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.”

RAILROADS (TANK CAR TRANSLOADING AFTER HEATING) / U.S. Federal Railroad Administration issues guidance in parts: (1) “Safety precautions and recommended guidance for persons responsible for unloading or transloading hazardous materials from rail tank cars, specifically those persons heating a rail tank car to prepare its hazardous material contents for unloading or transloading”; and (2) “Reminds such persons of current regulatory requirements addressing this type of operation”.

“Safety Advisory Guidance: Heating Rail Tank Cars To Prepare Hazardous Material for Unloading or Transloading.”

Safety Advisory Guidance. July 12, 2013.

Federal Register announcement refers to National Transportation Safety Board investigations of:

(1) An incident February 18, 1999 in which a 20,000-gallon rail tank car was propelled by an explosion 750 feet over multi-story storage tanks at the Essroc Logansport cement plant near Clymer, Indiana due to a sudden and catastrophic rupture of the tank car.

(2) An incident September 13, 2002 in which “a 24,000-gallon-capacity rail tank car containing about 6,500 gallons of hazardous waste catastrophically ruptured at a transfer station at the BASF Corporation chemical facility in Freeport, Texas” – and “the force of the explosion propelled a 300-pound rail tank car dome housing about1/3mile away from the rail tank car”, and “about 660 gallons of the hazardous material oleum” were released.  

The agency’s summary was as follows:

“This guidance provides safety precautions and recommended guidance for persons responsible for unloading or transloading1 hazardous materials from rail tank cars, specifically those persons heating a rail tank car to prepare its hazardous material contents for unloading or transloading. Further, this guidance reminds such persons of current regulatory requirements addressing this type of operation. PHMSA is issuing this guidance in coordination with the Occupational Safety and Health Administration (OSHA) and the Environmental Protection Agency (EPA), and in consultation with the Federal Railroad Administration (FRA).

“As defined in § 171.8, Transloading means the transfer of a hazardous material by any person from one bulk packaging to another bulk packaging, from a bulk packaging to a non-bulk packaging, or from a non-bulk packaging to a bulk packaging for the purpose of continuing the movement of the hazardous material in commerce.”

The agency’s guidance was as follows:

“Several Federal agencies share responsibility for the safety regulations of rail tank car unloading or transloading operations involving hazardous material—DOT (PHMSA and FRA), OSHA, and EPA. PHMSA, in coordination with OSHA and EPA, and in consultation with FRA, is issuing this safety advisory guidance to offer guidance on heating of a rail tank car to prepare solidified or viscous hazardous material products contained in the rail tank car for unloading or transloading. Based on existing regulatory requirements, we have assembled and coordinated the following guidance to raise awareness of those requirements and the risks associated with heating rail tank cars. This guidance does not include all of the aspects applicable to the safe heating of rail tanks cars; rather, it focuses on the issues raised in the NTSB recommendations as a result of its investigations into the two incidents cited above.

“Procedures. The shipper or facility operator, if not the same, should develop written safe operating procedures to be used when hazardous materials are heated in a rail tank car for unloading or transloading. The procedures should, at a minimum, establish hazard controls necessary to protect workers, the public, and the environment from adverse consequences, and include:

  • Detailed information regarding the chemical characteristics of the material such as, melting temperature, flash point, the degree to which the hazardous material expands as a result of heating, and additional risk if the hazardous material reacts with air or water.;
  • The pressure created by heating the rail tank car at which the material may safely be unloaded or transloaded from the rail tank car;
  • Active monitoring and recordkeeping requirements of the internal tank pressure and material temperature during the heating process. The heating process should be monitored with time intervals (such as hourly) that are dependent upon the nature and history of materials being heated;
  • Potential consequences of deviations from standard operating procedures and how to identify, control and respond to those consequences; and
  • Training of all entities involved in the unloading or transloading process.

“These procedures should be maintained in a location where they are immediately available to employees responsible for the heating, unloading or transloading operation. These procedures should clearly define employees’ roles and responsibilities for the heating of a rail tank car, as well as the roles and responsibilities of contractor personnel that are employed at a facility to conduct the operations for heating of a rail tank car.

