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.

Wednesday, December 28, 2011

Motor Carrier Hours of Service Final Rule Published

The Federal Motor Carrier Safety Administration (FMCSA) published its much-litigated final rule on hours of service for commercial truckers yesterday. The Final Rule is attached here.

See my post of November 30, 2011 in advance of the Congressional hearing on the latest version of the proposed rule.

As to the Final Rule, the FMCSA decided to keep the 11 hour daily driving maximum in place, rather than a 10 hour limit it initially proposed. The reasoning for abandoning the proposed 10 hour limit is:

"In the absence of compelling scientific evidence demonstrating the safety benefits of a 10-hour driving limit, as opposed to an 11-hour limit, and confronted with strong evidence that an 11-hour limit could well provide higher net benefits, the Agency has concluded that adequate and reasonable grounds under the Administrative Procedures Act for adopting a new regulation on this issue do not exist and that the current driving limit should therefore be allowed to stand for now." (See page 81135 of the Rule).

The Rule also contains various charts indicating the projected costs of the various hours of service options considered. The Agency concluded that the 11 hour rule: "represents a small fraction of one percent of trucking industry revenues and is the cost-equivalent of less than a 3 cent-a-gallon increase in the price of diesel fuel to the long-haul industry."

That an economic cost-benefit won out in the final decision is indicated by this comment on why the originally-proposed 10 hour maximum was rejected: "The 10-hour limit has positive benefits in approximately half the cases, with the 11-hour limit having substantially higher net benefits than the 10-hour limit in most cases. A 10-hour limit, on the other hand might save more lives and prevent more crashes than an 11-hour limit, but at a higher cost." (Also on page 81135).

Tuesday, December 27, 2011

2010 Transportation Safety Stats Mostly Improve

As a follow up to my post of December 9, 2011 about U.S. Highway fatalities sinking to an all-time low, the NTSB has released transportation fatalities statistics for all modes it covers (Highway, Rail, Marine, Aviation, and Pipeline).

The statistics are attached here as a table and a chart.

Total marine fatalities were down about 10% from 2009, with drops in casualties in recreational boating and commercial fishing.

Aviation deaths in 2010, none of which were from commercial accidents, fell by 13% from 2009.

Pipeline and Rail fatalities both saw increases. Total deaths from Rail increased to 813 in 2010 from 742 in 2009, an increase of over 9%. Transit fatalities are included in that total of 813, and from that mode 253 deaths were from Light, heavy and commuter rail.

Wednesday, December 21, 2011

Fed Maritime Law Trumps State Wrongful Death Limits, and If You Ever Wondered What One Tooth is Worth . . .

A couple of items today from Maritime law.

First, a Federal Court in Louisiana has determined that a state law that denies a remedy to the heirs of a deceased person in a wrongful death action, must fail in favor of general maritime law. In The Matter of Antill Pipeline Construction, Co., Inc. (E.D. La. 12/5/2011), the Petitioner in a Limitation of Liability Act sought to apply a Louisiana Statute, La. Rev. Stat. sec. 9:2798.4, which prohibits recovery by a deceased's estate when the deceased watercraft operator had a blood alcohol concentration over 0.08% and other conditions. The Court ruled that the Louisiana law's contributory negligence scheme (i.e. a scheme that would prevent recovery if the deceased is found 25% negligent as a result of the BAC level), conflicted with the comparative fault scheme of general maritime law. In general, under "comparative fault" a party is not excluded from recovery even if found to be at fault. Rather, recovery is reduced by the level of fault. In other words, the Louisiana law would work as an improper contributory negligence bar to recovery in a maritime wrongful death case, which is to be governed under comparative negligence as matter of the general maritime law.

Our second matter today, answers the question of how much one tooth is worth. And, apparently the answer is $2,500.00. The U.S. District Court for the Western District of Washington, in Delancy v. U.S. Seafoods, LLC, (W.D. Wash. 12/14/11), awarded a Jones Act claimant $2,500.00 for the loss of one tooth and several weeks of pain after the loss of a tooth after a fall from a ladder by the seaman. The amount awarded was substantially less than the $45,000.00 sought by the seaman.

Monday, December 12, 2011

STB to Determine if Rail Tariff requiring HazMat Indemnity from Shippers is Reasonable

The Surface Transportation Board (STB) announced its decision today to determine if a railroad's requirement of indemnity from shippers for hazardous material liability is reasonable.

The STB has accepted the Petition by the Union Pacific to determine if it is reasonable to include in its tariff, or shipping rates, for hazardous materials shipments, a requirement that the railroad be indemnified from liabilities arising from haz mat incidents caused by the shipper's negligence. The tariff-based indemnity provisions relate to the loading, sealing, and securing the commodity, or the condition of the equipment tendered by the shipper (known in the industry as the packaging). The UP's tariff does not indemnify it from liabilities cause by its own negligence or fault.

