2

500 NEW JERSEY AVENUE, NW- SIXTH FLOOR WASHINGTON, DC 20001

METRICS STANDARDS FOR INTERCITY RAIL- Notice of Proposed Rulemaking Docket Number FRA-2019-0069 ASSOCIATION OF INDEPENDENT PASSENGER RAIL OPERATORS (AIPRO) POSITION

Submitted by Ray B. Chambers, President of AIPRO June 1, 2020

. : . . . . :' ' ' \. '·' ' ' . . . What is AIPRO? The Association of lndepen·dent Passenger Rail Operators {AIPRO)was 'I . , ~-. . , ... ,..., ... ' ' \ esta'blished to attivel;/p-i-~mote't'he ~xpan·;-i~n ot'passenger r~il operations in the U.S. through commercial principles ;,pd competition. Our members are Herzog, Fin~t Transit, Keolis, and Transdev. The Brotherhood o·:= Mainfona;nce bf i~v/l~~~~te(S i~'an;Associ;t~ Memb~r. AIPRO companies 'are majo~_pl~yers in the rail space annually operating more than 250,000 trains 1 ·c_arrying 80 million passengers ir:i commuter c:{?rridorsand on one interstate corridor. .

The Interest of the Association of lndepe.nde..,nt Passenger Raj I Operators (AIPRO) in the Proposed Rule. Th'e Mart~ 3J; 2020federal Railroad Administration (FRA) notice of proposed 'rulemaking (NPRM}° reco~m~~ds minimum metrics a~d standards for service on intercity passenger trains. AIPRO members are significant rail passenger operators in the United States and it is not clear how this Rule applies to our members. We fear it will create an unleyel playing field between Amtrak and commuter rail as well as contract interstate passenger service such as the Hartford Line and new private passenger rail ventures.

Statutory preference for Amt_rak when many share th.e track?. _Federal law provides Amtrak \iVith a statutory prefe,rerice over freights for.train dispatching to·achieve Of'.1-time.:performance (OTP). P.rfvate passenger operators do not have that preference. Further, we would never seek it. 2 That would be the wrong answer. In c1ddi-tlon,. the-. proposed' Rule was-crafted jointly by FRA ,:9: ' ~ ,, . < . . . . . - . ~ \ ~ . ~ ·, ~· .

1 Train Oper~ti~-n~ -'Passengers and train operations are signifi~antly reduced)n this pan demi~ year. We believe le~els of business will return--btlt'proba'bly'ovei: along period ~ftime. \Ned~ not expect to see pre-pand~mic levels ofserv_iceJorove.rij·y_ear.a~liei.t.:: 1.. 1 (:.:,.1'.;c., . ·:;,-;.~ :. C ', • ,,

• ... ~ :. _;._:· .: ·" ·; -~':• .•.• · ;. ' .:~ ··-:- " . ~ . - 2 Statutor('preferelice. AIPRO does not support_propo,sals tt:iatw(?uld transfw federal J?reference pro'(ided Amtrak fo otherp;i$Senger-operations. This i•fight" wa'sprcivlcled by torigres·s in a bygone era when independent

1 and Amtrak. One can be certain Amtrak's input into the joint FRA/FTA rulemaking reffected the interest of Amtrak and only Amtrak-not commuters or independent operators.3 Our concern is the Rule appears to provide Amtrak with a significant regulatory advantage over other intercity and commuter passenger operations while not solving the current problem between Amtrak and host railroads.

Amtrak is not the only operator in the rail business that must compete for track time. Amtrak carries about 31 million customers each year in intercity service. The greatest growth has been state-supported routes where Amtrak carried 15.1 million passengers in 2018. The 29 state­ supported intercity corridors and commuter corridors are remarkably similar. Often, they overlap. Commuter railroads deliver about 490 million passenger trips each year. As already noted, AIPRO companies carry about 80 million passengers in these corridors. 4

The extent to which this Rule would give Amtrak trains an advantage over commuter trains carrying large numbers of passengers in congested areas is of significant concern. If host railroads are exposed to regulation and penalties, they will likely respond. We fear unintended consequences. To achieve this 80% requirement, host railroads can be expected to do what is necessary to prevent penalties. They will likely make conservative dispatching decisions which would have negative impacts on non-Amtrak passenger trains. The commuter trains a're generally more plentiful and have higher passenger loads. If providers of commuter rail service across America are forced to give way at choke points and during rush hour this could create chaos. 5

passenger operators did not exist. For a half century the dispatch preference and "access cram down" has disrupted relations between host railroads and Amtrak. These Amtrak preferences have provided no special advantage to anyone, other than those who benefit from massive litigation and confrontation. There are many passenger rail operators in America today and the marketplace is vibrant. We question whether the Amtrak preference is now even necessary? It may be time to move on. The widely used "commuter model" for binding contractual arrangements is the better option.

