March 2007

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.

Aviation News

Blakey: FAA to Propose Raising Pilot Age Limit to 65
The Federal Aviation Administration plans to propose regulations later this year that would call for adopting the new International Civil Aviation Organization (ICAO) standard that allows one airline pilot in the cockpit to be up to age 65 as long as the other pilot is under 60. Since 1959, FAA has required all U.S. pilots to stop flying commercial planes at age 60. “[I]t's time to close the book on Age 60,” FAA Administrator Marion C. Blakey said January 30, adding that there is no medical reason why pilots cannot stay working until 65. “Foreign airlines have demonstrated that experienced pilots in good health can fly beyond age 60 without compromising safety,” Blakey noted. Citing the wealth of experience that pilots accrue, “we shouldn't have to lose it as early as we do. I want our older captains to be around longer to help the younger pilots rising up through the ranks,” Blakey said. While the Air Transport Association indicated that it remains neutral on age restrictions, ATA President/CEO James C. May said his group “will work closely with FAA to ensure a smooth transition should they ultimately decide to change the age limit.” Aviation Law Reports No. 1349, February 8, 2007.

FAA Reauthorization Proposal Replaces Funding Sources
The Department of Transportation has presented Congress with a Federal Aviation Administration reauthorization proposal that would replace the current system of collecting ticket taxes with a new system that relies on a combination of user fees, taxes, and a federal government contribution to support the development of a new, satellite-based air traffic control system known as NextGen. Part of DOT's $14.1 billion budget request for fiscal year (FY) 2008, the proposal includes a new account structure that eliminates the Operations and Facilities & Equipment programs and creates the “Air Traffic Organization” and “Safety and Operations” accounts. FAA believes that its new structure will better align funding with function. Blakey was questioned by Subcommittee Chairman Jerry F. Costello (D-Ill.), who noted that the Administration's data indicates that user fees and excise taxes under the new proposal hypothetically would yield approximately $600 million less in FY 2008—and over $900 million less from FY 2009 to FY 2012. Aviation Law Reports No. 1350, February 22, 2007.

Pilot, Instructor, School Certification Overhaul Proposed
Training, qualification, certification, and operating requirements for pilots, flight instructors, ground instructors, and pilot schools would be overhauled under a Federal Aviation Administration proposal issued on February 7. According to FAA, the changes are needed to clarify, update, and correct existing regulations in order to ensure that flight crewmembers have the training and qualifications to enable them to operate aircraft safely. Included in the proposal are the issuance of flight instructor certificates without expiration dates, establishment of requirements for pilot and instructor training/qualifications for operating with night vision goggles, amendment of medical certificate requirements for examiners and certain certificate applicants, changes to logging requirements for certain pilot-in-command and flight engineer time, and many other substantive and technical changes and corrections. Aviation Law Reports No. 1349, February 8, 2007.

Byerly: U.S., EU Nearing “Hour of Decision” in Air Talks
The U.S. and the European Union are rapidly approaching the “hour of decision” in their ongoing negotiations to secure a transatlantic aviation liberalization agreement, according to John R. Byerly, Deputy Assistant Secretary of State for Transportation Affairs. Talks between the two sides will resume the week of February 4, and the U.S. and the EU will know by April “if we are to succeed or fail,” Byerly told the American Bar Association's Forum on Air & Space Law on February 1. Byerly said all sides should be worried about the possibility of not reaching an agreement. “We're looking over the precipice” if talks fail, he warned. Aviation Law Reports No. 1349, February 8, 2007.

FAA Explains Unmanned Aircraft Policy, Seeks Options
In light of the growing numbers of unmanned aircraft and their uses, the Federal Aviation Administration said that regulatory standards are needed to enable current technology for unmanned aircraft to comply with federal aviation regulations. Under existing policy, no person may operate an unmanned aircraft system (UAS) in the National Airspace System without specific authority, which is based on whether the vehicle is used as a public, civil, or model aircraft, FAA explained. FAA has undertaken a safety review to examine the feasibility of creating a different category of unmanned vehicles, largely to address the expansion of their use in business. The end product of the analysis may be a new flight authorization instrument similar to AC 91-57, but focused on operations that neither qualify as sport/recreation nor require a certificate of airworthiness, the agency said. Aviation Law Reports No. 1350, February 22, 2007.

