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Section By Section Analysis of FAST Act

December 2, 2015

The FAST Act is a 1,300 page bill—not exactly light reading, even if you’re the type who enjoys dense, legal text.

But don’t worry! NARP went through the passenger rail title to analyze all the promising provisions, the worrisome proposals, and everything in between. From Gulf Coast restoration to pets on trains, we've got you covered!

NATIONAL NETWORK —

What the bill says: Provides $5.454 billion over five years

Within 180 days of enactment, create at least two distinct accounts for the Northeast Corridor and the National Network to assign all revenues, appropriations, grants and other forms of financial assistance, compensation, and other sources of funds, including operating surplus, commuter payments, and state payments.

Directs the Secretary, “to the greatest extent practicable,” to ensure that the amounts assigned to the Northeast Corridor and National Network accounts shall be confined by Amtrak to their respective corridors.

Amtrak shall produce profit and loss statements for each of the business lines, and, as appropriate:

  • revenues;
  • appropriations; and
  • transfers between business lines.

Amtrak shall submit monthly updated profit and loss statements for each of the business lines and asset categories to the Secretary.

NARP’s take: In conjunction with the other grant programs included in this bill, this is a very respectable funding figure for National Network services. Not enough to fully engage in the fleet overhaul we’d all love to see happen, but certainly progress.

Many passengers are likely to focus on the separate accounts for the NEC and the National Network grants. This is something NARP has consistently cautioned against; passengers don’t think about business lines when they travel, they just want to get where they need to do, and erecting accounting walls could result in operational changes that hurt connectivity. For the past 44 years America has had something it never had before, a truly national passenger rail network. NARP does not want to see our country lose this benefit.

Of course, the bill also includes this language: “If Amtrak determines that a transfer between the accounts is necessary, Amtrak may transfer funds between the Northeast Corridor and National Network accounts if Amtrak notifies the Amtrak Board of Directors, including the Secretary, at least 10 days prior to the expected date of transfer.” So this separation could be end up being a paper tiger, designed to appease the Wall Street Journal crowd who think any train that doesn’t let them get from New York City to Washington, D.C. is a waste of public funding.

Additionally, given the $52 billion in infrastructure maintenance backlog faced by the NEC—which doesn’t include expansion projects, such as the $20 billion Hudson River rail tunnels—you can bet northeastern politicians are going to be strong advocates for additional federal investment in rail. In that sense, the need to form a truly national coalition in Congress will be the best hedge to a fracturing of a National Interstate Rail System.

NORTHEAST CORRIDOR

What the bill says: Provides $2.596 billion over five years.

NARP’s take: See previous item.

GULF COAST WORKING GROUP —

What the bill says: The Secretary shall convene a working group to evaluate the restoration of intercity rail passenger service in the Gulf Coast region between New Orleans, Louisiana, and Orlando, Florida.

Within nine months, the working group shall evaluate all options for restoring intercity rail passenger service in the Gulf Coast region select a preferred option for restoring such service; and develop a prioritized inventory of capital projects and other actions required to restore such service and cost estimates for such projects or actions.

NARP’s take: This is an important one. Ten years on from Hurricane Katrina, the Gulf Coast rail corridor is still the big missing link in the national rail network. Building on organizing work done by groups like NARP, the Southern Rail Commission, and Transportation For America, this working group will give the states and communities along the Gulf Coast much needed help in getting this train running again. And with a $500,000 annual appropriation, paired with the promising—albeit desperately underfunded—Restoration & Enhancement Grants, the group will actually have the tools to turn public demand into action.

STATE-SUPPORTED ROUTE COMMITTEE —

What the bill says: The Secretary of Transportation shall establish the State-Supported Route Committee (referred to in this section as the ‘Committee’) to promote mutual cooperation and planning pertaining to the rail operations of Amtrak and related activities of trains operated by Amtrak on State-supported routes and to further implement section 209 of the Passenger Rail Investment and Improvement Act of 2008.

The Surface Transportation Board shall establish procedures for resolution of disputes brought before it under this subsection, which may include provision of professional mediation services. A decision of the Surface Transportation Board under this subsection shall be binding on the parties to the dispute.