“Monitoring. The facility operator should be knowledgeable of the chemical properties of all of the materials involved in the heating process, including the reactivity of those materials, and ensure that the heating process (i.e., pressure, temperature, and heating rate) applied to the rail tank car, and the pressure and temperature inside the rail tank car should be monitored to ensure that it does not result in over-pressurization of the rail tank car.

Monitoring should be conducted at the necessary frequency as heating continues until the material reaches its recommended parameters (e.g., viscosity and temperature) for safe unloading or transloading. Certain chemicals, such as a material that can undergo rapid exothermic decomposition, may require more frequent or even continuous monitoring during heating. Monitoring of the tank pressure and the temperature of the hazardous material includes measures to ensure that the heating rate does not result in over pressurization of the rail tank car.

As an additional aspect of monitoring, the facility operator may, when practical and safe, and the physical state of the material allows, sample the material that is in the rail tank car to verify the material and its chemical and physical properties. The rail tank car contents should be monitored at multiple times as heating continues until the material is determined to be at its recommended parameters (e.g., viscosity and temperature) for safe unloading or transloading.

“Designated Employee. The facility operator should designate an employee responsible for monitoring the heating process. Prior to the onset of operation, the designated employee should be made thoroughly knowledgeable of the nature and properties of the material contained in the rail tank car and procedures to be followed in the event of an emergency. In the event of an emergency, the designated employee should have the ability and authority to take responsive action.

“Training. Hazardous materials employees involved in heating rail tank cars for unloading or transloading operations should be trained in all aspects of the heating process that each employee is responsible for performing. Further, the level of training for each employee should correlate with that employee’s level of exposure to hazardous materials at the facility where rail tank cars are heated for unloading or transloading. Please refer to the Section III for a discussion of specific training obligations under applicable Federal regulations.”

RAILROAD (EMPLOYEE DEPRESSION, POST-TRAUMATIC STRESS DISORDER, ETC.) / U.S. Federal Railroad Administration issues this proposed rule in accordance with a statutory mandate that the Secretary of Transportation require certain major railroads to develop, and submit to the Secretary for approval, critical incident stress plans that provide for appropriate support services to be offered to their employees who are affected by a “critical incident” as defined by the Secretary who are directly involved in, who witness, or who respond to, such a “critical incident”.

“Critical Incident Stress Plans.”

June 28, 2013. Notice of Proposed Rulemaking.

“FRA issues this proposed rule in accordance with a statutory mandate that the Secretary of Transportation require certain major railroads to develop, and submit to the Secretary for approval, critical incident stress plans that provide for appropriate support services to be offered to their employees who are affected by a ‘critical incident’ as defined by the Secretary. The NPRM proposes a definition of the term ‘critical incident,’ the elements appropriate for the rail environment to be included in a railroad’s critical incident stress plan, the type of employees to be covered by the plan, a requirement that a covered railroad submit its plan to FRA for approval, and a requirement that a railroad adopt and comply with its FRA-approved plan.”

“This NPRM proposes a regulation that would require each Class I railroad, intercity passenger railroad, and commuter railroad to establish and implement a critical incident stress plan for certain employees of the railroad who are directly involved in, witness, or respond to, a critical incident. FRA seeks comment on all aspects of this proposal.”

“Although FRA has never regulated critical incident stress plans, many railroads have had some form of critical incident stress plan in place for many years. This rulemaking responds to the Rail Safety Improvement Act of 2008 (Public Law 110-432, Div. A) (RSIA) mandate that the Secretary of Transportation establish regulations to define ‘critical incident’ and to require certain railroads to develop and implement critical incident stress plans.

