49 CFR Part 269 — Competitive Passenger Rail Service Pilot Program

PART 269—COMPETITIVE PASSENGER RAIL SERVICE PILOT PROGRAM Authority: Sec. 11307, Pub. L. 114-94; 49 U.S.C. 24711; and 49 CFR 1.89. Source: 82 FR 31487, July 7, 2017, unless otherwise noted. § 269.1 Purpose. The purpose of this part is to carry out the statutory mandate in 49 U.S.C. 24711 requiring the Secretary to implement a pilot program for competitive selection of eligible petitioners in lieu of Amtrak to operate not more than three long-distance routes. § 269.3 Limitations. (a) Route limitations. (b) Time limitations. § 269.5 Definitions. As used in this part— Act Administrator Amtrak Eligible petitioner (1) A rail carrier or rail carriers that own the infrastructure over which Amtrak operates a long-distance route, or another rail carrier that has a written agreement with a rail carrier or rail carriers that own such infrastructure; (2) A State, group of States, or State-supported joint powers authority or other sub-State governance entity responsible for providing intercity rail passenger transportation with a written agreement with the rail carrier or rail carriers that own the infrastructure over which Amtrak operates a long-distance route and that host or would host the intercity rail passenger transportation; or (3) A State, group of States, or State-supported joint powers authority or other sub-State governance entity responsible for providing intercity rail passenger transportation and a rail carrier with a written agreement with another rail carrier or rail carriers that own the infrastructure over which Amtrak operates a long-distance route and that host or would host the intercity rail passenger transportation. File filed PassengerRail.Liaison@dot.gov Financial plan (1) An annual projection of the revenues, expenses, capital expenditure requirements, and cash flows (from operating activities, investing activities, and financing activities, showing sources and uses of funds, including the operating subsidy amount) attributable to the route; and (2) A statement of the assumptions underlying the financial plan's contents. FRA Operating plan (1) A complete description of the service planned to be offered, including the train schedules, frequencies, equipment consists, fare structures, and such amenities as sleeping cars and food service provisions; station locations; hours of operation; provisions for accommodating the traveling public, including proposed arrangements for stations shared with other routes; expected ridership; passenger-miles; revenues by class of service between each city-pair proposed to be served; connectivity with other intercity transportation services; and compliance with applicable Service Outcome Agreements; and (2) A statement of the assumptions underlying the operating plan's contents. Long-distance route § 269.7 Petitions. (a) In general. (b) Petition requirements. (1) File the petition with FRA no later than 180 days after September 5, 2017; (2) Describe the petition as a “Petition to Provide Passenger Rail Service under 49 CFR part 269”; (3) Describe the long-distance route or routes over which the eligible petitioner wants to provide intercity passenger rail transportation and the Amtrak service that the eligible petitioner wants to replace; and (4) If applicable, provide an executed copy of all written agreements with all entities that own infrastructure on the long-distance route or routes over which the eligible petitioner wants to provide intercity passenger rail transportation. The written agreement(s) must demonstrate the infrastructure owner's support for the petition. § 269.9 Bid process. (a) Notification. Federal Register (b) Bid requirements. Federal Register (1) Provide FRA with sufficient information to evaluate the level of service described in the proposal, and to evaluate the proposal's compliance with the requirements in § 269.13(b); (2) Describe how the bidder would operate the route; (i) This description must include, but is not limited to, an operating plan, a financial plan and, if applicable, any executed agreement(s) necessary for the operation of passenger service over right-of-way on the route that is not owned by the bidder. (ii) In addition, if the bidder intends to generate any revenues from ancillary activities ( i.e., (3) Describe what passenger equipment the bidder would need, including how it would be procured; (4) Describe in detail, including amounts, timing, and intended purpose, what sources of Federal and non-Federal funding the bidder would use, including but not limited to any Federal or State operating subsidy and any other Federal or State payments; (5) Contain a staffing plan describing the number of employees the bidder needs to operate the service, the job assignments and requirements, and the terms of work for prospective and current employees of the bidder for the service outlined in the bid; (6) Describe the capital needs for the passenger rail service