Release #16-25

NARP Keeps Up Legal Fight for On-Time Performance

For Immediate Release (#16-25)

Contact: Robert Brady – (202) 680-4951

WASHINGTON – NARP and its partners on Tuesday urged an appeals court in St. Louis to reject freight railroads’ challenges to federal on-time performance rules, the Association’s latest salvo in its continuing legal fight on behalf of the nearly 40 million Americans who ride trains every year. The brief cited decades of legal precedent, supporting statements from the congressional members who drafted the section of the 2008 rail law now under attack, and regulations dating back to 1973.

In its brief, NARP and its partners declared that the court should act for three reasons: Congress gave the Surface Transportation Board (STB) the authority, in law, to make the rule; the Board considered public input while making the rule, and; this makes the Board’s move reasonable, and not “arbitrary or capricious.”

In NARP’s original filing with the same court in September, President & CEO Jim Mathews warned that if the freights were to prevail in overturning the Board’s ability to enforce the standards in the 2008 rail bill “on-time performance of intercity passenger rail in the United States will be reduced or eliminated.”

The freights’ core argument in this case is that when earlier federal courts invalidated the metrics and standards in Section 207 of the Passenger Rail Investment and Improvement Act of 2008 (“PRIIA”), it had the knock-on effect of invalidating Section 213 as well, which lets STB define what constitutes on-time performance and to enforce meeting the standards associated with it.

Like many others, Mathews calls this argument a red herring.

“First freight railroads argued that forcing them to dispatch so that Amtrak’s trains run reasonably on-time imposed an undue burden on them– even though in many parts of the country the ‘burden’ constitutes a single train each day on a system running hundreds of freight trains, and even though these ‘burdened’ railroads never exercised their right under the 1973 law to petition the STB for a waiver from their burden,” Mathews said.

“Next the freight railroads argued to the Supreme Court that Amtrak didn’t have the legal authority to decide what ‘on-time’ means for its passenger trains, and that only the Surface Transportation Board had that ability,” Mathews continued. “Then when STB’s issued a rule in February determining what “on-time” means– a rule that the freight railroads themselves petitioned STB to make – didn’t go their way, they changed their minds and decided that STB doesn’t have the authority either.”

By contrast, the Board and the Justice Dept. asserted to the 8th Circuit Court of Appeals in November that STB has the authority from Congress to conduct a rulemaking under PRIIA and it did so reasonably in selecting an on-time performance standard that takes into account timeliness at all stations and not just the end points. Because of that, STB says, the court should uphold the OTP rule.

NARP members are telling the Eighth Circuit the same thing we told the STB in February when it contemplated changing the OTP rule: All Stations OTP (ASOTP) is utterly reasonable and downright essential for passengers, states and cities served. Congress intended the OTP standard to be “All Points” all along for a variety of reasons that remain important and valid.

The millions of American rail travelers who NARP represents rely on – and pay for – reliable, timely and regular service. They deserve that service regardless of where they get on or where they get off, and both regulators and lawmakers have agreed with that position for decades.

Abandoning all-stations on-time performance effectively tells some 90% of Amtrak riders that their service quality does not count, a situation that was recognized 42 years ago as unsupportable. The Interstate Commerce Commission said in 1974 that “The public should be able to rely upon train schedules at intermediate stops as well as the ‘final terminus’ of a route.” And of course Congress expressed its commitment to on-time performance at all stations as a matter of law in 1973 and again in 2008.

Ignoring OTP at intermediate stations – measured today using the All-Stations OTP (ASOTP) metric – could permanently hobble Amtrak from taking action on behalf of the 65% of its passengers in 24 states who get on and off at an intermediate station. Substituting endpoint measurements would mean that some 90% of Amtrak stations’ OTP would never be measured. For states within the orbit of the Eighth Circuit court, between 55% and 89% of passengers never set foot in an “endpoint” station – 621,312 people in 2015 alone.

OTP at route end points is irrelevant to most passengers. Three out of every four passengers using Amtrak’s trains system-wide depart from and arrive at stations between end point cities. The percent of passengers traveling between intermediate points exceeds 50% on three-fourths of Amtrak’s 47 routes. Intermediate stations’ ridership is an important statistic throughout the system, and is significant on short, medium and long distance routes.

Whether filing an amicus brief in the Supreme Court, making regulatory filings with the Surface Transportation Board or arguing in federal district court, NARP remains firmly committed to the idea that all paying passengers, including those in “flyover country,” deserve on-time service as a matter of common sense as well as law.

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About the National Association of Railroad Passengers

NARP is the only national organization speaking for the nearly 40 million users of passenger trains and rail transit. We have worked since 1967 to expand the quality and quantity of passenger rail in the U.S. Our mission is to work towards a modern, customer-focused national passenger train network that provides a travel choice Americans want. Our work is supported by more than 28,000 individual members nationwide.

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