Procedurally, this issue is similar to a former ex parte docket item the Board had pending for some time (Docket EP-677). That docket was closed, after significant comment by carrier and shipper interests, in favor of an actual controversy rather than what the Board at the time considered a policy statement in the abstract.

Even though the petition before the Board is the UP's request to consider its tariff imposing indemnity requirements on its shippers, the Board has opened the proceeding to comment from the public, outside of the original parties to the petition. According to the Board's Order, anyone interested in joining the proceeding is to file with the Board by December 27, 2011.

Ultimately, this proceeding picks up where prior docket EP 677 left off to some extent in that the Board now has a live case to decide the reasonableness of rail carriers imposing indemnity obligations on the shippers of hazardous materials.

Occupy Movement to Target West Coast Ports - Port Workers Not On Board

An offshoot of the "Occupy" movement plans an attempt to shut down west coasts port facilities from San Diego to Alaska today, while the Union representing some 15,000 dock workers fails to endorse the protest.

The attached article from CNN, explains the International Longshore and Warehouse Worker's decision not sanction any shutdown.

San Diego port officials also called for no disruption of port operations, stating that the individuals who would be most affected by a work stoppage are among the 99% that the movement claims to champion.

Friday, December 9, 2011

U.S. Highway Fatalities Fall to Lowest Level Recorded

U.S. highway deaths in 2010 fell to the lowest level ever recorded. The attached announcement from the National Highway Traffic Safety Administration (NHTSA) notes 32,885 highway deaths, a reduction from 2009, even though highway miles traveled increased by 46 billion miles.

In explaining the Agency's emphasis on distracted driving and its data-collection efforts to measure it, an interesting survey about attitudes regarding distracted driving was mentioned. For example, three quarters of drivers reporting their willingness to answer cell phone calls on all, most, or some trips. Most drivers also noted their willingness to send a text message while driving, while at the same time reporting that if they were a passenger, they'd feel "very unsafe" if the driver was texting. The data seems to support a classic do as I say not as I do attitude toward texting while driving.

It is certainly laudable that highway fatalities continue to decrease. However, its difficult to feel pleased with only 32,000 deaths per year. The toll from highway accidents is significant, but at least the trend is heading in the right direction.

Monday, December 5, 2011

DOT's LaHood Touts Vessel Designs for U.S. Marine Highway

Secretary of Transportation, Ray LaHood, touts in his latest blog post the Maritime Administration's (MARAD) release of 11 new American Marine Highway Vessel designs.

The vessels meet Department of Defense roll-on/roll-off requirements, and the standardized designs "are offered so American shipbuilders can take advantage of the economies of scale series production offers: a ready pool of suppliers, lower costs for each vessel, and fewer planning variables for the ports along our marine highways." A copy of the full MARAD report is attached here.

The markets assessed for the study leading to the vessel designs were the Atlantic Corridor, the Pacific Corridor, Gulf of Mexico routes, and parts of Southern New England to the ports of New York/New Jersey. These correspond to MARAD Marine Highway routes M-95, M-5, and M-10.

Wednesday, November 30, 2011

House to hold Hearing on Trucking Hours of Service

The House Committee on Oversight and Government Reform's Subcommitee on Regulatory Affairs, Stimulus Oversight and Government Spending, is holding a hearing today which represents the lastest in the on-going saga of the Federal Hours of Service regulations for commercial truckers.

The attached written testimony of FMCSA Anne S. Ferro, provides a concise summary of the tortured history of the hours of service regulation over the last 8 years. Ultimately, the latest iteration of the FMSCA rule reduces the current consecutive driving time to 10 from 11 hours, with certain mandatory rest periods.

The prepared testimony of industry groups, and safety advocates, is available at this link. The prepared statements of the witnesses can be viewed by clicking the name of the individual witnesses.

The title of today's hearing: "The Price of Uncertainty: How Much Could DOT's Proposed Billion Dollar Service Rules Cost Consumers This Holiday Season," rather bluntly indicates the Committee's focus on the potential economic impact of shortened hours of service.

Monday, November 28, 2011

Feds Shut down Trucking Firm Related to Closed Carrier

As a follow up to my post of November 17, 2011, the Federal Motor Carrier Safety Administration has also shut down a recently created Maryland trucking business tied to one it shut down earlier this month.

The subject of the current order, Clock Transport, LLC, shares the same address of the previously closed Gunthers Transport LLC, as the head of Clock Transport is a relative of the prior operator of Gunthers.

