STB seeks to revise PRIIA Section

December 29, 2015

Written by  William C. Vantuono, Editor-in-Chief, Railway Age Magazine

The U.S. Surface Transportation Board on Dec. 28, 2015 issued two interrelated decisions—a Notice of Proposed Rulemaking (NPRM) and Proposed Policy Statement (PPS)—proposing revised definitions and policy guidance for passenger train on-time performance and preference. The STB is seeking public comment on the proposals, both of which would affect Section 213 the Passenger Rail Investment and Improvement Act of 2008 (PRIIA) as codified at 49 U.S.C. § 24308(f).Website Insert 5000 New Seats copy

The NPRM (STB Docket No. EP 726) covers “defining on-time performance for purposes of cases brought before the Board” under PRIIA Section 213 – 49 U.S.C. § 24308(f). Currently, under § 24308(f), if the on-time performance of an intercity passenger train averages less than 80% for any two consecutive calendar quarters, the Board may initiate an investigation, or Amtrak and other eligible complainants may file a complaint with the Board requesting that the Board initiate an investigation. The proposed revised definition would consider a train to be on time if it arrives at its final destination no more than five minutes after its scheduled arrival time for each 100 miles the train operated, or no more than 30 minutes after its scheduled arrival time, whichever is less.

The PPS (STB Docket No. EP 728) “addresses issues that may arise and the evidence to be presented in complaint proceedings under § 24308(f).” It interprets the statutory preference accorded to Amtrak trains over freight trains, codified at 49 U.S.C. § 24308(c), and the phrase “attributable to a … failure to provide preference,” codified at 49 U.S.C. § 24308(f)(2), and “provides guidance regarding the evidence that may be most useful in § 24308(f) proceedings.”

“Amtrak has filed two complaints (both pending) requesting that the STB initiate an investigation pursuant to § 24308(f), claiming that host Class I carriers have not given Amtrak preference as required under § 24308(c). “Because ‘preference’ is not defined by statute, we include guidance here regarding the Board’s interpretation of ‘preference,’” the STB states. “In addition, because there is no precedent for parties to look to in developing their cases, we will also provide guidance regarding the evidence that may be most useful in § 24308(f) proceedings. We note that through this policy statement, the Board is not making any binding determinations. Parties are still free to present any arguments or evidence they could have presented before the Board issued this policy statement. We provide this preliminary guidance merely as a potential starting point for parties to consider when developing evidence for § 24308(f) proceedings, recognizing that the fact-specific nature of § 24308(c) preference issues means that the Board’s approach to such issues will likely be refined in individual § 24308(f) proceedings.

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