UPCOMING: Like rock ‘n roll, Positive Train Control (PTC) is here to stay. Now activity is afoot to fine tune PTC’s application and effect in two important respects.

There is no question about its future in that regard since the notice of final rule on January 15, 2010 (available here) and clarifying amendments September 27, 2010 (available here).

First, the Association of American Railroads has applied to the Federal Railroad Administration to make some adjustments existing regulations pertaining to PTC’s application. (available here).

Second, the National Transportation Safety Board has taken a major initiatives this past week to promote and refine PTC: 

A February 27 forum on PTC – “Forum: Positive Train Control: Is it On Track?”. This will include one presentation among multiple experts to look back to evaluate PTC implementation to date and two similar panels to evaluate future challenges to PTC implementation. Announcement available here.

Live streaming of the webcast available here the day of the meeting and archived thereafter.

Legal doctrine take-away: 

The regulations are unchanged, subject to modifications that might emerge from the AAR’s efforts to fine-tune the original PTC rules in specific situations.

Practical business take-away: 

As investments in capital equipment and track infrastructure are anticipated for the future, PTC as an element of planning is a new and prominent safety factor.

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).” 

JUDICIAL PROCEEDINGS PRIVILEGE AGAINST DEFAMATION / NTSB accident investigation was quasi-judicial proceeding such that any communications made during such investigation were absolutely immune from suit for defamation.

5th Circuit held that absolute privilege applies “to any communications made during the course of a quasi-judicial NTSB accident investigation”, where aircraft mechanic brought defamation and related claims against manufacturer of aircraft that crashed, claiming that manufacturer “conspired to manipulate National Transportation Safety Board (NTSB) investigation and contributed to NTSB’s allegedly false accident report which concluded that probably cause of crash was improper maintenance of airplane”.

Shanks v. AlliedSignal, Inc., 169 F.3d 988 (United States Circuit Court of Appeals for the 5th Circuit, 1999). Free copy available hereContinue reading

REMARKS – ADMINISTRATIVE LAW / Now-Chief Justice John Roberts unpacks “arbitrary & capricious” in NTSB “ad hocery”.

Link to post this past Wednesday.   

Some times it can seem like an administrative agency holds all the cards.

And the “arbitrary & capricious” challenge to administrative injustice often looks like fools gold.

But I ran across a marvelous opinion of now-Chief Justice John Roberts from his days on the DC Circuit pertaining to the NTSB.

“The parties dispute whether the prohibition against agency “ad hocery” also applies only to agency adjudicative actions or also to TRPA’s legislative actions. In Ramaprakash v. FAA, 346 F.3d 1121 (D.C.Cir.2003), the court explained that “the core concern underlying the prohibition of arbitrary or capricious agency action is that agency ‘ad hocery’ is impermissible.” Id. at 1130 (internal quotation marks and citation omitted). It held that the National Transportation Safety Board (“NTSB”) engaged in such ad hocery when it departed from its precedent without any reasoned explanation in deciding whether the Federal Aviation Administration could suspend Ramaprakash’s pilot certificate. Id. at 1125. Most consequentially, the NTSB abandoned its decades-old requirement of prosecutorial diligence in investigating possible violations of the Federal Aviation Regulations. Id. at 1127–28. It also indicated that whether the departures announced in Ramaprakash’s case would apply in the future would depend on the facts of specific cases. Id. at 1130. The court expressed dismay at the resulting uncertainty, concluding:

“We have it on high authority that “the tendency of the law must always be to narrow the field of uncertainty.” O.W. Holmes, The Common Law 127 (1881). The Board’s unexplained departures from precedent do the opposite. ‘[W]here an agency departs from established precedent without a reasoned explanation, its decision will be vacated as arbitrary and capricious.’ Id. at 1130 (second citation omitted).”

ADMINISTRATIVE & AVIATION / The court in this case cites to an opinion by then-Judge of the D.C. Circuit Court of Appeals (now Chief Justice of the United States) John Roberts construing the “arbitrary and capricious” standard in the context of an NTSB review of an FAA suspension of a pilot’s license.

Then-Circuit Court Judge and now-Chief Justice John Roberts provides a tutorial on arbitrary & capricious analysis where administrative agency (National Transportation Safety Board) failed to follow its own precedents and stated guidelines. 

Sierra Club v. Tahoe Regional Planning Agency, Slip copy, 2013 WL 79947 (U.S. District Court for the Eastern District of California, January 4, 2013). Free copy available here.

Ramaprakash v. FAA, 346 F.3d 1121 (U.S. Court of Appeals for the District of Columbia Circuit, 2003). Free copy available here.

“The parties dispute whether the prohibition against agency ‘ad hocery’ also applies only to agency adjudicative actions or also to TRPA’s legislative actions. In Ramaprakash v. FAA, 346 F.3d 1121 (D.C.Cir.2003), the court explained that “the core concern underlying the prohibition of arbitrary or capricious agency action is that agency ‘ad hocery’ is impermissible.’ Id. at 1130 (internal quotation marks and citation omitted).

UPCOMING: AVIATION, MARITIME, MOTOR CARRIER & RAILROAD / National Transportation Safety Board shines a light on Geographic Information Systems (GIS) in transportation safety across all modes.

Conference hosted by National Transportation Safety Board December 4 and 5 highlights Geographic Information Systems (GIS) in transportation safety across all modes. See announcement here.

“GIS is a rapidly expanding group of technologies and analytical techniques that uses geographically referenced data to support complex data integration, advanced statistical analysis, precise investigation, and effective visualization of data. The meeting will bring researchers and practitioners in transportation safety and GIS together to discuss how GIS data, technologies, and techniques are applied to improve transportation safety. They will identify emerging themes, current challenges, and potential solutions in using GIS in transportation safety. The meeting will include eight panels, with experts from government agencies, research institutes, non-profit organizations, and industry covering all modes of transportation.”