Security Threat Appeal/Waiver Procedures Adopted
The Transportation Security Administration established new appeal and waiver procedures for air cargo employees and agents who are subject to security threat assessments under air cargo security regulations that took effect on October 23, 2006. The procedures include a process for the review of adverse waiver decisions and certain disqualification cases by an administrative law judge, and also extend the time period in which applicants may apply for an appeal or waiver. The provisions are part of a much larger rulemaking that implements sweeping port security requirements, including the issuance of a biometric Transportation Worker Identification Credential (TWIC) to those whose jobs require unescorted access to certain maritime facilities and vessels. Aviation Law Reports No. 1349, February 8, 2007.

ETOPS “Dual Maintenance” Regulation Clarified
In order to clarify recently-issued regulations governing Extended Operations (ETOPS) of multi-engine airplanes [see CCH Aviation Law Reports No. 1348, January 25, 2007], the Federal Aviation Administration has amended a provision that defines and limits “dual maintenance” of an ETOPS Significant System, a concept that relates to the repetition of maintenance errors by a single mechanic on redundant systems. Intended to codify previous FAA guidance concerning the avoidance of dual maintenance situations, the provision as issued instead appeared to prohibit the maintenance of more than one ETOPS Significant System during a single maintenance visit. As a result, FAA revised the regulation's text and also made other technical amendments to help avoid misinterpretations. Aviation Law Reports No. 1350, February 22, 2007.

Libyan Agent Barred from Denying Role in Flight 103 Bombing
In a civil action brought by relatives of certain victims of the terrorist bombing of Pan Am Flight 103 over Lockerbie, Scotland, in 1988, a Libyan agent who had been convicted of the passengers' murder by a Scottish court was estopped from denying responsibility for the deaths of victims. The agent argued that his conviction should be given no preclusive effect in conformity with the estoppel rules of the court in which he had been adjudicated. However, the court held that federal standards were applicable in conformity with the conclusions of a majority of U.S. courts that had addressed the issue. The court went on to find that the agent's conviction met applicable standards for recognition because the agent had been afforded a fair and impartial trial with an opportunity to litigate the issues of his guilt under a judicial system that does not violate U.S. public policy.—than maintaining the current tax structure. Hurst v. Socialist People's Libyan Arab Jamahiriya (DDC) 31 Avi. 18,495.

Overflight Noise Did Not Effect a Taking of Property
A group of homeowners had failed to demonstrate that noise from aircraft overflights associated with takeoffs and landings at a nearby Indianapolis International Airport gave rise to a compensable taking of their property, the Indiana Supreme Court ruled. According to the court, when an aircraft flies within the navigable airspace directly above private property, no taking is presumed unless the effect on the property is so severe as to amount to a practical destruction or a substantial impairment. Because the flight altitudes alleged by the homeowners were several times higher than the minimum navigable airspace, the court held that the resulting noise, while considerable, did not amount to a practical destruction or substantial impairment of the homeowners' use of their properties. Biddle v. BAA Indianapolis, LLC (IndSCt) 31 Avi. 18,460.

Dismissal of Passengers' Ticket Fee Refund Action Upheld
A federal appeals court affirmed the dismissal of an action by a group of passengers challenging air carriers' retention of government fees charged for non-refundable airline tickets that had been changed, cancelled, or otherwise not used as purchased. The passengers, who claimed that they had been denied notice by the carriers that they would forfeit the fees, argued that an implied private right of action was appropriate under the federal regulations governing the disclosure of terms in contracts for air travel, since the regulations' goal is to protect consumers. However, neither the Airline Deregulation Act of 1978 nor its regulations provide an implied right of action, and no court has ruled that an ADA consumer protection provision implies a private right of action, the court said, adding that ADA also preempts the passengers' state law claims. Buck v. American Airlines, Inc. (1stCir) 31 Avi. 18,509.

Convention Preempts Passenger's Claim for Free Breakfast
The Montreal Convention preempted a passenger's state law claims stemming from an air carrier's failure to provide a free breakfast on an international flight. The passenger argued that her breach of contract claim fell outside the treaty's scope because she was not seeking recovery for personal injury, property damage, or damage caused by delay, which are enumerated in the Convention, but only for nonperformance of the contract, on which the Convention is silent. The court disagreed, finding that the Convention was designed to create a uniform system of liability among air carriers for claims arising from international flights, and not subject the carriers to the distinct, nonuniform liability rules of the individual signatory nations. Thus, the Convention completely preempts all such claims, the court concluded. Knowlton v. American Airlines, Inc. (DMd) 31 Avi. 18,486.

