COMMENTS SECTION CONTENTS SUMMARY POSTED WEEK OF 6/17/2013

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A. TRANSPORT MODE.

Aviation

  • REMARKS / National Transportation Safety Board Chair Deborah A.P. Hersman addressed the Wings Club of New York in a speech that emphasized the NTSB’s independence with respect to aviation safety as the NTSB’s role relates to the Federal Aviation Administration’s role, and states that the past 52 months’ absence of fatalities in commercial aviation “does not equal safety”. Former FAA Acting Administrator Joe del Balzo responds that Chair Hersman’s view is informed by the limits of her own professional background (U.S. Senate staffer and government official): “C]riticism is more powerful if the critic understands the capabilities of the criticized”. Comment: This tension of roles and professional backgrounds is healthy and necessary. That’s not a bromide: Even Babe Ruth needed umpires to call balls and strikes.  
  • REMARKS / After two major FAA/industry meetings and two years of formal comment-gathering, the FAA has finished its policy re-think about non-U.S. citizen trusts for ownership of aircraft on the U.S. registry (“N-registered”) as reflected in the Federal Register. Greg Cirillo, Esq. of Wiley Rein LLP has concise and excellent summary. Comment: Among various details, note that now the FAA will require filing not only of the relevant trust agreement to spell out the trustee / beneficiary relationship, but also any document that will “legally affect a relationship under that trust”.

Railroads

  • REMARKS / National Transportation Safety Board Chair Deborah A.P. Hersman on June 19, 2013 underscores NTSB’s policy priorities for rail sector safety in testimony to U.S. Senate Committee on Commerce, Science and Transportation (actually, the Subcommittee with jurisdiction over surface transportation): Positive train control, operator distraction, and integrity of transportation infrastructure. Comment: Ongoing difference of opinion with U.S. Federal Railroad Administration about installation in all controlling locomotive cabs and cab car operating compartments of crash- and fire-protected inward- and outward-facing audio and image recorders.     

B. TRANSPORT POLICY TOPICS.

 Homeland Security

  • REMARKS / D.C. Circuit Court of Appeals upholds Transportation Security Administration’s imposition of $18,000 fine on certified air carrier for its failure to implement security measures included in its security plan earlier approved by the TSA. Comment: Note  D.C. Circuit’s deference to TSA on certified air carrier’s petition for review. This is another step toward TSA as a U.S. Department of Homeland Security agency becoming more “regulatory” in character, and poses the question of whether or not TSA will be marked by “enforcement ambiguity” versus a predictable regime of sticks to supplement the carrots.    

C. AGENCY INITIATIVES.

No posts this week.

D. TOPICS BY LEGAL DISCIPLINE.

 No posts this week.

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

No posts this week.

REMARKS / National Transportation Safety Board Chair Deborah A.P. Hersman addressed the Wings Club of New York in a speech that emphasized the NTSB’s independence with respect to aviation safety as the NTSB’s role relates to the Federal Aviation Administration’s role, and states that the past 52 months’ absence of fatalities in commercial aviation “does not equal safety”. Former FAA Acting Administrator Joe del Balzo responds that Chair Hersman’s view is informed by the limits of her own professional background (U.S. Senate staffer and government official): “C]riticism is more powerful if the critic understands the capabilities of the criticized”. Comment: This tension of roles and professional backgrounds is healthy and necessary. That’s not a bromide: Even Babe Ruth needed umpires to call balls and strikes.

Copy of NTSB Chair Hersman’s speech to the New York Wings Club available here. Interview with Condé Nast thereafter available here.

Copy of Joe del Balzo’’s piece in JDA Aviation Consultancy Blog available here.

Legal take-away:

First, the NTSB and the FAA, respectively, each have roles that are distinct from the other. NTSB Chair Hersman’s view of her agency’s mission is to be a fiercely independent in its evaluation of the transport modes under its jurisdiction.

And, beyond transport modes, to infrastructure.

Second, aviation is not the only mode in which Chair Hersman’s NTSB is voicing starkly different safety prescriptions to those adopted (at least not yet) by the federal U.S. DOT agency tasked with safety regulation (see in-cab recorder issue as addressed by NTSB and U.S. Federal Railroad Administration, respectively, in this blog edition of “Comment”). 

Practical take-away

The fact that U.S. commercial aviation has not had a fatality during the past consecutive 52 months can give rise to more than one inference about the state of U.S. commercial aviation safety.

Post hoc, ergo propter hoc”: A occurred then B occurred, therefore A caused B.

 

I think that NTSB Chair Hersman has the better argument here. Unless you buy the post hoc approach, we need an unremitting demand for empirical evidence to conclude that U.S. commercial aviation is truly safe.

As Doug Hall, one of my favorite authors in another field (a chemical engineer who writes about marketing) puts it: “In God we trust, all others … bring data.” 

