What’s in the Infrastructure Package for Passenger Rail? (Updated)Written by David Peter Alan, Contributing Editor
It’s the big news in Washington and everywhere else in the country. The Infrastructure Investment and Jobs Act for which the Biden Administration had fought so hard and made so many deals finally made it through Congress on Nov. 5, and President Joe Biden signed it into law on Nov. 15.
It has provisions about energy, fuel technology, cybersecurity, broadband, drinking water and wastewater, efficiency in building construction, and several other issues. It is a huge document, totaling about 2,700 pages of text, and reviewing only the provisions that relate to passenger rail required several hours.
Accordingly, this article cannot serve as a thorough guide to the rail-related provisions. It can only provide a brief overview of the relevant parts and where to find them. A thorough analysis of only the rail-related provisions would fill a book. A detailed analysis of the entire package would require a multi-volume treatise.
There has been a great deal of reporting about the package everywhere in American media of all sorts, especially the difficulties the Democrats have had moving it and the companion “human infrastructure” bill (still the subject of negotiations) through the legislative process, in light of the strong Republican opposition to both. Still, 13 House Republicans voted for the infrastructure bill and only six Democrats opposed it. There is no point or even relevance in reporting about the politics of it here, but there are many provisions concerning Amtrak and a few that pertain to rail transit. So here is an overview of what Congress recently passed and the President signed.
The package is designated H.R. 3684 and titled the Infrastructure Investment and Jobs Act (IIJA). There are a number of other Acts contained within it, including the Surface Transportation Act of 2021 (codified as Division B of the overall bill). The full text of the legislation can be found at https://www.congress.gov/bill/117th-congress/house-bill/3684/text.
Many of the provisions amend prior legislation, and many others set procedures for making decisions about infrastructure-related issues. Still others authorize spending of appropriated funds over the next five years, during the current fiscal year (FY22, which began Oct. 1), through FY26. If you wish to learn more about specific provisions, there is a Table of Contents at the beginning of the text; this article will provide section numbers for some of the most-pertinent provisions concerning rail. That means passenger rail: regional/commuter, Amtrak and transit. There are also a number of provisions concerning freight rail, which lie beyond the purview of this article.
The vast majority of the transportation-related provisions concern highways, as can reasonably be expected. I will not dwell on that topic, but it is noteworthy that Title I (at §11101(a)(1)) sets the amount authorized for federal aid to highways, starting with $52.488 billion in FY22 and increasing to $56.815 billion in FY26 (with $53.538 billion, $54.609 billion, and $55.701 billion in FY23, 24 and 25).
Other provisions relatively early in the document concern loans for infrastructure improvements. Section 12001 in Title II mandates changes in legislation from 1998, while §11101(a)(2) provides $250 million per year in TIFIA (Transportation Infrastructure Finance and Innovation Act) loans, an amount less than one-half of 1% of the annual highway appropriation. Subtitle C of Title I of the Surface Transportation Investment Act, beginning at §21301, introduces new procedures for RRIF (Railroad Rehabilitation & Improvement Financing) loans that are detailed in Chapter 224, beginning at §22401.
Provisions Related to Amtrak and Passenger Rail Generally
Title II of the legislation, beginning at §22001, is the Passenger Rail Expansion and Rail Safety Act of 2021. It includes grants to Amtrak (§22101) and the FRA (§22102), funds for consolidated rail infrastructure and safety improvements (§22103), a railroad crossing elimination program (§22104), restoration and enhancement grants (§22105), a federal-state partnership program for intercity passenger rail grants (§22106) and Amtrak’s Office of Inspector General (OIG; §22007).
Amtrak’s authorizations for the Northeast Corridor (NEC; at §22101(a)) begin at $1.57 billion for FY22 and decrease to $1.1 billion for FY23, then rise to $1.2 billion for FY24, $1.4 billion for FY25 and $1.5 billion for FY26. The authorizations for Amtrak’s National Network under §22101(b) start at $2.3 billion for FY22, decrease to $2.2 billion for FY23, and then increase to $2.45 billion, $2.7 billion, and $3.0 billion for the next three years, respectively.
