November 2008

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

Airlines Challenge TSA Additional Screening Charges
The airline industry is claiming that the Transportation Security Administration has unlawfully charged carriers an additional $100 million annually in passenger and property screening fees since 2005, on top of the $319 million the industry already pays annually to TSA to cover screening costs. A coalition of 21 airlines took their case to the U.S. Court of Appeals for the District of Columbia, and is asking that the additional $100 million in annual fees be refunded in full, according to Southwest Airlines' Associate General Counsel Robert Kneisley.

Kneisley explained that, when Congress originally established TSA, the legislation provided for certain fees that the new agency could charge in order to finance its operations. In addition to a $2.50 passenger security fee, TSA was allowed to levy an Aviation Security Infrastructure Fee (ASIF), which was supposed to replicate what airlines had paid prior to September 11, 2001, when they handled their own passenger screening. The level of ASIF was set at $319 million per year but, in 2006, TSA announced without warning that it was going to levy an additional $100 million in fees annually, with retroactive effect from January 2005.

Kneisley said that TSA based its decision on a Government Accountability Office (GAO) report which determined that the airlines had under-reported their original screening costs. TSA decided to allocate the shortfall among the airlines based on a flat average rate of 82 cents per passenger, rather than determining the fee on a per-carrier basis. Southwest, which had been paying 43 cents per passenger when it handled its own screening, "got hit hardest" by the 82-cents-per-passenger levy, Kneisley said. The airlines aver in their brief that TSA exceeded its statutory authority because neither the Aviation Transportation & Security Act nor the Department of Homeland Security Appropriations Act had "authorized TSA to assess additional ASIF liability based on a purported 'industry average' cost-per-passenger-screened that TSA derived from a GAO report which failed to examine the calendar year 2000 screening costs of any individual carrier." A decision in the case is not likely before next January or February, Kneisley predicted. Aviation Law Reports, Report Letter No. 1392, November 24, 2008.

Large Aircraft Security Is Focus of TSA Proposal
U.S. operators of aircraft exceeding 12,500 pounds maximum takeoff weight would have to adhere to security programs subject to compliance audits by the Transportation Security Administration, under a major initiative proposed by the agency last month. Aimed at strengthening both national and aviation security by further minimizing the vulnerability of aircraft ¾which can be used as weapons or to transport dangerous people or materials ¾the Large Aircraft Security Program (LASP) would replace the current programs for partial program operators, so-called twelve-five program operators, and private charter program operators with a core security program for all large aircraft, irrespective of the Federal Aviation Administration regulations under with they operate, whether they are air carriers, commercial operators, or general aviation. "General aviation operators are excellent security partners, and this will give them a strong common framework for security that will reduce risk while supporting the open nature of the general aviation industry," TSA Administrator Kip Hawley asserted.

As proposed, LASP would add new requirements governing both large aircraft¾including corporate and private operations¾and the airports serving those aircraft. The new Program would be based upon the current standards applicable to scheduled- and charter-service providers. Additional security measures would be imposed upon all-cargo operations and operators of passenger-carrying aircraft with a maximum takeoff weight exceeding 45,500 kilograms (100,309.3 pounds) operated for compensation or hire. Airports serving these aircraft also would have to adopt security programs or amend existing programs accordingly.

In addition, large aircraft operators would be required to contract with TSA-approved firms to conduct biennial compliance audits with their LASP-mandated security programs and with TSA-approved watch-list service providers in order to verify that passengers are not on the No-Fly and/or Selectee portions of the consolidated terrorist watch-list maintained by the federal government. In that respect, the proposal describes both the process and criteria under which auditors and companies that perform watch-list matching would obtain TSA approval. Aviation Law Reports, Report Letter No. 1391, November 13, 2008.

11-Hour Driving Limit for Truckers Finalized
The Federal Motor Carrier Safety Administration has adopted as final an interim rulemaking allowing commercial motor vehicle (CMV) drivers to drive for up to 11 hours within a 14-hour, non-extendable window from the start of the workday, following 10 consecutive hours off-duty. Additionally, the final rule allows motor carriers and drivers to restart calculations of the weekly on-duty time limits after the driver has had at least 34 consecutive hours off-duty.

The interim final rule had been issued to prevent disruptions to enforcement and compliance with the hours-of-service (HOS) regulations following the expiration of a court-issued stay of a decision overturning two provisions of the 2005 HOS rule concerning the maximum allowable hours of service for employees of motor carriers and private motor carriers. The decision to overturn the provisions was based on the agency's failure to satisfy Administrative Procedure Act requirements by not providing an opportunity for public comments on the methodology of the operator-fatigue model used to assess costs and benefits of alternative changes to the rules and for not providing an adequate explanation for certain critical elements in the model's methodology.

