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.

Tuesday, December 31, 2013

2013 Year in Review from Transportation Law Today

2013 will likely be remembered for several significant transportation events, including the Lac Megantic and Metro North rail accidents. As I write today on New Year's Eve an active fire from a train crash and derailment involving crude oil is taking place in Casselton, North Dakota (here is the NTSB's initial press release). The event in South Dakota highlights other major trends from 2013: positive train control and the carriage of crude oil by rail. Finally, a review of 2013 would not be complete without a mention of the regulatory and political environment, significantly because some-what bi-partisan WRRDA bill (which many had great hopes of passage in 2013), will wait until 2014.


The June 2013 accident which destroyed a significant portion of the town of Lac Megantic, Quebec, and claimed over 40 lives, spurred quick action by Canada's rail regulator, and reciprocal action by the FRA. My prior posts explained some of those actions here, and here.

Following Lac Megantic efforts were made to address the classification of crude oil carried by rail, which may again gain more attention given the on-going situation in North Dakota. Crew size was another issue in Lac Megantic, which the regulators also addressed in the context of securing haz mat trains.

The December 1 Metro-North accident in New York city also raised crew size questions, as well as positive train control implementation. See my prior post here.

Although neither the Lac Megantic nor Metro-North accidents have had their investigations concluded, information released indicates likely causes: failure to secure the train on a grade (Lac Megantic), and crew error in Metro-North. Coming in 2014 will be the Rail Safety Advisory Committee recommendations following Lac Megantic, and possibly, action on the Commuter Rail Passenger Safety Act proposed shortly after the Metro-North accident.


The state of Positive Train Control, and the current 2015 deadline for implementation, will continue to be a hot topic in the coming year. Even though the GAO acknowledged that many railroads could not meet the 2015 deadline, it seems unlikely any wholesale moving of the deadline will occur given recent high profile train accidents. My best prediction is that some case by case relief for portions of PTC systems or tracks may be granted in an effort to get operational as much as possible by 2015.


I expect growing regulatory and public attention to crude by rail shipments, again highlighted by what is currently happening in North Dakota. Crude by Rail, as with Haz Mat by rail, is clearly a safe mode of transport given the huge volumes moved without incident. However, when accidents occur they tend to be memorable given the product being moved. On-going efforts from the RSAC on operational issues, as well as a renewed focus on tank car safety standards will certainly continue.


Now to the blue and brown water worlds... the continuing fate of the now-termed WRRDA bill and its path through a divided congress will continue into 2014. The bill's remedy for the monumentally over-budget Olmstead Lock and Dam project, aka the "Kentucky Kickback" seems to have survived some initial hype when the deal emerged as part of the government shut-down end. Both houses of Congress have appointed conferees to iron out differences between the Senate bill passed in May 2013, and the later house bill.

Is WRRDA an example of a deeply divided congress prioritizing infrastructure investment? Perhaps, but it also may be low hanging fruit in the sense that WRRDA is what could be accomplished in a bi-partisan way with relatively little controversy. In any event, the bill has yet to be passed by congress, which is likely to happen in early 2014.

Thanks to our readers and best wishes to all for safe and joyful New Year in 2014.

- Paul J. Loftus, December 31, 2013

Thursday, December 12, 2013

EPA to Fund Air Quality Improvement Projects at Ports

The Environmental Protection Agency (EPA) has published a Request for Proposals to allocate $4 million for air quality projects at ocean and inland ports under the Diesel Emissions Reduction Act (DERA). The RFP homepage and related information are attached here.

The EPA anticipates awarding funds to public port authorities with jurisdiction over transportation or air quality at ocean or inland ports. Although private entities are not eligible, they may partner with eligible port authorities on projects. EPA, according to the RFP will fund, at various percentage levels, the following types of projects:

- Exhaust Control Technologies
- Certified Engine Upgrades
- Engine Idle Reduction Technologies
- Certified Engine Repower
- Vehicle Replacement (non-road diesel vehicles/drayage trucks)
- Clean Alternative Fuel Conversions

The potential funding does not apply to already mandated emission reductions for certain locomotive and marine engines. (see RFP at pg. 2). Proposals are due February 13, 2014.