Peter Hermann in the Baltimore Sun, has this news account.

Thursday, November 17, 2011

MD Trucking Firm Ordered off Road - FMCSA to Reduce Fines for Small Businesses

We have a two Trucking industry items today.

First, the Federal Motor Carrier Safety Administration has ordered a Maryland-based carrier off the road for safety violations. According to the FMCSA press release, the imminent hazard out-of-service order followed an intensive review of the company's compliance with hours of service and safety regulations.

Next, the FMCSA has announced that trucking companies that are considered small businesses will face reduced fines for violations. According to the Agency's Notice, small businesses will generally face fines that are 20% lower than those imposed on larger entities for similar violations. The fine decision is based on the Agency's Uniform Fine Assessment algorithm, and the requirements of the Small Business Regulatory Enforcement Fairness Act (SBREFA). SBREFA generally requires agencies to provide for the reduction or waiver of civil penalties for violations of statutory or regulatory requirements by small businesses. A copy of the Agency's Notice is linked above.

Wednesday, November 9, 2011

FRA Publishes Conductor Certification Rule

The Federal Railroad Administration (FRA) published its Final Rule requiring Certification for railroad conductors in today's Federal Register. The effective date of the rule is January 1, 2012.

The new conductor certification program, mandated by the Rail Safety Improvement Act (RSIA), parallels the existing regulations for certifying locomotive engineers under Part 240 of the Code of Federal Regulations (CFR). Like engineer certification, railroads must submit their proposed certification program to the FRA for approval. Also similar to engineer certifications, individual railroads will certify its conductors, under criteria required by the FRA, and under the program of the railroad approved by the FRA.

At the effective date of the Final Rule (1/1/12), Class I railroads are required to designate as certified conductors all of their personnel authorized to perform the duties of a conductor (49 CFR 242.105). Each designated conductor of a Class I railroad would then need to be certified within 36 months under the procedures for testing and evaluation required by the Rule.

Tuesday, November 8, 2011

DOT Urges High Speed Rail - California Shows Sticker Shock

As Transportation Secretary Ray LaHood continues to promote the economic impact of high speed rail projects, California officials face sticker-shock as the cost of their proposed high-speed rail network balloon to $98.5 billion (yep, with a "b").

In his "Fast Lane" blog post today, Secretary LaHood extols the impact of high speed rail on the creation of jobs and the economy in general. As detailed in the blog post, LaHood was addressing the U.S. High Speed Rail Association (USHSR) meeting concluding today. Citing the construction of the Hoover Dam and the Golden Gate Bridge during the Great Depression, LaHood urged the passage of the transportation portions of the President's American Job Act.

Acknowledging the less than shovel-ready aspect of high-speed rail projects, LaHood compared the rail project to work on the interstate highway system, when "we didn't know where all the routes were to going to be drawn on the map" or "where every dollar of funding was going to come from."

Meanwhile, the cost of high-speed rail is front and center in California. California was the recipient of federal funds initially set aside for other states, such as Ohio and Florida, where high speed rail projects stalled over cost concerns.

Segmented construction may be where California's ambitious high-speed network is headed. This ABC News report by Juliet Williams details the expanding cost of the California projects. The California rail authority is proposing breaking the project into smaller projects, in part because of lack of funding for the entire project.

Thursday, October 27, 2011

Retired Railroad Workers, Doctors, and former RRB Manager Charged with Fraud

The U.S. Attorney for the Southern District of New York charged 11 individuals with participating in a "massive fraud scheme" from 1998 to present where employees of the Long Island Railroad claimed to be disabled to gain early retirement benefits.

The U.S. Attorney's announcement of the charges are attached in this press release issued today.

Among those charged are two orthopedic physicians, who are accused of preparing fraudulent medical narratives of claimed disabilities to meet occupational restrictions for the employees. One of the physicians was recorded as stating that he had recommended disability "one hundred percent" of the time.

The alleged scheme involved the interplay between the LIRR retirement system and the Railroad Retirement Board (RRB) system, a federal agency which administers the retirement and disability pensions for most rail workers. The accused are alleged to have pre-planned their claim of RRB disability to coincide with their LIRR retirement date. This allowed some LIRR employees to retire as early as age 50 with a LIRR pension in addition to an RRB occupational disability. The U.S. Attorney pointed out that 61% of LIRR employees between age 50 and 55 claimed RRB disability between 2003 and 2004, whereas on 7% of Metro-North employees who where between 50 and 55 received disability awards.