The agency addressed the court's concerns in the interim final rulemaking document by providing a 60-day comment period and including a detailed explanation of the agency's time-on-task methodology. Based on the comments received, along with exhaustive scientific review, consultation with scientific and medical researchers, and extensive evaluation of existing fatigue research, the agency has determined that the adoption of HOS regulations that include increased daily off-duty time, a shorter driving window, a longer rest period for sleeper-berth drivers, and sufficient time for two full sleep periods before restarting the 60- or 70-hour clock promote the safe operation of CMVs and ensure that truck drivers get the rest they need to safely perform their driving duty. According to FMCSA Administrator John Hill, ``These rules are crafted to match what we know about drivers' circadian rhythms and the real world work environment truckers face every day.''

Hill went on to say that the rule would build on safety improvement already under way among the nation's truck operators. He noted, for example, that the number of large truck fatalities declined for the third year in a row in 2007 with 4,808 fatalities, down from 5,240 in 2005. Meanwhile, safety data show that between 2004 and 2006, there was only one fatigue-related fatality that occurred during a truck driver's eleventh hour behind the wheel.

The final rule takes effect on January 19, 2009. For further information, contact: Thomas Yager, telephone: (202) 366-4325. Federal Carriers Reporter, Report Letter No. 1546, November 21, 2008.

Aviation News

Bush Lauds New Measures Facilitating Air Travel
On the day he paid a visit to the Department of Transportation, President Bush outlined new measures designed to improve air travel, both during the upcoming holiday season and in the future. As they did last year, the Federal Aviation Administration and the Department of Defense will make military airspace available for use by civilian airliners over the holiday season, the President announced, adding that even more airspace will be opened up in 2008 than last year, and for a longer time period.

Tagging the initiative as the “Thanksgiving Express Lanes," Bush said that, during holiday travel season in 2008, the release of military airspace to civilian flights will include the East Coast airspace opened up last year, as well as airspace areas of the Midwest, Southwest, and the West Coast --including the skies over Phoenix and Los Angeles. The Administration also will work with FAA, the Transportation Security Administration, and the airlines in order to make more staff available to help speed check-in and boarding processes, and to assist passengers affected by cancellations and delays, he asserted.

The President also cited efforts accomplished by DOT during the past eight years that have addressed air traffic congestion, such as flight-capacity increases at some of the nation's busiest airports and new initiatives to improve the heavy air traffic around New York City --including a $90-million award over an eight-year period to upgrade existing taxiways and build new ones at John F. Kennedy International Airport. Other capacity improvements include the long-anticipated opening of three new federally funded runways at Washington Dulles, Chicago O'Hare, and Seattle Tacoma International Airports last week.

In addition, a new Executive Order (No. 13479) signed by the President on November 18 will strengthen DOT's coordination with other federal agencies and help transform the national air transportation system by effectively implementing the NextGen Initiative (Next Generation Air Transportation System), which utilizes satellite-based guidance technology. Full text of the new E.O. appears at ¶20,177. Aviation Law Reports, Report Letter No. 1392, November 24, 2008.

Delta-Northwest Merger Gets Unconditional Antitrust Approval
The proposed merger of Delta Air Lines Inc. and Northwest Airlines Corp. will not be challenged by the U.S. Department of Justice Antitrust Division, the Department announced, concluding that the proposed transaction is not likely to substantially lessen competition. In an October 29 statement, the DOJ said that the combination of the nation's third and fifth largest airlines is "likely to produce substantial and credible efficiencies that will benefit U.S. consumers." The Department offered few specific reasons for its unconditional approval of the transaction, but did point out that the carriers "currently compete with a number of other legacy and low cost airlines in the provision of scheduled air passenger service on the vast majority of nonstop and connecting routes where they compete with each other." The statement also noted that "the merger likely will result in efficiencies such as cost savings in airport operations, information technology, supply chain economics, and fleet optimization that will benefit consumers."