Bankrupt Carrier's Rejection Pilot Contract Did Not Violate RLA
A federal bankruptcy court has enjoined a labor union representing a bankrupt air carrier's pilots from striking or engaging in a job action in response to the carrier's court-approved rejection of the parties' collective bargaining agreement and its imposition of new terms and conditions of employment. According to the court, the carrier's actions, though unilateral, did not violate the Railway Labor Act because the result was that no agreement existed between the carrier and union within the meaning of the relevant provisions of the Act. Although the union argued that the carrier's imposition of its proposal violated RLA's status quo provisions and allowed it to initiate a job action or strike, the court ruled that the status quo provisions apply only where an agreement is in force and enforceable. The carrier's rejection of the CBA under the applicable bankruptcy provision terminated its future obligation to comply with the agreement and freed it to impose the new terms of its proposal that had been found necessary for the carrier's reorganization, the court concluded. In re Delta Air Lines, Inc. (SDNY) 31 Avi. 18,516.

Carriers Not Liable for Failure to Warn Passengers of DVT
The U.S. Supreme Court has declined to review two federal appeals court decisions holding that an air carrier's failure to warn a passenger on an international flight of the risk of developing deep vein thrombosis (DVT) did not constitute an “accident” for purposes of establishing liability under the Warsaw Convention. The passengers, who were diagnosed with DVT following their flights, argued that the carriers were liable for their injuries because the lack of a DVT warning constituted a failure to take “all necessary measures” to avoid the damage as required by a provision of the Convention. However, the appeals court ruled that an analysis of whether a carrier had taken all necessary measures is not appropriate until a plaintiff has established a prima facie case of liability by showing that the injury was caused by an “accident” [see Caman v. Continental Airlines, Inc., 31 Avi. 17,993, and Damon v. Air Pacific, Ltd., 31 Avi. 18,135]. Because the passengers' flights had operated normally, the passengers were unable to show that their DVT conditions had resulted from an “unexpected or unusual event” within the meaning of the Convention, the court said, concluding that no “accident” had occurred because the failure to warn of DVT is not an “event” for the purposes of establishing an accident under the Convention . USSCt Dkt. Nos. 06-803 and 06-804, February 20, 2006.

Surface Transportation News

FRSA Preempts State Law Protecting Injured Rail Employees
A state law intended to ensure that railroad employees injured in the course of their employment receive prompt medical treatment without interference from their employer was preempted by the Federal Railroad Safety Act (FRSA), a federal district court concluded. The state law was adopted to address concerns by the state that railroad employees injured on the job were not afforded prompt medical treatment due to employer interference. Under the law, an employer found to have violated the law could face a civil penalty of up to $10,000 per violation. A group of railroads operating in the state filed an action against the state officials responsible for the enforcement of the law. The railroads sought an injunction barring the enforcement of the law and a declaration that the law was preempted by the FRSA.

Upon review, it was determined that the Federal Railroad Administration, under the authority of the Secretary of Transportation, had issued regulations that substantially subsumed the subject matter covered by the state law. The federal regulations essentially required railroad employers to adopt and comply with internal control plans, asserting the railroad's commitment to the accurate reporting of job-related injuries and prohibiting harassment and intimidation intended to discourage or prevent an injured employee from seeking medical treatment. Since the federal regulations provided the same protections to employees injured on the job as the state requirements, and because no exceptions to preemption were applicable, it was concluded that the state requirements were preempted by federal law and, thus, unenforceable. BNSF Ry. Co. v. Box (CDIll) ¶84,477

Preemption of Shipper's State Law Claims Affirmed
A federal court of appeals ruled that a shipper's state law claims against a motor carrier arising from an interstate shipment of goods were preempted by the Carmack Amendment. The shipper hired the carrier to transport her household goods from San Francisco, California, to Montana. After signing a transportation contract, the shipper released her goods to the carrier. When the goods were not delivered after several weeks, the shipper contacted the carrier and was informed that her goods would not be delivered until she paid $9,000 in transportation and storage charges. The shipper paid those charge and the goods were still not delivered. Eventually the carrier demanded an additional $18,000, which the shipper refused to pay. Finally, the shipper was able to convince the carrier to release her goods in San Francisco for a final payment of $4,612.