A former RRB branch office employee was also charged as a facilitator to the fraud, as well as several RRB applicants. In one case, a supposedly disabled railroad employee who claimed severe pain in gripping tools, and knee and back pain when bending and crouching, now plays tennis several times a week and signed up to play golf 140 days in a 9-month period in his retirement. Another retired employee claiming severe and disabling back pain also managed a 400 mile bike tour as a disabled retiree.

The RRB system is not well-known outside of the rail industry. It replaces Social Security for rail employees and requires employer contributions that greatly exceed the employee's contribution to fund disability and retirement funds. Employees can also retire at age 60 without loss of benefits if they have 30 years service. Also, the RRB provides a substantial spousal benefit where an employee's pension increases by nearly 50% when a qualifying spouse reaches retirement age.

The pensions at issue here are known as Occupational Disability annuities, which a completely disabled employee can obtain after 10 years service, and an "occupationally" disabled employee after 20 years service. Occupational disability is granted when an employee cannot perform their normal railroad occupation.

The accused of course are innocent until proven guilty. However, the U.S. Attorney's investigation and charges indicate that benefit fraud is being taken seriously.

Finally, an acknowledgement to my partner Luke Lafferre, who was the alert reader in advising TLT of this story.

Friday, October 21, 2011

U.S-Mexico Cross Border Trucking Pilot Program Begins

About 20 years after the passage of the North American Free Trade Agreement (NAFTA), a statutorily mandated pilot program for long-haul trucks between Mexico and the U.S. has commenced.

Mexican carriers whom have received USDOT approval for their equipment and drivers under the Federal Motor Carrier Safety Administration (FMCSA) program will be permitted to operate throughout the U.S. for up to three years. Likewise, U.S. domiciled motor carriers can be granted reciprocal rights to operate in Mexico.

To address safety concerns about Mexican trucks operating in the U.S., the FMCSA pilot program requires the approval of specific drivers whom have been evaluated for English language proficiency and for their past driving records. Also, specific vehicles originating in Mexico must be approved and inspected by FMSCA, and the vehicles must have GPS tracking devices installed.

As part of the implementation of the pilot program, FMCSA has issued advisory documents to local law and state commercial vehicle enforcement, attached here. A "Visor Card" summary has also been issued for enforcement personnel.

Friday, October 14, 2011

FRA Sets Public Hearing on Positive Train Control

As an update to our earlier post of August 24, 2011 here at TLT, the Federal Railroad Administration (FRA) has scheduled a public hearing on the proposed removal of certain regulatory requirements for Positive Train Control.

The hearing is set for November 10, 2011 in Washington, DC, as noted in today's Federal Register Notice. The comment period for the proposed changes to the PTC rule was also extended until November 25, 2011.

Tuesday, October 11, 2011

FRA Safety Advisory Issued following Switching Fatalities

The Federal Railroad Administration (FRA) has issued Safety Advisory 2011-02 "to remind railroads and their employees of the importance of following procedures when going between rolling equipment." The Advisory from the Federal Register publication is attached here.Despite the overall improvement of railroad safety in recent years, the FRA pointed to 5 fatal incidents from May 2009 to September 2011 as the reason for issuing the Advisory to remind railroads and employees of "the critical importance of maintaining and abiding by railroad rules and procedures designed to ensure safety when going between rolling equipment."

Among the recommondations to railroads the FRA makes are:

1) review current rules and operating practices that require employees to go between rolling equipment to determine if adequate protection is provided to employees;

2) develop, implement, and monitor communication protocols that require employees of multi-person crews to inform other crew members when the need to enter between rolling equipment arises;

3) convey to employees that their personal safety is their responsibility and that railroad management supports and encourages those employees that make safety their number one priority.

The Safety Advisory is not directed to any particular railroad, but to the industry in general.

Tuesday, October 4, 2011

NTSB Cites Fatigue in Three-Vessel Texas Canal Collision

The National Transportation Safety Board cited vessel pilot fatigue, among other causes, in its probable cause findings concerning the January 2010 collision of the 810 ft oil tanker Eagle Otome with a cargo tanker berthed at the Port of Port Arthur, TX. The tanker was then subsequently hit by a barge, causing the release of approximately 462,000 gallons of oil into Sabine-Neches Canal. A synopsis of the Board's findings are attached here pending issuance of the final report.

Although the tanker had two pilots on board, as required by local protocol, the Board found that the pilot controlling the vessel was making a radio call "at a critical point in the waterway, and the radio call interfered with his ability to fully focus on conning the vessel." Also, the Board found that pilot to be fatigued and that his fatigue adversely affected the pilot's ability to stop the sheering motion of the tanker. Contributing factors to the pilot's fatigue were untreated sleep apnea, and extended periods of wakefulness as a result of the pilot's work schedule, according to the Board's findings.