In April 2008, Delta and Northwest announced their plans to create America's "premier global airline." The combined company will operate under the Delta name and be headquartered in Atlanta, Georgia. Stockholders of both companies overwhelmingly approved the pending merger in September. According to DOJ, Delta and its domestic regional affiliates offer service to more than 300 destinations in 58 countries, while Minneapolis-based Northwest serves 239 destinations in 21 countries in North America, Asia, and Europe. U.S. antitrust approval follows the approval of the European competition authority. The European Commission (EC) announced in August that it had cleared the Delta/Northwest transaction after concluding that it would not significantly impede effective competition in Europe. The EC found the companies' activities to be mainly complementary, as the two carriers offer competing direct flight services for only three transatlantic routes. Aviation Law Reports, Report Letter No. 1391, November 13, 2008.

DHS Issues Private Aircraft Security Standards
Regulations implemented by the Department of Homeland Security last week will require that private aircraft pilots provide passenger, crew, and flight information to U.S. Customs and Border Protection (CBP) at least one hour before departure for flights arriving into or departing from the United States. The action expands upon existing regulations, and is part of a comprehensive effort to strengthen General Aviation security, Homeland Security Secretary Michael Chertoff commented, in announcing the initiative. Under the new standards, "private aircraft" are defined "as any aircraft, other than government or military, that are not engaged in carrying passengers or cargo for compensation." The reporting process is similar to the one currently in use by commercial aircraft and will standardize advance notice procedures for all CBP airports of entry, according to DHS.

Compared to regularly scheduled commercial airline operations, there is only a limited pre-screening of private aircraft arriving at and departing from the U.S. The new regulations will help address this vulnerability by enhancing international and domestic GA security by:

• Identifying and screening passengers/crewmembers on international private aircraft prior to their entry into U.S. airspace;
• Screening GA aircraft in order to ensure that illicit materials do not enter the U.S.; and
• Conducting these screening activities as far as practicable from critical sites within the U.S., preferably at the aircraft's last point of departure outside of the U.S.

Currently, GA pilots are required to provide at least 60-minutes' advance notice of their arrival either directly to CBP at the place of intended arrival, or by requesting --in the remarks section of their flight plan --that the Federal Aviation Administration Flight Services advise CBP. Under the new standards, pilots (or their designees) will have to submit advance notice and passenger/crew information to CBP via an approved electronic interchange system, no later than 60 minutes before departure. The electronic submission will include essentially the same data elements previously provided through other means, DHS said, adding that CBP will require that the pilot compare the manifest data to the information on a DHS-approved travel document presented by each individual seeking travel onboard the aircraft. Pilots will receive CBP authorization to depart from the same system. The rule takes effect on December 18, 2008, and sets May 18, 2009, as the date by which private aircraft pilots must comply with the new requirements. Aviation Law Reports, Report Letter No. 1392, November 24, 2008.

U.S. and EU Agree to Align Cargo Screening Efforts
In the latest in a series of collaborative initiatives with foreign allies to increase aviation security for the international traveling public, the United States and the European Union have reached an agreement on air cargo screening standards for passenger-carrying aircraft. Announced on October 31, the agreement was reached in advance of a February 2009 deadline to screen 50 percent of air cargo on passenger-carrying aircraft established in the Implementing Recommendations of the 9/11 Commission Act of 2007 (Pub. L. No. 110-53, 121 Stat. 266), according to the Transportation Security Administration.

The pact will establish screening contingencies that are aligned with the requirements outlined in the statute, and will lead to the development of compatible practices and benchmarks that minimize regulatory differences. Also included is a pledge to continue to share classified technical information in order to develop common technical standards, create equivalent overall levels of security, and explore new methods and procedures to secure the air cargo supply chain. "By synchronizing the way that air cargo is secured on both sides of the Atlantic, we're taking another potential vulnerability off the table for terrorists," Homeland Security Secretary Michael Chertoff commented, commending the EU on its commitment to the effort. Full text of the agreement appears at ¶23,977 . Aviation Law Reports, Report Letter No. 1391, November 13, 2008.

FAA Determinations on Two Nearby Turf Runways Upheld
Two Federal Aviation Administration airspace determinations permitting the operation of two small turf runways located nearby one another were neither arbitrary nor capricious, a federal appeals court determined. As a threshold matter, the court ruled that it had jurisdiction to review the orders, noting that their "advisory" nature was not an impediment. The "advisory" nature of the FAA's order in a prior case involving a determination under regulations governing objects affecting navigable airspace did not preclude review of an FAA order under those circumstances; therefore, there was no reason to differentiate between the "advisory" order rendered in that case and the "advisory" orders rendered in the case at bar pursuant to regulations governing construction, alteration, activation, and deactivation of airports, the court reasoned. Moreover, the owner/operators of one of the runways had standing to challenge the FAA's action, the court held, finding that the petitioners had sufficiently alleged that they would suffer a concrete and particularized injury-in-fact as a result of the orders.