Comparing funding levels, the national network will receive about 1.5 times the NEC authorization for this fiscal year, exactly twice the NEC authorization during the next fiscal year, and slightly more than double the NEC amounts after that. There are also grants for the State-Supported Route Committee, the Northeast Corridor Commission, and Interstate Rail Compacts. Some of that money is provided specifically for accessibility upgrades and corridor development.
Subtitle B, beginning at §22201, calls for certain reforms at Amtrak. Perhaps the most significant is a change in Amtrak’s mission, noted at §22201(a). The new legislation amends 49 U.S.C. §24101(a) to strike a former mission statement that Amtrak “achieve a performance level sufficient to justify expending public money” and substitute a mission statement containing the words “in order to meet the intercity passenger rail needs of the United States.” Both intercity passengers and commuters are now considered important constituencies, as are both rural and “major urban” communities. Other new language states: “Long-distance routes are valuable resources of the United States that are used by rural and urban communities.” This change in Amtrak’s stated mission may be one of the most significant developments in the entire bill; at least in theory.
Amtrak also has new Congressional direction toward achieving its goals, under §22201(b)(1), which appears to eliminate the long-hated micro-management provisions championed by former Republican Rep. John Mica. It replaces them with new orders for Amtrak to “use its best business judgment in acting to maximize the benefits of Federal investments,” also specifying some examples. They include: “offering competitive fares, increasing revenue from the transportation of mail and express, offering food service that meets the needs of its customers, improving its contacts with rail carriers over whose tracks Amtrak operates, controlling or reducing management and operating costs, and providing economic benefits to the communities it serves” (letter designations omitted). Amtrak is also “encouraged to make agreements with private-sector entities and to undertake initiatives that are consistent with good business judgment and designed to general additional revenues” (§22201(d)) to achieve its goals.
One of those goals, stated in §22202(b)(4), is “to support and maintain established long-distance routes to provide value to the Nation by serving customers throughout the United States and connecting urban and rural communities.” Ironically, the number of such routes operating today will remain frozen at their current level, because the new legislation fails to repeal the provision of the Passenger Rail Investment and Improvement Act of 2008 (PRIIA), which defines the “national network” as consisting only trains whose routes were at least 750 miles long, and which were running when that legislation took effect.
Changes to the Amtrak Board and Other Provisions
There will be some changes to the Amtrak Board under §22202(a). The most interesting might be in §22202(a)(1)(A), which replaces the President of Amtrak with the Chief Executive Officer as a Board member. David Gunn had gotten flack when the President was added to the Amtrak Board while he held that job. The positions were split recently, with Stephen Gardner as President and William Flynn as CEO. The placement of Flynn on the Board instead of Gardner may come as a surprise to “Amtrak watchers,” especially those who are familiar with Gardner’s long record as a political operative.
Otherwise, there will be one Board member with a disability, who is familiar with accessibility issue in passenger rail or commuter rail (§22202(a)(1)(B)). Other members will be geographically diverse, divided among those who live along the NEC, long-distance routes and state-supported routes.
Section 22203 requires Amtrak to maintain ticket agents at stations that were staffed as of Oct. 1, 2017 (when a number of agents were removed) and which averaged 40 or more daily boardings and alightings during FY2017. Section 22204 increases oversight of changes to long-distance routes, including requiring “a detailed description of any plans to permanently change a route’s or a service’s frequency or station stops for the service line” (§22204(b)(2)(B)). Section 22205 calls for increased oversight of Amtrak’s accounting, while §22206 calls for increased oversight of Amtrak’s spending, with detailed procedures to monitor such spending. Section 22207 calls for “Increasing service line and asset plan transparency” and also contains detailed procedures for achieving that objective.
Section 22208 concerns “passenger experience enhancement” and, significantly, strikes Mica’s old restriction about food service that specified “only if revenues from the services each year at least equal the cost of providing the services” (§22208(a)). Otherwise, there seems to be little in the legislation that requires immediate changes. Rather, §22208(b)(1) establishes a “Food and Beverage Service working group” to study and report on proposed changes. It would include representatives from Amtrak, the unions representing workers who provide such on board services, participating states when considering such services on state-supported trains and, significantly “nonprofit organizations representing Amtrak passengers” (§22208(b)(a)(2)(C)). This could be a significant outreach to the organizations that advocate on behalf of Amtrak’s riders. Currently, the two such organizations of national scope are the Rail Users’ Network (RUN) and the Rail Passengers Association (RPA). With the requirement for such membership stated in the plural, rather than the singular, it appears that Congress is requiring Amtrak to reach out to those two organizations when it comes to improving food and beverage service, at least eventually. The bill did not address Amtrak’s current practice of restricting dining cars to sleeping car passengers only and regularly reminding coach passengers of that fact with numerous announcements throughout the day.