3 FRA-Amtrak Joint Rule-We are not complaining as the proposed joint rule is based in statute and is the result of protracted litigation surrounding the statute. Our concern is the Amtrak goal in drafting the Rule was to gain leverage over host railroads to better compel Amtrak OTP through regulation. However, this Rule impacts all users of shared right of way. As one of these users that share track, we very much appreciate the opportunity FRA has given us to comment and bring our views to the table.

4 The Hartford Line - Regarding intercity service one AIPRO member, Herzog, operates the Hartford Line which is an interstate/intercity state supported service. The operator was selected through a competitive process.

5 Amtrak Priority Over Commuter. A good example is California's Capitol Corridor where there is common use between the intercity Amtrak trains and commuter trains on the Altamont Commuter Express operated by Herzog. On the segment of line between Niles Jct. and San Jose, CA, the ACE trains have far more ridership, than the Amtrak trains. But the ACE commuter trains may be required to wait behind lower density Capitol Corridor trains as they traverse the bottleneck on that single-track segment. Similar situations exist in city areas across the country. This makes no sense at all.

2 The alternative to freight trains are more trucks on the highway. The public benefits of moving freight from highway to rail are enormous.6 The flow of rail freight must not be jeopardized by new regulation to enhance passenger service. Thus, AIPRO also shares concerns raised by the Association of American Railroads (AAR) and other host railroads expressed at the public hearing of April 30, 2020. They stated Amtrak does not present accurate data and shows no flexibility in modifying outdated schedules. They also raised the probability that new regulatory access to the Surface Transportation Board provided by the Rule will exacerbate hostility and not fix the problem. 7 All of this can interfere with the viability of freight throughput. These issues alone tend to make the Rule unworkable. Further, ifthis testimony is correct, and we believe it is, the obvious result would be another endless round of litigious confrontation.

What is the alternative to statutory preference? We would suggest developing a new model where metrics and standards are reached by contract between the authorities, host railroads, and operators. This has been amazingly effective with Capitol Corridor Joint Powers Authority (CCJPA) operations and with commuter authorities across the country.

The NPRM. The FRA proposes minimum standards and metrics, including on-time-performance (OTP) at 80%. The proposed Rule provides Surface Transportation Board authority to investigate substandard Amtrak passenger rail performance upon petition of about any party. It is not clear what remedies the STB may impose.

To Whom Does the Rule Apply? There is confusion. The proposed Rule is unclear and needs clarification. The N PRM is an attempt to implement Section 207 of the PRIIA Act8 which requires FRA and Amtrak to develop metrics and standards to measure performance and service quality on intercity passenger train operations. It appears to be solely for the benefit of Amtrak, and there are references to Amtrak throughout. However, it also clearly impacts passenger operators who share track space with Amtrak, run intercity operations today or wish to in the future. The effects on all commuter operations or intercity operations is opaque.

It is reasonably clear the Rule provides non-Amtrak carriers the right to an STB investigation. It states "STB shall also initiate such an investigation upon filing of a complaint by Amtrak, an intercity passenger op~rator, a hostJailroad, etc." It further says STB may determine whether unreasonable delays are due to causes that could be addressed by the host railroad or "by

6 Freight Rail Advantages - According to the Association of American Railroads (AAR), freight trains can move a ton of freight 479 miles on a single gallon of fuel. Overall, rail transport over road transport lowers greenhouse gas emissions by 75%. One double stack train will take about 280 trucks off the highway.

7 Host Railroad Concerns -AIPRO fully agrees with the testimony of Charles Hubbard of the Canadian Pacific Railroad at the oral hearing. Before proceeding with a Rule there needs to be three issues resolved: 1) accurate and realistic schedules; 2) realistically identifying delays beyond the host control; 3) a workable dispute resolution.