Among the various recommendations issued by the NTSB, were recommendations to the local Board of Pilot Commissioners to develop a fatigue mitigation and prevention program. The Board also reiterated a prior recommendation to the Coast Guard to to require mariners to report substantive changes in their medical status or medication use that occur between required medical evaluations.

Tuesday, September 27, 2011

U.S. House Holds Hearing on Aging Inland Waterways Systems

On September 21, the U.S. House Subcommittee on Water Resources and Environment held a hearing on the economic importance of the inland waterways system, and the critical challenges posed by aging infrastructure.

A press release from the Subcommittee attached here, explains both the economic benefit of water-borne commerce, but also the potential hazard to continued commerce posed by aging infrastructure, including locks that have been in service for decades.

In addition to Subcommittee Chair Bob Gibbs (R-OH), who called for addressing infrastructure needs to keep "American farms and businesses competitive and growing American jobs," other witnesses included Larry Bray of the University of Tennessee's Center for Transportation Research, Mike Tooehy, President of the Waterways Council, Inc., and Steve Ebke of the National Corn Growers Association.

A link to written testimony is attached here.

Friday, September 23, 2011

Court Orders Treasure Hunters to Return Coins & Artifacts to Kingdom of Spain

It's not everyday you get a published opinion from a Federal Appellate Court that recounts intrigue and lost treasure from the Napoleonic wars at the turn of the 19th Century. It's also not everyday the prevailing litigant is the Kingdom of Spain.

Viewers of cable television may recall a series, "Treasure Hunters" showing the for-profit Odyssey Marine Exploration team searching for sunken treasure. If I recall, the series showed thousands of coins recovered from a wreck and held in an undisclosed location, pending litigation by the Spanish Government. Well now the other doubloon drops as it were...

The U.S. Court of Appeals for the 11th Circuit held this week that treasure-hunters Odyssey Marine Exploration, Inc., must return the res , or property recovered from the a wreck site near Gibraltar. The Opinion is attached here. The Court found that the ship was the Nuestra Senora de las Mercedes, and that the ship was a Spanish Naval vessel sunk by British Warships in 1804 as it sailed for Spain loaded with treasure.

The Court's opinion is not only interesting for its recitation of the historical context of the voyage and loss of the Mercedes (see page 22 and following), it is also an interesting legal ruling. In summary, the Court ruled that a salvor, or finder of treasure, cannot have a U.S. Court arrest the property of a foreign nation. The Court held that it had "constructive possession" of the shipwreck because part of the wreck had been deposited by Odyssey with the District Court. Ultimately, the Court ordered the return of nearly 600,000 coins and other artifacts to Spain, over which it had "constructive possession" though it had no jurisdiction over the property.

The statue construed was the Federal Sovereign Immunities Act (FSIA), 28 U.S.C. 1602-1611

Thursday, September 15, 2011

DOT Secretary Pledges Support for Port Projects

John D. Boyd reports in yesterday's Journal of Commerce, a pledge of support by USDOT Secretary Ray Lahood for U.S. port projects in advance of the 2014 Panama Canal improvements.

Wednesday, September 14, 2011

NTSB Cites Trucker Cell Phone Use in Call for Hand-Held Ban

The National Transportation Safety Board (NTSB), during a meeting to consider the probable cause of a 2010 tractor-trailer collision in Kentucky which claimed 11 lives,recommended that commercial truck drivers be banned from using mobile phones, except for emergencies.

On March 26, 2010, a tractor-trailer crossed the median of I-65 near Munfordville, KY, and collided with a 15 passenger van carrying 12 occupants, including 2 small children and an infant. The truck driver and 10 of the 12 van passengers were killed. NTSB investigators noted the driver had used his mobile phone 69 times while driving in the 24 hour period prior to the accident, including four calls made by the driver in minutes before the crash.

A mobile device ban has already by implemented by rail regulators following a 2008 commuter train collision in California, and the NTSB has made similar recommendations to maritime operators following the Duck Boat - Barge Collision on the Delaware River in Philadelphia.

Tuesday, September 13, 2011

Closed Ohio River Bridge Snarls Traffic

The bridge carrying Interstate 64 over the Ohio River between Louisville, KY and Southern Indiana was closed for emergency structural repairs on Friday. This Report, from CBS news, indicates the closure may last up to six months.

To alleviate congestion, an excursion boat operator has announced shuttle service from Jeffersonville, IN to Louisville's Fourth St. Wharf for $1 each way. A report from WLKY.com, explains the service.

