paid for the non-binding dispute resolution process for all eight 
routes will be $417,600, which includes arbitrator fees and 
compensation.
    In addition to the cost of the non-binding dispute resolution 
process, Amtrak and a host railroad will need to spend time: Preparing 
documents in connection with the non-binding dispute resolution 
process; briefing within their organization; and attending the hearing. 
The table below shows the total cost of staff time for Amtrak and host 
railroads.
[GRAPHIC] [TIFF OMITTED] TR16NO20.017

    FRA assumes that employees from the host railroads and Amtrak will 
incur some travel costs associated with the hearing. The table below 
shows the expected cost of travel related to the hearing.
[GRAPHIC] [TIFF OMITTED] TR16NO20.018

    The table below shows all estimated arbitration costs, including: 
Arbitration fees, arbitrator compensation, and Amtrak and the host 
railroad's staff compensation and travel costs. The total cost of 
arbitration will be $714,030.

[[Page 72997]]

[GRAPHIC] [TIFF OMITTED] TR16NO20.019

    This final rule also requires Amtrak to share ridership data with 
each host railroad. Although systems are already in place for sharing 
of data, it will require additional time from an Amtrak employee to 
process the data and share it in a usable format. The following table 
shows the estimated cost to prepare the ridership reports.
[GRAPHIC] [TIFF OMITTED] TR16NO20.020

    All costs of this final rule are expected to be incurred during the 
first year, though FRA acknowledges that conditions regarding a 
certified schedule may change. The following table shows the total 10-
year estimated costs of this final rule.
[GRAPHIC] [TIFF OMITTED] TR16NO20.021

    This final rule may result in lower operational costs for Amtrak, 
to the extent it results in improved OTP, which may reduce labor costs, 
fuel costs, and expenses related to passenger inconvenience, and 
provide benefits to riders from improved travel times and service 
quality. A commenter stated that improved OTP should have a significant 
effect on ridership, and would make a significant improvement on 
operational costs. Due to the difficulty in precisely quantifying 
future benefits to rail routes from 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 
improved service that may result from the final rule. FRA expects 
Amtrak and host railroads to structure schedules to achieve performance 
that meets this rule's OTP standard, thus avoiding the expense and 
uncertainty of an STB investigation under section 213.

B. Regulatory Flexibility Act and Executive Order 13272

    The Regulatory Flexibility Act of 1980 (RFA) (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. When an agency issues a rulemaking proposal, the RFA requires 
the agency to ``prepare and make available for public comment an 
initial regulatory flexibility analysis'' which will ``describe the 
impact of the

[[Page 72998]]

proposed rule on small entities.'' (5 U.S.C. 603(a)).
    Section 605 of the RFA allows an agency to certify a rule, in lieu 
of preparing an analysis, if the proposed rulemaking is not expected to 
have a significant economic impact on a substantial number of small 
entities. Out of an abundance of caution, FRA prepared an initial 
regulatory flexibility analysis to accompany the NPRM, which noted no 
expected significant economic impact on a substantial number of small 
entities. FRA is now certifying that this final rule will not have a 
significant economic impact on a substantial number of small entities.
Description of Small Entities Impacted by the Final Rule
    In consultation with the SBA, 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). FRA is using this definition for the final rule.
    This final rule impacts Amtrak and Amtrak's host railroads. This 
rule establishes a customer OTP metric and a certified schedule metric, 
which will likely result in modifications to some of Amtrak's published 
train schedules. Amtrak is not a small entity and the majority of the 
host railroads are Class I railroads or State Departments of 
Transportation, none of which are small entities. There are currently 
12 host railroads that are small entities, including approximately 8 
switching and terminal railroads and 4 short line or regional 
railroads.\39\ There are approximately 695 class III railroads on the 
general system. Therefore, the 12 small entities potentially affected 
by this final rule are not considered a substantial number of small 
entities.
---------------------------------------------------------------------------

    \39\ FRA received one comment from a Class III terminal railroad 
operating on track controlled by another railroad, expressing 
concern about being the subject of an STB investigation. However, it 
is FRA's understanding that Amtrak does not currently operate over 
the right-of-way in question (and although the possibility of future 
Amtrak service may exist, such future service would be subject to 
the certified schedule metric in this final rule).
---------------------------------------------------------------------------

