From
the editors of CCH's Transportation products, here are summaries of the
important recent developments in the area for the past month. Complete
coverage of these issues, and many more, appear in our print and electronic
products, including: Aviation Law Reporter, Commercial Aircraft Transactions,
Issues in Aviation Law and Policy, Federal Carriers Reporter, Federal
Motor Carrier Safety Administration Decisions, and Motor Carrier
Liability.
If you have comments or suggestions concerning the information provided
or the format used, please feel free to contact me directly at aaron.broaddus@wolterskluwer.com.
Hot Topic
Drug Testing Validity Requirements
Toughened
Laboratories that handle drug
testing for transportation workers will be required to analyze every test
for tampering, under the terms of a new final rule issued by the Department
of Transportation (DOT). According to Transportation Secretary Mary E.
Peters, the rule will make it more difficult for workers to cheat on their
required drug tests. ``We want to make sure there are no doubts about
the ability of anyone working in transportation do their job as safely
as possible,'' Peters said. ``There is no margin for error when it comes
to the safety of the traveling public.''
The new rule will cover the nation's approximately
12.1 million transportation employers, safety-sensitive transportation
employees, collectors, labs, and medical review officers, Peters said,
adding that, under the terms of the rule, labs no longer would have the
option of testing urine samples for signs of cheating, but instead would
be required to test every specimen for possible adulterants and urine
substitutes. In addition to the changes facing the labs that process the
drug tests, collectors will be required to institute new procedures designed
to prevent tampering. For example, observation procedures will include
checking employees for items designed specifically to cheat the test.
The rule also requires collectors to observe all return-to-duty and follow-up
tests for transportation workers who are returning to their jobs following
a positive drug test result. DOT will treat any invalid test results as
a refusal to be tested by any employee who admits to tampering with or
adulterating their test, Peters noted.
The Department regulates drug and alcohol testing
of safety-sensitive transportation employees in the aviation, motor carrier,
railroad, transit, pipeline, and maritime industries. DOT publishes rules
on who must conduct drug and alcohol tests, when to conduct those tests,
and what procedures to use when testing. The new rule takes effect on
August 25, 2008. Federal Carriers Reports, Report Letter
No. 1537, July 3, 2008.
Aviation Excise Tax Extension Signed
into Law
The Federal Aviation Administration
Extension Act of 2008 (Pub. L. 110-253, 122 Stat. 2417), which lengthens
to the end of September a prior extension of federal aviation excise taxes
and fees, and similarly extends funding of the Airport Improvement Program,
was signed into law by President Bush on June 30. The Senate approved
the new measure on June 26, two days after its passage by the House. The
last extension, the Airport and Airway Extension Act of 2008 (Pub. L.
110-190, 122 Stat. 643), was enacted on February 28 and expired on June
30. Rising jet fuel prices have driven airlines to raise ticket prices,
leading to a higher amount of aviation taxes collected to fund the Airport
and Airway Trust Fund. However, the new law keeps the same tax rates in
effect, with the extra revenue directed toward addressing problems with
airport congestion and airport runway improvements. Aviation Law
Reports, Report
Letter No. 1383, July 17, 2008.
TSA Releases Security Recommendations
for Motor Carriers
The Transportation Security
Administration (TSA) has released a set of security recommendations for
the transportation of certain quantities of hazardous materials across
the nation's highways. The recommendations, which are voluntary, are intended
to help ensure the secure transportation of potentially dangerous materials.
The voluntary guidelines were developed over a three-year period by TSA's
Highway and Motor Carrier Division, in close corporation with government
and private sector partners. The resulting recommendations are structured
to allow motor carriers and shippers to adopt measures best suited to
their particular circumstances or operation.
TSA developed security action items for general
security; personnel security; unauthorized access; and en-route security.
General security measures include conducting security threat assessments,
security planning, protecting critical information and enhancing awareness
of industry-security practices. Personnel security and unauthorized access
refer to practices affecting the security of a motor carrier's employees,
contracted employees and its property. En-route security refers to the
actual movement and handling of motor vehicles transporting highway security-sensitive
materials.