After recovering the goods, the shipper filed suit against the carrier in state court, alleging breach of contract, fraud, and conversion. A federal district court dismissed the state law claims as preempted by Carmack. On appeal, it was determined that, since the shipper's claims were based on the carrier's failure to provide transportation and delivery services, the Carmack Amendment was applicable. Therefore, the shipper's state law claims were properly dismissed. Hall v. N. Am. Van Lines, Inc. (9thCir) ¶84,478

Carrier's Limitation of Liability Provision Enforceable
A motor carrier was entitled to enforce a liability limitation provision contained in a pricing agreement and a schedule of rates negotiated with a shipper for the movement of goods in interstate commerce, a federal district court ruled. The carrier and the shipper had entered into an agreement for transportation services that allowed the carrier to limit its liability to $.60 per pound in exchange for reduced shipping rates. The parties had operated under the agreement for six years before the incident giving rise to the action.

In the case at bar, the carrier agreed to transport a machine from Illinois to Texas that required an air-ride and climate-controlled truck. While the transportation required special handling, the shipper specifically requested that the existing agreement apply, and did not request an increase to the carrier's limitation of liability. The carrier allegedly failed to provide a climate-controlled vehicle for the transportation and the machine was damaged. The shipper filed suit against the carrier, arguing that the liability limitation was not enforceable because the carrier had failed to issue a receipt or bill of lading. Furthermore, the shipper asserted that the carrier had deviated from the contract by failing to provide a climate-controlled vehicle. The carrier asserted that it had satisfied the requirements for limiting its liability.

In support of its claim, the shipper pointed to the carrier's practice of hand-delivering the bill of lading at delivery so that the shipper could write its exceptions at the destination. As a result, the shipper contended the liability limitation provision was unenforceable because the bill of lading was not issued to the shipper prior to the movement. Based on the evidence presented, the court rejected the shipper's argument, finding that the shipper had manifested assent to the material terms of the bill of lading prior to shipment, which constituted a ``receipt'' issued prior to the movement. Furthermore, the shipper's material deviation claim also was denied due to the fact that the pricing agreement, which the shipper expressly selected to cover the movement at issue, contained a severability provision that undermined its claim that a breach of a part of the agreement had rendered the entire agreement void. Thus, it was concluded that the shipper, after having gained the benefit of the transportation contract through substantially reduced rates, also was subject to the limited liability provisions contained in the agreement. Consequently, the carrier was entitled to partial summary judgment on its limitation of liability claim. Toppan Photomasks, Inc. v. N. Am. Van Lines, Inc. (SDTex.) ¶84,479

Rail Carrier Authorized to Participate in Pooling Agreement
A rail carrier was granted permission to participate in a Multilevel Car Pooling Agreement by the Surface Transportation Board (STB). The agreement allows for the pooling of services related to multilevel cars used to transport motor vehicles and boxcars used to transport automobile parts. Under federal regulations, the STB is authorized to approve pooling agreements voluntarily entered into by carriers, as long as the pooling or division of traffic, services, or earnings will be in the interest of better service to the public, or of economy of operations, and will not result in an unreasonable restraint on competition.

The predecessor of the STB, the Interstate Commerce Commission (ICC), originally found the agreement to be in the interest of better service to the public and economy of operations, and determined that it did not restrain competition. The STB concurred with the ICC's determination, and further concluded that the participation of the applicant would lead to greater operational efficiencies and economic benefits, as well as increased competition. Accordingly, the application was granted. Providence and Worchester Railroad Company·Pooling of Car Service Regarding Multilevel Cars (STB) ¶37,226

Violation Charged Not Applicable to Carrier
The Federal Motor Carrier Safety Administration (FMCSA) denied a motion for final order against a motor carrier of property after it was determined that the charges filed against it were not applicable to its operations. The carrier was charged with four violations of permitting or requiring a driver to drive after having been on duty more than 70 hours in eight consecutive days. However, the regulatory section cited in the Notice of Claim for the violations applied to drivers of passenger-carrying commercial motor vehicles (CMVs), not drivers of property-carrying CMVs. Because the agency failed to charge the carrier with a violation applicable to its operations, the motion for final order was denied. Island Express, Inc. (FMCSA) ¶51,163

Civil Penalty Denied Against Defunct Carrier
A motor carrier was found to have violated federal drug and alcohol testing regulations by the Federal Motor Carrier Safety Administration, but was not required to pay a civil penalty since the carrier no longer was operating as a motor carrier. The carrier was cited for failing to conduct random drug and alcohol testing at the required annual rate. The carrier admitted the violations, but challenged the proposed civil penalty.