NARP’s take: Section 209, a product of the last rail reauthorization, shifted the obligation for funding routes shorter than 750 miles onto states. While all the “short-distance” routes survived implementation of this policy—though a few just barely—there are still problems. One of the biggest being, whenever a new governor is elected on a promise to control budgets, every state-supported Amtrak train has a big red target on it.

By increasing transparency, improving multi-state collaboration, and providing a forum to share best practices, the State-Supported Route Committee could go a long way to helping elected officials understand what they’re getting for their money—and what they could be getting. And with a $2 million set-aside from National Network funding, the cost-benefit ratio for participation is skewed in the right direction.

CONSOLIDATED RAIL INFRASTRUCTURE AND SAFETY IMPROVEMENT —

What the bill says: Provides $1.103 billion over five years for the following project types:

  • Deployment of safety technology, including positive train control and rail integrity inspection systems.
  • A capital project identified by the Secretary as being necessary to address congestion challenges affecting rail service.
  • A capital project identified by the Secretary as being necessary to reduce congestion and facilitate ridership growth in intercity passenger rail transportation along heavily traveled rail corridors.
  • A highway-rail grade crossing improvement project, including installation, repair, or improvement of grade separations, railroad crossing signals, gates, and related technologies, highway traffic signalization, highway lighting and crossing approach signage, roadway improvements such as medians or other barriers, railroad crossing panels and surfaces, and safety engineering improvements to reduce risk in quiet zones or potential quiet zones.
  • A rail line relocation and improvement project.
  • A capital project to improve short-line or regional railroad infrastructure.
  • The preparation of regional rail and corridor service development plans and corresponding environmental analyses.
  • Any project that the Secretary considers necessary to enhance multimodal connections or facilitate service integration between rail service and other modes, including between intercity rail passenger transportation and intercity bus service or commercial air service.
  • The development and implementation of a safety program or institute designed to improve rail safety.
  • Any research that the Secretary considers necessary to advance any particular aspect of rail-related capital, operations, or safety improvements.

NARP’s take: The project list is spot on. However, it’s tempting to compare the available funding to what’s needed; in that context, this grant program isn’t exactly a game-changer.

On the other hand, it’s certainly better than the $0 that were authorized in prior years, and the 80-20 Federal-State cost share moves passenger rail a little closer to equal treatment with roads. Interestingly, at least 25 percent is reserved for projects in rural areas, which could be a boon for communities served by long distance trains.

FEDERAL-STATE PARTNERSHIP FOR STATE OF GOOD REPAIR —

What the bill says: Provides $997 million over five years for the following project types:

  • capital projects to replace existing assets in-kind;
  • capital projects to replace existing assets with assets that increase capacity or provide a higher level of service;
  • capital projects to ensure that service can be maintained while existing assets are brought to a state of good repair; and
  • capital projects to bring existing assets into a state of good repair.

NARP’s take: Similar to the Consolidated Rail Infrastructure grant program described above—good grant program, not enough funding, but more funding than in prior years.

One thing worth noting: the bill directs the DOT to give preference to eligible projects for which “Amtrak is not the sole applicant; applications were submitted jointly by multiple applicants; and the proposed Federal share of total project costs does not exceed 50 percent.” This will minimize the the utility of the fund for regular maintenance work on the NEC—but not for NEC special projects with strong state involvement, such as the Hudson River rail tunnels.

RESTORATION AND ENHANCEMENT GRANTS —

What the bill says: Provides $100 million over five years for restoration and enhancement of passenger rail service. Grant applications must include: capital and mobilization plan that includes an operating plan that describes the planned operation of the service, including the identity and qualifications of the train operator; service frequency; the planned routes and schedules; the station facilities that will be utilized; projected ridership, revenues, and costs; details on the equipment that will be utilized, how such equipment will be acquired or refurbished, and where such equipment will be maintained.

NARP’s take: Passenger advocates have been working for a program like this for a long time, and now it’s set to become law as part of a comprehensive surface transportation program! Heck, some of the metrics the bill identifies look as if they were ripped straight from the NARP brochure; the bill directs the DOT to preference projects:

  • that would restore service over routes formerly operated by Amtrak; that would provide daily or daytime service over routes where such service did not previously exist;
  • that would provide service to regions and communities that are underserved or not served by other intercity public transportation;
  • that would foster economic development, particularly in rural communities and for disadvantaged populations;
  • and that would enhance connectivity and geographic coverage of the existing national network of intercity rail passenger service.