A riverboat carrying 300 passengers per trip maximum doesn't make much of a dent replacing a closed bridge that carried 80,000 vehicles per day, but hats off to the Spirit of Jefferson operators for quickly providing an outlet and assistance to commuters.

Thursday, September 8, 2011

Sixth Circuit Denies Medical Monitoring and Fear of Cancer Claims

Looks like it is Circuit Court week here at TLT.

Today, the U.S. Court of Appeals for the Sixth Circuit, based in Cincinnati, upheld the grant of summary judgment to CSX Transportation, Inc. in an action brought by local residents following the October 2007 derailment and fire near Painesville, Ohio. Liability was not an issue. Rather the questions before the Court were causation and injury, and under Federal Rule of Civil Procedure 56, whether there was sufficient evidence to create a genuine issue of material fact for a jury to consider.

The residents suing the railroad did not have current injuries, but sued for medical monitoring expenses and an increased risk of future cancer. After summary judgment was granted by the District Court, the Sixth Circuit affirmed, reasoning that expert testimony supporting plaintiffs' claims of increased risk of cancer was speculative, and bordered on "legal insignificance."

A copy of the Opinion is attached here.

Wednesday, September 7, 2011

Is Competition in Passenger Rail Coming?

The Federal Railroad Administration (FRA) published a proposed rule today establishing a pilot program under which railroads that own the infrastructure over which Amtrak operates may bid to provide passenger service. The routes open for bid are "under-performing" Amtrak routes. The proposed rule is mandated by the Passenger Rail Investment and Improvement Act of 2008.

The pilot program proposed in the rule limits the number of intercity routes that may be awarded to carriers other than Amtrak to no more than two existing Amtrak routes. A carrier winning a bid to operate service previously provided by Amtrak, would be entitled an operating subsidy up to the level Amtrak had received for the route, conditioned upon meeting certain performance standards. Amtrak would be required to provide a winning bidder access to its reservation system, stations, and "facilities directly related to operations." The bid process also allows Amtrak to submit its own bid to retain the service over the route that another carrier petitions to operate.

Comments on the proposed rule are to be submitted to the FRA by November 7, 2011.

It remains to be seen if there are any takers for operating passenger service on routes which have been "under-performing" for Amtrak, even with equivalent operating subsidies.

Tuesday, September 6, 2011

Seventh Circuit Vacates Electronic Recording Rule for Trucks

The U.S. Court of Appeals for the Seventh Circuit, based in Chicago, vacated the final rule of the Federal Motor Carrier Safety Adminstration (FMCSA) approving the use of electronic on board recorders (EOBRs)on some trucks. In an Opinion issued recently the federal appellate Court ruled that FMCSA's rule was "arbitrary and capricious" because the Agency failed to consider a regulatory requirement that the use of monitoring devices for hours of service violations not be "used to harass vehicle operators."

The Seventh Circuit's action represents the latest challenge to FMCSA revisions to hours of service (HOS) regulations, which have been successfully challenged in the past. In 2003 the U.S. Court of Appeals for the D.C. Circuit also ruled the Agency's HOS rules were arbitary for its failure to consider the impact of the rules on the health of drivers. Public Citizen v. FMSCA, 374 F.3d 1209 (D.C. Cir. 2004). Again, in 2007 the D.C. Circuit struck down the Agency's latest attempt to revise the HOS regulations for not allowing meaningful comment on driver-fatigue model used nor explaining why the model was adoped. OOIDA v. FMSCA, 494 F.3d 188 (D.C. Cir. 2007).

This most recent challenge to the HOS rules was brought by the Owner-Operator Independent Drivers Association, Inc. (OOIDA).

Wednesday, August 24, 2011

FRA Proposed Rule on Postive Train Control Announced as Regulatory Reform

The Federal Railroad Administration published a proposed rule today eliminating the need for railroads to conduct risk analysis for certain tracks that will not have Positive Train Control (PTC). Positive Train Control, an automated system to prevent train collisions, was mandated by the 2008 Rail Safety Improvement Act (RSIA) following several high-profile accidents. The PTC rule published in 2010 generally required PTC on tracks carrying PIH (poison by inhalation) traffic and inter-city passenger traffic. Under the original process, railroads could avoid installing PTC on certain tracks if risk analyses were performed.

The proposed revision to the PTC rule eliminates the requirement that risk a analysis be performed on track that will not carry PIH traffic or regular passenger service as of December 31, 2015.

An interesting side note to the issuance of the proposed revision is that the revised rule appears to be both the product of both a legal challenge to the PTC rule by the Association of American Railroads (AAR), and the Administration-mandated regulatory review. The AAR challenged the original regulation's risk analysis test and baseline assumptions made by the FRA. According the USDOT's press release, the newly proposed rule is part of the Administration's efforts to provide "regulatory releif." Today's NPRM, however, is also the result of a settlement agreement between the FRA and AAR over the challenged regulation. The comment period on the NPRM is open until October 24, 2011.

