RAILROAD (Post-Lac-Mégantic Developments) / PHMSA held their two-day meeting in late August to discuss regulatory responses, then PHMSA issued a formal call for ideas in the form of an “Advance Notice of Proposed Rulemaking, and Canada’s counterpart to the U.S. National Transportation Safety Board, the Transportation Safety Board of Canada, wrote to PHMSA and Transport Canada (1) calling for new labeling regulations for flammable liquids carried in railcars, and (2) questioning the adequacy of Class 111 tank cars for carrying “low flash” flammable liquids like crude oil.

The September 11 letters from the Transportation Safety Board of Canada should catch the attention of this sector for their specificity and, each in their own way, far-reaching potential industry impact (letter to Transport Canada here, and letter to PHMSA here). Of course the Transportation Safety Board of Canada, like its U.S. counterpart, the NTSB, has a persuasive voice – but it is up to Transport Canada and PHMSA, respectively, to actually issue new rules.

In addition, post- Lac-Mégantic proposals are pending in the U.S. Congress and the Canadian Parliament.

PHMSA’s Advance Notice of Proposed Rulemaking – again, a document that is actually an extended call for comments without offering a template bearing the agency’s imprimatur (yet) – is available here.

It is hard to overstate the regulatory significance of the Lac-Mégantic catastrophe for carriage of crude oil by rail tank car operations. 





Motor Carriers




No post this week.


Employment Law


AVIATION (ENHANCED FLIGHT VISION SYSTEMS) / The Federal Aviation Administration announces availability for comment of two advisory circular drafts relating to Enhanced Flight Vision Systems (EFVS) relating to a Notice of Proposed Rulemaking announced June 13, 2013 – the first consisting of rules for EFVS operations, and the second consisting of guidance on getting airworthiness approvals for EFVS & related equipment. The gist of EFVS: Instrumentation that provides a graphic portrayal in place of natural vision to descend to specified altitudes where visibility at the destination airport is below authorized minimums.

Note well: Concerning Enhanced Flight Vision Systems, the proposed advisory circular about EFVS operations covers substantially the entire waterfront of aviation operations – Parts 91 (general operating and flight rules), 121 (scheduled air carrier), 125 (certification of larger aircraft – 20 or more passengers or maximum payload capacity 6,000 pounds or more), 129 (foreign air carriers and foreign operators), and 135 (commuter and on-demand operations) of the Federal Aviation Regulations.

“Availability of Draft Advisory Circular (AC) 90-106A and AC 20-167A”

 August 13, 2013. Notice of Availability for Comment. Continue reading

MOTOR CARRIERS (HOURS-OF-SERVICE / OIL FIELD) / Federal Motor Carrier Safety Administration (FMCSA) responds to earlier public comments motor carrier rules about hours-of-service requirements for oilfield operations: First, for specially trained drivers of commercial motor vehicles that are built specifically to service the oil wells themselves (a lengthy specific list), the so-called “oilfield-waiting-time” provision will continue to exclude from on-duty time such time as they spend waiting at the well site (oil or gas). Second, commercial motor vehicles that transport equipment, water (for fracking) and sand (for fracking) – a list is given – do NOT qualify for the “oilfield-waiting-time” provision to exclude their waiting time at the well site from total hours-of-service calculation.

Note well: “Oilfield-waiting-time” has been the topic of debate in the industry since the old Interstate Commerce Commission first issued hours-of-service rules for motor carriers in 1939. The lists of those whose equipment and operations  qualify for the “oilfield-waiting-time” exclusion to hours-of-service and those whose equipment and operations do not qualify are long and detailed. And for those businesses who believe their equipment and operations are not adequately described, FMCSA invites them to apply for an exemption: “Therefore, motor carriers that believe the current oilfield operations exceptions do not provide sufficient relief for their operations should consider submitting an application for an exemption to the Agency describing an alternative that would ensure the requisite level of safety.”

“Hours of Service of Drivers of Commercial Motor Vehicles; Regulatory Guidance for Oilfield Exception”

August 12, 2013. Notice Of Regulatory Guidance; Response To Public Comments.

MOTOR CARRIERS (HOURS-OF-SERVICE / SHORT-HAUL) In its ruling on the third round of court challenges to the Federal Motor Carrier Safety Administration’s (FMCSA’s) most recent version of its hours-of-service rules originally issued in 2011, the U.S. Circuit Court of Appeals for the D.C. Circuit in what the court called “a protracted rulemaking [that] traces its beginnings to 1999” – held: Affirmed the rule generally and vacated only the FMCSA’s application of the 30-minute break provision to short-haul drivers.

American Trucking Associations, Inc. v. FMCSA et al., No. 12-1092 (U.S. Court of Appeals for the D.C. Circuit, August 2, 2013). Copy of court-issued opinion available here.

MOTOR CARRIERS (HOURS-OF-SERVICE / SHORT-HAUL) / In response to the decision of the U.S. Court of Appeals for the D.C. Circuit immediately above, the Federal Motor Carrier Safety Administration (FMCSA) issues “guidance” August 8 to explain how the FMCSA will enforce the hours-of-service rules subject to the court’s ruling concerning enforcement of the rule in regard to short-haul drivers.

August 8, 2013. Guidance.

OMB Approval of Rule – The White House Office of Management and Budget (OMB) approved a rule to streamline four “legacy” motor carrier systems into one under the management of the Federal Motor Carrier Safety Administration (FMCSA). The rule is seen as a major upgrade and stricter framework register and otherwise identify motor carriers, brokers, freight forwarders and others required to register with the U.S. Department of Transportation in connection with carriage of cargo by motor carrier.

Article in Transport Topics available here (requires subscription).

RAILROADS (RATES & CLASS CERTIFICATION) / U.S. Circuit Court of Appeals for the D.C. Circuit overturned the decision of the U.S. District Court for the District of Columbia that had granted class certification that could involve as many as 30,000 shippers (Journal of Commerce estimate) in a lawsuit against CSX Transportation, BNSF, Union Pacific Railroad, and the Norfolk Southern Railroad to recover damages on what plaintiffs contend was a price-fixing conspiracy relating to rate-based fuel surcharges on rail shipments on the four defendant railroads.

In a unanimous opinion by for the three-judge panel by Judge Janice Rogers Brown, the court sent the litigation back to the district court with instructions to reconsider the class certification issue in light of the U.S. Supreme Court precedent of Comcast v. Behrens.

In re: Rail Freight Fuel Surcharge Antitrust Litigation, No. 12-7085 (U.S. Court of Appeals for the D.C. Circuit, August 9, 2013). Copy of court-provided opinion available here.