NEW RULES & DECISIONS CONTENTS SUMMARY FOR WEEK OF 9/23/2013

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A. TOPICS BY TRANSPORT MODE.

Aviation

Maritime

Motor Carriers

Railroads

B. TOPICS BY TRANSPORT POLICY.

Hazardous Materials

C. TOPICS BY AGENCY INITIATIVE. 

No post this week. 

D. TOPICS BY LEGAL DISCIPLINE.

No post this week.  

E. NOTEWORTHY CRIMINAL ENFORCEMENT, CIVIL ACTIONS or INSPECTOR GENERAL AUDITS.

MARITIME (HAZARDOUS LIQUIDS & GASES) / “The interim rule updates and revises regulatory tables that list liquid hazardous materials, liquefied gases, and compressed gases that have been approved for maritime transportation in bulk, and that indicate how each substance’s pollution potential has been categorized.”

“2012 Liquid Chemical Categorization Updates”

Interim Rule; Delay of Effective Date. September 16, 2013.

“ …. The interim rule provides new information about approved substances and their categorizations, but would not change which substances are approved or how each substance is categorized. Updated information is of value to shippers and to the owners and operators of U.S.-flag tank and bulk cargo vessels in any waters and most foreign-flag tank and oceangoing bulk cargo vessels in U.S. waters. This interim rule promotes the Coast Guard’s maritime safety and stewardship missions.”

AVIATION (AIRWORTHINESS DIRECTIVE ON EMERGENCY LOCATOR TRANSMITTERS) / “[F]or certain Honeywell ASCa Inc. emergency locator transmitters (ELTs) installed on various transport category airplanes. … [R]equires various one-time general visual inspections of the ELT transmitter units (TUs), and corrective actions if necessary.… [P]rompted by a fire on a parked and unoccupied airplane; preliminary information indicated combustion in the area of the ELT TU.”

“Airworthiness Directives; Honeywell ASCa Inc. Emergency Locator Transmitters Installed on Various Transport Category Airplanes”

Final Rule; Request for Comments. September 18, 2013.

This has received a certain amount of attention in the industry press.

“Following an event where a fire broke out on a parked and unoccupied aeroplane, the United Kingdom Air Accidents Investigation Branch (AAIB) carried out an investigation to determine the cause of the fire. Although the investigation is still ongoing, preliminary information indicated that there was combustion in the area of the ELT TU. Subsequent to the fire event, inspection of in-service ELT TUs revealed battery wiring installation discrepancies inside the TU that may result in an electrical short. The AAIB noted that in case of an electrical short, the ELT battery could provide the energy for an ignition.” 

MARITIME (NVOCC COMPLAINT AGAINST STEAMSHIP LINE BEFORE FEDERAL MARITIME COMMISSION) / A reminder that some economic regulation continues under U.S. transportation law: Under the Shipping Act of 1984 a non-vessel-operating common carrier (NVOCC) brings a complaint against an ocean steamship line for what the NVOCC claims were unfair and discriminatory terms included in the “service contract” (term of art under the Shipping Act of 1984).

Global Link Logistics, Inc. v. Hapag-Lloyd AG

Free copy of complaint available here.  

MOTOR CARRIERS (ENTRY LEVEL DRIVER CDL STANDARDS) / Federal Motor Carrier Safety Administration (FMCSA) had in 2007 issued notice of proposed rulemaking, “that proposed new entry-level driver training standards for individuals applying for a commercial driver’s license (CDL) to operate commercial motor vehicles (CMVs) in interstate commerce”. FMCSA hereby withdraws that proposal because: MAP-21 instructs FMCSA to consider new entry level CDL requirements; so FMCSA thinks it best to start on this issue anew.

“Minimum Training Requirements for Entry-Level Commercial Motor Vehicle Operators” 

Notice of Withdrawal. September 19, 2013.

Lesson #1: The FMCSA sees this issue as very consequential, not least because Congress recently in MAP-21 saw fit to put it on FMCSA’s agenda anew. 

Lesson #2: Because FMCSA had taken an earlier stab at this question pre-MAP-21, FMCSA responded to MAP-21 by taking a completely fresh effort at the minimum training requirements for entry-level CDL drivers.

AVIATION (NATIONAL TRANSPORTATION SAFETY BOARD RULES OF PRACTICE) / This dry title belies the practical significance of these new rules that the Pilot’s Bill of Rights ordered the NTSB to implement. The NTSB sits as an appellate panel to FAA administrative proceedings regarding airmen’s certificates to operate aircraft. These rules are promulgated over FAA disagreement on specific points.

“Rules of Practice in Air Safety Proceedings”

Final Rule. September 19, 2013.

At issue here is the balance of power between a pilot controverting the terms of his or her licensure with the Federal Aviation Administration (FAA), and the FAA.

As occurs in other aviation policy settings, here there are material policy differences between the FAA and NTSB and the FAA comments to these rules changes and responses by the NTSB reflect them.