Friday, August 19, 2011

Appeals Court Rules Requires Only Possibility of Absestos Exposure to Fine Employer

Today we venture from Transportation for an interesting ruling in an asbestos case, a long-standing source of litigation in the Transport industry, and many others.

The U.S. Court of Appeals for the Third Circuit, based in Philadelphia, recently ruled that an employer can be penalized under OSHA asbestos removal rules without having to show any actual exposure to the substance. The Court's opinion, in Secretary of Labor v. Conoco Phillips Bayway Refinery, case no. 10-2893, held that the Secretary of Labor "must simply demonstrate the possibility" of exposure to harmful levels of asbestos. The presumption of "harm" is based on the conclusion that violation of Class II asbestos requirements alone "expose employees to substantial amounts of asbestos."

An interesting procedural note on this case was that the Third Circuit was resolving different interpretations of USDOL regulations among "two factions of the same government agency." The Secretary of Labor petitioned the Court for a review of the Occupational Safety and Helath Review Commission's decision that the violations were "not serious" as opposed to "serious" as the Secretary originally determined.

Wednesday, August 17, 2011

Norfolk Southern To Build New Rail Line to Port of Toledo

Norfolk Southern Railway Corp., according to development officials, will begin new rail service to the Port of Toledo, OH. According to the media report attached here, the Toledo-Lucas County Port Authority states the goal is to make the Port of Toledo the largest land port on the Great Lakes and relieve shipping back-logs in Detroit and Chicago. Here is a link the Toledo-Lucas County Port Authority.

Wednesday, August 10, 2011

CSX Announces $15 Million Investment for Louisville Intermodal Terminal

CSX Transportation, Inc. recently announced the construction of a $15 million privately-funded intermodal freight terminal in Louisville, KY. The terminal is expected to be operational in early 2012. The new facility will be constructed between CSXT's existing Osborne Yard and the Louisville Industrial Center near the Louisville International Airport.

Monday, July 25, 2011

RR Employment at highest level since 2009

Employment in U.S. Class I railroads has reached nearly 160,000 employees, with 1,818 employees added in May and June 2011. The Journal of Commerce reports here that this level of employment is the highest since the height of the recession in 2009. According to Surface Transportation Board Statistics, each of the seven Class I, or largest, U.S. railroads showed increased employment.

Wednesday, July 20, 2011

Tug Boat Pilot to Plead Guilty in Duck Boat Accident

A tugboat pilot, who was talking to his wife on a cellphone when his barge collided with a disabled tourist "duck boat" on the Delaware River in downtown Philadelphia in 2010, has agreed to plead guilty to one charge of misconduct of ship operator causing death. An article by Peter Loftus (no relation)of the WSJ is attached here about the expected plea.

Two tourists, aged 20 and 16, from Hungary died in the accident, and the remaining passengers were rescued.

The NTSB has yet to issue its final report, but this press release indicates its probable cause findings about the accident, particularly the pilot's failure to keep a proper lookout and his distraction from a cell phone and laptop.

Tuesday, July 19, 2011

NTSB to hold Investigative and Disaster Response Courses

The National Transportation Safety Board (NTSB) announced two investigative courses and one transportation disaster response course over the next two months at its training center in Northern Virginia. The investigative courses include a five-day rotorcraft accident investigation, and a two-week course in aircraft accident investigation. The disaster response course is titled, "Transportation Disaster Response - Mass Fatality Incidents for Medicolegal Professionals," will be held over three days in late August 2011. A link the Board's training center and curriculum is listed here.

Friday, July 15, 2011

NTSB finds USCG Boat was speeding in fatal crash

On JULY 12, 20011 the National Transportation Safety Board announced its probable cause findings in a collision between a Coast Guard patrol boat and a recreational boat in San Diego in December 2009. The Collision killed an 8-year old passenger in the boat that was struck from behind by the patrol craft. Here is the NTSB press release announcing the findings. The incident occurred during an annual holiday boating event while the USCG crew was responding to a report of a grounded boat. The Board found the collision was due to the "excessive speed of the Coast Guard boat in nighttime conditions in an areas of high vessel density, and the Coast Guard's ineffective oversight of its small boat operations nationally and at Coast Guard Station San Diego.

Also noted in the press release was the refusal of 3 of the 5 crew members of the USCG boat to be interviewed by the NTSB, including the operator. Prior news reports from San Diego papers noted the boat operator was convicted by a Court Martial of a single count of dereliction of duty, resulting in a 3 month sentence in March 2011. The operator originally faced charges of involuntary manslaughter, negligent homicide, and aggravated assault.

