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Getting Started and Negotiations 25 2.4.2 The Access Agreement and Infrastructure Improvements The Access Arrangement The first issue to negotiate with the host railroad is the basic access arrangement for the cor- ridor of interest. There are sharp differences between access for Amtrak intercity service and access for a commuter service. Amtrak. Amtrak intercity service has the right of access. A host railroad cannot simply refuse to accommodate a new intercity service but can seek mitigation in the event that passenger ser- vice requirements would unreasonably impair freight operations. The likely scenario would be that the freight railroad would indicate that it is unable to provide the desired service performance on a busy corridor, even with passenger train dispatching priority, leading to a negotiation on what infrastructure and operations management improvements would be required. A freight rail- road corridor that does not support an existing passenger service is unlikely to have both suffi- cient capacity and physical capability to support a high-quality passenger operation. This means in most cases that the passenger agency must fund infrastructure improvements. In most cases, Amtrak intercity service operate over corridors owned by freight railroads, plus a few segments owned by commuter rail agencies. The principal exceptions are the NEC, major passenger terminals, and a segment of the Chicago to Detroit corridor. New Amtrak intercity ser- vices are likely to also be operated over infrastructure owned by other parties. In a few instances, where freight traffic is low and extensive infrastructure improvements are required, it may be more attractive for the passenger rail agency to acquire the corridor or adopt one of the other alter- native approaches, as discussed in the commuter rail section below. Commuter Rail. Commuter rail has no right of access and must negotiate at arm's length with the host railroad. Access will be provided at a cost to the commuter rail agency separate from shar- ing operating and maintenance costs. Without Amtrak's access rights, access costs can be high, prompting passenger rail agencies to seek alternative approaches. Several access models exist, depending on local circumstances, up to and including acquisition of the rail corridor from the prospective host. Because grants are available for capital costs, commuter agencies almost always prefer the access payment to be in the form of a one-time capital investment rather than ongoing payments for train- miles operated. Approaches for securing access include the following options: · Access Existing Track. The passenger rail agency can negotiate access to existing freight tracks, which on already busy routes may require added capacity and track and signal system upgrades. This approach makes the most sense where the corridor is a key link in a freight network and the owner will not consider a sale. It is also the approach commonly taken for intercity services, because the desired routes are less likely to be realistic purchase candidates and often carry sub- stantial freight traffic. Within this general category, there are three approaches to ensuring that passenger service requirements can be met: ­ Pay a lump sum for a perpetual easement on a freight railroad corridor to operate a speci- fied passenger rail service. The agreement specifies the number of trips, journey time, and schedules, but the railroad takes responsibility for selecting the infrastructure improvements needed to deliver the service. The Sounder service north from Seattle to Everett, Washington, took this approach. ­ Fund agreed-upon infrastructure improvements in the corridor to meet passenger service requirements. This approach is probably the most common where purchase of the line from the host freight railroad is not a realistic option. ­ Pay for access as an ongoing usage payment, based on train-miles operated. An example of this approach is the Sounder service from Seattle southward to Tacoma, Washington. This approach means that access must be paid for as an ongoing operating expense.

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26 Guidebook for Implementing Passenger Rail Service on Shared Passenger and Freight Corridors · Expand Existing Arrangements. If the project is for further development of an existing ser- vice, the usual approach is to expand on existing arrangements with the freight railroad and make whatever infrastructure investments necessary to provide the required capacity and facil- ities. However, intervening developments in both passenger and freight traffic may be such that the parties decide to negotiate a new agreement on a different basis. An example of this is the commuter rail service between Boston and Worcester, Massachusetts. When first established, this service operated over CSX Corporation (formerly Conrail) track between Framingham and Worcester. More recently, changing conditions, including service quality problems on CSX ter- ritory, the likelihood that a CSX intermodal terminal in Boston will be relocated, and a desire to increase passenger train frequencies, have led to proposals for MBTA, the operating agency, to acquire the right-of-way (ROW) with CSX continuing to provide freight service. · Purchase the Rail Corridor. Provided the passenger volume is adequate (probably a minimum of eight to ten round trips per day for all services in the medium term) and it is not a key freight corridor, then it can make sense for the passenger agency to purchase the corridor. The freight railroad would continue to have access to the line for freight service. The advantage for the pas- senger operator is that access is guaranteed, and the advantages for the freight railroad are that it receives a substantial up-front payment for the corridor that can be invested elsewhere on its system. The availability of a corridor for purchase depends on how the freight railroad views the future use of the line. The Class 1 railroads are still active in mergers and spin-offs, purchasing regional railroads to extend their service territory and selling lines to concentrate their efforts on high-volume corridors. This approach has been widely used in the past, for example by Los Angeles Metrolink, and has generally been successful. An issue that has arisen is that the freight railroad may later want to operate more trains on the passenger-owned corridor than was expected at the time of the original agreement. It is important to be explicit regarding future freight access in the purchase negotiations. The agreement should