RAILROADS & HAZARDOUS MATERIALS / Implementing the MAP-21 statute enacted in 2012, the Federal Motor Carrier Safety Administration (FMCSA) and the Pipeline and Hazardous Materials Administration (PHMSA) amend both the Federal Motor Carrier Safety Regulations and Hazarouds Materials Regulations, “to prohibit a driver of a commercial motor vehicle or of a motor vehicle transporting certain hazardous materials or certain agents or toxins (hereafter collectively referenced as ‘regulated motor vehicle’) from entering onto a highway-rail grade crossing unless there is sufficient space to drive completely through the grade crossing without stopping”.

“Highway-Rail Grade Crossing; Safe Clearance”

Final Rule. September 25, 2013. 

This is a major development in an area of much safety concern over accidents and also a much-litigated matter in tort cases.

The background here is detailed and complex.

Among other implications: The PHMSA and FMCSA standard set forth here will likely be incorporated into negligence standard of care instructions to juries and to judges as finders of fact under a “negligence per se” theory.

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

CLICK ON SUMMARY BELOW TO ACCESS THE BLOG POST

A. TOPICS BY TRANSPORT MODE.

Aviation

Maritime

Motor Carriers

Railroads

B. TOPICS BY TRANSPORT POLICY.

No post this week.

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.

AVIATION (AIRPORTS) / Federal Aviation Administration “updates, simplifies, and streamlines rules of practice and procedure for filing and adjudicating complaints against federally-assisted airports”.

“Rules of Practice for Federally-Assisted Airport Enforcement Proceedings (Retrospective Regulatory Review)” 

September 12, 2013. Final Rule.

“It improves efficiency by enabling parties to file submissions with the Federal Aviation Administration (FAA) electronically, and by incorporating modern business practices into how the FAA handles complaints. This amendment is necessary to reflect changes in applicable laws and regulations, and to apply lessons learned since the existing rules were implemented in 1996.” Continue reading

AVIATION (AIRPORTS) / Federal Aviation Administration hereby, “publishes the entire Policy Regarding Airport Rates and Charges currently in effect in a single document”. This new comprehensive document does not either adopt or propose substantive changes to existing regulation.

“Policy Regarding Airport Rates and Charges”

September 10, 2013. Notice; Publication Of Entire Policy Statement As Amended. Continue reading

MARITIME (HAZMAT) – “The Coast Guard is amending its regulations concerning the transfer of hazardous materials to and from bulk packaging on vessels. The Coast Guard is expanding the list of bulk packaging approved for hazardous material transfers to include International Maritime Organization (IMO) Type 1 and Type 2 portable tanks, United Nations (UN) portable tanks, and Intermediate Bulk Containers (IBCs).”

“Bulk Packaging To Allow for Transfer of Hazardous Liquid Cargoes”

 Final Rule. September 6, 2013.

“The Coast Guard is also expanding the list of allowed hazardous materials to provide greater flexibility in the selection and use of packaging in the transportation of hazardous materials. This rule will eliminate the need to obtain special permits or Competent Authority Approvals to use IMO Type 1 or Type 2 portable tanks, UN portable tanks, or IBCs.”

MOTOR CARRIER (BROKERS & FREIGHT FORWARDERS) / Federal Motor Carrier Safety Administration “announces guidance concerning the implementation of certain provisions of the Moving Ahead for Progress in the 21st Century Act (MAP-21) concerning persons acting as a property broker or a freight forwarder” – including new financial security requirements for property brokers and freight forwarders.

“Registration and Financial Security Requirements for Brokers of Property and Freight Forwarders 

Notice. September 5, 2013.

“FMCSA has received a number of requests from motor carriers and other transportation companies requesting additional information about when registration as a broker or freight forwarder is required. The Agency has compiled a list of the most common questions and our responses and presents the information below in question-and-answer format. Continue reading

RAILROAD (DISCLOSURES IN INTERNLINE AGREEMENTS) / Surface Transportation Board issues final rule to, “establish additional disclosure requirements for notices and petitions for exemption where the underlying lease or line sale includes an interchange commitment”.

“Information Required in Notices and Petitions Containing Interchange Commitments”

Final Rules. September 5, 2013.

 

 

 

 

ENFORCEMENT (MOTOR CARRIERS) / Federal Motor Carrier Safety Administration announces that it, “has begun using the Uniform Fine Assessment (UFA) Version 4.0 software to calculate the amounts of civil penalties for violations of the Federal Motor Carrier Safety Regulations (FMCSRs) and Hazardous Materials Regulations (HMRs)”.

“Uniform Fine Assessment Version 4.0 Software; Calculating Amounts of Civil Penalties for Violations of Regulations”

Notice. September 3, 2013.

“…FMCSA is required to consider certain statutory factors when proposing civil penalties for violations of the FMCSRs and HMRs and since the mid-1990′s FMCSA has used its UFA software to consider those statutory factors. FMCSA has updated the UFA software to ensure that it adequately considers the statutory penalty factors for all statutes and regulations enforced by FMCSA; to implement the Agency’s policy for consideration of the Small Business Regulatory Enforcement Fairness Act; and, to ensure uniformity in proposed civil penalties. UFA 4.0 software also considers the factors set forth in 49 U.S.C. 521(b)(2)(D) for violations of regulations where no statutory factors are otherwise specified by statute. To enhance transparency of the civil penalty calculation, UFA 4.0 generates a report detailing the calculations used to propose civil penalties. While UFA 4.0 is used to calculate the majority of civil penalties proposed by FMCSA, the Agency may propose a civil penalty outside of UFA 4.0 when the proposed civil penalty calculated by UFA 4.0 would not promote enhanced commercial motor vehicle safety or induce prompt and sustained compliance. In such cases, the Agency will nevertheless consider the applicable statutory factors to assess a penalty. This Federal Register Notice supersedes the Federal Register Notice issued by FMCSA entitled, “Civil Penalty Calculation Methodology. ” 76 FR 71431, November 17, 2011.”

MARITIME (SEAGOING BARGES) / The U.S. Coast Guard is exempting specified seagoing barges from its inspection.

“Seagoing Barges”

Final Rule. August 29, 2013. 

“The Coast Guard is revising several vessel inspection and certification regulations to align them with a statutory definition of ‘seagoing barge’ and with a statutory exemption from inspection and certification requirements for certain seagoing barges. The revisions are intended to eliminate ambiguity in existing regulations, to reduce the potential for confusion among the regulated public, and to help the Coast Guard perform its maritime safety and stewardship missions.” Continue reading

AVIATION (OSHA) / Recent legislation (FAA Modernization and Reform Act of 2012) requires the Federal Aviation Administration to develop a statement of policy about “the circumstances in which the requirements of the [U.S. Department of Labor Occupational Safety and Health Administration] OSHA may be applied to crewmembers while working in an aircraft”. This FAA “Policy Statement” does not state policy as much as it invites comment.

“Occupational Safety and Health Standards for Aircraft Cabin Crewmembers”

August 27, 2013. Notice Of Availability; Final Policy And Disposition Of Comments.

This announcement details various comments received from industry stakeholders, together with FAA and OSHA replies.

Text of “Policy Statement on Occupational Safety and Health Standards for Aircraft Cabin Crewmembers” available here.