Substantively, however, the court found that the administrative record refuted the petitioners' contention that they had not been afforded notice of the FAA's aeronautical studies or an opportunity to be heard. Furthermore, contrary to the petitioners' assertion, the alleged evidence of non-compliance with past FAA directives by users of the other runway, which had been reactivated as a result of one of the FAA orders, was not determinative of the prospective division of airspace that would be safe and efficient, the court said. Notwithstanding a .25-nautical-mile buffer zone recommended by the agency's Airport Policy Office, FAA has authority to establish non-standard traffic patterns, assign specific traffic-pattern altitudes, or develop special operating procedures to mitigate potential airspace conflicts, the court instructed, ruling that the airport policy cited by petitioners did not compel a finding that the two runways absolutely were prohibited from operating simultaneously. In fact, the record amply supported FAA's conclusion that both runways could operate safely and efficiently if the airports abided by certain traffic patterns, the court observed.

Finally, although they claimed that the agency's decision-making process had been subverted by prejudice, bias, or wrongful influence due to ex parte communications with the operator of the competing runway, the petitioners failed to put forth a scintilla of evidence showing that bias or improper communications had clouded FAA's judgment, the court remarked, denying the petition for review and concluding that FAA had made its determination based upon sound aeronautical studies and independent judgment. Menard v. Fed. Aviation Admin. (5thCir) 33 Avi. 17,148.

Municipality's Attempt to Block Airport Project Preempted
As applied to an airport's runway improvement project, the municipal powers of a town and its related governmental commissions were impliedly preempted by the Federal Aviation Act of 1958, a Connecticut federal court found, ruling that any regulation of the municipal government that acted to prevent the work provided for in the runway project¾as well as any cease-and-desist order aimed at stopping that project ¾were preempted by federal law. By the passage of the FAAct, Congress intended to occupy the entire field of airline safety, including runways, the court asserted, reasoning that both the language of the statute and the legislative history evidenced Congress' intention to regulate airline safety.

According to the Federal Aviation Administration's final Environmental Impact Statement, the airport had insufficient runway safety areas (RSAs), which did not meet agency safety standards, the court observed. The runway project sought to improve the airport's safety margin by expanding the size of the airport consistent with the federal transportation law and regulations, and the airport authority was engaged in activity on an already existing, federally regulated airport. Therefore, as the RSAs were being created for the purpose of meeting FAA's airline safety standards and the runway project was being done within the airport authority's property, the municipal regulations were federally preempted, the court determined. Tweed-New Haven Airport Auth. v. Town of East Haven, Connecticut (DConn) 33 Avi. 17,136.

Surface Transportation News

Carrier's Lease Violated Truth-in-Leasing Requirements
A federal district court held that a motor carrier had violated the federal truth-in-leasing regulations when it failed to specify in its lease agreement what fees incurred by the carrier would be charged back to the owner-operators and neglected to make final payments in a timely manner upon termination of a lease. Two owner-operators, who had leased their equipment and driving services to the carrier, filed suit alleging violations of the truth-in-leasing regulations and seeking monetary damages.

The challenged charge-backs included the cost of drug tests, license fees, and cargo and liability insurance. The carrier argued that its lease agreement satisfied the regulatory requirements by stating that the owner-operators would be responsible for “operating expenses” and would be required to comply with certain rules and regulations. The court declared that the general statements in the carrier's lease had not satisfied the regulatory requirements because they had not sufficiently described the items to be charged back to the owner-operators or the carrier's obligation regarding cargo and liability insurance. Thus, due to its failure to clearly identify the charge-back items in the lease agreement, the carrier was found to have violated the regulations.

The carrier also was found to have violated the truth-in-leasing regulations when it failed to tender final payment to the owner-operators within 15 days of the submission of the driver's final paperwork. The owner-operators contended that the carrier had violated the regulations by withholding their final payments. The carrier acknowledged that it had not paid the owner-operators for their final two weeks, but argued that the owner-operators had triggered a default provision that resulted in the forfeiture of the final payment. The court rejected the carrier's claim, finding no evidence that the owner-operators had left the job without giving notice, and ruled that the failure to turn in paperwork in a timely manner did not lead to the forfeiture of the pay; it simply delayed receipt of such payment. Accordingly, once the owner-operator turns in its paperwork, even if it is late, the carrier is required to release the final payment within 15 days, the court concluded.