TSA recognizes that no one solution fits all
motor carriers and circumstances. Therefore, the security action items
allow for implementation flexibility based on the assessed vulnerability
of a particular process or operation. The goal of the affected motor carrier
and shipper should be to implement these security action items to the
fullest extent practical. TSA plans to build on these recommendations
by analyzing the effectiveness of the security action items and feedback
the Highway and Motor Carrier Division receives from industry. TSA will
consider the security action items for development as regulations. Federal
Carriers Reports, Report Letter No. 1538, July 25, 2008.
Aviation News
New Rule Addresses Passenger Jet Fuel
Tank Flammability
Within two years, all new aircraft
must include technology designed to significantly reduce the risk of center
fuel tank fires, under the terms of a final rule issued by the Department
of Transportation on July 21. The rule also requires that passenger aircraft
built after 1991 be retrofitted with technology designed to keep center
fuel tanks from catching fire. Announcing the rule on the day before the
anniversary of the crash of TWA Flight 800, Transportation Secretary Mary
E. Peters said, “[w]e can't change the past, but we can make the
future safer for thousands of air travelers, and this rule does just that.”
The rule requires aircraft to have technology to neutralize or eliminate
flammable gasses from fuel tanks under the center wing of commercial passenger
planes. In the wake of the TWA crash, researchers with the Federal Aviation
Administration developed a breakthrough system that replaces oxygen in
the fuel tank with inert gas, which effectively prevents the potential
ignition of flammable vapors. In addition, Boeing developed a similar
system. Aviation Law Reports, Report
Letter No. 1384, July 30, 2008.
Delta Not Liable for Negligence in
Comair 5191 Crash
A federal court in Kentucky
has ruled that Delta Air Lines is not liable for negligence in an action
brought on behalf of passengers who were killed in the 2006 crash of Comair
Flight 5191. Comair is a wholly-owned subsidiary of Delta. In separate
rulings, the court also denied Comair's motion to exclude the flight's
cockpit voice recorder (CVR) tape from evidence and dismissed warranty
claims against Comair. The court found that Delta was neither liable by
reason of its own negligence nor vicariously liable for Comair's alleged
negligence stemming from the crash. Although Delta had scheduled, routed,
and priced the flight, and Delta's ticket and gate agents had serviced
the flight, there was no allegation that the conduct of any Delta employee,
or the manner in which the flight had been scheduled, routed, or priced,
had caused or contributed to the crash, the court said. In addition, Delta
could not be vicariously liable for the allegedly tortious conduct of
Comair and/or its employees because Delta had neither the ability nor
right to control any of the operational aspects of the flight, the court
noted. The court also denied Comair's motion to exclude the flight's CVR
audio tape. In re Air Crash at Lexington, Ky., Aug. 27, 2006
(EDKy) 32
Avi. 16,499 and In re Air Crash at Lexington, Ky., Aug. 27, 2006
(EDKy) 32
Avi. 16,527.
DOT Airport Fee Policy Revision Adds
Congestion Pricing
The Federal Aviation Administration
has amended its 1996 Policy Statement on Airport Rates and Charges, adopting
a clarification and two modifications that affect the way in which airports
charge landing fees. The new and amended provisions: (1) define a “congested
airport”; (2) explicitly acknowledge the ability of an airport to
establish a two-part landing fee consisting of a weight-based charge and
a per-operation charge; and (3) allow landing fees to be used to pay for
airport facilities that are under construction. According to DOT, using
price as a tool to address airport congestion should encourage airports
to move away from the practice of charging aircraft landing fees based
on aircraft weight. Instead, airports will be able to vary their charges
based on the time of day and the volume of traffic. In addition, the changes
allow airport operators to include the cost of capacity expansion projects
in their new landing fees. Previously, airports could include those costs
only after the projects had been completed. Full text of the DOT notice
containing the amendments appears at. Aviation Law Reporter
¶23,975.
U.S.-European Aviation Safety Pact
Expands Collaboration
The Federal Aviation Administration
and the European Commission signed an agreement June 30 aimed at enhancing
safety by deepening regulatory collaboration. Acting FAA Administrator
Robert A. Sturgell and Antonio Tajani, European Commissioner for Transport,
signed the agreement, which will provide for reciprocal acceptance of
safety findings in aircraft design and manufacturing, continued airworthiness,
and repair station oversight. The agreement broadens the scope of potential
U.S. acceptance of European aeronautical products from all EU member states,
beyond the current 14 states that have signed individual agreements with
the U.S. It also provides for regulatory cooperation, particularly in
rulemaking and safety data exchange, and establishes a bilateral oversight
board to manage implementation of the agreement and to consult on urgent
matters. Aviation Law Reports, Report
Letter No. 1383, July 17, 2008.
