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Getting Started and Negotiations 13 and maintained by Washington State DOT (WSDOT), summarized in the case study below and discussed further in Appendix D. CASE STUDIES 1 Washington State Long-Term Rail Planning In 1993, following completion of a detailed feasibility report, the Washington state legislature directed WSDOT to develop a plan for incremental development of high-speed ground transportation in the state. The primary motivation was to relieve growing congestion on the Interstate 5 northsouth corridor between Portland (Oregon) and Seattle. Shortly afterwards, an agreement was reached with BNSF to work cooperatively on railroad improvements to benefit both pas- senger and freight services. Although the main focus of the WSDOT plan was for passenger rail, complementary work elements were incorporated that add up to a comprehensive process for developing the railroad network in western Washington State. These include: Cooperative modeling and analysis of railroad capacity to establish requirements for each increment of passenger and freight service. One of the key conclusions from this modeling is that a dedicated third track will be needed south of Tacoma for passenger service if the long-term goals for trip time and ridership are to be attained. Development of the FAST freight rail assistance program to improve freight flows in the Puget Sound region, including to and from ports and the main lines through the Cascades to the east. Development of the Sounder northsouth commuter rail service between Tacoma, Seattle, and Everett. Note that the plan does not commit WSDOT to specific expenditures in each plan year. Instead, it lays out a sequence of projects to be implemented as funding and travel demand permit. Development of a long-term rail plan begins by collecting and building on all pertinent prior surface transportation studies, including rail, highways, ports, and border crossings. The plan should articulate a long-term vision for the roles of passenger and freight rail in the state and then describe practical incremental steps to realize the vision. Given the typical time frames involved in implementing transportation projects, the plan should look forward 25 years or more. It is important to secure the cooperation of the private freight railroads in the planning effort, to make sure their interests are represented and that the completed plan meets both passenger and freight service needs. Plans should be regularly updated to reflect changing conditions and projects com- pleted since the previous update. 2.2.5 Is the Proposed Service Amtrak Intercity or Commuter? Negotiations over access to a freight railroad corridor and access fees for an Amtrak intercity (corridor) service are very different from those for commuter service. If it is an intercity passen- ger service, then Amtrak must be involved and will have a major role in the negotiations. At the same time, the state or local agency planning passenger service must negotiate with Amtrak on its costs, equipment availability, and related matters.

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14 Guidebook for Implementing Passenger Rail Service on Shared Passenger and Freight Corridors Commuter rail agencies are in a very different negotiating position. Amtrak is not involved, and its access rights cannot be exercised for a commuter rail agency. The state or local agency has to negotiate access and fees on its own, with little assistance from other parties. The FTA will pro- vide capital grants for new starts or service expansions under the FTA's New Starts program to qualified applicants but provides no support during negotiations. The FRA has no role in com- muter rail developments other than ensuring compliance with applicable safety regulations. However, the STB can now assist with non-binding mediation should the parties fail to agree on terms of access, thanks to a provision in Section 401 of PRIIA. Further discussion of the STB's assistance is provided in the following paragraphs and in Section B.8 of Appendix B. However, the STB is still developing procedures for commuter rail mediation, and the practical impact of this assistance has yet to be determined. The following subsections provide an overview of the differences between Amtrak intercity and commuter rail regarding access to the railroad network and access pricing. Separate sections are provided elsewhere in this Guidebook where these differences affect the relationships between rail- road operations sharing the same corridor. Note that here and elsewhere in this Guidebook, com- muter service refers to short-haul passenger service that does not qualify for Amtrak access rights under the applicable statutes. This definition is different from that applied by the FTA and other federal agencies in determining eligibility for grants under various programs. Shorter-distance Amtrak intercity services have received grants from the FTA, such as the Downeaster service between Boston, Massachusetts, and Portland, Maine, and the service between Philadelphia and Harrisburg, Pennsylvania. These services are sometimes described as commuter services but do not fit the definition of commuter service in the Amtrak statutes and related STB and court decisions. Amtrak Intercity Service Any passenger service intending to secure access to the railroad network under Amtrak's rights must involve Amtrak in planning from an early stage. Amtrak must be the operator and the for- mal requester to the freight railroad for access under its rights. Amtrak officials responsible for state-sponsored services are available to discuss proposals and provide help in carrying out fea- sibility studies. Such feasibility studies should involve purely Amtrak issues, such as realistic ridership and revenue estimates, the provision and maintenance of passenger cars and loco- motives, provision of train crews and choice of on-board services, and the costs associated with these functions. Issues that are of interest to the host railroad as well as Amtrak include capacity estimates, infrastructure upgrades to increase speeds and capacity, and infrastructure-related capital and operating costs. Amtrak staff members are available to guide the state agency through this process and will usu- ally have existing relationships with host railroad officials. They will be familiar with the railroad's likely concerns over added passenger service. However, their time is limited, and the state is likely to need additional support from consultants. Amtrak's right of access and dispatching priority, although essential for securing access to the railroad network at favorable cost, does not guarantee high-quality service. Recent experience on Amtrak's core routes (those lacking state support) shows that maintaining adequate service qual- ity on a busy freight corridor can be difficult. As freight traffic has increased, Amtrak has experi- enced declining service quality and increasing costs on some of these services. Amtrak's preferred approach to addressing these problems is to first identify the route segments where traffic conges- tion and slow orders are disrupting service and then work with the railroad to develop a program of improvements to address the causes of delay. The FRA has also assisted Amtrak with investi- gating delay causes on some routes. Often, the difficulties that disrupt passenger operations also disrupt freight operations, so there is a mutual interest in taking corrective action. Improved man- agement focus and a structured program of problem identification and correction have generally yielded measurable improvement.