Thursday, December 5, 2013

NY Rep. Proposes Funding for PTC in Wake of Metro-North Accident

Positive Train Control, and the current statutory deadline for railroads to implement the technology of December 31, 2015, is once again front and center news following the December 1 Metro-North commuter rail accident. The accident, apparently caused by a speeding train, caused 4 deaths and dozens of injuries.

Congressman Sean Patrick Maloney (D-NY) has proposed new legislation titled the "Commuter Rail Passenger Safety Act" in a recent press release. The proposed legislation has not been released, but is intended to assist commuter rail lines in implementing PTC.

Specifically, the proposed law would provide access to Federal Railroad Administration loan guarantees under its Railroad Rehabilitation & Improvement Financing program (RRIF), which provides both direct loans and loan guarantees. Also, the law proposes reauthorizing the Railroad Safety Technology Grant Program, which fell victim to the recent budget battles and expired on October 1, 2013.

Other news related to the Metro-North accident, is the NTSB's revocation of "Party Status" to the investigation of the union which represents the train's engineer. The NTSB removed the Association of Commuter Rail Employees (ACRE) from the investigation for discussing details of the on-going investigation, a violation of the NSTB's "Party Agreement." This NTSB press release explains.

Prior the recent Metro-North accident, there seemed to be consensus that not all railroads would meet the December 2015 PTC deadline, with the GAO recommending that Congress permit the FRA to grant case-by-case extensions and approve alternative technologies (see my post of 9/17/13 on the GAO's report here). In the post Metro-North environment, the question is whether significant extensions to the current PTC deadline will be granted or not.

Wednesday, November 20, 2013

STB Finds Dispatching Contractor is a Rail Carrier for RRB purposes

The Surface Transportation Board ruled on November 15, 2013 that a contractor that provides rail dispatch services to small and regional railroads is a rail carrier for purposes of the Railroad Retirement Act. The STB decision, which was not unanimous, and contains a well-reasoned dissent, is attached here.

Rutland Vermont-based Rail-Term is small privately owned company that provides rail dispatch services to small and regional rail carriers. Rail-Term has no ownership in its rail customers, nor does it own any tracks, trains, or employ any personnel besides contract dispatchers. The case came before the STB from the U.S. Court of the Appeals for the D.C. Circuit, which was hearing Rail-Term's appeal after the Railroad Retirement Board (RRB) found that Rail Term was a rail carrier and therefore was required to pay RRB taxes for its employees. The Board's decision also comes nearly two years after the D.C. Circuit stayed the case for STB input on the question of rail carrier status.

The Basis for the Board's decision was that Rail-Term, though providing no transportation services itself, did provide services (i.e. dispatching) which are an "essential component of its clients' holding out of interstate common carrier rail transportation." And, those dispatching services are "required" for the actual rail carrier to provide service to its customers. Ultimately, the Board found that the dispatching contractor has "control" over "a key step in the movement of the trains of its rail common carrier customers."

The dissent filed by STB Vice Chair Begeman, questions the factual and legal basis for the Board finding a contractor that does not hold itself out as common carrier, own, or operate trains, is in fact a rail carrier.

The likely result of this decision is increased costs for small railroads that contract out dispatching services, now that contract dispatchers can be considered "carriers" themselves, and subject to the RRB Act. The decision also raises many questions, including whether this decision makes a contractor liable under the Federal Employer's Liability Act, and just what type of contract services will be considered "integral" or "essential" to a carrier's operations to impose carrier status on independent contractors?

Thursday, November 14, 2013

Rail Associations Call for Stricter Tank Car Standards

Two industry associations representing virtually all North American Railroads have called for the USDOT's Pipeline and Hazardous Materials Safety Administration (PHMSA) to require tank cars carrying flammable liquids be built to more stringent standards, or be upgraded for existing tank cars. The Association of American Railroads (AAR), and the American Shortline and Regional Railroad Association (ASLRRA), jointly tendered comments to the PHMSA today. A copy of the joint filing is attached here.