U.S., Brazil Agree to Expanded Air
Services
The United States and Brazil
have concluded an air transport agreement that will provide for a nearly
50 percent increase in passenger flights between the two countries, while
eliminating restrictions on the number of airlines that can provide U.S.-Brazil
air service. Under the pact, any number of U.S. or Brazilian airlines
now may fly between the two countries, removing the previous limit of
four carriers from each side. The agreement also permits—in four
stages between July 2008 and October 2010—an increase in the number
of weekly U.S.-Brazil passenger flights from 105 to 154 for each country's
carriers. In addition, the agreement allows air cargo services between
the two nations to expand immediately from 24 to 35 weekly flights, and
to 42 weekly flights in the year 2010. Cargo charter flights may increase
from 750 per year to 1,000 immediately, and to 1,250 in 2010. U.S. cargo
companies also will be allowed to transfer freight from aircraft to trucks
for door-to-door delivery in Brazil. Aviation Law Reports,
Report
Letter No. 1383, July 17, 2008.
Code-Share Partner May Be a “Contracting
Carrier”
In an action brought under the
Montreal Convention by a passenger who suffered personal injuries as a
result of a fall on an aircraft boarding stair, a federal court in Florida
denied a motion for summary judgment by carrier's the code-share partner.
The partner airline argued that its motion should be granted because only
a flight's actual carrier can be liable for a passenger's injuries. However,
the court found that the plain language of the Convention provides that
a person making a contract of carriage with a passenger is a “contracting
carrier,” and that both contracting and actual carriers may be liable
to a passenger. Because at least some of the evidence in the case suggested
that the partner airline was, at minimum, a “contracting carrier,”
the court ruled that summary judgment was not appropriate. McCarthy
v. American Airlines, Inc. (SDFla) 32
Avi. 16,472.
Surface Transportation News
Highway-Rail Grade Safety Next Focus
of DOT Action Plan
Several safety initiatives designed
to reduce collisions between motor vehicles and trains will be completed
before the end of 2008 as part of the ongoing U.S. Department of Transportation
(DOT) Highway-Rail Crossing Safety and Trespass Prevention Action Plan,
according to DOT Secretary Mary E. Peters. The Action Plan, which was
originally released in June 2004, involves the work of several DOT agencies
and has completed numerous projects and activities during the past four
years including regulations, research, technology development, technical
assistance, and educational efforts.
``Our efforts to improve safety where the rails
meet the road are working,'' Peters said, noting that from 2004 to 2007
grade crossing accidents and fatalities declined 10.8 percent and 9.1
percent respectively. However, there were still 2,746 collisions and 338
deaths at America's nearly 227,000 grade crossings last year. ``More needs
to be done to make crossing safer,'' she added.
In June, the Federal Railroad Administration
(FRA) released a comprehensive report detailing the challenges associated
with the nearly 87,000 private roadways that cross over railroad tracks
and which are not subject to the same federal safety standards as public
crossings. The report describes and proposed possible courses of action
to improve safety at private crossings through the development of a national
policy or issuance of federal regulations.
In the coming months, FRA plans to issue a
multi-year research and development plan that includes several projects
specifically addressing grade crossing safety issues. It will support
research into innovative and low-cost technologies to modernize existing
warning devices, improve detection of oncoming trains by motor vehicle
drivers, and apply Intelligent Transportation System solutions, among
other research efforts. Finally, by the end of the year, FRA will issue
a revised guidebook to assist states and communities in closing or consolidating
unneeded or little used public grade crossings along a rail corridor while
improving crossing safety at those that remain open.
``Grade crossing safety is a shared responsibility
and to achieve further improvements everyone needs to do their part, ''
said FRA Administrator Joseph Boardman, stressing the need for motorist,
railroads, and federal, state, and local governments and others to act
individually and work together. Federal Carriers Reports,
Report Letter No. 1538, July 25, 2008.