Economic Impact on Small Entities
    FRA has determined that the economic impact on small entities will 
not be significant. This final rule does not require published train 
schedule modifications. However, FRA assumes that, as a result of the 
Metrics and Standards, Amtrak will engage with many host railroads to 
discuss modifications to the published train schedule to align the 
schedules with the 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 
are very minimal. The switching and terminal railroads are not likely 
burdened by this final 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 will take place at that 
time. It is likely that no schedule adjustments are required along 
those routes.
    Amtrak has limited stops along the routes of the four short line 
and regional railroads; therefore, published train schedule adjustments 
would be brief. Those railroads also already meet with Amtrak on a 
periodic basis and discussions regarding schedules can 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 customer OTP metric, the final rule does not provide 
an additional burden on Amtrak or the host railroads. Amtrak already 
collects the data to support these new metrics; therefore, there is no 
additional burden.
Certification
    Consistent with the findings in FRA's initial regulatory 
flexibility analysis, the FRA Administrator hereby certifies that this 
final rule will not have a significant economic impact on a substantial 
number of small entities.

C. Paperwork Reduction Act

    FRA is publishing a new information collection request in 
connection with this final rule in a separate notice. For information 
or a copy of the paperwork package submitted to OMB, contact Ms. Kim 
Toone, at 202-493-6132, or [email protected].

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 final rule under the principles and criteria 
contained in Executive Order 13132. This final rule could affect State 
and local governments to the extent that they sponsor, or exercise 
oversight of, intercity passenger rail service. Because this final rule 
is required by Federal statute, the consultation and funding 
requirements of Executive Order 13132 do not apply.
    In sum, FRA has analyzed this final rule under the principles and 
criteria in Executive Order 13132. As explained above, FRA has 
determined this final rule has no federalism implications. Therefore, 
preparation of a federalism summary impact statement for this final 
rule is not required.

E. Environmental Impact

    FRA has evaluated this final 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 final rule is categorically 
excluded from detailed environmental review pursuant to 23 CFR 
771.116(c)(15), ``Promulgation of rules,

[[Page 72999]]

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 regulation that would trigger the need for a 
more detailed environmental review. The purpose of this rulemaking is 
to establish metrics and standards to measure the performance and 
service quality of intercity passenger train operations. FRA does not 
anticipate any environmental impacts from this final rule and finds 
there are no unusual circumstances present in connection with this 
final rule.
    A commenter stated that FRA should consider whether the rulemaking 
meets the requirements of a categorical exclusion under NEPA given the 
operational impacts on the host railroads. As discussed elsewhere in 
this final rule, any such operational impacts relate to, and should be 
resolved by, the development of new schedules. FRA expects Amtrak and 
the host railroads to account for these issues when they develop new 
schedules. Therefore, FRA finds that a categorical exclusion is 
appropriate here.
    Pursuant to Section 106 of the National Historic Preservation Act 
and its implementing regulations, FRA has determined this undertaking 
has no potential to affect 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 final 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 final rule under the principles and criteria 
in Executive Order 13175, Consultation and Coordination with Indian 
Tribal Governments, dated November 6, 2000. The final rule will not 
have a substantial direct effect on one or more Indian tribes, will not 
impose substantial direct compliance costs on Indian tribal 
governments, and will 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 final 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 final rule in accordance with Executive 
Order 13211. FRA has determined that this rule is not likely to have a 
significant adverse effect on the supply, distribution, or use of 
energy. Consequently, FRA has determined that this final 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 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 
energy resources. FRA has determined this final 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 final rule on

[[Page 73000]]

foreign commerce and believes that its requirements are consistent with 
the Trade Agreements Act of 1979.

List of Subjects in 49 CFR Part 273

    Railroads, Transportation.

The Rule

0
For the reasons discussed in the preamble, FRA amends chapter II, 
subtitle B of title 49, Code of Federal Regulations, by adding 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; 49 U.S.C. 103(j); 49 CFR 1.81; 49 CFR 1.88; and 49 CFR 1.89.


Sec.  273.1  Purpose.