General idea: More fairness to pilots subject to FAA actions against their certificates, emphasizing more timely and complete access to information the FAA (prosecuting authority in such cases) has against the subject pilots 

The highlights:

  1. Rules designed to encourage the FAA to get its Enforcement Investigative Report to the pilot, or the FAA risks NTSB dismissal of the action or other appropriate corrective action against the FAA’s case.
  2. Federal Rules of Evidence and Federal Rules of Civil now apply “to the extent practicable”.
  3. Pilots will now have the right to appeal final NTSB orders in either federal district court or the federal court of appeals.

AVIATION (STAGE 3 MANDATE ON BUSINESS JETS) / Federal Aviation Administration (FAA) underscores the fact that its earlier-announced final rule mandating jet airplanes with a maximum weight of 75,000 pounds or less operating in the U.S. must be Stage 3 noise compliant – and that this applies to the 69 reported Falcon 20 Dassault Falcon 20 aircraft that are registered in the U.S. Here the FAA notes that a “hushkit” is available for GE Aviation’s CF700 engine on such aircraft.

“Adoption of Statutory Prohibition on the Operation of Jets Weighing 75,000 Pounds or Less That Are Not Stage 3 Noise Compliant”

Final Rule; Disposition of Comments. September 20, 2013.

Here the manufacturer of the CJ 610 engine for Dassault Falcon 20 aircraft, GE Aviation, undertakes to correct “inaccuracies in the section discussing Hush Kits”, in a final rule dated July 2, 2013 that implemented recent legislation (the FAA Modernization and Reform Act of 2012) that mandated Stage 3 Noise Compliance for business jets (“maximum weight of 75,000 pounds or less”). 

GE Aviation pointed out in its comments on the final rule that there was in fact a hush kit available to bring such engines on Falcon 20’s into Stage 3 Noise compliance.

GE Aviation’s letter of correction and comment is available here (click on the blue type, “Adoption of Statutory Prohibition on the Operation of Jets Weighing 75,000 Pounds or Less That Are Not Stage 3 Noise Compliant”).

MOTOR CARRIERS (PASSENGER) / Federal Motor Carrier Safety Administration (FMCSA) FMCSA “proposes to adopt regulations governing the lease and interchange of passenger-carrying commercial motor vehicles (CMVs)”. The point: Identify the motor carrier who is actually operating the particular CMV (mostly inter-city buses) so as to make clear who exactly is responsible for compliance with all applicable safety regulations.

“Lease and Interchange of Vehicles; Motor Carriers of Passengers”

Notice of Proposed Rulemaking. September 20, 2013.

This goes to a problem the FMCSA has long been concerned with: the so-called “phantom” carrier, who accrues violations under a particular operating certificate and name, and then makes use of another name and perhaps operating certificate under which to continue its unsafe operations unsanctioned. 

HAZARDOUS MATERIALS (ENFORCEMENT) – No an enforcement action; but a proposed change in the rule to bar from transport of any materials regulated by the Hazardous Materials Regulation any party that who fails to pay a civil penalty as ordered for a past violation of the HMR.

“Hazardous Materials: Failure To Pay Civil Penalties” 

Notice of Proposed Rulemaking. September 24, 2013.

Significantly upping the ante on those who are “scofflaws” on their hazmat civil penalty orders.

COMMENT: This bears some study, but the literal language would render illegal operation of whatever transport instrumentality is operated by the entity whose PHMSA penalty civil order remains unpaid. 

One area for consideration: Insurance policies that require operation in accord with applicable law.

Another: A lease the similarly requires operation in conformity to applicable law. 

 

 

RAILROADS (FRA Statement of Agency Policy on Hours of Service) / Federal Railroad Administration (FRA) offers “interim statement of agency policy” and seeks public comment in regard to specified Federal railroad safety laws governing employees’ hours of service, especially as to, “the maximum on-duty periods and minimum off-duty periods for railroad employees performing certain functions” under two statutes enacted in 2008.

“Second Interim Statement of Agency Policy and Interpretation on the Hours of Service Laws as Amended in 2008”

Interim Statement Of Agency Policy And Interpretation, Hours Of Service Laws As Amended In 2008; Request For Public Comment. September 24, 2013. 

“The hours of service laws are Federal railroad safety laws that govern such matters as the maximum on-duty periods and minimum off-duty periods for railroad employees performing certain functions. In this document FRA supplements its existing interpretations of the hours of service laws by stating the agency’s interim position on some additional interpretive questions primarily involving two provisions of those laws that were added in 2008. First, this document further interprets the hours of service laws related to train employees, particularly the “consecutive-days” provision of those laws. Although the consecutive-days provision was also discussed in FRA’s June 2009 interim interpretations and February 2012 final interpretations, this document addresses the application of that provision to certain circumstances that were not specifically addressed in those interpretations. Second, this document further interprets the provision of the hours of service laws that makes signal employees operating motor vehicles subject to the hours of service laws and other hours of service requirements administered by FRA and exempt from the hours of service requirements promulgated by any other Federal authority. FRA invites public comment on these additional interim interpretations.”