Despite the excellent overall safety record of haz mat transport by rail, the Associations cited the recent Lac Megantic catastrophe as motivation for the industry to reevaluate tank car standards, which in fact had been increased just in 2011. Among the proposals AAR and ASLRRA make are to require newly built tank cars carrying flammable liquids to have steel jackets around the tank car, thermal protection, full car-height head shields, and high flow capacity pressure release valves. In addition to newly built cars, the comments call for the retrofit of cars built since 2011, and before, to comply with any new construction standards, and to phase out older cars that cannot be retrofitted.

The PHMSA docket at issue is PHMSA-2012-0082 - "Hazardous Materials: Rail Petitions and Recommendations to Improve the Safety of Rail Tank Car Transportation."

Thursday, October 17, 2013

Nearly $3 Billion in Budget Deal Slated for Olmstead Lock and Dam Project

Who said earmarks are dead? Tucked into yesterday's long-anticipated Congressional deal to raise the debt ceiling and end the government shut-down was this seemingly innocuous paragraph:

"Sec. 123. Section 3(a)(6) of Public Law 100-676 is amended by striking the occurrences of "$775,000,000" and inserting in lieu thereof, "$2,918,000,000."

PL 100-676 is the WRDA bill of 1988, which originally authorized the Olmstead lock and dam project at $775 million. The now-approved budget resolution more than triples the authorized expenditures for the cost overrun plagued project on the Ohio River. As you can see from the text of the joint budget resolution, it was not exactly a "clean" resolution, with various other individual funding provisions (including $186 million for Maritime Security - sec. 152).

With the ink apparently still drying in the budget deal, some have already referred to the Olmstead provision as the "Kentucky Kick-Back."

See also, my earlier post on the draft WRRDA bill which attempted to free the Inland Waterways Trust fund from essentially funding only the Olmstead project given its huge costs. Presumably funding Olmstead via the budget resolution solves the problem of Olmstead monopolizing the Inland Waterway Trust Fund.

Thursday, September 26, 2013

Joint Rule Requires Truck Clearance At Grade Crossings

The USDOT's Federal Motor Carrier Safety Administration (FMCSA) and Pipeline and Hazardous Materials Safety Administration (PHMSA) have jointly issued a final rule that prohibits truck drivers carrying certain hazardous materials "from entering onto a highway-rail grade crossing unless there is sufficient space to drive completely through the grade crossing without stopping." The rule was published yesterday, and takes effect on October 25, 2013.

The intent of the rule is of course to reduce highway-rail grade crossing crashes, and amends 49 CFR parts 177 and 392, specifically a revision to 49 CFR 177.804, and the creation of 49 CFR 392.12.

The new requirements apply to vehicles transporting a quantify of hazardous materials requiring placarding under 49 CFR 172, or any amount of a material listed as a toxin under 42 CFR 73.

Tuesday, September 17, 2013

GAO Agrees Railroads Won't Meet 2015 Positive Train Control Deadline

The Government Accountability Office (GOA) released a report yesterday on the status of the implementation of Positive Train Control (PTC) systems on major freight and commuter railroads. The Report, attached here, was prepared at the request of Senator Jay Rockefeller (D-WV) and was originally provided to him on August 16, 2013.

The GAO's findings, and recommendations, mirror what the FRA determined one year ago in the FRA's own report to congress on PTC implementation. According to the most recent GAO report, only one major railroad, BNSF, will meet the current statutory deadline of 2015 for PTC. The GAO even doubts industry estimates by the AAR that compliance could be accomplished by the end of 2018.

GAO recommends that Congress amend the Rail Safety Improvement Act of 2008 (RSIA) to permit the FRA to:

(1) extend PTC deadlines on individual rail lines, and grant incremental extensions on a case-by-case basis;

(2) grant provisional certification of PTC systems under controlled conditions before final system certification (to address the concern of delays in certification following compliance deadlines caused by FRA resource limitations);

(3) approve the use of alternative safety technologies in lieu of PTC if PTC functions can be met by other means.