Now, the bad news: the program only received $20 million in funding per year. Unless it’s all poured into a single project, that’ll pay for some very nice studies and not much else. (It feels kind of like someone just gave you a 1968 Ford Mustang GT, but then broke it to you that not only is there no gas in the tank, the car doesn’t even have a gas tank.)

The bill also limits federal operating assistance to three years, gradually lowering it from 80 percent in the first year of service, to 60 percent of in the second year of service, to 40 percent for the third year of service. Combine that with a requirement that applicants will need to provide descriptions of the state of negotiations with the relevant host railroads—never the easiest people to get to sign off on new passenger service.

Ultimately, this program looks like a stepping stone to something bigger. Advocates should use the money to organize around a few key projects, and in the meantime push for the dedicated funding to give it the fuel it needs to really get moving.

SEC. 11203. 5-YEAR BUSINESS LINE AND ASSET PLANS — EVALUATION OF NATIONAL ASSETS COSTS —

What the bill says: The Secretary shall evaluate the costs and scope of all national assets; and determine the activities and costs that are required in order to ensure the efficient operations of a national rail passenger system; appropriate for allocation to 1 of the other Amtrak business lines; and extraneous to providing an efficient national rail passenger system or are too costly relative to the benefits or performance outcomes they provide.

Not later than 1 year after the date of completion of the evaluation, the Administrator of the Federal Railroad Administration, in consultation with the Amtrak Board of Directors, the governors of each relevant State, and the Mayor of the District of Columbia, or their designees, shall restructure or reallocate, or both, the national assets costs in accordance with the determination under that section, including making appropriate updates to Amtrak’s cost accounting methodology and system.

NARP’s take: Cost allocation has been a bone of contention for a number of passenger advocates, with many asserting that National Network operating costs are unfairly inflated. So more transparency could be a positive step.

However, there’s also a sense that there’s something inherently arbitrary about the cost allocation process; you can carve up the cost of running Amtrak’s reservation system among each of the routes, but it doesn’t really tell you how much that route “costs” because Amtrak needs a reservation system, regardless of whether a particular train is carrying passengers or not. To the extent that this provision is used as an argument for why long distance trains should be eliminated to cut costs, it should be monitored cautiously.

SEC. 11205. COMPOSITION OF AMTRAK’S BOARD OF DIRECTORS —

What the bill says: Expands Amtrak’s board from 9 directors to 10 (the Secretary of Transportation, Amtrak’s President, and 8 individuals appointed by the President of the United States).

NARP’s take: This provision is a bit puzzling. The Senate’s DRIVE Act called for a reorganization of the Amtrak board to include regional representation, so that the NEC, the long distance routes, and the state supported routes were all guaranteed a voice in the company.

It’s not clear what function simply adding an additional Amtrak board member will serve. Perhaps there was a gentlemen’s agreement between interested parties promising that the additional member of the board will come from a community served by the National Network? Only time will tell.

SEC. 11206. ROUTE AND SERVICE PLANNING DECISIONS —

What the bill says: Amtrak shall obtain the services of an independent entity to develop and recommend objective methodologies for Amtrak to use in determining what intercity rail passenger transportation routes and services it should provide, including the establishment of new routes, the elimination of existing routes, and the contraction or expansion of services or frequencies over such routes.

The Amtrak Board of Directors shall consider the adoption of each recommendation and transmit to the Committee on Commerce, Science, and Transportation of the Senate and the Committee on Transportation and Infrastructure of the House of Representatives a report explaining the reasons for adopting or not adopting each recommendation.

NARP’s take: This provision could go either way depending on which parts the independent reviewing entity focus on. Will they give more weight to:

  • the connectivity of a route with other routes;
  • the transportation needs of communities and populations that are not well served by intercity rail passenger transportation service or by other forms of intercity transportation;
  • the views of States, rail carriers that own infrastructure over which Amtrak operates, Interstate Compacts established by Congress and States, Amtrak employee representatives, stakeholder organizations, and other interested parties.

Or will the entity give more weight to:

  • the funding levels that will be available under authorization levels that have been enacted into law;
  • the current and expected performance and service quality of intercity rail passenger transportation operations, including cost recovery, on-time performance, ridership, on-board services, stations, facilities, equipment, and other services.