“As discussed in detail below, FRA reviewed the applicable science and information received through the Railroad Safety Advisory Committee (RSAC), and as required by Congress, FRA proposes a definition for ‘critical incident’ and proposes a set of minimum standards for critical incident stress plans. This approach provides covered employees with options for relief following a critical incident, yet allows for substantial flexibility within the regulatory framework so that railroads may adapt their plans commensurate with their needs. The proposal defines a ‘critical incident’ as either — (1) An accident/incident reportable to FRA under 49 CFR part 225 that results in a fatality, loss of limb, or a similarly serious bodily injury; or (2) A catastrophic accident/incident reportable to FRA under part 225 that could be reasonably expected to impair a directly-involved employee’s ability to perform his or her job duties safely. The proposed set of minimum standards for critical incident stress plans include allowing a directly-involved employee to obtain relief from the remainder of the tour of duty, providing for the directly-involved employee’s transportation to the home terminal (if applicable), and offering a directly-involved employee appropriate support services following a critical incident. The proposed rule would require each applicable railroad to submit its plan to FRA for approval.”

RAILROADS (FEDERAL RAILROAD ADMINISTRATION) / Federal Railroad Administration Administrator’s Congressional Testimony – Joseph C. Szabo testifies before U.S. Senate and U.S. House committees on transportation about his priorities, including implementation of the Rail Safety Improvement Act of 2008, roll out of the Confidential Close Call Reporting System, positive train control, “science-based regulations of hours of service”, harmonizing operating rules of various railroads, highway-rail grade crossing safety matters, and updating federal railroad-related statutes in light of emerging technology.

Here and here.

RAILROAD (CAR HANDLING PROCEDURES) The Federal Railroad Administration issues a safety advisory relating “to make recommendations to railroads regarding the adoption of car-handling procedures during flat switching operations at certain locations and to re-emphasize the importance of following procedures when going between rolling equipment due to the hazards involved. FRA previously made related recommendations to railroads and their employees regarding going between rolling equipment in Safety Advisory 2011-02”.

“Kicking Cars and Going Between Rolling Equipment During Flat Switching Operations.”

Note well: Under 49 C.F.R. § 219.99(a)(2) “kicking” cars refers to “the common railroad switching practice of shoving or pushing rolling equipment and then uncoupling the equipment and allowing it to roll free”.  

May 3, 2013. Notice of Safety Advisory.

“The overall safety of railroad operations has improved in recent years. However, in July 2012, a fatal event occurred during a switching operation which involved a railroad employee going between rolling equipment after kicking [1] two loaded tank cars up a 0.2-percent ascending grade. This 2012 incident illustrates the safety risks that are present when railroads allow the kicking of cars in flat switching operations at locations where the cars will likely roll back out toward the employees conducting such operations if the cars do not couple to secured standing equipment as intended. This incident also highlights the need for the railroad industry to again focus its attention on compliance with safety rules and procedures that apply to employees who, in the course of their work, must place themselves between rolling equipment.”

As to the incident that precipitated this advisory:

“On July 31, 2012, at approximately 2:30 a.m., a conventional three-person crew, consisting of an engineer, a footboard yardmaster, and a conductor/switchman (switchman) were conducting switching operations. The crew kicked—rather than shoved—two loaded tank cars southward into a yard track with the goal of coupling them to other cars that had been previously placed into the yard track and secured. The yard track had a 0.2-percent ascending grade (southward). The switchman had originally positioned himself to verify that the cars kicked into the track coupled to the standing equipment. However, after the footboard yardmaster was not able to uncouple the cars and kick them into the track, he shoved the cars toward the switchman’s location so that the switchman could make the cut and kick the cars into the standing equipment. After the two tank cars were kicked into the yard track by the switchman, he noticed that the knuckle on the last car of the block of cars still attached to the crew’s locomotive had fallen to the ground and needed to be reinserted. The switchman then informed the crew that the knuckle pin was missing. Following applicable railroad rules, prior to reinserting and adjusting the knuckle, the switchman first requested and received “Red Zone” protection. However, the two loaded tank cars that had previously been kicked into the yard track did not couple to the standing cars on that track as intended, and the uncoupled cars rolled back northward. As the switchman adjusted the knuckle, the two loaded tank cars struck him and the standing equipment attached to the locomotive. The conductor sustained fatal injuries.”