Thursday, September 12, 2013

Bi-Partisan House WRRDA Bill Rolled Out

The House Transportation and Infrastructure Committee has rolled out the long-awaited Water Resources Reform and Development Act (WRRDA, formerly WRDA - "reform" is new) yesterday. Bill H.R. 3080 is sponsored by Chair Bill Shuster (R-PA), Nick Rahall, Committee Ranking Member (D-WV), and Bob Gibbs (R-OH) and Tim Bishop (D-NY), both members of the Water Resources and Environment Subcommittee.

The public relations blitz surrounding the bill's release is impressive, consisting of a press conference, press release, a colorful summary of the bill's expected accomplishments, as well as a "white-board" video, narrated by Chairman Shuster extoling the benefits of the waterways to the U.S. economy and the virtues of the proposed bill. Finally, a full text of HR 3080 is attached here.

This legislation, if passed, would be the first WRDA bill since 2007. Among the reform provisions are a deadline and monetary cap on U.S. Army Corps of Engineers' studies, a streamlining of environmental reviews, and reform of the Harbor Maintenance Tax Trust Fund and the Inland Waterways Trust Fund. For the HMTF, the bill sets target expenditures of up to 80% of HMT revenue by 2020. For the Inland Waterways Trust Fund (IWTF), the bill caps expenditure for the never-ending money pit Olmstead lock and dam project at 25% annual cost-share, freeing up IWTF funds for other inland projects. The bill also expresses the "sense of congress" that the annual appropriation for the Olmstead project should be no less than $150 million per year until completed (Sec. 213(3)).

Other interesting aspects of the bill include the funding mechanism, potential operation function of corps facilities by private parties (Sec. 225), and a mandate for the corps to inventory its property not essential to its mission which could be sold. The funding mechanism is to use $12 billion for projects funded before the 2007 WRDA bill which have not started, which the bill Summary somewhat euphemistically describes as "fully offsets new authorizations with deauthorizations."

The bill also creates a "Water Infrastructure Public Private Partnership Program" to encourage private participation in USACE projects, as well as creating an "Inland Waterways Stakeholder Roundtable" to address the needs of the Inland Waterways Trust Fund, and support the needs of the Inland Waterways System. (Sec. 215).

Actual action on this an ambitious attempt to fund port and inland waterway structure will of course remain to be seen given the looming fiscal and debt ceiling crises Congress faces.

Friday, August 30, 2013

Rail Safety Advisory Committee Holds Emergency Meeting on Haz Mat

Yesterday, the Federal Railroad Administration's (FRA) Rail Safety Advisory Committee (RSAC), met to consider additional regulatory or other safety measures in response to the Lac-Megantic, Quebec incident in June. The emergency meeting follows the issuance of an Emergency Order and Safety Advisory on August 2, 2013 - see here for my prior post on those issues, and links to the Order and Safety Advisory.

The attached press release from the FRA states the RSAC has accepted four tasks: appropriate crew size, requirements for securing trains, operational testing of employees to ensure compliance with rules, and issues relating to the operational control and handling of hazardous materials in transportation. The RSAC will now establish working groups to address the tasks which will propose recommendations to FRA in April 2014.

Saturday, August 3, 2013

FRA Follows Suit with Emergency Order on Haz Mat Train Operations

Following the emergency rules issued by Transport Canada ( see my 7/30/13 post here ) the FRA issued an Emergency Order on Friday with similar requirements.

The FRA Emergency Order and Safety Advisory calling for as yet to be scheduled Rail Safety Advisory Committee meeting, are effective immediately and are in direct response to the Lac Megantic disaster in Quebec. Though the FRA Order notes that neither Transport Canada nor the Canadian Transportation Safety Board has determined a cause of the Lac Megantic derailment, the FRA Order clearly focuses on the securement of unattended trains. The FRA Order prohibits haz mat trains from being left unattended outside of yards or terminals unless authorized, and requires communication between train crews and dispatchers about how trains are secured (including tonnage and number of hand brakes applied) if a train is left unattended.