Section 22209 provides a concrete enhancement of the customer experience: prohibiting “vaping” as part of its ban on smoking.
Section 22210 is headlined “Protecting Amtrak Routes Through Rural Communities” and essentially reaffirms prior policy. It says: “Discontinuance or Substantial Alteration of Long-distance Routes: Except as provided in subsection (c), in an emergency, or during maintenance or construction outages impacting Amtrak routes, Amtrak may not discontinue, reduce the frequency of, suspend, or substantially alter the route of rail service on any segment of any long-distance route in any fiscal year in which Amtrak receives adequate Federal funding for such route on the National Network.” This is essentially the established policy, but a new provision, §22210(d), requires 210 days’ notice to members of Congress who represent states or districts where the discontinuance would occur. Presumably this provision was added to prevent another sudden service reduction, like the cut in long-distance service to tri-weekly that began last October and lasted until the beginning of this past summer.
Section 22211 establishes new requirements and procedures for a State-Supported Route Committee. The provision concerns methodology for reports from the committee, efficiency, and evaluation of state payments to Amtrak for running state-supported trains. Amtrak must provide monthly invoices to the committee and the sponsoring states (§22211(b)(1)), consulting and cost-methodology requirements when establishing new state-supported routes (§22211(g)(1) and (2)), and updated cost methodologies (§22211(h)). Section 22112 concerns enhancing cross-border services into Canada, although it has not yet been determined when (or if) those trains will return to the rails. Section 22213 is titled “Creating Quality Jobs” and contains certain prohibitions on contracting work out, especially work that had been performed by a furloughed employee.
New Long-Distance Trains?
Section 22214 calls for a study to evaluate restoring daily intercity service along routes that were discontinued or ran on non-daily schedules, as of the date of enactment of this Act (§22214(a)(1) and (2)). The provision also sets out methodology for the study (§22214(b)), other factors to consider (§22214(c)), and requirements to consult with certain parties (§22214(d)). Significantly, §22214(d)(6) includes “nonprofit organizations representing Amtrak passengers” in the list of entities to be consulted. As noted in comments concerning food and beverage service, they include RUN and RPA.
It is also significant that the study, under the supervision of the Secretary of Transportation, can consider restoring service on routes that operated in April 1971, but not under Amtrak auspices since that time. The “other factors” to be considered under that section include: “ taking into consideration whether those new routes would (1) link and serve large and small communities as part of a regional rail network; (2) advance the economic and social well-being of rural areas of the United States; (3) provide enhanced connectivity for the national long-distance passenger rail system; and (4) reflect public engagement and local and regional support for restored passenger rail service.”
The new legislation does not expressly repeal the definition from PRIIA (41 U.S.C. §24102(5)(C)) that freezes the long-distance network, even though the above-quoted provision seems to be inconsistent with it. It appears that the two can only be harmonized if the mandated study is conducted, but all of its recommendations that call for restoring trains are ignored, since any new long-distance trains must be treated as state-supported trains for funding purposes; a condition that has never been met with full success for any new Amtrak service ever operated with state support. It remains to be seen whether or not any new long-distance routes will ever be established and operated.
There is also a troubling ambiguity in §22214(b)(5), which states that the study shall: “identify Federal and non-Federal funding sources required to restore or enhance the services described in paragraph (1), including (A) increased Federal funding based on applicable reduction or discontinuance in service; and (B) options for entering into public-private partnerships to restore that service.” While the private sector has not embraced experimentation as described in subsection (B), subsection (A) could pose a severe problem: Would some or all of the Federal funding mentioned in the provision come from savings that result from discontinuing trains or reducing services in other ways? While that idea does not appear to fit into a statutory provision that expressed the intent of expanding and enhancing service, it nonetheless raises the possibility of implementing “applicable reduction or discontinuance in service” on some routes to help pay for service enhancements elsewhere. Unless that ambiguity is resolved in a manner that unequivocally affirms that no services or trains will be reduced or discontinued, no train that currently runs is completely safe for the five-year duration of the new statute, and the entire purpose of expanding the Amtrak national network will be thwarted. Again, the devil is in the details, and in the implementation, so time will tell what actually happens, despite purported legislative intent.