REMARKS / After two major FAA/industry meetings and two years of formal comment-gathering, the FAA has finished its policy re-think about non-U.S. citizen trusts for ownership of aircraft on the U.S. registry (“N-registered”) as reflected in the Federal Register. Greg Cirillo, Esq. of Wiley Rein LLP has concise and excellent summary. Comment: Among various details, note that now the FAA will require filing not only of the relevant trust agreement to spell out the trustee / beneficiary relationship, but also any document that will “legally affect a relationship under that trust”.

Greg Cirillo, Esq. of Wiley Rein LLP write-up available here.

Link to announcement from this Blog’s New Rules and Developments available here.

Legal take-away:

Some more transparency on whatever is the “deal” between trustee and beneficiaries on control of the aircraft’s ownership and operation.

Practical take-away:

Requires meticulous reading of the entire notice of clarification.

Nothing revolutionary here.

REMARKS / National Transportation Safety Board Chair Deborah A.P. Hersman on June 19, 2013 underscores NTSB’s policy priorities for rail sector safety in testimony to U.S. Senate Committee on Commerce, Science and Transportation (actually, the Subcommittee with jurisdiction over surface transportation): Positive train control, operator distraction, and integrity of transportation infrastructure. Comment: Ongoing difference of opinion with U.S. Federal Railroad Administration about installation in all controlling locomotive cabs and cab car operating compartments of crash- and fire-protected inward- and outward-facing audio and image recorders.

NTSB Chair Hersman’s June 19, 2013 testimony available here.

Statement of NTSB position advocating installation of such in-cab recorders can be found near the end of her testimony.

Legal take-away:

NTSB of course has no rule-making or enforcement role, strictly speaking.

Practical take-away:

Don’t rule out in-cab recorders, given NTSB Chair’s priorities here. 

REMARKS / D.C. Circuit Court of Appeals upholds Transportation Security Administration’s imposition of $18,000 fine on certified air carrier for its failure to implement security measures included in its security plan earlier approved by the TSA. Comment: Note D.C. Circuit’s deference to TSA on certified air carrier’s petition for review. This is another step toward TSA as a U.S. Department of Homeland Security agency becoming more “regulatory” in character, and poses the question of whether or not TSA will be marked by “enforcement ambiguity” versus a predictable regime of sticks to supplement the carrots.

Suburban Air Freight, Inc. v. Transportation Security Administration, No. 12-1171 (U.S. Court of Appeals for the D.C. Circuit, June 14, 2013). Copy of court-issued opinion available here.

Legal Take-away:

Certified air carrier (“indirect” air carrier) conduct to which TSA objected under the carrier’s security plan:

“On October 6, 2009, a TSA inspector visited Richmond International Airport and observed the loading of a Suburban flight transporting packages for DHL International Express, an “Indirect Air Carrier” with its own TSA-approved security plan. The flight was a “single pilot” operation, meaning that the pilot was the only crew member. The cargo-loading area at the Richmond Airport is inside the airport’s secured area, which only individuals with airport-issued IDs and their guests may enter. Because the DHL employees delivering packages to Suburban had airport-issued badges but the Suburban pilot did not, DHL employees escorted the pilot into the secured area. In the pilot’s presence, the DHL employees then proceeded to load the packages onto the plane.

The TSA inspector was not satisfied. He observed that no Suburban employee or authorized representative ever checked the pilot’s identification. Instead, the pilot indicated that he had “verified his own ID.” The inspector also noted that the pilot failed to keep a constant watch on the loading process— at times even standing with his back to the aircraft—and then failed to inspect the cargo after loading was complete.4

As a result, TSA charged Suburban with violating the ID- check and custody-and-control provisions of its TFSSP. Suburban disputed both alleged violations. Alternatively, it argued that the October 6 flight did not qualify as a twelve- five operation and was therefore not subject to the TFSSP’s requirements because the flight carried no “cargo” within the meaning of the regulations. After a hearing, an administrative law judge found that the TFSSP applied and that Suburban had in fact committed both alleged violations. Accordingly, he imposed an $18,000 fine. Suburban filed an intra-agency appeal, and a TSA Administrator affirmed the ALJ’s decision in all respects.”

Court rejects all three of certified air carrier’s arguments and appears to defer to the TSA determination.

Practical Take-away:

Don’t count on a court’s hyper-technical regulatory review as a shield against negative TSA determinations about security plan implementation.

8th Annual Homeland Security Law Institute / June 19 to 21 in Washington DC

I am working on the Transportation and Supply Chain Panel for this, having spoken at all but one of these Institutes addressing transporation and supply chain matters since these Institutes were begun in 2006.

The 8th Homeland Security Law Institute June 19 to 21 next week is well worth your time if you are able to be in Washington DC then. See details, full schedule and registration here.

Its distinctives include the chance to hear directly from senior government officials on current developments, enforcement emphases, and policy directions. Added to this is what I believe is some of the best thinking about these issues as they bear on transportation and the supply chain.