    The purpose of this part is to establish 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--
    Actual running time means the actual elapsed travel time of a 
train's travel on a host railroad, between the departure time at the 
first reporting point for a host railroad segment and the arrival time 
at the reporting point at the end of the host railroad segment.
    Adjusted operating expenses means Amtrak's operating expenses 
adjusted to exclude certain Amtrak 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 expenses do 
not include any operating expenses for State-supported routes that are 
paid for separately by States.
    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.
    Certified schedule means a published train schedule that Amtrak and 
the host railroad jointly certify is aligned with the customer on-time 
performance metric and standard in Sec.  273.5(a)(1) and (2). If a 
published train schedule is reported as a certified schedule under 
Sec.  273.5(c)(1), then it cannot later be designated as an uncertified 
schedule.
    Disputed schedule means:
    (1) A published train schedule for which a specific change is 
sought:
    (i) That is the only subject of a non-binding dispute resolution 
process led by a neutral third-party and involving Amtrak and one or 
more host railroads;
    (ii) That is the only subject of a non-binding dispute resolution 
process led by a neutral third-party that has been initiated by one or 
more host railroads and Amtrak has not consented to participate in the 
process within 30 calendar days; or
    (iii) That is the only subject of a non-binding dispute resolution 
process led by a neutral third-party that has been initiated by Amtrak 
and the host railroad has not consented to participate in the process 
within 30 calendar days.
    (2) The written decision resulting from a non-binding dispute 
resolution process is admissible in Surface Transportation Board 
investigations under 49 U.S.C. 24308(f). If a published train schedule 
is reported as a disputed schedule under Sec.  273.5(c)(1), then it 
remains a disputed schedule until reported as a certified schedule.
    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 railroad means a railroad that is directly accountable to 
Amtrak by agreement for Amtrak operations over a railroad line segment. 
Amtrak is a host railroad of Amtrak trains and other trains operating 
over an Amtrak owned or controlled railroad line segment. For purposes 
of the certified schedule metric under Sec.  273.5(c), Amtrak is not a 
host railroad.
    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.
    Ridership data means, in a machine-readable format: The total 
number of passengers, by train and by day; the station-specific number 
of detraining passengers, reported by host railroad whose railroad 
right-of-way serves the station, by train, and by day; and the station-
specific number of on-time passengers reported by host railroad whose 
railroad right-of-way serves the station, by train, and by day.
    Scheduled running time means the scheduled duration of a train's 
travel on a host railroad, as set forth in the Amtrak schedule 
skeleton.
    Schedule skeleton means a schedule grid used by Amtrak and host 
railroads to communicate the public schedule of an Amtrak train and the 
schedule of operations of an Amtrak train on host railroads.
    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

[[Page 73001]]

restrictions), acts of God, or waiting for scheduled departure time.
    Uncertified schedule means a published train schedule that has not 
been reported as a certified schedule or a disputed schedule under 
Sec.  273.5(c)(1).