8 PRIIA, Section 207 - Passenger Rail Investment and Improvement .Act 8f 2008, Public Law 110-432. 122 Stat 4907 (PRIIA)

3 Amtrak or other intercity passenger rail operators. 11 9 But Amtrak was half-partner in drafting NPRM. Thus, they own it. Amtrak is specifically referenced throughout which creates confusion as to how it is to be applied.

The Impact on Competition. Both PRIIA and FAST Act authorize competition on intercity state supported and long-distance routes. We expect over the coming decades there will be more competitions for state supported service as we have just seen in Connecticut with the Hartford Line. We also believe there will be more purely private operations such as those unfolding in Florida, Texas, and between Nevada and Southern California. These will generate enormous construction with good jobs resulting in high performance and even high-speed passenger rail. We seek assurance the proposed Rule provides Amtrak with no special competitive advantage as this new commercially oriented passenger world unfolds.

Just how does this proposed Rule apply to an independent operator on an intercity route? The AIPRO preference is to not be bound by unnecessary regulation. In the case of state supported intercity corridors, the M&S arrangements should be between the State subsidizing tre operation, the Host Railroad, the Designated Operator with concurrence by FRA as to safety and other areas of appropriate jurisdiction. When a state is launching a competitive bid or a state-supported intercity route, it may wish to avail itself of the federal M&S guidelines in the Rule. It should be permitted to do so but only under contractual arrangement. Should the Administrator determine to initiate a long-distance pilot, the Rule M&S principles should be incorporated through contractual arrangement.10

The AIPRO Position on the Proposed Rule. First, we seek assurance that our AIPRO interpretation of the Rule as it impacts our direct interests is correct. Our interpretation is the rule applies to Amtrak operation M&S with a right to petition the STB in the event of substandard service. Other intercity passenger operators and host railroads also can petition the STB if there is a failure to achieve agreed to minimum standards described in the Rule. However, our reading is the full application of the Rule does not necessarily apply to state supported or long-distance intercity routes with alternative operators or private operations. Varying contractual arrangements can be made which could include the principles in the Rulg,

9 From the NPRM - 5TB Investigations. STB may initiate an investigation. STB shall a/sQ initiate such an investigation upon the filing ofa 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. This clearly indicates any intercity passenger operator can file a complaint. However, if it is not a cprridor "over which Amtrak operates" but over wmch the entity operates, there would appear to be flexibility.

10Long Distance Routes - In a Long-Distance Pilot, the Administrator may well wish to apply the OTP standards of the Rule. However, this should not be obligatory if contractual arrangements outside the Rule can be reached.

4 Second, we believe there is too much uncertainty as to the workability between Amtrak and host railroads, as well as the impact on commuter operations and independent private operators. The whole matter needs further review and AIPRO would like a seat at that table.

Third, On Time Performance is a crucial factor across all intercity and commuter passenger operations. Further, maintaining and increasing freight throughput has major economic and social benefits and should not be damaged in a push to improve passenger service. In the mosaic of American railroading, Amtrak is only one operator so the guiding principles should not be Amtrak-centric, but rather freight and passenger rail centric.

What AIPRO Proposes. We propose the Rule be put on hold and an attempt made to reach a better solution. We suggest the Secretary, with input from the FRA, FTA and STB, convene a seminar to address the issue of creating a comprehensive modern resolution to the problem of rights of way carrying intercity passenger trains, commuter trains and freight trains.

Finally, we commend the FRA for taking on this challenge. Just putting forward this proposed Rule advances the ball in a deeply troubled arena. However, we are entering a new era where we can create new possibilities. As one piece of the puzzle to complete a new landscape for passenger service in America, we should attempt to craft a fair and comprehensive solution to the problem of metrics and standards on rights of way carrying intercity passenger trains, commuter trains and freight trains.

https://www.federalregister.gov/documents/2020/03/31/2020-06245/metrics-and-minimu~­ standards-for-intercity-passenger-rail-service

Association of Independent Passenger Rail Operators

500 New Jersey Avenue NW, 6th Floor Washington, DC 20001 http://passengerrail.org/

Contacts: Ray Chambers President, 202-257-4099 - [email protected] Eric Forbes, Executive Director 202 657 1008 [email protected]

5 6