On May 4, 2018, the Surface Transportation Board (STB) published a Notice in the Federal Register withdrawing 49 C.F.R. Part 1040, the provisions defining “on-time performance” for intercity passenger trains. This rule established a benchmark against which to measure the impact of freight rail operations on the timely provision of intercity passenger service for the purpose of commencing an investigation under Section 213 of the Passenger Rail Investment and Improvement Act of 2008 (PRIIA).

Although Congress (a) gave FRA and Amtrak the means to establish on-time performance metrics in PRIIA Sec. 207 and (b) granted the STB the authority to enforce Section 207 on-time performance standards against host freight railroads in Section 213, courts have now invalidated both Sections 207 and 213. This leaves no mechanism by which to measure the extent of delay caused by host freights, and therefore no standard to enforce.

Things now stand where they did prior to PRIIA, where Amtrak has a statutory right to access the freight rail network, and to be afforded priority in dispatching in order to provide timely service – but where Amtrak’s rights can only be enforced by the Department of Justice.

The implications for intercity passenger rail operations are that on-time performance is once again solely dependent upon the terms and conditions of whatever agreements Amtrak has with the host freight railroads. Other passenger rail operators that share track with both Amtrak and freight service may see impacts to their schedules now that Amtrak’s ability to enforce on-time performance has been returned to the status quo ante, the state of affairs that inspired the passage of PRIIA in the first place. Further action to refine PRIIA’s requirements is uncertain at this time.

Please contact Chuck Spitulnik or Allison Fultz if you have any questions about the Notice.