Because these are all metrics outlined by the bill; some of them would lead one to conclude that service should be expanded, while others could lead one to conclude it’s more expedient for service to contract.

Ultimately, of course, all transportation decisions are political, and all politics is local. Passenger advocates will still have to do the hard work of organizing the communities that depend on the National Network to speak up in its defense. If we do that, this provision shouldn’t be problematic.

SEC. 11207. FOOD AND BEVERAGE REFORM —

What the bill says: Amtrak shall develop and begin implementing a plan to eliminate, within 5 years of such date of enactment, the operating loss associated with providing food and beverage service on board Amtrak trains.

In developing and implementing the plan, Amtrak shall consider a combination of cost management and revenue generation initiatives, including scheduling optimization; on-board logistics; product development and supply chain efficiency; training, awards, and accountability; technology enhancements and process improvements; and ticket revenue allocation.

NARP’s take: Given that Amtrak has already pledged to eliminate food & beverage service losses within a few years time, it’s hard to make too much of this. Especially since Congress covered itself politically by including the line “Amtrak shall ensure that no Amtrak employee holding a position as of the date of enactment.. is involuntarily separated because of the development and implementation of the plan required under subsection, any other action taken by Amtrak to implement this section.

Still, we’ve seen this short-sighted “cut your way to prosperity” ethos lead Amtrak to make some questionable business decisions in the past—Exhibit A: the decision to eliminate the dining car on the Silver Star. Definitely something we’ll be keeping an eye on.

SEC. 11209. LOCAL PRODUCTS AND PROMOTIONAL EVENTS —

What the bill says: Amtrak shall establish a pilot program for a State or States that sponsor a State supported route operated by Amtrak to facilitate onboard purchase and sale of local food and beverage products; and partnerships with local entities to hold pro motional events on trains or in stations.

The pilot program shall allow a State or States to nominate and select a local food and beverage products supplier or suppliers or local promotional event partner; allow a State or States to charge a reason able price or fee for local food and beverage products or promotional events and related activities to help defray the costs of program administration and State-supported routes; and provide a mechanism to ensure that State products can effectively be handled and integrated into existing food and beverage services, including compliance with all applicable regulations and standards governing such services.

The pilot program shall require an annual report that documents revenues and costs and indicates whether the products or events resulted in a reduction in the financial contribution of a State or States to the applicable State-supported route.

NARP’s take: Generally, NARP frowns on Congressional micro-management of Amtrak operations. However, this pilot program sounds awesome, so we’ll make allowances.

Sidenote: the local food provision screams loss leader, so it’s strange that this comes right after the edict to eliminate food and beverage losses.

SEC. 11210. AMTRAK PILOT PROGRAM FOR PASSENGERS TRANSPORTING DOMESTICATED CATS AND DOGS —

What the bill says: Amtrak shall develop a pilot program that allows passengers to transport domesticated cats or dogs on certain trains operated by Amtrak.

NARP’s take: Does what it says. The lesson as always: don’t mess with America’s pet lobby.

SEC. 11211. RIGHT-OF-WAY LEVERAGING —

What the bill says: Amtrak shall issue a Request for Proposals seeking qualified persons or entities to utilize right-of-way and real estate owned, controlled, or managed by Amtrak for tele communications systems, energy distribution systems, and other activities considered appropriate by Amtrak.

NARP’s take: Amtrak has previously claimed that the options for capitalizing on its rights of way are overblown by its Congressional critics. That statement will be put to the test by this provision. We’re as interested as anyone in the outcome.

SEC. 11212. STATION DEVELOPMENT —

What the bill says: Amtrak shall submit a report that describes options to enhance economic development and accessibility of and around Amtrak stations and terminals, for the purposes of improving station condition, functionality, capacity, and customer amenities; generating additional investment capital and development-related revenue streams; increasing ridership and revenue; and strengthening multimodal connections, including transit, intercity buses, roll-on and roll-off bicycles, and airports, as appropriate.

The report should also include options for additional Amtrak stops that would have a positive incremental financial impact to Amtrak, based on Amtrak feasibility studies that demonstrate a financial benefit to Amtrak by generating additional revenue that exceeds any incremental costs.