The FRA Order also requires railroads to have qualified employees inspect rail equipment which emergency responders have been on before leaving a train unattended, which is a nod toward the theory that actions of firefighters had some role in the Lac Megantic breakaway train. Prior to the train rolling away, a fire in a locomotive had been extinguished by local authorities.

Unlike the Canadian emergency rule, the FRA Order does not immediately mandate minimum 2 man crews on haz mat trains, rather, the Safety Advisory notes that crew size will be a task discussed at the forthcoming meeting of the RSAC.

Friday, August 2, 2013

Environmental Groups Sue Over Coal Export Financing

A coalition of environmental advocacy groups has sued the U.S. Export-Import Bank in an effort to void the Bank's $90 million loan guarantee to support the export of Appalachian coal primarily from ports in Baltimore and Hampton Roads, VA. The action, CV-13-3532, filed in federal court in San Francisco, was brought by various environmental groups including the West Virginia Highlands Conservancy, the Chesapeake Climate Action Network, and the Sierra Club.

Arguing that the transport, storage, and loading of coal creates dust, as well as exhaust from train and ship engines, the suit seeks to void the loan guarantee to coal broker Xcoal for the claimed failure of the Ex-Im Bank to perform an Environmental Impact Statement or analysis under the National Environmental Policy Act (NEPA).

Here is a news account describing the suit from the Baltimore Sun.

Tuesday, July 30, 2013

Transport Canada Prohibits One-Person Crews on Haz Mat Trains

In response to the derailment and subsequent disaster in Lac Megantic, Quebec, Canada's Transportation regulatory agency, Transport Canada, has issued 6 Emergency Directives. Among the new emergency rules are requirements that all unattended controlling locomotives on main tracks and sidings have their cabs protected from unauthorized access, and that railroads ensure handbrake rules under the Canadian Rail Operating Rules are complied with when a locomotive attached to one or more cars is left unattended for more than an hour. The Directive also prohibits locomotives coupled to cars carrying "dangerous goods" (i.e. Canada's term for hazardous materials) from being left unattended on a main track. Regarding crew size, every locomotive coupled to one or more haz mat cars transporting dangerous goods, must be operated by no fewer than two qualified crew members. Here is a link to the Canadian Transportation Safety Board's "active investigation" page about the incident.

Wednesday, June 26, 2013

National Freight Advisory Committee holds Inaugural Meeting

The USDOT's National Freight Advisory Committee held its inaugural meeting yesterday in Washington. The Committee was created to provide advice and recommendations to the DOT Secretary on matters involving freight transportation and the implementation of the MAP-21 legislation (Moving Ahead for Progress in the 21st Century Act), 23 USC Sec. 101 et seq. According to the Committee's Charter, the main topics the Committee is to provide assistance and advice to DOT are: 1. Development of a National Freight Strategic Plan; 2. Establishment of a National Freight Network; 3. Strategies to assist States in developing State Freight Advisory Committees and State Freight Plans; 4. Development of measures of the condition, safety, and performance of the freight network, and 5. Development of freight transportation investment, data, and planning tools. The Committee's website link, is attached here. Included on the site is the membership of the Committee, its Charter, and the agenda for the first meeting.

Tuesday, June 18, 2013

FRA Announces Rail Crossing App

Today the Federal Railroad Administration announced the Rail Crossing Locator iOS app, available for free from the Apple App Store. The FRA's press release announcing the App is attached here. Users of the App can locate information on the warning systems and other information at crossings nationwide based on their geographic location, as well as the ability the report information about crossings.

