Welcome to Transportation Law Today

Managed by Paul J. Loftus, a partner at Dinsmore & Shohl LLP, Transportation Law Today provides professionals in the rail, transit, inland maritime, and trucking industries with current news and analysis of laws, rulings, and regulatory policies.

Thursday, January 21, 2016

FRA Touts Record Penalty Collections in 2015

The Federal Railroad Administration (FRA) announced yesterday that it collected a record 75% of civil penalties issued to railroads for violations of federal safety regulations in fiscal year 2015.  As noted in its press release (attached here), the FRA increased its collection rate 6% (over FY 2014), which equates to $15 million collected on $21 million in fines initially assessed.  The $21 million dollar figure represents the total fines for violations resolved in FY 2015, which includes violations from prior years.  However, the amount initially assessed for civil penalties transmitted in FY 2015 is actually higher, at $22.4 million.

Also available from the FRA is the full FY 2015 Enforcement Report, which is attached here.  Noting that its "enforcement push is part of a broader effort to increase railroad safety," a review of the full report indicates that although violation fines were reduced by roughly 25% from their initial penalty assessments, a mere 126 violation reports (of 6,485 issued), were "declined during legal review."  That represents a paltry 1.9% of violations being dismissed by the FRA. 

The numbers of the FY 2015 Enforcement Report clearly bear out the "enforcement push" of today's FRA, indicating the vast majority of violations issued will result in some payment by the entity receiving the violation.

Tuesday, October 13, 2015

FTA to Assume Safety Oversight of Washington Metro - Not FRA

Secretary of Transportation, Anthony Foxx, announced on Friday that the Federal Transit Administration (FTA), would assume safety oversight authority over Washington's Metro rail operations  (i.e. the Washington Metropolitan Area Transit Authority - WMATA).  Foxx's announcement was addressed to NTSB Chair Christopher Hart, whose agency had recommended USDOT's Federal Railroad Administration (FRA) assume oversight of Metro's transit rail/subway operations.  Foxx's letter to the NTSB explaining the FTA, not FRA, would assume direct safety oversight of Metro, is attached here. 

The NSTB's "Urgent Safety Recommendations" R-15-31 and R-15-32, which recommended FRA safety oversight, are also attached.
Until this breaking announcement,  responsibility for safety oversight of Metro's operations was held by the Tri-State Oversight Committee (TOC), a "State Oversight Agency" established under 49 CFR 659, whereby transit rail safety oversight is devolved from the FTA to state oversight organizations. Like the WMATA itself, which is a tri-partite compact of the governments of the District of Columbia, Maryland & Virginia, the TOC is comprised of representatives from those jurisdictions, and collectively charged with overseeing Metro's rail transit system.
Following recent mishaps, including a January 2015 tunnel fire which caused one fatality, both Metro's safety practices and the TOC were audited by the FTA.   Calling the current TOC "ineffective" and lacking the "technical capacity and enforcement authority to provide the level of oversight that is needed," Foxx nonetheless concluded the federal FTA had the capability and authority to assume safety oversight for Metro, rather than the FRA.  FTA now takes over direct oversight of Metrorail, which includes the ability to address safety deficiencies, and require WMATA to correct safety deficiencies and address an existing Corrective Action Plan between Metro and FTA.  
According to Foxx's letter, the direct FTA safety oversight of Metrorail will exist until a more effective and "fully capable" State Safety Oversight organization (than the current TOC) is established by DC, Maryland & Virginia.


Wednesday, October 7, 2015

Coast Guard to Suspend El Faro Search - NTSB to Lead Investigation

At a joint press conference this afternoon, the Coast Guard announced its plans to suspend its search efforts related to the loss of the El Faro container ship, after 7 days of active search efforts.  According to Coast Guard officials, the Coast Guard never had any direct contact with the missing vessel, but was only provided its approximate position at the time of the last contact between the vessel and the owner, TOTE Maritime.  Attempts to make contact with the ship by Air Force Hurricane Hunter Aircraft and other vessels in the general vicinity of the El Faro when it reported loss of power were unsuccessful.
The NTSB also announced that although both it and the Coast Guard have authority to conduct marine casualty investigations, the NTSB would be the lead investigative agency and that under its investigative procedures, it would determine probable cause of the accident.  "Parties" to the NTSB investigation were named as the Coast Guard, the American Bureau of Shipping, and TOTE Maritime. 
A link to the NSTB page detailing its on-scene efforts for the investigation is attached here.