Thursday, July 14, 2011

CSXT & NSRC to Participate in W.Va. Job Fair for Veterans

CSX Transportation, Inc. (CSXT) and Norfolk Southern (NSRC), the two Class I railroads operating in West Virginia,will participate in a job fair for military veterans on July 20, 2011 near Beckley, WV. Here is a link to an Charleston Gazette article on the event.

As noted by the Association of American Railroads (AAR), up to 15,000 workers could be hired by railroads this year, and up to 30% of all railroad employees will be eligible for retirement within 5 years, making as many as 67,000 jobs available.

Monday, July 11, 2011

Motor Carrier Safety Administration Seeks Public Comment On Strategic Safety Plan

The Federal Motor Carrier Safety Administration (FMCSA) is seeking public comment on its draft Strategic Plan for 2011-2016 - "Raising the Safety Bar." According to the announcement, which is attached here, the draft strategic plan is based on three core principles: 1) raising the bar to enter the motor carrier industry; 2) maintaining high safety standards to remain active in the industry; and, 3) removing high-risk carriers, drivers, and service providers from operation. Public comments are due by July 29, 2011. The docket number for the rulemaking is FMSCA-2011-0098, and public comments can be viewed and made under that docket number at http://www.regulations.gov/. The draft plan can also be accessed through the FMSCA docket 2011-0098.

Friday, July 8, 2011

FRA Announces Public Hearings for Risk Reduction Programs

The Federal Railroad Administration announced in today's Federal Register upcoming public hearings on Railroad Risk Reduction Programs. The announcement is attached here. The hearings are set for July 19, 2011 in Chicago, and July 21, 2011 in Washington, D.C. Under the 2008 Rail Safety Improvement Act (RSIA), railroads are required to created safety risk reduction programs which are supported both by risk analysis and a Risk Reduction Program Plan.

Thursday, July 7, 2011

Surface Transportation Board Drastically Reduces Rate Filing Fees

The Surface Transportation Board (STB) announced the reduction of the fees for shippers to file a railroad rate or unreasonable practice complaints with the Board from $20,600 to $350. (I don't pretend to do decimals, but I calculate that as as 5885% reduction!). The Board's decision is attached here and the Board's press release is here. If only the IRS would follow suit.

Tuesday, July 5, 2011

Crew Member Sentenced and Ship Owner Fined in "Magic Pipe" case

The U.S. Attorney's Office for the District of Maryland recently announced a six month sentence for a crew member who obstructed the investigation into a "magic pipe" case, and a $2.4 milliion dollar fine against the ship owner. The "magic pipe" was a bypass hose which permitted waste oil to be dumped directly overboard, the presence of which was concealed by doctored oil logs, which are requried by both U.S. law and the International Convention for the Prevention of Pollution from Ships.

Friday, July 1, 2011

Welcome to Transportation Law Today

Welcome to the inaugural post of Transportation Law Today! My name is Paul Loftus and I am a transportation attorney with 13 years experience in litigating transportation matters. In my practice, and in my daily information reading, I often come across items of interest to transportation entities. In particular, I follow regulatory developments in surface transportation (rail, highway, marine), as well as legal developments affecting the industry. I hope to share interesting information with the transportation community through this blog and I look forward to hearing from the "blogoshere" out there.

Please remember this blog does not constitute legal advice, nor does it create an attorney-client relationship.

1. Surface Transportation Board ends Common Carrier Toxic by Inhalation Hazard Committee Process

In an April 15, 2011 decision by the entire board, the Surface Transportation Board, the independent economic regulatory agency that regulates rail rates and disputes (among other things), terminated its process to create a "Toxic by Inhalation Hazard Common Carrier Transportation Advisory Committee." See decision here.

The TIH committee process was initiated to provide advice to the Board on issues related to the common carrier obligation of railroads to carry hazardous materials, and the issue of potential indemnity for carrying haz-mats. As explained in the Board decision, concerns about anti-trust liability by committee participants, and a "sharp difference of opinion" between railroad and shipper interests as to the Board's authority to regulate liability for common carrier shipments led to the demise of the effort.

2. National Transportation Safety Board Issues (NTSB) 10 Most-Wanted Safety Improvement List

On June 23, 2011, the NTSB issued its latest 10 Most-Wanted Safety Improvements list. Among the areas covered are promoting pilot and air traffic controller professionalism, addressing human fatigue, and requiring on board image and data recorders on trains.

Have a happy Fourth of July Weekend. - PJL.