Friday, June 7, 2013

Divided Fourth Circuit Panel Rules No Carmack Amendment Limitation for Damaged Shipment

A divided panel of the U.S. Court of Appeals for the Fourth Circuit, ruled today that a rail carrier was responsible for all damage caused during shipment to a $1.3 million electrical transformer. The Opinion in ABB Inc. v. CSX Transportation, Inc. is attached here. The majority of the three-judge panel held that the railroad had not limited its liability under the Carmack Amendment (49 U.S.C. sec. 11706). Holding that in order to overcome the default posture of the Carmack Amendment, which imposes all liability for losses in shipment on the carrier, the Court explained "the carrier and the shipper must have a written agreement that is sufficiently specific to manifest that the shipper in fact agreed to a limitation of liability." The Court's decision turned largely on the absence of a specific reference to the carrier's rate terms on the Bill of Lading issued by the shipper. The shipper-issued bill of lading did not reference the carrier's price publication, and the shipper acknowledged its own computer program prevented it from inserting the price code referencing the carrier's terms. However, the bill of lading did state that the shipper was aware of all carrier terms covering the shipment. Therefore, even though bill of lading generated by the shipper stated it was bound to the carrier terms covering the movement, because there was no actual reference the carrier's price terms, the Court found the parties did not actually agree in writing to limit the carrier's liability. One interesting portion of the majority opinion is the discounting of the word "tariff" as an out dated term no longer operative in a de-regulated rail industry. Noting that prior to de-regulation, shippers were held to have constructive knowledge of published rail tariffs, the Court distinguished the current practice where rail tariffs are no longer required to be published with the government, but rather are available from carriers by request. Terming the phrase "tariff" as used in the shipper's own bill of lading as "generic and outdated" the majority simply did not consider the limitation of liability specific enough. In a strongly-worded dissent, Circuit Judge Agee pointed out that the shipper was essentially seeking relief from the contract it drafted, i.e. the bill of lading, which incorporated by reference the carrier rate rules which limited liability. Taking issue with the majority's view that "tariff" terms are generic and outdated, and referring to the shipper-generated bill of lading referencing agreement to the carrier's terms, the dissent stated, "Nothing in the Carmack Amendment requires the carrier to hold the shipper harmless from the shipper's negligence, particularly where the carrier has every reason to take the shipper at its word."

Thursday, May 23, 2013

Bi-Partisan Chemical Safety Bill Introduced In Senate

Senators Frank Lautenberg (D-NJ) and David Vitter (R-LA) announced a bi-partisan agreement to modernize the Toxic Substances Control Act (TSCA) yesterday. As explained in the attached Press Release, under the Safe Chemicals Act of 2013, the EPA will be given new tools to test and evaluate existing chemicals for safety, and new chemicals before they enter the market. Highlights of the proposed changes to the TCSA are: an evaluation of all chemicals in active commerce as either "high" or "low" potential risk to human health and the environment; EPA is given authority to take action if a chemical is found to be unsafe, ranging from labeling requirements to banning or phasing out of use of a chemical; EPA will be required to assess risks posed to children and pregnant women when evaluating chemicals; and, State and local governments will have input on safety assessment and prioritization of chemical evaluation. The Bill, S. 696 attached here, has broad bi-partisan support in addition to the main sponsors, including Senators Gillibrand (D-NY), Crapo (R-ID), Durbin (D-IL), Alexander (R-TN), Schumer (D-NY), Inhofe (R-OK), Rubio (D-FL), and Manchin (D-WV), among the 14 additional sponsors.

Monday, May 20, 2013

Surface Transportation Board Issues Arbitration/Mediation Rules

The Surface Transportation Board (STB) in a decision published May 13, 2013 in Docket EP-699, issued revised rules for Arbitration and Mediation of disputes before it. The Board's decision, which includes the final rules, is attached here. Arbitration, is a form of binding dispute resolution, where parties submit their dispute to a mutually agreed arbitrator (or panel), for resolution. Mediation, by constrast, is a joint process where parties attempt to resolve their dispute, or settle the matter, with the assistance of a mediator. Under the STB's revised arbitration rules, parties must "opt-in" to arbitration, either before a dispute arises or after an action before the Board has been filed. Arbitration awards are limited to $200,000 (unless the parties agree to expand the maximum), and are limited to disputes involving demurrage, accessorial charges, misrouting/mishandling rail cars, and disputes over a carrier's published rail rules/practices (i.e. tariffs). The new mediation rules published by the Board give the Board authority to order mediation in certain disputes - i.e. "those in which the Board is not required to grant or deny a license or other regulatory approval or exemption, and those that do not invovle labor protection." Sec. 1109.1.