spell out any limits on freight use (number of trains, time- of-day restrictions, etc.) and how a request to expand freight use beyond the agreed-upon lim- its should be managed and financed. A very recent example of a line purchase is a proposed agreement by Florida DOT in conjunction with the Central Florida Commuter Rail agency to purchase 61.5 miles of CSX's A-Line from De Land through Orlando to Kissimmee, Florida, for a proposed commuter service. The purchase agreement was accompanied by a related agree- ment to help CSX upgrade the parallel S-Line for diverted trains and establish a new intermodal terminal at Winter Haven between Orlando and Tampa. · Acquire Space on Existing Freight Railroad Rights-of-Way and Build Parallel Track. Another approach is to purchase or lease space in the freight railroads ROW for an exclusive passenger track or tracks. This option is available where the ROW is wide enough and the freight railroad does not expect to need the space for additional sidings or running tracks. In the past, this option has been used most often for heavy rail transit service (such as in Atlanta, Georgia; Washington, D.C.; and more recently for commuter service in the Salt Lake City and Denver areas). Freight railroad concerns about accident liability have sometimes led to purchase conditions requiring high minimum lateral separation between passenger rail operations and active freight lines, or restrictions on the kinds of equipment that the passenger operation can use. These conditions sometimes make the parallel track option infeasible, especially if the agency is considering the use of non-FRA-compliant passenger equipment. Some corridors originally planned as a light rail transit service have been converted to conventional commuter rail using FRA-compliant vehicles to meet freight railroad purchase conditions. An example is the proposed Gold Line commuter service in Denver. Although the parallel track approach has mostly been applied to commuter rail or rail tran- sit developments, it has also been proposed as a way of providing a higher-speed passenger track in a freight railroad corridor. Examples include the long-range plans for a third passenger- exclusive track over portions of the Cascade corridor in Washington State. The track would be

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Getting Started and Negotiations 27 built and maintained to passenger rail standards and practices, for example, FRA Track Class 6 or higher, higher maximum superelevation on curves, and an FRA-acceptable PTC system for the planned speeds. With freight use limited to emergencies and maintenance activities, over- all costs are expected to be much lower than for a mixed-traffic high-speed line. A similar approach has been suggested for portions of the planned Midwest high-speed network. Unfortunately, commuter rail agencies do not have much leverage in access negotiations. A host freight railroad may take the position that existing freight capacity must be maintained, even during passenger service peak operations periods. As well as insisting on thorough analysis of capacity issues, as described in the following paragraphs and in Chapter 3, a commuter (and inter- city) passenger rail agency can identify other agencies in its state that have dealings with the rail- road to leverage existing relationships or develop a joint program, where appropriate. If all else fails, the agency could make use of non-binding mediation by the STB. Infrastructure Improvements Except where a passenger rail agency proposes to purchase an easement from the host railroad and will not be involved in infrastructure improvement details, the passenger rail agency, host railroad, and Amtrak (if intercity service) must reach agreement on infrastructure improvements needed to support each passenger service development stage. Every effort should be made to ensure the discussions focus on practical solutions to operating problems, supported by thorough and credible analysis. Objections by the host railroad are best countered by analysis to quantify the problem and identify solutions. In the case of Amtrak intercity service where there are dis- putes over the necessity of specific projects, if these issues cannot be resolved in negotiation, they can be taken to the National Arbitration Panel (NAP) or the STB for resolution. Chapter 3 pro- vides details of capacity and train performance analyses that are used to support infrastructure improvement decisions. Some other points on infrastructure improvements are: · The staged infrastructure investment plan must be designed to accommodate expected growth for the planned passenger service development. It may also be helpful to include expected freight growth in the analysis, if any, so that the parties are aware of potential freight-related investment needs and plans that coordinate shared investments to benefit both host and tenant. · Beyond the initial investment for the first stage in passenger service development, there must be a process for regular reevaluation of the infrastructure investment plan to adjust as external circumstances change. · While infrastructure investments will be required on most corridors in order to obtain desired service quality for a new passenger rail service, this may not always be the case. Much depends on the current use of the corridor. If the corridor already accommodates passenger service, then it may be possible to add further trips without investments. An example is the portion of the Boston, Massachusetts, to Portland, Maine, Downeaster service operated over MBTA com- muter lines in Massachusetts. The five daily round trips were added to existing commuter and limited freight operations on these lines with no investments, although with some time-of-day limitations. · The infrastructure investments must be tied explicitly to a specific passenger service frequency (planned number of trips) and performance level (scheduled trip time, average delay minutes, etc.). A staged program, where specific projects and the associated funding are tied to each fre- quency increment and/or journey time reduction in the master agreement, has worked well in the past. Absent this specificity, the passenger agency may fail to realize the expected benefits from its investments. On at least one occasion, a railroad accepted infrastructure funds that the funding agency expected would be used to support a specific service frequency without mak- ing an explicit agreement. The railroad then limited frequency at a lower level than the agency expected and required further investment to meet the original passenger service goal.