Other Intercity Passenger Rail Policies
Subtitle C covers these policies, starting with the Northeast Corridor, at §22301. Section 22301(a)(1) calls for a Northeast Corridor Service Development Plan, to be completed by March 31, 2022. It will be prepared by the Northeast Corridor Commission, an existing organization whose members are the transportation commissioners of the states along the NEC (the head of NJ Transit occupies New Jersey’s seat). It will provide a 15-year plan covering projects along the corridor, and identifying service objectives and capital investments required to meet them. There is also a requirement for annual capital investment plans with a five-year planning frontier. Section 22302 gives the Northeast Corridor Commission direction toward implementing these policies.
Section 22303 calls for consolidated rail infrastructure and safety improvements. Section 22304 authorizes restoration and enhancement grants on a more-generous formula than the one specified in the Passenger Rail Reform and Investment Act of 2015 (codified at 49 U.S.C. §22908(e)(3)). The old formula limited grants to 80% of the projected net operating costs for the first year of service, 60% for the second year, and 40% for the third year. The new formula extends the life of the grant to six years, with new amounts of 90% of the projected net operating costs for the first year, 80% for the second year, 70% for the third year, 60% for the fourth year, 50% for the fifth year, and 30% for the sixth year.
Section 22305 specifies a railroad grade crossing elimination program, and §22306 deals with interstate rail compacts. One of the purposes of that provision is “promotion of intercity passenger rail operation” (§23306(a)(3)), but there is a limit of ten such grants of not more than $1 million each per year.
Section 22307 calls for a Federal-state partnership for intercity passenger rail grants. Categories for eligible capital projects include state of good repair, performance improvements and new services.
Section 22308 establishes a Corridor identification and development program by adding a new Chapter 251. The new chapter establishes eligibility, requirements and considerations for establishing new corridors. It also specifies a process whereby eligible entities can submit proposals for starting such corridors, including service development and funding plans. An “intercity passenger rail corridor” is still defined as a route less than 750 miles long.
The Surface Transportation Board (STB) has recently become involved with some issues concerning passenger rail, notably, the effect of host railroads on Amtrak’s on-time performance, and settling disputes between Amtrak and private sector railroads, including the initiative to start service between New Orleans and Mobile, Ala. Section 22309 is concerned with initiatives such as these.
Subtitle D, beginning a §22401, pertains to Rail Safety, and includes a number of provisions that set out technical rules and procedures for enhancing it. They pertain to grade crossings, lighting, a study to determine operation and maintenance costs for positive train control (PTC), a comprehensive safety review of Amtrak, crew training, hours of service, speed limits, freight cars, and several other topics.
Provisions for Transit
Division C, which starts at §30001, is about transit. Its provisions concern transit generally, with little that specifically refers to rail transit, especially light rail or streetcars. The current phrase is “fixed guideway” systems, which include busways, as well as local rail transit. “Commuter” rail, a term that the aftermath of the COVID-19 virus appears to be heading toward obsolescence, is covered in some of the rail-related provisions described earlier.
Probably the most important section about transit is §30017, which specifies authorizations for transit during the next five years under 49 U.S.C. §5338, and also specifies how such grants are allocated. The amounts are: $13.355 billion for FY 22, $13.364 billion for FY23, $13.990 billion for FY24, $14.279 billion for FY25, and $14.642 billion for FY26. Comparing the percentages for transit to the combined highway-plus-transit totals for the next five years, it comes out to 19.4%, 19.0%, 20.4%, 20.4%, and 20.1% for each of those years. The American Public Transportation Association (APTA) has historically campaigned for a 20% modal share for transit, and that share has traditionally been lower; often about 18%. Transit’s percentage will make the 20% benchmark during the time the new statute is in effect, but the question remains whether a 20% modal share of appropriations for transit is sufficient to fight climate change, environmental degradation and class-based disparities in mobility by strongly encouraging more Americans to use transit as an alternative to constant automobile use, or to improve mobility for persons who depend on it.