Monday, October 5, 2015

House Bill Would Extend PTC Deadline, While Shippers Seek to Force Rail Carriers to Carry TIH/PIH cars

First of all . . Welcome to the new format of "Transportation Law Today" which has been in hiatus for few months, but the blog is back and thanks for your patience.
House Bill, H.R. 3651, the "Positive Train Control Enforcement & Implementation Act of 2015" introduced by T&I Committee Chairman Bill Shuster (R-PA), with at least 76 sponsors, finally offers a vehicle to address the looming 12/31/15 deadline for Positive Train Control implementation.  The Act would extend the implementation deadline three additional years, or until 12/13/2018, with the potential for a one-time, discretionary extension of an additional 12 months if the Secretary of Transportation determines the criteria for such an extension in the Act are met.
This bill would extend the current congressionally-mandated deadline for PTC implementation, a development virtually all stakeholders recognized was necessary to prevent severe fines for noncompliant railroads by the FRA.  An extension also addresses the threatened cessation of rail service by carriers of Toxic/Poisonous by Inhalation (TIH/PIH) materials, and passenger traffic over non-compliant freight rail networks whose tracks are used by Amtrak and commuter railroads.
In a related development, TIH/PIH shipper associations the American Chemistry Council, the Chlorine Institute, and the Fertilizer Institute, have filed both a lawsuit against the Class I railroads in U.S. District Court in Washington, as well as Petition for Declaratory Order before the Surface Transportation Board.  Both the suit and the STB Petition seek rulings that railroads cannot embargo, or fail to transport, chemical shipments after 12/31/15 if PTC is not yet implemented, but rather, the statutory Common Carrier Obligation of 49 USC 11101 requires the railroads to transport the cars. 
The statutory extension of H.R. 3651 would eliminate both the enforcement deadline, as well as the threat of embargoed chemical & passenger traffic.
At present the stakes are still high as the PTC deadline is not yet resolved, however, with the introduction of H.R. 3651, at least path to an extension finally exists.

Tuesday, September 9, 2014

FRA Publishes Train Securement Rule

The Federal Railroad Administration (FRA) published a proposed rule today covering the securement of unattended train equipment, largely codifying its Emergency Order 28 issued in 2013. Emergency Order 28 was issued in response to the Lac Megantic train disaster in Quebec, where an unsecured train carrying crude oil rolled down grade, derailed, and exploded in the Canadian town. See our prior posts on that topic here and here.

Today's NPRM, and press release, explain the additional requirements for securing and attending crude oil trains, and others carrying poisonous by inhalation materials (PIH). The proposed rule was developed in collaboration with industry via the Rail Safety Advisory Committee. Written comments in response to the NPRM are due November 10, 2014.

Thursday, July 24, 2014

Maryland LNG Export Terminal Clears Another Hurdle

The State of Maryland has granted a key approval for the controversial proposed Liquid Natural Gas (LNG) terminal at Cove Point in Southern Maryland. The action by Maryland's Board of Public Works, which consists of Governor, Martin O'Malley, the state Comptroller, and Treasurer, is another step toward completion of the export terminal. The three member Board actually approved a permit for Virginia-based Dominion to build a pier in the Patuxent river to allow construction materials to be moved by barge for construction of the terminal. Final approval of the project still rests with the FERC.

The Cove Point project is controversial, as noted by the Baltimore Sun in its coverage of yesterday's hearing and approval, which occurred after more than 2 hours of testimony before the Board. The Cove Point project also underscores the unresolved status of hydraulic fracturing in mountainous, and economically challenged, Western Maryland. Maryland has not approved fracking in the state, whereas neighbors Pennsylvania and West Virginia are in the midst of a major energy boom from fracking activity.

Maryland is currently under a moratorium for fracking permits/drilling pending a report expected this fall by an Advisory Commission set up by O'Malley. Maryland's reluctance to permit gas development in Western Maryland, or at least its cautious approach to the process, sets up an interesting situation where natural gas produced in surrounding states may be exported by a terminal in Maryland, even though Maryland has not yet permitted hydraulic drilling within its borders.

Tuesday, July 22, 2014

Foxx and 11 Former DOT Secretaries Call for Long Term Infrastructure Funding

With a short-term fix to the looming expiration of funding for the Highway Trust Fund expected shortly, USDOT Secretary Anthony Foxx, and 11 former USDOT Secretaries, have issued an "open letter" to Congress, urging a long-term solution to transportation infrastructure funding. The open letter is attached here.

Foxx and his predecessors emphasize that the expected short term funding does not "fix" America's transportation system. Noting that the USDOT Secretaries have lead the department for 35 years under 7 presidents, they write: "Suffice it to say we've been around the block. We probably helped pave it." The Secretaries also stated, "So it is with some knowledge and experience that we can write: Never in our nation's history has America's transportation system been on a more unsustainable course."

Other highlights from the open letter:

"This is no way to run a railroad, fill a pothole, or repair a bridge. In fact, the unpredictability of when, or if, funding will come has caused states to delay or cancel projects altogether."

"America needs to break this cycle of governing crisis-to-crisis, only to enact a stopgap measure at the last moment. We need to make a commitment to the American people and the American economy."

"Until recently, Congress understood that, as America grows, so must our investments in transportation. And for more than half a century, they have voted for that principle -- and increased funding -- with broad, bipartisan majorities in both houses. We believe they can, and should, do so again."