RAILROAD (HIGHWAY/RAILROAD CROSSINGS & TRACK SAFETY STANDARDS) / Federal Railroad Administration makes two new safety rules about track condition: One changing Track Safety Standards and Passenger Equipment Safety Standards to address speeds up to 220 m.p.h., and the other to create systems for telephonic notifications of unsafe highway-rail grade crossings.

Track & Equipment Standards

“The final rule revises standards for track geometry and safety limits for vehicle response to track conditions, enhances vehicle/track qualification procedures, and adds flexibility for permitting high cant deficiency train operations through curves at conventional speeds.

“The rule accounts for a range of vehicle types that are currently in operation, as well as vehicle types that may likely be used in future high-speed or high cant deficiency rail operations, or both.”

“Vehicle/Track Interaction Safety Standards; High-Speed and High Cant Deficiency Operations”

March 13, 2013. Final Rule.

Telephonic Notification of Unsafe Conditions

“This document responds to a petition for reconsideration of FRA’s final rule published on June 12, 2012, mandating that certain railroads establish and maintain systems that allow members of the public to call the railroads, using a toll-free telephone number, and report an emergency or other unsafe condition at highway-rail and pathway grade crossings. This document amends and clarifies the final rule.”

“Systems for Telephonic Notification of Unsafe Conditions at Highway-Rail and Pathway Grade Crossings” 

March 15, 2013. Final Rule; Response to Petition for Reconsideration.

RAILROAD (FEDERAL RAILROAD ADMINISTRATION) / Federal Railroad Administration mandates specified post-accident toxicological testing for employees involved in serous accidents – This adds to alcohol and certain controlled substances (e.g., marijuana, cocaine, PCP) and “selected opiates, amphetamines, barbiturates, and benzodiazepines” substances generally described as follows and specified below: “Certain non-controlled substances with potentially impairing side effects to its standard post-accident testing panel.”

March 5, 2013, Final Rule.

“In 1985, FRA implemented a post-accident toxicological testing (post-accident testing) program to test railroad employees who had been involved in serious train accidents for alcohol and certain controlled substances (marijuana, cocaine, phencyclidine (PCP), and selected opiates, amphetamines, barbiturates, and benzodiazepines). This final rule adds certain non-controlled substances with potentially impairing side effects to its standard post-accident testing panel. The non-controlled substances include tramadol and sedating antihistamines. This final rule makes clear that FRA intends to keep the post-accident test results for these non-controlled substances confidential while it continues to obtain and analyze data on the extent to which prescription and over-the-counter (OTC) drug use by railroad employees potentially affects rail safety.

“In 1985, to further its accident investigation program, FRA began conducting alcohol and drug tests on railroad employees who had been involved in serious train accidents that met its specified criteria for post-accident testing (see 49 CFR 219.201). Since the program’s inception, FRA has routinely conducted post-accident tests for alcohol and for certain drugs classified by the Drug Enforcement Administration (DEA) as controlled substances because of their potential for abuse or addiction. See the Controlled Substances Act (CSA), Title II of the Comprehensive Drug Abuse Prevention Substances Act of 1970 (CSA, 21 U.S.C. 801 et seq.). As noted in the NPRM, FRA has historically conducted post-accident tests for alcohol and marijuana, cocaine, phencyclidine (PCP), and certain opiates, amphetamines, barbiturates, and benzodiazepines. The purpose of these tests is to determine if alcohol misuse or drug abuse played a role in the occurrence or severity of an accident.

“On May 17, 2012, FRA proposed to add routine post-accident tests for certain non-controlled substances with potentially impairing side effects (77 FR 29307). As discussed in the NPRM, studies have shown a significant increase in the daily use of prescription drugs, OTC drugs, vitamins, and herbal and dietary supplements by both railroad workers and the general population. Although most prescription drugs and all OTC drugs are non-controlled substances, many commonly used ones, such as antihistamines and muscle relaxants (e.g., tramadol), carry warning labels against driving or moving heavy machinery because of their potential sedating effects. Furthermore, even prescription and OTC drugs that do not carry such warnings can have unintended side effects when taken in combination with other drugs, when not used in accordance with directions, or when a user has an unusual reaction.