STB Revises User Fee Schedule
The Surface Transportation Board (STB) issued a final rule revising
its user fees to reflect changes in overhead factors. Under federal regulations,
the STB is required to annually review and update its user fee schedules,
taking into consideration salary increases and overhead costs affecting
the agency. As a result of this review, the agency is updating its fee
schedule to reflect the government's 2008 salary increases, changes in
fringe benefit costs, and other expenses. The revised fee schedule took
effect June 18, 2008. Federal Carriers Reports, Report
Letter No. 1537, July 3, 2008.
Rail Relocation and Improvement Grant
Program Rules Adopted
The Federal Railroad Administration
(FRA) has adopted a final rule establishing guidelines for the awarding
of capital grants under the rail line relocation and improvement program
authorized in the Safe, Accountable, Flexible, Efficient Transportation
Equity Act: A Legacy for Users (SAFETEA-LU) legislation. In order to be
eligible for a grant under the new guidelines, a project must mitigate
the adverse effects of rail traffic on safety, motor vehicle traffic flow,
community quality of life, including noise mitigation, or economic development,
or involve a lateral or vertical relocation of any portion of a rail line
to reduce the number of grade crossings and/or alleviate noise, visual
issues, or other externality that negatively impact a community. Under
the new requirements, half of all grant funds will be reserved for projects
costing less than $20 million each. A state or other eligible entity will
be required to pay at least 10 percent of the shared costs of the project.
The new guidelines are effective August 11, 2008. Federal Carriers
Reports, Report Letter No. 1538, July 25, 2008.
DOT Okays Reporting of Drug/Alcohol
Rule Violations to State
The Department of Transportation
(DOT) is accepting comments on an interim final rule authorizing employers
and third-party administrators (TPAs) to disclose violations of federal
drug and alcohol rules by commercial motor vehicle (CMV) drivers and owner-operators
to state commercial driver licensing (CDL) authorities where state law
requires such reporting. Under the interim rule, employers and TPAs are
permitted to comply with state law reporting requirements without violating
confidentiality mandates. The interim final rule took effect June 13,
2008. Federal Carriers Reports, Report Letter No. 1537,
July 3, 2008.
FRA Responds to Petitions for Reconsideration
with Final Rule
The Federal Railroad Administration (FRA) has issued a final
rule amending certain provisions of a previously-released rulemaking addressing
the human factors contributing to train accidents and railroad employee
injuries. The original rulemaking, which was published in February, 2008,
mandated certain changes to a railroad's operational tests and inspection
program, and established new requirements for the handling of equipment,
switches, and fixed derails. Following publication of the final rule,
four petitions for reconsideration were filed with the FRA seeking, among
other things, more time to comply with the new requirements. In response,
the agency issued a rulemaking clarifying certain requirements currently
contained in the regulations, adding a new definition for ``departure
track,'' and delaying the implementation deadline for compliance with
the new requirements by about six months. The final rule took effect June
16, 2008. Federal Carriers Reports, Report Letter No.
1537, July 3, 2008.
State Regulation of Train Speed Preempted
by FRSA
A federal court of appeals reversed
a lower court's decision, finding a state law limiting train speeds through
a municipality within the state to be exempt from preemption under the
Federal Railroad Safety Act's (FRSA's) saving clause. The state of Minnesota
had enacted a special law limiting the speed trains could travel through
the City of Orr. The railroad challenged the state law, arguing that it
was preempted by the FRSA. A federal district court ruled in favor of
the state, holding that, while a state law regulating train speeds normally
would have been preempted by the FRSA, the special law, in this case,
had met the three requirements of the FRSA's saving clause.
Under the saving clause, a state law that otherwise
would be preempted will be exempt from preemption if the state can show
that the law: (1) is necessary to eliminate or reduce an essentially local
safety or security hazard; (2) is not incompatible with a law, regulation,
or order of the United States Government; and (3) does not unreasonably
burden interstate commerce. Based on the evidence, the district court
held that five conditions in Orr-swampy soil; extreme temperatures; lake;
buildings; and propane tanks adjacent to track-had combined to create
an essentially local safety hazard. Furthermore, it found that the special
law was not incompatible with federal law and did not unreasonably burden
interstate commerce.
On appeal, the railroad argued that the factors
used to determine the existence of an ``essentially local safety hazard,''
were not unique to the city and were actually conditions that could and
did exist in other areas. The appellate court agreed, finding that the
state had not satisfied the first requirement of the savings clause because
none of the factors cited as local safety hazards were unique to the city.