NARP’s take: Another case of Congressional micromanagement. But given the revitalization of train stations as economic and social centers around the U.S., perhaps giving Amtrak a nudge won’t isn’t so bad.

Don’t be surprised however, if like so many other economic opportunities involving infrastructure, the private sector decides it would rather build on public investment rather than go it alone (think Denver Union Station).

SEC. 11213. AMTRAK BOARDING PROCEDURES —

What the bill says: The Amtrak Office of Inspector General shall submit a report that evaluates Amtrak’s boarding procedures for passengers, including passengers using or transporting nonmotorized transportation, such as bicycles, at its 15 stations through which the most people pass.

The report shall compare Amtrak’s boarding procedures to boarding procedures of providers of commuter railroad passenger transportation at stations shared with Amtrak; international intercity passenger rail boarding procedures; and fixed guideway transit boarding procedures

The OIG shall makes recommendations, as appropriate, to improve Amtrak’s boarding procedures, including recommendations regarding the queuing of passengers and free-flow of all station users and facility improvements needed to achieve the recommendations.

NARP’s take: Anyone who has ridden a train abroad has probably found themselves thinking “There’s a better way” when standing in a crowd of people waiting on a train in the basement of Penn Station.

(The obvious counterpoint: foreign operators don’t have to operate in the basement of Penn Station.)

SEC. 11307. COMPETITIVE PASSENGER RAIL SERVICE PILOT PROGRAM —

What the bill says: The Secretary of Transportation implement a pilot program for competitive selection of private operators of not more than 3 long-distance routes operated by Amtrak.

Would allow private railroad to provide intercity rail passenger transportation over a long-distance route for an operation period of 4 years, with an option to allow the contract to be renewed for 1 additional operation period of 4 years.

If an eligible petitioner awarded a route under this section ceases to operate the service or fails to fulfill an obligation under a contract required under subsection (b)(1)(E), the Secretary, in collaboration with the Surface Transportation Board, shall take any necessary action consistent with this title to enforce the contract and ensure the continued provision of service.

NARP’s take: A lot of people like to complain about Amtrak, but the simple fact is they are the only modern railroad with a proven track record of successfully operating long distance trains.

Given the problems faced in Iowa Pacific LLC’s takeover of the relatively straightforward Hoosier State train—where, it’s important to note, Amtrak was ultimately kept on as a partner to control costs—don’t expect an outpouring of interest from private operators looking to take over long distance services.

SEC. 11308. PERFORMANCE-BASED PROPOSALS —

What the bill says: The Secretary shall issue a request for proposals for projects for the financing, design, construction, operation, and maintenance of a high-speed passenger rail system operating within the 11 federally designated high-speed rail corridors.

NARP’s take: In the absence of strong federal investment, we’d be surprised if the private sector jumps at the chance to invest tens of billions of dollars into complex, sprawling infrastructure projects.

SEC. 11309. LARGE CAPITAL PROJECT REQUIREMENTS —

What the bill says: For a grant awarded under this chapter for an amount in excess of $1 billion, the Secretary may not obligate any funding unless the applicant demonstrates, to the satisfaction of the Secretary, that the applicant has committed, and will be able to fulfill, the non-Federal share required for the grant within the applicant’s proposed project completion timetable.

NARP’s take: Questionable policy—we certainly didn’t ask this of the interstate highway system, and we’re not asking it of the Next Gen air traffic control system.

Also something of a head scratcher, given that there’s not really enough grant funding to cross that $1 billion threshold. It’s tempting to view this as a shot across the bow of the California High-Speed Rail project from House T&I Rail Subcommittee Chair Jeff Denham (R-CA). “We haven’t provided enough money to invest in a high-speed rail project, but if we had you wouldn’t be getting any.”

SEC. 11311. SHARED-USE STUDY —

What the bill says: The Secretary, in consultation with Amtrak, commuter rail passenger transportation authorities, other railroad carriers, railroad carriers that own rail infrastructure over which both passenger and freight trains operate, States, the Surface Transportation Board, the Northeast Corridor Commission, the State-Supported Route Committee, and groups representing rail passengers and customers, as appropriate, shall complete a study that evaluates the shared use of right-of-way by passenger and freight rail systems; and the operational, institutional, and legal structures that would best support improvements to these systems.