“In the NPRM, FRA discussed testing for two non-controlled substances: (1) Tramadol, which is available only by prescription, and (2) sedating antihistamines, which are available at both prescription and OTC dosages. FRA asked for comment on how the agency should handle test results for these first non-controlled substances to be tested for routinely in its post-accident testing program. In the NPRM, FRA proposed to continue its research testing related to sedating antihistamines and keep the test results confidential and not report to the relevant railroad or employee any sedating antihistamine post-accident test results. In the NPRM, FRA noted that although tramadol is a non-controlled substance, it is a prescription-only semi-synthetic opioid that can cause dizziness, and sought comment on how it should handle tramadol post-accident test results. FRA specifically requested comment as to whether the agency should release post-accident test results for tramadol as it does for other opioids that are controlled substances.

“The NPRM also contained two announcements. To make its post-accident testing requirements and procedures easier to understand, FRA announced that its standard post-accident testing box would include new information and an updated and simplified form and instructions. FRA also announced that it was amending Appendix B to 49 CFR part 219 to designate Quest Diagnostics in Tucker, Georgia as its post-accident testing laboratory.”

Case Study: On Tuesday February 19, 2013 a three-judge panel of the U.S. Court of Appeals for the 3rd Circuit materially strengthened the whistle-blower protections of railroad employees contained in the Federal Rail Safety Act by the construction it placed on some of its key provisions to protect against retaliation for reporting injuries. .

Free copy of opinion available here.

This is significant not only for railroad employees who believe they face retaliation for having reported a safety problem, but for employees in other sectors like maritime, aviation and motor carrier who are protected by federal statutory counterparts to the Federal Rail Safety Act. 

The arrangement of my excerpts below from the court’s opinion cribs liberally from the structure of Charles Goetsch, Esq.’s summary – the lawyer who argued before the 3rd Circuit on behalf of employee-complainant here whose summary is included at “Recommended Reading” below: 

1. The 3rd Circuit took an expansive view of the safety purpose of the Federal Rail Safety Act – particularly as amended in 2007 to include anti-retaliation measures: 

“The purpose of the Federal Rail Safety Act (“FRSA”) is “to promote safety in every area of railroad operations.” 49 U.S.C. § 20101. The FRSA was substantially amended in 2007 to include anti-retaliation measures. Prior to the passage of the FRSA, whistleblower retaliation complaints by railroad carrier employees were subject to mandatory dispute resolution pursuant to the Railway Labor Act, 45 U.S.C. § 151 et seq. See generally 75 Fed. Reg. 53,523 (Aug. 31, 2010). Congress passed the FRSA amendment in 2007, expanding the scope of the anti-retaliation protections and providing enforcement authority with the Department of Labor. Under the newly amended FRSA, a railroad carrier “may not discharge, demote, suspend, reprimand, or in any other way discriminate against an employee if such discrimination is due, in whole or in part” to the employee’s engagement in one of numerous protected activities. 49 U.S.C. § 20109(a). The protected activities are enumerated in the statute, and include notifying the railroad carrier of a work-related personal injury or a work-related illness. Id. § 20109(a)(4).”

2. The 3rd Circuit adopted a burden of proof statement and burden-shifting rule that practicing legal counsel will view as advantaging the employee-complainant; the same can be said of the 3rd Circuit’s statutory construction of the term “contributing factor”: 

“It is necessary for us to interpret the FRSA burden- shifting scheme. Statutory analysis begins with the plain language of the statute, “the language employed by Congress.” Am. Tobacco Co. v. Patterson, 456 U.S. 63, 68 (1982) (quoting Reiter v. Sonotone Corp., 442 U.S. 330, 337 (1979)) (internal quotations omitted). This Court must give effect to the intent of Congress by giving these words their “ordinary meaning.” Id. (internal quotation omitted). Considering the plain meaning of the statute, FRSA burden- shifting is much more protective of plaintiff-employees than the McDonnell Douglas framework. The plaintiff-employee need only show that his protected activity was a “contributing factor” in the retaliatory discharge or discrimination, not the sole or even predominant cause. See 49 U.S.C. § 42121(b)(2)(B)(ii). In other words, “a contributing factor is any factor, which alone or in combination with other factors, tends to affect in any way the outcome of the decision.” Ameristar Airways, Inc. v. Admin. Rev. Bd., 650 F.3d 563, 567 (5th Cir. 2011) (quoting Allen, 514 F.3d at 476 n.3 (internal quotation omitted).