The court held that, in order to satisfy the first requirement of the
saving clause, an essentially local safety hazard must be a local situation
that is not statewide in character and not capable of being properly addressed
within the confines of a national uniform standard. Because the conditions
identified by the state were not unique to the City of Orr, they did not
constitute an essentially local safety hazard. Accordingly, the state
law regulating train speeds in Orr was unenforceable because it was preempted
by the FRSA. Duluth, Winnipeg, and Pac. Ry. Co. v. City of Orr
(8thCir) Federal Carriers Reporter ¶84,549.
FRSA Preempts State Law Aiding Injured
Rail Employees
A federal court of appeals reversed
a decision finding a provision of a state law intended to ensure that
railroad employees injured in the course of their employment received
prompt medical treatment without interference or harassment from their
employer was not preempted by the Federal Railroad Safety Act (FRSA).
The state law was adopted to address concerns that railroad employees
injured on the job were not afforded prompt medical treatment due to employer
interference. Under the law, an employer or person convicted of a violation
of the state statute would be guilty of a misdemeanor and could face a
fine of up to $1,000. A group of railroads operating in the state filed
an action against the state official responsible for the enforcement of
the law. The railroads sought an injunction barring enforcement of the
law, and a declaration that the law was preempted by the FRSA.
The challenged state law contained two provisions
which prohibited employers from: (1) intentionally denying, delaying,
or interfering with medical treatment or first aid treatment to a railroad
employee injured on the job and (2) disciplining, harassing, or intimidating
employees injured in the course of the employment in an effort to discourage
them from seeking medical treatment. The railroads claimed that Federal
Railroad Administration (FRA) regulations mandating that railroad employers
comply with internal control plans (ICPs), asserting the railroad's commitment
to the accurate reporting of job-related injuries, and prohibiting the
harassment and intimidation of injured employees preempted the state law.
A federal district court disagreed with the railroad's as to the first
provision, determining that the FRA regulations had not addressed the
subject matter covered in that provision because the state statute established
an ``affirmative duty'' on the part of the railroad to provide prompt
medical treatment to injured employees, which the federal regulations
did not do. Consequently, the lower court ruled that the first state law
provision was enforceable, while the second provision which prohibited
rail employers from disciplining, harassing, or intimidating an employee
to discourage them from receiving medical treatment was preempted. The
railroad appealed the district court's decision.
Upon review, the appellate court disagreed
with the lower court's conclusion that the state statute established an
``affirmative duty'' requiring railroads to provide prompt medical treatment
to employees injured on the job, finding that it was unsupported by the
language of the state statute. The court held that the ICP regulations,
issued by the FRA pursuant to the FRSA, addressed the same safety concerns
as the state law, and created an administrative regulatory framework that
both prohibited all employer interference with employee medical treatment
and established an enforcement mechanism to punish such interference.
Consequently, it determined that the state statute had been preempted
in its entirety by federal statute. Thus, the district court's decision
as to the first provision was reversed and remanded. BNSF Ry. Co.
v. Swanson (8thCir) Federal Carriers Reporter ¶84,550.
Railroad's Storage and Demurrage Charges
Reasonable
A decision by the Surface Transportation
Board (STB), finding a railroad's imposition of storage and demurrage
charges on empty private freight cars held on railroad property beyond
an established ``free time'' period to be reasonable, was not arbitrary
and capricious. A group of private freight car owners challenged the fees,
arguing that the imposition of such charges was an unreasonable practice.
The railroad contended that the fees furthered rail transportation policy
by eliminating cross-subsidies and encouraging freight car owners to better
utilize their equipment. The STB agreed with the railroad, finding that
the fees were proper and likely to improve efficiencies and compensate
the railroad for the use of its tracks.
The freight car owners sought review of the
decision, alleging that the STB had arbitrarily concluded that the new
fee provisions were reasonable. Upon review, the appellate court ruled
that the STB's interpretation of the applicable federal statutory requirements
related to the imposition and collection of such fees was not arbitrary
and capricious, but was well-reasoned and supported by law. As a result,
the decision was affirmed and the petition for review denied. N. Am.
Freight Car Assoc. v. STB (DCCir) Federal Carriers Reporter
¶84,551.
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