NARP’s take: Following their setback in the Supreme Court last spring—on a case in which NARP was an amicus curiae—the Association of American Railroads has filed another case challenging the law providing metrics & service standard protections for Amtrak trains, which has been used to effectively protect the rights of passengers.

While the case is re-litigated, a study to look at On Time Performance issues afflicting passenger trains on freight corridors could be just what the doctor ordered—or at least the next best thing to a permanent legislative fix.

SEC. 11312. NORTHEAST CORRIDOR THROUGH-TICKETING AND PROCUREMENT EFFICIENCIES —

What the bill says: Within 3 years of enactment, the Northeast Corridor Commission shall complete a study on the feasibility of and options for permitting through-ticketing between Amtrak service and commuter rail services on the Northeast Corridor.

NARP’s take: A cool idea. However, in an era where mobile devices are making ticket purchases ever easier, it’s unclear how necessary this is.

SEC. 11415. RAIL PASSENGER LIABILITY —

What the bill says: Notwithstanding any other provision of law, the aggregate allowable awards to all rail passengers, against all defendants, for all claims, including claims for punitive damages, arising from a single accident or incident involving Amtrak occurring on May 12, 2015, shall not exceed $295,000,000.

ADJUSTMENT BASED ON CONSUMER PRICE INDEX — The liability cap shall be adjusted on the date of enactment of this Act to reflect the change in the Consumer Price Index-All Urban Consumers between such date and December 2, 1997, and the Secretary shall provide appropriate public notice of such adjustment.

NARP’s take: Indexing caps and tax rates to inflation is generally good policy—just look at the problems faced by the Highway Trust Fund.

Passenger rail in the U.S. is a specialized market, however, and there is considerable uncertainty from commuter railroads and Amtrak about what this could mean for the annual cost of insuring their operations. A situation where it might have been better if Congress had looked before they leapt (i.e. requested a study).

SEC. 11502. TREATMENT OF IMPROVEMENTS TO RAIL AND TRANSIT UNDER PRESERVATION REQUIREMENTS & SEC. 11503. EFFICIENT ENVIRONMENTAL REVIEWS —

What the bill says: Improvements to, or the maintenance, rehabilitation, or operation of, railroad or rail transit lines that are in use or were historically used for the transportation of goods or passengers shall not be considered a use of a historic site regardless of whether it is listed on, or eligible for listing on, the National Register of Historic Places.

The Secretary shall publish a notice of proposed rulemaking to propose new and existing categorical exclusions for railroad projects.

NARP’s take: We’ve presented a much abbreviated version of the language. Long story short: this brings passenger rail construction into alignment with best practices enjoyed by highway departments for years. It means good things for speeding up rail project delivery.

Subtitle F — Railroad Infrastructure Financing Improvement Act

What the bill says: The Secretary shall require each recipient of a direct loan or loan guarantee under this section for a Transit Oriented Development project to provide a non-Federal match of not less than 25 percent of the total amount expended by the recipient for such project.

SEC. 11605. PROGRAM ADMINISTRATION —Not later than 30 days after the date that the Secretary receives an application under this section, the Secretary shall provide the applicant written notice as to whether the application is complete or incomplete.

Not later than 60 days after the date the Secretary notifies an applicant that an application is complete, the Secretary shall provide the applicant written notice as to whether the Secretary has approved or disapproved the application.

NARP’s take: Again, we’re presenting a much abbreviated version here. These complex provisions are attempting to unlock the Railroad Rehabilitation & Improvement Financing (RRIF) program, an FRA program that, though it has $35 billion in lending authority, sits largely unused. By expanding eligibility to include such projects as TOD and station development, while simultaneously shortening review time, the bill hopes to incentivize more infrastructure investment by the private sector, as well as state and local governments. RRIF has been a notoriously hard nut to crack, however, so we’ll need to see signs of a thaw before we believe it.

Transit Provisions

What the bill says: SEC. 3028. AUTHORIZATION OF GRANTS FOR POSITIVE TRAIN CONTROL — There shall be available from the Mass Transit Account of the Highway Trust Fund to carry out this section $199,000,000 for fiscal year 2017 to assist in financing the installation of positive train control systems.

NARP’s take: A much needed infusion of funds for a life-saving technology that, frankly, should’ve been installed decades.

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