RAILROAD (SHIPPER CHALLENGES TO RAILROAD RATES) / U.S. Surface Transportation Board issues a final decision, in Ex Parte No. 715, in which its makes a sweeping revision of the framework under which rail shippers may challenge a railroad’s rates. Major re-write of the rules. Concise summary by Thompson Hine LLP.

U.S. STB press release available here. U.S. STB text of decision available here.

And excellent summary by Karyn A. Booth, Esq., Sandra L. Brown, Esq., and Jeffrey O. Moreno, Esq. of Thompson Hine LLP available here.

RAILROAD (ECONOMIC & COMMERCIAL REGULATION) / Regulatory flexibility analysis relating to U.S. Surface Transportation Board-proposed rule, “that any person receiving rail cars from a rail carrier for loading or unloading who detains the cars beyond a specified period of time may be held liable for demurrage if that person has actual notice of the terms of the demurrage tariff providing for such liability prior to the carrier’s placement of the rail cars”.

“Demurrage Liability.”

May 28, 2013. Initial Regulatory Flexibility Analysis And Request For Comments.

“By decision served on May 7, 2012, the Surface Transportation Board (the Board) issued a notice of proposed rulemaking (NPR) regarding demurrage liability. Specifically, the Board announced a proposed rule providing that any person receiving rail cars from a rail carrier for loading or unloading who detains the cars beyond a specified period of time may be held liable for demurrage if that person has actual notice of the terms of the demurrage tariff providing for such liability prior to the carrier’s placement of the rail cars. Demurrage Liability, EP 707, slip op. at 10 (STB served May 7, 2012). Continue reading

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.”

RAILROADS (FELA & FEDERAL RAIL SAFETY ACT) / Where (1) plaintiff in Federal Employers Liability Act claim against railroad alleged negligence based on railroad’s failure to inspect a particular switch more often than once per month, and (2) Federal Rail Safety Act prescribed inspections of specified railroad switches at specified frequencies under specified circumstances of a minimum of once per month – Held: Federal Rail Safety Act standard did NOT preempt as a matter of law a higher negligence standard to be applied under Federal Employers Liability Act.

The district court’s basic rationale: FELA is based on negligence concepts for the protection of railroad employees, and FRSA – it reasoned – was not enacted with the idea of preempting such negligence standards with a distinct federal statutory standard.  “Finding preclusion as between these two statues would thus be tantamount to concluding that with the FRSA Congress intended to reconfigure the basic structure for imposing liability under the FELA.”

Powell v. Union Pacific Railroad Company, No. Civ. 2:09-01857 (U.S. District Court for the Eastern District of California, May 2, 2013). Free copy available here.

INSPECTOR GENERAL REPORT / A report by the U.S. DOT Inspector General on progress in implementation of the Rail Safety Improvement Act of 2008. This congressional response to high-profile railroad accidents and related hazmat releases requires the Federal Railroad Administration “to complete a number of initiatives to improve rail safety. The 17 new or revised rules will govern a wide variety of safety areas, including PTC, track maintenance, recordkeeping for employees’ hours of service, and highway-rail grade crossings”. COMMENT: Excellent progress report on rule adoption and other implementation of this landmark statute.

Available here.

COURT CASE & U.S. DOL Administrative Review Board / 2 court cases strike down management defenses to Federal Railroad Safety Act whistleblower anti-retaliation claims by covered employees. COMMENT: This follows other break-through court and agency developments under this statute – both in the courts and in U.S. Department of Labor OSHA determinations. This statute is a materially more potent tool in the hands of injured rail employees now than it was even just a year ago.

Leading lawyer in this field, Charlie Goetsche, Esq., points this out in a blog post (“More FRSA Railroad ‘Defenses’ Shot Down”) Thursday April 18 this week.

He highlights:

Battenfield v. BNSF Railway Co., Case No. 12-CV-213-JED-PJC, Slip copy (U.S. District Court for the Northern District of Oklahoma, March 26, 2013). Free copy available here.

Rudolph v. National Railroad Passenger Corporation, ARB Case No. 2009-FRS-015 (U.S. Department of Labor Administrative Review Board, March 29, 2013). Free copy available here.

SURFACE TRANSPORTATION BOARD (RAILROAD REVENUES & FREIGHT PRICE INDEX) / The Surface Transportation Board (STB) is publishing the annual inflation-adjusted index factors for 2012 used by the railroads to adjust their gross annual operating revenues for classification purposes – a reminder of the limitation on the extent to which the 1980 Staggers Act actually “de-regulated” this industry.

“… This indexing methodology insures that railroads are classified based on real business expansion and not from the affects of inflation. 

“Classification is important because it determines the extent to which individual railroads must comply with STB reporting requirements. 

“The STB’s annual inflation-adjusted factors are based on the annual average Railroad’s Freight Price Index which is developed by the Bureau of Labor Statistics (BLS). The STB’s deflator factor is used to deflate revenues for comparison with established revenue thresholds….”

The base year for railroads is 1991. 

“Indexing the Annual Operating Revenues of Railroads” 

April 8, 2013. Notice.

REMARKS / Judge applying Federal Railroad Safety Act in case relating to railroad’s retaliation against employee for claiming a safety violation on the railroad’s part recognizes a major turning point in the development of such cases. COMMENT: In evaluating attorney fee award to plaintiff’s counsel the court underscores what observers had concluded: That counsel, Charlie Goetsche, Esq., has taken this statute from its earlier status as a potential means to uphold railroad employees’ rights against retaliation for safety claims and warnings – to make the Federal Railroad Safety Act a legal tool to be reckoned with in actual practice.

Barati v. Metro North Railroad, 2013 WL 1296484, (U.S. District Court for the District of Connecticut, March 27, 2013). Free copy available here.

See summary by plaintiff’s attorney relating to this fee award here

See earlier write-up by plaintiff’s attorney on this landmark case here (Under Comments, Recommended Reading, at “Railroad (Federal Rail Safety Act)”.

U.S. Department of Labor OSHA orders Union Pacific Railroad Co. to reinstate employee for reporting a work-related injury – more than $350,000 in damages.

Finding violation of the Federal Railroad Safety Act for reporting a work-related injury. in back wages, compensatory damages and punitive damages plus interest. 

Copy of news release available here.

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.