As a result of the carrier's admission, the Field Administrator was not required to establish a prima facie case. Thus, the motion for final order as to the violations was granted. As to the proposed penalty, the Field Administrator submitted evidence showing that it had given appropriate consideration to the applicable statutory factors. However, due to the fact that the carrier no longer was conducting motor carrier operations and the purpose of the civil penalty is to encourage future compliance, no civil penalty was imposed. Excel Transfer Corp.(FMCSA) ¶51,164

Exempt Commodity Not Subject to Registration Rules
A motion for final order was granted against a motor carrier charged with violating federal safety regulations. The carried was cited for failing to file a Motor Carrier Identification Report every 24 months and charged with five violations of operating a motor vehicle without a valid registration. The carrier admitted that it had not filed a timely identification report, but asserted that its registration had been revoked due to a filing mistake made by its insurance company.

In support of its request for final order, the Field Administrator submitted evidence, including an affidavit by the Enforcement Program Manager stating that roadside inspection reports were used to establish that the carrier had engaged in interstate transportation on five separate occasions while its registration was revoked. Based on the evidence presented, a final order was granted for two of the five violations because the carrier had, in fact, operated a commercial motor vehicle in interstate commerce while its registration was revoked. The three remaining violations were dismissed because the movements involved exempt commodities that were not subject to federal registration requirements. As a result, the assessed civil penalty was reduced from $5,330 to $1,430. Gregory S. Chico (FMCSA) ¶51,165

Shipper Liable for Hazmat Violation
A shipper was found guilty of violating federal hazardous materials regulations by the Federal Motor Carrier Safety Administration (FMCSA) and assessed a civil penalty. The shipper was charged with one violation of loading a hazardous material into an incompatible cargo tank, resulting in a dangerous chemical reaction that led to a rupture of the tank. The shipper denied the charge and asserted that it had instructed its transportation broker to provide only stainless steel cargo tanks. It contended that any violation of the regulations based on the use of a noncompliant cargo tank was the responsibility of its broker or the motor carrier. The shipper also requested a formal hearing, which was denied because the shipper failed to identify any material issues of fact in dispute or submit any evidence to document such issues.

In support of the charges, the Field Administrator submitted documentation and a declaration by the safety investigator who conducted the shipper review following the hazardous materials incident that established a prima facie case. Based on the evidence presented, it was determined that the shipper had not acted as a reasonable person when it loaded its goods in the cargo tank that was clearly identified as aluminum. As such, the shipper was deemed liable for the violation. As to the assessed penalty, the Field Administrator was found to have given appropriate consideration to the applicable statutory factors. Thus, the motion for final order was granted and the carrier was ordered to pay a civil penalty in the amount of $6,500. West Agro, Inc. (FMCSA) ¶51,166

TSA Issues Credentialing Rules Intended to Secure U.S. Ports
The Department of Homeland Security's Transportation Security Administration (TSA) has adopted a final rule implementing the Transportation Worker Identification Credential (TWIC) program. The TWIC program is intended to enhance port security by checking the backgrounds of workers before they are granted unescorted access to secure areas of vessels and maritime facilities. The new rules establish guidelines for the enrollment process, usage procedures, fees and other requirements for workers, port owners, and operators, and identify disqualifying activities. These guidelines are intended to assist the industry, government, and public to prepare for the full implementation of the TWIC program.

The final rule is expected to impact more than 750,000 port employees, longshoreman, mariners, truckers, and others who require unescorted access to secure areas of ports and vessels. Under the final rule, TSA will apply the security threat assessment standards that currently apply to commercial drivers authorized to transport hazardous materials to merchant mariners and workers who require unescorted access to secure areas on vessels and at maritime facilities. Additionally, TSA plans to expand its appeal and waiver provisions to apply to TWIC applicants and air cargo employees who undergo security threat assessments. Finally, the rule establishes a user fee and invites comments on one component of the fee, the card replacement fee.

Initially, TWIC enrollment will begin in March of 2007, at a small number of ports. Implementation of the program will comply with the schedule established in the SAFE Port Act. The effective date of the final rule is March 26, 2007. 72 FR 3492, January 25, 2007; TSA Press Release, January 3, 2007.