“The term “contributing factor” is a term of art that has been elaborated upon in the context of other whistleblower statutes. The Federal Circuit noted the following in a Whistleblower Protection Act case:

“The words “a contributing factor” . . . mean any factor which, alone or in connection with other factors, tends to affect in any way the outcome of the decision. This test is specifically intended to overrule existing case law, which requires a whistleblower to prove that his protected conduct was a “significant”, “motivating”, “substantial”, or “predominant” factor in a personnel action in order to overturn that action.

Marano v. Dep’t of Justice, 2 F.3d 1137, 1140 (Fed. Cir. 1993) (quoting 135 Cong. Rec. 5033 (1989) (Explanatory Statement on S. 20)) (emphasis added by Federal Circuit). Furthermore, an employee “need not demonstrate the existence of a retaliatory motive on the part of the employee taking the alleged prohibited personnel action in order to establish that his disclosure was a contributing factor to the personnel action.” Marano, 2 F.3d at 1141 (emphasis in original); see also Coppinger-Martin v. Solis, 627 F.3d 745, 750 (9th Cir. 2010) (“A prima facie case does not require that the employee conclusively demonstrate the employer’s retaliatory motive.”).

“Once the employee asserts a prima facie case, the burden shifts to the employer to demonstrate, “by clear and convincing evidence, that the employer would have taken the same unfavorable personnel action in the absence of that behavior.” 49 U.S.C. § 42121(b)(2)(B)(ii). The “clear and convincing evidence” standard is the intermediate burden of proof, in between “a preponderance of the evidence” and “proof beyond a reasonable doubt.” See Addington v. Texas, 441 U.S. 418, 425 (1979). To meet the burden, the employer must show that “the truth of its factual contentions are highly probable.” Colorado v. New Mexico, 467 U.S. 310, 316 (1984) (internal quotation omitted).”

3. As Charles Cahill puts it in his blog piece: “Even if an injured employee violates a Rule by following a common practice, the railroad nevertheless violates the FRSA if it disciplines that injured employee after ignoring other employees who followed the same practice.” 

Legal take-away:

This case significantly clarifies the Federal Rail Safety Act as amended in 2007 with protections for whistle-blowers.

As I noted in a post a few weeks ago (here), the law displays considerable ambivalence about whistle-blower / anti-retaliation protections. [plug] Such protection as is offered by statute in the various transport modes and also outside the transport sector is often hedged in with short statute of limitations filing time limits, limited and conditional access to federal court, and considerable legal credence given to employer explanations of what they call as “disciplinary” action for claimed complainant rule violations.

From the standpoint of legal doctrine this case moves the needle toward complainant’s rights and requires more of the employer who would wish to strike down the complainant’s claim.

Practical business take-away: 

Whatever one thinks is the proper policy toward whistle-blowers – in transport or elsewhere – this case makes matters considerably easier for the employee-complainant and harder for the employer who seeks to explain why it took action against the employee in question.

This holding and related opinion amount to a strong move in the employee-complainant’s direction. Railroad employees and railroad management should each take note, as Charles Cahill has underscored in his summary. A summary of a case that he argued himself to the 3rd Circuit.

CASE STUDY #1 / In the relatively low-key format of its report on a specific accident, the NTSB made recommendations to the Federal Motor Carrier Safety Administration and Federal Railroad Administration that could be surprisingly consequential in the current legal context.

Hat tip to the Scopelitis Transportation Blog this past week.