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Getting Started and Negotiations 15 Recent developments have provided Amtrak with more capabilities to address service quality issues: PRIIA gave the STB the explicit task of investigating poor OTP, defined as below 80 percent on time, and making recommendations for reasonable actions to improve OTP. If the investigation finds the host carrier at fault, the STB may impose damages or other relief on the part of Amtrak. Prior to this legislation, Amtrak was limited to the performance incentives and penalties in its contracts with host railroads. Poorly performing railroads often "maxed out" penalties for train delays under Amtrak operating agreements and incurred no additional penalty for a further service degradation. Amtrak may also ask the Department of Justice to bring a lawsuit to enforce Amtrak's dispatching priority over freight trains, although this power has been rarely, if ever used. Starting with the modest program in Fiscal Year 2008, and with ongoing authorization in PRIIA and funding from ARRA, funds are becoming available for intercity passenger rail developments, a portion of which are explicitly designated for relieving congestion problems. For the first time, Amtrak and state agencies have capital funds with which to address congestion and delay prob- lems that cannot be corrected by a focus on operations and maintenance issues. Commuter Rail Service Until recently, commuter rail service operators (defined in this Guidebook as services that do not qualify for Amtrak's access rights) had to negotiate with the freight railroads alone. They had no support from Amtrak, and there was no institutional support for them elsewhere. Before its demise in 1995, the ICC did have passenger rail responsibilities and could provide technical assis- tance and limited help with obtaining a fair agreement. These responsibilities were eliminated when the STB replaced the ICC, and the relevant federal agencies (i.e., the FRA, the FTA, and the STB) had, until recently, no role in negotiations for commuter rail access. This situation placed the prospective host railroad in a strong position to either refuse to negotiate or to demand a high price for accommodating passenger service. However, PRIIA gave the STB new powers to assist agencies seeking to implement commuter rail service on freight railroad track. If the parties are unable to reach a mutually acceptable agree- ment on their own, the STB can conduct non-binding mediation to help resolve the situation. In spite of the non-binding nature of this mediation, it would likely be difficult for a freight railroad to reject a reasonable agreement that meets both parties' stated requirements. Another potential barrier is that many commuter projects depend on funding from the FTA's New Starts program. Not only is the grant application process costly and time consuming, but the program also requires an agency to have a railroad access agreement in place before a grant can be approved, which places a commuter rail agency in a difficult position. The freight railroad may be reluctant to negotiate without the funding, but the passenger operator cannot assure fund- ing before negotiations. This situation is especially difficult for new agencies lacking a record of successful grant applications. Agencies seeking to grow an existing service are in a better position to provide credible assurances that their project is eligible for FTA funding. In spite of this situa- tion, however, passenger agencies have been able to navigate the process with flexibility from all parties. Further details of the FTA New Starts process and possible constraints on the access nego- tiations are provided in Appendix B, Section B.10. Although the process of starting a commuter rail service may be frustrating and time consum- ing, the hurdles can and have been overcome. Several new commuter rail services operating in part over busy freight railroadowned corridors have been initiated over the last 20 years--the Metrolink system in Los Angeles, the Sounder (Seattle to Tacoma area) services in Washington State, and the Virginia Railway Express services in the northern Virginia suburbs of Washington, D.C. Others--such as the West Side Express in Portland, Oregon; the Music City Star in Nashville,