Passenger rail advocate calls on STB to resolve Amtrak’s on-time performance woes

June 13, 2023

A trade group representing passenger rail wants the Surface Transportation Board to move quickly in responding to Amtrak’s complaint that Union Pacific is contributing to the lackluster on-time performance of Amtrak’s Sunset Limited service.

Jim Matthews, president and CEO of the Rail Passengers Association, said in a recent website post that his group is still waiting for STB to move forward with Amtrak’s complaint, which was filed in December 2022. This complaint is significant because it’s the first complaint that calls upon STB to investigate why Amtrak is failing to meet customer on-time performance metrics. Amtrak uses portions of the Class I rail network to run passenger trains, and so Amtrak has argued its Sunset Limited service is directly impacted by UP’s service.

“When Amtrak filed its complaint in December it asked for a quick 60-day resolution to what is clearly and unmistakably a consistent failure to meet the standards now legally required for host railroads,” Matthews said.

“The Dept. of Transportation and the Federal Railroad Administration made similar pleas and FRA attorneys reminded the STB in April that neither Congress nor the rules-writers at DOT intended every on-time performance complaint to involve years-long litigation and millions of dollars’ worth of white-shoe motion practice. And yet, here we are.”

Amtrak’s on-time performance metrics were under debate for years, with the issue even making its way to the Supreme Court in 2015 because of debate over Amtrak’s role in establishing those metrics.

Eventually, in 2020, the Federal Railroad Administration published a final rule on performance metrics for passenger trains. The final rule requires Amtrak and host railroads to certify Amtrak schedules and set an on-time performance minimum standard of 80% for any two consecutive calendar quarters.

Amtrak said in April following its initial complaint to STB in December that there is an “urgent need for investigation” because data from the latest fiscal quarter still showed substandard customer on-time performance of Amtrak’s Sunset Limited service. Substandard performance occurs when on-time performance falls below 80% for at least two two consecutive calendar quarters, attorneys representing Amtrak said in an April 18 filing.

“The April host railroad delay report (the most current available) shows that the typical Sunset passenger was late 63 percent of the time, and was an average of an hour and a half late getting to their destination. Freight-train interference is by far the largest single category of delays, and host railroads are responsible for more than two-thirds of all delays,” Matthews said.

Matthews also said Amtrak’s delays come as UP runs long freight trains but hasn’t invested in building enough longer sidings to accommodate the trains.

Last January, UP (NYSE: UNP) said Amtrak should align its data better with FRA’s standards.

“Amtrak has not agreed to changes needed to bring the Sunset Limited train schedules into alignment with the FRA’s metrics and standards. It has also refused to accept other changes UP has proposed to make the schedules reliable and achievable. Amtrak is asking the Board to commence litigation based on schedules that are not realistic and not compatible with the FRA’s metrics and standards,” said attorneys representing UP in a Jan. 27 filing.

STB confirmed that the proceeding involving Amtrak is still open. Since this proceeding would be the first involving Amtrak’s on-time performance metrics, the board is still working out its next steps.

Decisions made in Amtrak’s complaint could set a precedent for future proceedings

As of this week, the last filing in the proceeding NOR 42175 came from the Association of American Railroads, which said on May 11 that the board’s processes in the Amtrak proceeding should be “efficient, well-understood and fair,” especially since this would be the first proceeding that seeks to interpret the new performance metrics.

What kind of data should be used in this proceeding is part of the issue.

Amtrak’s data measures the performance of Amtrak’s trains against its own schedules, but not all of these schedules have been certified to align with FRA’s metric, according to attorney Frederick Miller Jr. on behalf of AAR.

“[Amtrak’s] data provides little insight into the causes of delay, let alone whether such delays indicate a failure to give appropriate preference. Amtrak’s train delay reports do not measure delays against Amtrak’s schedules, but rather delays against an idealized train trip (i.e., one with no delays at all). There is no distinction in the data between delays that affect a train’s [on-time performance] and those that do not.”

The board should also be responsible for determining the causes of the passenger train delay and the extent to which that delay can be addressed by the host railroads or Amtrak, AAR said.

Meanwhile, the general counsel for the U.S. Department of Transportation noted the significance of this proceeding, since it’s the first test challenging a freight railroad’s contribution to Amtrak’s inability to meet performance metrics.

DOT has encouraged STB to not take the proceeding too slowly.

“The Board’s decision and its approach to an investigation of the causes of substandard on-time performance (OTP) of Amtrak service will have far-reaching implications beyond the Sunset Limited service and will be essential, whatever its conclusions, to strengthening Amtrak passenger train performance,” John E. Putnam, DOT general counsel, said in an April 13 filing. “We believe it is imperative that the Board conduct a focused and time-limited investigation, and that a lengthy, protracted adversarial proceeding would not conform to the relevant statutory direction … nor would it serve the interests of the public or of the parties. … Establishing a predictable investigative process will benefit all parties by providing certainty and by extension facilitating productive Amtrak-freight rail carrier discussions. We believe that in turn this will lead to morereliable intercity passenger rail service across the country.”

Norfolk Southern (NYSE: NSC) also noted how this Amtrak proceeding could inform future proceedings, according to an April 26 filing to the board.

However, NS “does not support a ‘drawn-out’ proceeding, but given the significance of this proceeding, any investigation should not exclude the ability of parties to fully participate, to access and evaluate up-to-date information beyond what the FRA publishes, and to put that data into proper context, even if doing so would appear to be ‘adversarial.’ Nor should any such investigation be limited to just the OTP and train delay data that FRA already collects and publishes on a quarterly basis,” said attorney Bill Mullins on behalf of NS.

“It is vital for the STB to put into place a process designed to allow the STB to make an informed decision on a record developed with the fair input of all parties, rather than to truncate the proceeding to the detriment of the due process rights of many of the parties and to the detriment of the public that the STB is challenged to protect pursuant to its clear mandates,” NS continued.

For now, Matthews contends that the losers in this proceeding are those passengers his members depend upon.

“The numbers show that today the Sunset is still struggling to get fare-paying passengers to where they want to go within anything better than an hour to two-hour window. The data are there, and they are clear,” Matthews said. “For the sake of the American passenger, who supported massive Federal infrastructure investments to make trains better, we really hope the STB is able to end the debate by ruling in the next few weeks, once and for all.”

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