including in detail any costs associated with compliance with Federal law and regulations; (7) Describe in detail the bidder's plans for meeting all FRA safety requirements, including equipment, employee, and passenger parameters; (8) Describe, for each Federal fiscal year fully or partially covered by the bid, a projection of the passenger rail service route's total revenue, total costs, total contribution/loss, and net cash used in operating activities per passenger-mile attributable to the route; (9) Describe how the passenger rail service would meet or exceed the performance required of or achieved by Amtrak on the applicable route during the last fiscal year, and how the bidder would report on the performance standards. At a minimum, this description must include, for each Federal fiscal year fully or partially covered by the bid a projection of the route's expected Passenger Miles per Train Mile, End-Point and All Stations On-Time Performance, Host Railroad and Operator Responsible Delays per 10,000 Train Miles, Percentage of Passenger Trips to/from Underserved Communities, Service Interruptions per 10,000 Train Miles due to Equipment-Related Problems, and customer service quality; (10) Analyze the reasonably foreseeable effects, both positive and negative, of the passenger rail service on other intercity passenger rail services; (11) Describe the bidder's compliance with all applicable Federal, state, and local laws; and (12) Provide State or States written concurrence of the bid for a route that receives funding from a State or States. (c) Supplemental information. (2) FRA's request may seek information about the costs related to the service that Amtrak would still incur following the cessation of service, including the increased costs for other services. (3) FRA will establish a deadline by which the bidder and/or Amtrak must file the supplemental information with FRA. § 269.11 Evaluation. (a) Evaluation. (b) Notification. Federal Register (2) The notice under this paragraph (b) will be open for public comment for 30 days after the date FRA selects the bid. § 269.13 Award. (a) Award. (b) Contract requirements. (1) Award to the winning bidder the right and obligation to provide intercity passenger rail transportation over that route subject to such performance standards as FRA may require for a duration consistent with § 269.3(b); (2) Award to the winning bidder an operating subsidy, as determined by FRA and based on Amtrak's final audited publicly-reported fully-allocated operating costs of the route for the prior fiscal year, excluding costs related to Other Postretirement Employee Benefits, Amtrak Performance Tracking System Asset Allocations, Project Related Costs, and Amtrak Office of Inspector General activities, subject to the availability of funding, for the first year at a level that does not exceed 90 percent of the level in effect for that specific route during the fiscal year preceding the fiscal year in which the petition was received, adjusted for inflation; (3) State that any award of an operating subsidy is made annually, is subject to the availability of funding, and is based on the amount calculated under paragraph (b)(2) of this section, adjusted for inflation; (4) Condition the operating and subsidy rights upon the winning bidder providing intercity passenger rail transportation over the route that is no less frequent, nor over a shorter distance, than Amtrak provided on that route before the award; (5) Condition the operating and subsidy rights upon the winning bidder's compliance with performance standards FRA may require, but which, at a minimum, must meet or exceed the performance required of or achieved by Amtrak on the applicable route during the fiscal year immediately preceding the year the bid is submitted; (6) Subject the winning bidder to the grant conditions established by 49 U.S.C. 24405; and (7) Subject the winning bidder to the requirements of the appropriations act(s) funding the contract. (c) Publication. § 269.15 Access to facilities; employees. (a) Access to facilities. (2) If Amtrak and the eligible petitioner awarded a route cannot agree on the terms of access, either party may petition the Surface Transportation Board under 49 U.S.C. 24711(g). (b) Employees. (c) Hiring preference. § 269.17 Cessation of service. (a) If an eligible petitioner awarded a route under this part ceases to operate the service or fails to fulfill its obligations under the contract required under § 269.13, the Administrator, in collaboration with the Surface Transportation Board, shall take any necessary action consistent with title 49 of the United States Code to enforce the contract and ensure the continued provision of service, including the installment of an interim service and re-bidding the contract to operate the service. (b) In re-bidding the contract, the entity providing service must either be Amtrak or an eligible petitioner.

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