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


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DEPARTMENT OF TRANSPORTATION

Federal Railroad Administration

49 CFR Part 273

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


Metrics and Minimum Standards for Intercity Passenger Rail 
Service

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

ACTION: Notice of proposed rulemaking (NPRM).

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

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

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

[[Page 17836]]

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

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

SUPPLEMENTARY INFORMATION: 

Table of Contents

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

I. Executive Summary

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

II. Background

A. PRIIA

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

B. 2010 Metrics and Standards

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

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

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

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

C. Stakeholder Consultation

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

D. FRA and Amtrak Joint Development

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

E. FRA Quarterly Reporting

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

III. Customer On-Time Performance

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

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[[Page 17838]]

[GRAPHIC] [TIFF OMITTED] TP31MR20.003

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

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

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

A. In General

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

B. OTP and Train Schedules

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

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

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

D. FRA Engagement

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

E. FRA Reporting

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

[[Page 17840]]

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

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

V. Section-by-Section Analysis

Section 273.1 Purpose

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

Section 273.3 Definitions

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

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

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

Section 273.5 On-Time Performance and Train Delays

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

[[Page 17841]]

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

Section 273.7 Customer Service

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

Section 273.9 Financial

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

[[Page 17842]]

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

Section 273.11 Public Benefits

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

VI. Regulatory Impact and Notices

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

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

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

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

[[Page 17843]]

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

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

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

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

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

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

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

[[Page 17844]]

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

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

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

C. Paperwork Reduction Act

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

D. Federalism Implications

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

[[Page 17845]]

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

E. Environmental Impact

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

F. Executive Order 12898 (Environmental Justice)

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

G. Executive Order 13175 (Tribal Consultation)

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

H. Unfunded Mandates Reform Act of 1995

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

I. Energy Impact

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

[[Page 17846]]

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

J. Trade Impact

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

K. Privacy Act

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

List of Subjects in 49 CFR Part 273

    Railroads, Transportation.

The Proposed Rule

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

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

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

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

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


Sec.  273.1   Purpose.

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


Sec.  273.3   Definitions.

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


Sec.  273.5   On-time performance and train delays.

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

[[Page 17847]]

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


Sec.  273.7   Customer service.

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


Sec.  273.9   Financial.

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


Sec.  273.11   Public benefits.

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

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