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 no later than 
15 minutes after 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.
    (3) Application. (i) Except as provided in paragraph (a)(3)(ii) of 
this section, the customer on-time performance standard shall apply to 
a train beginning on the first full calendar quarter after May 17, 
2021.
    (ii) If a train schedule is a disputed schedule on or before May 
17, 2021, then the customer on-time performance standard for the 
disputed schedule shall apply beginning on the second full calendar 
quarter after May 17, 2021.
    (b) Ridership data. The ridership data metric is the number of host 
railroads to whom Amtrak has provided ridership data consistent with 
this paragraph (b), reported by host railroad and by month. Not later 
than December 16, 2020, Amtrak must provide host railroad-specific 
ridership data to each host railroad for the preceding 24 months. On 
the 15th day of every month following December 16, 2020, Amtrak must 
provide host railroad-specific ridership data to each host railroad for 
the preceding month.
    (c) Certified schedule--(1) Metric. The certified schedule metric 
is the number of certified schedules, uncertified schedules, and 
disputed schedules, reported by train, by route, and by host railroad 
(excluding switching and terminal railroads), identified in a notice to 
the Federal Railroad Administrator by Amtrak:
    (i) On December 16, 2020;
    (ii) On January 19, 2021;
    (iii) On February 16, 2021;
    (iv) On March 16, 2021;
    (v) On April 16, 2021;
    (vi) On May 17, 2021;
    (vii) On November 16, 2021; and
    (viii) Every 12 months after November 16, 2021.
    (2) Reporting. If a train schedule is reported as a an uncertified 
schedule under paragraph (c)(1)(vi), (vii), or (viii) of this section, 
then Amtrak and the host railroad must transmit a joint letter and 
status report on the first of each month following the report, signed 
by their respective chief executive officers to each U.S. Senator and 
U.S. Representative whose district is served by the train, the Chairman 
and Ranking Member of the Committee on Transportation and 
Infrastructure of the House of Representatives, the Chairman and 
Ranking Member of the Committee on Commerce, Science, and 
Transportation of the Senate, the Chairman and Ranking Member of the 
Committee on Appropriations of the House of Representatives, the 
Chairman and Ranking Member of the Committee on Appropriations of the 
Senate, the Secretary of Transportation, and the Chairman of the 
Surface Transportation Board, which states:
    (i) The Amtrak train schedule(s) at issue;
    (ii) The specific components of the train schedule(s) on which 
Amtrak and host railroad cannot reach agreement;
    (iii) Amtrak's position regarding the disagreed upon components of 
the train schedule(s);
    (iv) Host railroad's position regarding the disagreed upon 
components of the train schedule(s); and
    (v) Amtrak and the host railroad's plan and expectation date to 
resolve the disagreement(s). The requirement to transmit this joint 
letter and status report ends for the train schedule at issue when the 
uncertified schedule becomes a certified schedule.
    (3) Ongoing coordination between Amtrak and host railroads. When 
conditions have changed that impact a certified schedule, Amtrak or a 
host railroad may seek to modify the certified schedule. The customer 
on-time performance standard in paragraph (a)(2) of this section 
remains in effect for the existing certified schedule, until a modified 
schedule is jointly certified.
    (d) Train delays. The train delays metric is the minutes of delay 
for all Amtrak-responsible delays, host-responsible delays, and third 
party delays, for the host railroad territory within each route. The 
train delays metric is reported by delay code by: total minutes of 
delay; Amtrak-responsible delays; Amtrak's host-responsible delays; 
Amtrak's host responsible delays and Amtrak-responsible delays, 
combined; non-Amtrak host-responsible delays; and third party delays. 
The train delays metric is also reported by the number of non-Amtrak 
host-responsible delay minutes disputed by host railroad and not 
resolved by Amtrak.
    (e) 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.
    (f) Station performance. The station performance metric is the 
number of detraining passengers, the number of late passengers, and the 
average minutes late that late customers arrive at their detraining 
stations, reported by route, by train, and by station. The average 
minutes late per late customer calculation excludes on-time customers 
that arrive no later than 15 minutes after their scheduled time.
    (g) Host running time. The host running time metric is the average 
actual running time and the median actual running time compared with 
the scheduled running time between the first and final reporting points 
for a host railroad set forth in the Amtrak schedule skeleton, reported 
by route, by train, and by host railroad (excluding switching and 
terminal railroads).


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 a 100 point scale for their most recent trip, by 
route, shown both adjusted for performance and unadjusted.
    (b) Amtrak personnel. The Amtrak personnel metric is the average 
score from respondents to the Amtrak customer satisfaction survey for 
their overall review of Amtrak personnel on their most recent trip, by 
route.
    (c) Information given. The information given metric is the average 
score from respondents to the Amtrak customer satisfaction survey for 
their overall review of information provided by Amtrak on their most 
recent trip, by route.
    (d) On-board comfort. The on-board comfort metric is the average 
score from respondents to the Amtrak customer satisfaction survey for 
their overall review of on-board comfort on their most recent trip, by 
route.
    (e) On-board cleanliness. The on-board cleanliness metric is the 
average score from respondents to the Amtrak customer satisfaction 
survey for their overall review of on-board cleanliness on their most 
recent trip, by route.
    (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 overall review of on-board food service on their most 
recent trip, by route.

[[Page 73002]]

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 payments.
    (d) Average ridership. The average ridership metric is the number 
of passenger-miles divided by train-mile for each route.
    (e) Total ridership. The total ridership metric is the total number 
of passengers on Amtrak trains, reported by 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.
Gerald A. Reynolds,
Chief Counsel.
[FR Doc. 2020-25212 Filed 11-13-20; 8:45 am]
BILLING CODE 4910-06-P