[Federal Register Volume 85, Number 221 (Monday, November 16, 2020)]
[Rules and Regulations]
[Pages 72971-73002]
[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<PHONE_NUMBER>; or

Zeb Schorr, Assistant Chief Counsel, telephone<PHONE_NUMBER>.

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
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                                                                                Annualized, 7   Annualized, 3
                            Category                              Total cost ($)    percent ($)     percent ($)
----------------------------------------------------------------------------------------------------------------
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

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

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

    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

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.
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    \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

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

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,

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

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

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.

---------------------------------------------------------------------------

[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

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.

[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

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

[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

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

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.

    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\
---------------------------------------------------------------------------

    \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

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

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

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