Tuesday, April 2, 2013

Supreme Court Won't Hear Airline Fee Disclosure Challenge

As an update to my post from January 2012, the U.S. Supreme Court yesterday "denied cert" or refused to hear a challenge to airline fee disclosures and other rules issued by the USDOT. The Court's denial of the petition for review affirms the July 2012 decision of the U.S. Court of Appeals for the D.C. Circuit in Spirit Airlines v. USDOT.

Tuesday, March 12, 2013

NTSB Recommends Railroads Monitor for Electronic Device Use by Crews

The National Transportation Safety Board (NTSB)recommended today that the railroad industry "use technology-based solutions to detect the presence of signal-emitting electronic devices and that inform railroad management about the detected devices in real time." The recommendations are R-13-5 through R-13-8 (attached here) which were issued following the Board's investigation of a September 2010 train collision between two Canadian National trains in Minnesota. The Board's recommendations call for the use of sensing equipment to report use of electronic devices by crew members to rail management. The most recent recommendations are related to 49 CFR part 220 which prohibits the use of personal electronic devices by train crews. The Board also reiterated prior recommendations to the rail industry dating to 2010 covering the installation of video equipment in train cabs to verify and monitor crew compliance with rules and procedures - classifying the state of these recommendations as "Open- Unacceptable Response." It is likely today's recommendations will not be popular with rail labor, however it should be remembered that there was resistance to forward facing video equipment on locomotives some years past. That resistance has moderated as both railroad and train crews have seen the value of video evidence of crossing accidents, which often implicate drivers in accidents.

Wednesday, February 20, 2013

Tuesday, February 12, 2013

Increased Rail Haz Mat Penalties Published

The Federal Railroad Administration (FRA), published today revised civil monetary penalties for the violation of the Hazardous Materials Transportation Act. The FRA rule implements the increased penalties enacted in July 2012 with the passage of the MAP-21 Act (Moving Ahead for Progress in the 21st Century Act). The increased penalties, which apply to all violations of the federal haz mat transportation laws after October 1, 2012, increase the maximum civil penalty from $50,000 to $75,000 for "knowing violations," and from $100,000 to $175,000 if the violation "results in death, serious injury or severe injury to any person, or substantial destruction of property." Also, the prior minimum penalty of $250 has been eliminated, except that a $450 minimum penalty will apply to training violations.

Monday, February 11, 2013

NTSB to Hold Forum On Positive Train Control February 27

The National Transportation Safety Board (NTSB) announced today it will hold a 1-day forum, titled "Positive Train Control: Is it on Track?" on February 27, 2013 at its Washington headquarters. No specific agenda or list of speakers has been named for the forum, however it is clear the status of the implementation of the long-proposed technology to control trains will be the main focus. The NTSB's page on this issue is attached here. The pending FRA docket on the PTC rulemaking is attached here.

Thursday, January 10, 2013

WVU Receives Grant to Study Distracted Driving

West Virginia University's School of Public Health has recevied a $182,000 grant to study the effectiveness of state laws banning cell phone use while driving. The grant from the Eunice K. Shriver National Institute of Health was announced by West Virginia's U.S. Senators, Jay Rockefeller and Joe Manchin. WVU's announcement is attached here. According to a National Transportation Safety Board "Fact Sheet," which notes various data on the issue, commercial drivers are 163 times more likely to have a "safety-critical event" if texting, and that national surveys indicate 69 percent of drivers reporting talking on their cell phones while driving, and 24 percent reported texting or emailing while driving. The attached chart from the Governor's Highway Safety Association, lists all cell phone/texting laws in place in the U.S. and whether the various restrictions are primary or secondary offenses. Currently West Virginia's restrictions are secondary, meaning a driver cannot be cited for hand held use unless stopped for another infraction, however, West Virginia's ban becomes primary on July 1, 2013.