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.

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.

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."

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.

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.

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.

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.