Sections 30002 through 30004 set rules for metropolitan planning organizations (MPOs), which engage in planning at the local level and approve grant requests to the Federal Transit Administration (FTA), although there is no requirement that MPOs be required to include persons who depend on transit or advocates for better transit as members.
Section 30005 is concerned with fixed guideway capital investment grants, which would include rail transit. The provision contains a number of amendments and new procedures, including a new practice of “Immediate Bundling” as described in §3005(a)(5), which makes it easier for an applicant to bundle two or more related projects together. That provision will smooth the path for applicants to ask for grants for several components of a mega-project (like the proposed Gateway Program between New York’s Penn Station and nearby New Jersey), but would also make it difficult to downsize or otherwise change a project in response to changed circumstances (such as the current downturn in traditional “peak-hour” commuting, which would reduce the need for commuter-oriented infrastructure).
Section 30007 deals with “Public Transportation Innovation” but not specifically in regard to rail. There is a higher-education component to the program, although much of it deals with electric vehicles, especially buses. There are other topics in the transit-oriented provisions, including transit in rural areas, bus testing facilities, transit-oriented development (TOD), safety issues, state-of-good-repair grants and provisions relating specifically to the Washington Metropolitan Area Transit Authority (WMATA, where there are several rapid transit lines).
As expected, the transit industry lauded the passage of the bill. APTA released a statement saying: “This legislation is vital to building the American infrastructure of the future and is a necessary step in providing the transformational investment in public transportation infrastructure that our country so desperately needs” and “this bill will build infrastructure that will make public transportation faster, more modern, and more reliable, while tackling climate change, advancing equity issues, and providing growing communities sustainable mobility options. These are issues we can no longer ignore, and with enactment of this legislation, the public transit industry will be uniquely positioned to address these issues head on.”
John Cline, Director of Government Affairs for the Commuter Rail Coalition, which represents the nation’s regional/commuter railroads, sounded a more cautionary note. He said this in a “Washington Update” memo to members: “A key footnote to all this however deals with the importance of enacting a FY 2022 Appropriations bill. As you know we are currently operating under a Continuing Resolution [CR] that is set to expire Dec. 3. If the parties are unable to resolve their differences, we could end up with one or multiple Continuing Resolutions that extend through the end of the fiscal year.” He added: “If an annual appropriations bill is not enacted, the additional funding envisioned in this infrastructure bill could be at risk, because as you know, CRs generally restrict spending to the previous year’s spending limits plus some marginal inflationary allowance. That is the structure of the CR we are operating under currently.”
For riders on Amtrak and transit, the bill could also prove to be a mixed bag. More money should mean more trains and more transit but, in these inflationary times, there is always the question of how far the authorized funding in the bill will really go toward enhancing mobility for persons who depend on transit and Amtrak, or toward providing a viable alternative means of transportation for motorists.
At least one portion of the transit industry has expressed its concerns, and riders have reason to express their own, especially about Amtrak. In today’s politically divided nation, the Biden Administration and Congressional Democrats probably did well to get as much as they got. Amtrak’s supporters and transit advocates could probably have devised an alternate plan that would have served Amtrak and transit riders better, but the opposition to any sort of public transportation, especially from rural areas and other places that have little or none of it, remains strong and tenacious.
The package could have done more for riders if some provisions had been different, but that particular discussion and any potential suggestions for improvement lie beyond the purview of this article. Time will tell how much the provisions end up improving mobility overall, especially for persons who depend on transit. In the meantime, some money should soon be coming, which will keep Amtrak and transit alive. It will also spend a lot on highways, but that would have happened in any event.
David Peter Alan is one of America’s most experienced transit users and advocates, having ridden every rail transit line in the U.S., and most Canadian systems. He has also ridden the entire Amtrak network and most of the routes on VIA Rail. His advocacy on the national scene focuses on the Rail Users’ Network (RUN), where he has been a Board member since 2005. Locally in New Jersey, he served as Chair of the Lackawanna Coalition for 21 years, and remains a member. He is also a member of NJ Transit’s Senior Citizens and Disabled Residents Transportation Advisory Committee (SCDRTAC). When not writing or traveling, he practices law in the fields of Intellectual Property (Patents, Trademarks and Copyright) and business law. The opinions expressed here are his own.