DOT Moves Time Zone Boundaries in Indiana
The Department of Transportation (DOT) has decided to relocate the time zone boundary in Indiana by moving Pulaski County to the Eastern Time Zone. Under the Standard Time Act of 1918, as amended by the Uniform Time Act of 1966, the Secretary of Transportation is authorized to modify time zone boundaries within the United States. Any changes must be made with ``regard for the convenience of commerce and the existing junction points and division points of common carriers engaged in interstate and foreign commerce.'' Based on the petition initiating the rulemaking and in consideration of comments submitted and testimony received, the DOT found good cause to amend the time zone boundary between the Eastern and Central zones in Pulaski County. The changes will be effective at 2:00 a.m. CST, March 11, 2007. 72 FR 6170, February 9, 2007.

Rulemaking Petitions to Limit Truck Speeds Under Review
The Federal Motor Carrier Safety Administration (FMCSA) and the National Highway Traffic Safety Administration (NHTSA) are seeking comments on separate, but similar, petitions for rulemaking submitted by the American Trucking Associations, and Road Safe America and a group of nine motor carriers. The petitions seek to require devices that would limit the speed of certain trucks and to prohibit owners and operators from adjusting the speed limiting devices. The petition submitted to FMCSA by Road Safe America and the motor carriers requests that the agency amend its regulations to require: (1) electronic speed governors on all trucks with a gross vehicle weight rating over 26,000 pounds, (2) that these electronic speed governors be set at not more than 68 mph, and (3) that all trucks manufactured after 1990 be equipped with such electronic speed governors. The petitioner claims that limiting truck speed to 68 mph would reduce the number of truck collisions and save lives, with little or no detrimental effect on the lawful operation of commercial motor vehicles. 72 FR 3904, January 26, 2007.

FRA Issues Advisory Addressing Rail Yard Safety
A safety advisory issued by the Federal Railroad Administration (FRA) urges railroads to review and update their existing rules governing rail yard movements. The advisory recommends that railroad assess their current rules related to safety at yard crossings, review the point protection rules with all relevant employees, analyze current rules governing employee behavior on or around tracks, assess communication issues, and evaluate the conspicuity of flat cars and other equipment with low profiles and consider measures to increase their visibility when they are the lead car in a shoving movement.

The goal of the safety advisory is to improve safety in rail yards and reduce the number and severity of rail accidents occurring during rail yard movements. FRA has stated that if railroads and employees fail to act on these recommendations, it may be required take more stringent actions or corrective measures under its regulatory authority. 72 FR 2333, January 18, 2007.

Advisory on Specialized Maintenance Equipment Issued
FRA has published a safety advisory intended to provide guidance on the proper application of existing statutory and regulatory requirements related to self-propelled specialized maintenance equipment. The advisory also recommends that owners and operators of such equipment properly inspect the equipment and ensure that only qualified individuals are operating and piloting the equipment while in transit. The goal of the safety advisory is to ensure that railroad owners and operators fully understand which federal safety regulations they must comply with based on the unique design and operational characteristics of their specialized maintenance equipment. If railroads and employees fail to take action consistent with the recommendations adopted by the FRA, the agency has stated that it may take other corrective measures under its regulatory authority to enforce public safety. 72 FR 3007, January 26, 2007.

Proposed Rail Safety Legislation Gives HOS Authority to FRA
A rail safety reauthorization bill submitted to Congress by the Department of Transportation would give the Federal Railroad Administration (FRA) the authority to regulate railroad workers' hours of service. The proposal would replace railroad hours of service laws, first enacted in 1907, with comprehensive, scientifically based regulations addressing the issue of worker fatigue. The laws, which set the maximum on-duty or minimum off-duty hours for train crews, dispatchers, and signal maintainers, would be set by FRA, much like hours of services standards are set for airline pilots and truck drivers. Under the proposal, the FRA Railroad Safety Advisory Committee, made up of railroad management, labor representatives, and other key stakeholders, would review the issue and develop recommendations on new hours-of-service limits based on current, sound science before any changes are made.

To achieve additional safety improvements, the proposal also would supplement traditional safety efforts with the establishment of risk reduction programs. FRA would place increased emphasis on developing methods to systematically evaluate safety risks in order to hold railroads more accountable for improving the safety of their own operations, including risk management strategies and implementing plans to eliminate or minimize the opportunity for workers to make errors that can result in accidents.

Other provisions contained in the proposal include requiring states and railroads to update the National Highway-Rail Grade Crossing Inventory on a regular basis to ensure current information is available for hazard analysis in determining where federal safety improvement funding is directed. In addition, the proposed legislation would expand the authority of the FRA to disqualify any individual as unfit for safety-sensitive service for violation of federal regulations related to transporting hazardous materials, among other things. FRA Press Release No. FRA 07-07, February 14, 2007.