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 & 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.

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.





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. 

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.

HAZARDOUS MATERIALS (RAILROADS) / Two agency developments responding to the Lac-Mégantic tragedy: (1) Federal Railroad Administration (FRA) emergency order “for attendance and securement of certain freight trains … on mainline track or mainline siding outside of a yard or terminal; and (2) FRA and Pipeline and Hazardous Materials Safety Administration (PHMSA) jointly announce emergency meeting of Railroad Safety Advisory Committee on railroad and hazardous materials issues related to Lac-Mégantic.

ITEM #1: “Emergency Order Establishing Additional Requirements for Attendance and Securement of Certain Freight Trains and Vehicles on Mainline Track or Mainline Siding Outside of a Yard or Terminal.

August 7, 2013. Notice.

ITEM #2: “Lac-Mégantic Railroad Accident Discussion and DOT Safety Recommendations”

August 7, 2013. Notice Of Safety Advisory And Announcement Of Emergency Meeting Of The Railroad Safety Advisory Committee.

With respect to FRA and PHMSA joint meeting to discuss implications of Lac-Mégantic incident for U.S. railroad and hazardous materials policy.

PREEMPTION (RAILROADS & LOCOMOTIVES) / Court Case – In motion to dismiss under Rule 12(b)(6), held: Locomotive Inspection Act held to preempt state contract claims based on allegations by Plaintiff Canadian Pacific Railway / user of locomotive against manufacturers of seats used in locomotive made by GE Transportation that the seats failed to meet contracted safety requirements. The Act, “manifests Congress’s intent ‘to occupy the entire field of regulating locomotive equipment’ and, as such, pre-empts any state laws or regulations which pertain ‘to the design, the construction and the material of every part of the locomotive and tender and of all appurtenances.’”

Del. & Hudson Ry. Co. v. Knoedler Mfrs., Inc., C.A. No. 11-314 Erie (U.S. District Court for the Western District of Pennsylvania, August 1, 2013). Court-issued opinion available here.

RAILROADS (U.S. STB RATE REGULATION & “CAPTIVE SHIPPERS”) / U.S. Surface Transportation Board orders BNSF Railway Co. to delay revaluation in its assets “to transition the revaluation over seven years to reduce the possible impact on captive shippers”. U.S. STB notes that Berkshire Hathaway, Inc. in its 2010 purchase of the railroad company had “failed to obtain agency authorization for its purchase of BNSF, as required under federal law.”

U.S. STB press release available here.

This is part of the ongoing regulatory battle between Class I railroads and “captive shippers” over rates in the wake of 1980 Staggers Act and related so-called “deregulation”. 

RAILROADS (RITA – U.S. DOT’S INTERNAL “THINK TANK”) / U.S. DOT’s Research and Innovative Technology Administration (RITA) announced that it is studying “close calls” in the railroad industry. Rail safety researchers at RITA will receive reports and interview on the occasion of each qualifying “close call” incident.

“Agency Information Collection; Activity Under OMB Review; Confidential Close Call Reporting System.”

July 24, 2013. Notice.

A “close call” is defined for this notice as: Continue reading

RAILROADS (STREAMLINING RATE COMPLAINT CASES) / The Surface Transportation Board (U.S. STB) changes the rules on two forms of rate complaint proceedings to make the procedural offerings to reduce the time, complexity and cost of cases in which a party wishes to complain about rail rates to the U.S. STB.

“Rate Regulation Reforms.”

 July 24, 2013. Final Rules.

“The Surface Transportation Board (Board) changes some of its existing regulations and procedures concerning rate complaint proceedings. The Board previously created two simplified procedures to reduce the time, complexity, and expense of rate cases. The Board now modifies its rules to remove the limitation on relief for one simplified approach, and to raise the relief available under the other simplified approach. The Board also makes technical changes to the full and simplified rate procedures; changes the interest rate that railroads must pay on reparations if they are found to have charged unreasonable rates; and announces future proceedings on options for addressing cross-over traffic and on proposals to address the concerns of small agricultural shippers. The purpose of these actions is to ensure that the Board’s simplified and expedited processes for resolving rate disputes are more accessible.”