The Transportation and Supply Chain Panel will be moderated by Kelly Suzanne Herman of Venable LLP and offers the following speakers who will balance current updates from senior officials and policy thinking from experts who were U.S. Department of Homeland Security policy officials in the last Administration:

  • (Moderator) Kelly Suzanne Herman, Of Counsel, Venable LLP. Ms. Herman is a lawyer who served in the U.S. Customs and Border Protection, Office of International Trade as a senior attorney advisor and as Deputy Director of Customs Affairs with the Office of the U.S. Trade Representative, and involved serving as delegate on behalf of the U.S. to various international customs organizations and negotiation with foreign governments with respect to agreements relating to trade and to investment.
  • Stephen Heifetz, Partner, Steptoe & Johnson. Mr. Heifetz is a lawyer who served in the U.S. Department of Homeland Security under Secretary Chertoff as Deputy Assistant Secretary in the Office of Policy Development under Stewart Baker, and later as Acting Assistant Secretary for the Office of Policy Development.
  • Honorable Ellen McClain, Deputy Assistant Secretary of Homeland Security, Office of Policy (Transborder Policy). Secretary McClain is a lawyer who earlier served as DHS Assistant General Counsel for Enforcement, and before that served in the U.S. Customs and Border Protection Office of Chief Counsel.
  • Honorable Mardi Ruth Thompson, Deputy Chief Counsel of the Transportation Security Administration for Regulations & Security Standards. Deputy Chief Counsel Thompson earlier served in the Federal Aviation Administration Office of Chief Counsel. 
  • Adam Isles, Managing Director, The Chertoff Group. Mr. Isles is a lawyer who advises clients on security risk management, threat detection technology, analytics, and cyber security, following service in the U.S. Department of Homeland Security under Secretary Chertoff as Deputy Chief of Staff where his portfolio included the Secure Border Initiative and transportation security matters including aviation passenger checkpoint modernization, general aviation security and transportation security vetting programs.

COMMENTS SECTION CONTENTS SUMMARY POSTED WEEK OF 6/3/2013

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Note below the Recommended Reading post, with 4 entries linked to write-up by other lawyers or agency ex-officials.

A. TRANSPORT MODE.

Maritime

REMARKS / MAY 31, 2013 notice of proposed rule making would re-write the Federal Maritime Commission Rules governing the licensing and operation of Non-Vessel Operating Common Carriers (NVOCC’s) in important ways, with more demanding requirements for NVOCC’s (OTI’s) and an arguably tougher regulatory environment – two excellent law firm summaries are out this week. Comment: Changes in the licensing and operations regime for NVOCC’s is sort of “inside baseball”, but it’s “inside baseball” for an economic function of massive proportions – the shipment of goods by sea on which 70 percent or more of U.S. international trade depends.

Motor Carriers

REMARKS / National Transportation Safety Board issues report on its safety study regarding crashes of “single unit trucks” (Large trucks having a gross vehicle weight of over 10,000 pounds with non-detachable cargo units and with all axles attached to a single frame) – Significance: “single unit trucks” are exempt from many regulations that apply to tractor-trailer rigs. Comment: NTSB under the leadership of Chairman Deborah A.P. Hersman continues its admirable focus on proactive and preventive safety measures across transport modes.  

B. TRANSPORT POLICY TOPICS.

Truck Driver “Misclassification”

UPCOMING / Battle over “independent contractor” versus “employee” legal status for truck drivers: Bill New Jersey legislature sent to Gov. Christie making it much harder for drayage and parcel delivery drivers to have status as “independent contractors”. Comment: Huge issue for motor carrier cost structures, and Teamsters and their allies in legislatures and state and federal labor agencies.

C. AGENCY INITIATIVES.

No posts this week.

D. TOPICS BY LEGAL DISCIPLINE.

No posts this week.

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

No posts this week.

UPCOMING / Battle over “independent contractor” versus “employee” legal status for truck drivers: Bill New Jersey legislature sent to Gov. Christie making it much harder for drayage and parcel delivery drivers to have status as “independent contractors”. Comment: Huge issue for motor carrier cost structures, and Teamsters and their allies in legislatures and state and federal labor agencies.

Question is whether or not Gov. Christie will veto.

News stories here and here.

Copy of bill here.

REMARKS / MAY 31, 2013 notice of proposed rule making would re-write the Federal Maritime Commission Rules governing the licensing and operation of Non-Vessel Operating Common Carriers (NVOCC’s) in important ways, with more demanding requirements for NVOCC’s (OTI’s) and an arguably tougher regulatory environment – two excellent law firm summaries are out this week. Comment: Changes in the licensing and operations regime for NVOCC’s is sort of “inside baseball”, but it’s “inside baseball” for an economic function of massive proportions – the shipment of goods by sea on which 70 percent or more of U.S. international trade depends.

This blog reported on the Federal Register announcement earlier (available here).

“Federal Maritime Commission Proposes New Rules for Ocean Transportation Intermediaries”. Write-up by J. Michael Cavanaugh, Esq. and Farid Hekmat, Esq. of Holland & Knight.

“U.S.: FMC Approves Proposped Re-Write of OTI Regulations”. Write-up by Ashley W. Craig, Esq., Elizabeth K. Lowe, Esq. and Amanda C. Blunt, Esq.

Hat tip: Mondaq.