First, the FMCSA is, controversially, pursuing its safety program called “CSA 2010”. Its Safety Measurement System – alongside SafeStat – has called into question the standards by which motor carriers and those who hire them will be judged on both compliance grounds and in vicarious liability litigation. See past comments abut CSA 2010 in this blog here and here. 

Into this fraught situation for motor carriers and brokers the NTSB in its report on a truck-tractor hauling two empty trailers and an Amtrak train in Nevada killing the truck driver, train conductor, and four passengers – and injuring 15 passengers and a crew member. Its recommendations begin at Page 64 of “National Transportation Safety Board. 2012. Report available here: “Highway–Railroad Grade Crossing Collision, US Highway 95, Miriam, Nevada, June 24, 2011. Highway Accident Report NTSB/HAR-12/03”

The NTSB’s recommendations directed to the Federal Motor Carrier Safety Administration are as follows

“As a result of its investigation of this accident, the National Transportation Safety Board makes the following recommendations: 

“To the Federal Motor Carrier Safety Administration: 

[1] “Create a mechanism to gather and record commercial driving-related employment history information about all drivers who have a commercial driver’s license, and make this information available to all prospective motor carrier employers. (H-12-54). 

[2] “Using the mechanism developed in Safety Recommendation H-12-54, require motor carriers to conduct and document investigations into the employment records of prospective drivers for the 10 years that precede the application date. (H-12-55). 

[3] “Require motor carriers to retrieve records from the Commercial Driver’s License Information System and the National Driver Register for all driver applicants so that they can obtain a complete driving and license history of prospective drivers. (H-12-56). 

[4] “Inform commercial vehicle inspectors of (1) the importance of taking pushrod stroke measurements within the specified pressure range, (2) the relationship between pushrod stroke and specific air pressure, and (3) the consequence of taking measurements outside of this range. (H-12-57).” 

Second, even a casual reading of this blog picks up on the frequency and volume of tort litigation relating to collisions at railroad grade crossings (see posts here, here, here, here, here, and here). Also, recently the Federal Railroad Administration proposed a rule to require railroads to inventory all railroad / highway crossings over which they operate (see post here). 

The NTSB’s recommendations directed to the Federal Railroad Administration are as follows

“As a result of its investigation of this accident, the National Transportation Safety Board makes the following recommendations: 


“To the Federal Railroad Administration: …

[1] “Work with the Federal Highway Administration to develop a model grade crossing action plan that can be used as a resource document by all states. At a minimum, such a document should incorporate information from US Department of Transportation publications, industry studies, and the American Association of State Highway and Transportation Officials, as well as the best practices and lessons learned at the conclusion of the 5-year grade crossing action plans developed in response to 49 Code of Federal Regulations 234.11, “State Highway–Rail Grade Crossing Action Plans.” (R-12-42). 

[2] “Work with the Federal Highway Administration to update its website on annual reporting requirements for railway–highway crossings, to include comprehensive information on the individual grade crossing action plans developed by the states pursuant to 49 Code of Federal Regulations 234.11, “State Highway–Rail Grade Crossing Action Plans.” (R-12-43).” 

RAILROAD / Administrative Rule – / Federal Railroad Administration clarifies but does not alter its December 11, 2012 proposal on implementing the Rail Safety Improvement Act of 2008 to require that “certain passenger and freight railroads install positive train control (PTC) systems”. Key here: Responses the FRA makes to Association of American Railroads petition.

In a petition for rulemaking dated April 22, 2012 the Association of American Railroads (AAR) proposed – regarding a future FRA rule about Positive Train Control systems – “expanding the de minimis exception and other amend[ing] the rules concerning the “limited operations” exception, en route failure of trains operating with PTC systems, and the discontinuance of signal systems once PTC systems are installed”. 

Note: This is categorized in this blog under both “RAILROAD” topics and “HAZARDOUS MATERIALS”. The first occasion I had with the CEO of a Class I railroad to discuss what I referred to as “the new proposed rules on rail transportation of poisonous-by-inhalation / toxic-by-inhalation” materials that CEO replied simply that the main issue in this area is simply the specifications and implementation of positive train control.   Continue reading