The applicable statute of limitations on the truth-in-leasing claims was fours years. The carrier challenged the four-year limitation period, asserting that the appropriate limitation period was either two years or eighteen months. First, the carrier asserted that, based on legislative history, but for an “editorial error,” the statutory provision authorizing the owner-operators' damage claim would have been subject to a two-year limitation period. Based on the plain language of the statute, which did not include a specific reference to a limitation period, the court held that the default limitation period of four years was applicable. In the alternative, the carrier argued that the owner-operators' claims essentially were overcharges. The carrier maintained that overcharges should have been interpreted to include “impermissible charges,” such as those arising in this case. The court rejected the overcharge argument, finding that the word “overcharges” implied the existence of some permissible amount over which a person could not be charged. Since the charges in this case were not permissible at all, the court declined to label them overcharges. Thus, the court determined that the applicable statute of limitations period was four years.

Finally, after it was determined that the violations had occurred, the carrier was deemed liable for the full amount of the impermissible charges it had made against the owner-operators. The owner-operators asserted that the proper calculation of damages should have been determined by the amount the carrier had charged them in violation of the regulations, while the carrier argued that the owner-operators should not be permitted to recover for the customary charges they would have had to pay if they had been driving for themselves. Based on the stated goal of the regulations, which is to provide owner-operators with all of the information they need to better assess their rights and responsibilities under the lease, the carrier was deemed responsible for the full value of the expenses that it had impermissibly charged back to the owner-operators. The court reasoned that, if the carrier's argument was accepted, it would undermine the intent of the regulations by allowing a carrier to offer leases that failed to identify certain customary charges without facing any penalty. Accordingly, the carrier was found to be liable to the owner-operators for the full amount of improper charges imposed. Brinker v. Namcheck (WDWis) Federal Carriers Reporter ¶84,566.

Valid Carmack Claim Dismissed for Improper Venue
A Carmack Amendment claim filed by an insurance company against a shipping company was dismissed for improper venue by a federal district court. The shipping company had been hired to arrange transportation for several shipments of goods from Asia to the United States. The goods were transported by an ocean carrier and several rail carriers under a through bill of lading issued by the shipping company. Three of the shipments had been damaged when the train transporting them derailed. As a result, the insurance company, as the insurer of the goods, filed suit against the shipping company seeking damages for each of the shipments. The shipping company challenged the applicability of the Carmack Amendment, but asserted that, if Carmack was applicable, then venue was improper under Carmack's special venue provisions.

After determining that the shipping company was subject to liability under the Carmack Amendment, the court proceeded to assess whether venue in the Southern District of New York had been proper. The special venue provisions of the Carmack Amendment allow civil actions: (1) against an originating rail carrier, in the judicial district in which the point of origin is located; (2) against a delivering rail carrier, in the judicial district in which the principal place of business of the person bringing the action is located if the delivering carrier operates a railroad or a route through such judicial district in the judicial district in which the point of destination is located; and (3) against the carrier alleged to have caused the loss or damage, in the judicial district in which such loss or damage is alleged to have occurred. Pursuant to the statutory requirements, the court determined that venue would not be proper in the Southern District of New York regardless of whether the shipping company was deemed a delivering carrier or an originating carrier because neither the point of origin nor the destination point was located in the New York judicial district. Moreover, venue was not proper under the third provision because the alleged damages had not been caused by the shipping company. Accordingly, the insurance company's claims were dismissed for improper venue. Sompo Japan Ins. Co. of America v. Yang Ming Marine Transp. Corp. (SDNY) Federal Carriers Reporter ¶84,567.

STB's Preemption Decision Not Influenced by Funding Issue
The Surface Transportation Board rejected a railroad's call to dismiss or reconsider a decision granting a petition for a declaratory order. The declaratory order petition was filed by the Town of Babylon (Babylon) and Pinelawn Cemetery (Pinelawn). The petition sought a finding that the construction and operation of a transloading facility under the authority of a rail carrier did not qualify for federal preemption. STB granted the petition, ruling that, to the extent the New York and Atlantic Railway Company (NYAR) had authorized Coastal Distribution LLC (Coastal) to build and operate the Farmingdale Yard transload facility for construction and demolition debris on property owned by Pinelawn, such activities did not qualify for federal preemption and, therefore, were fully subject to state and local regulation.

NYAR challenged the decision, first alleging that the STB had ruled against Coastal in order to avoid losing its funding under the Consolidated Appropriations Act of 2008, then by asserting that the existence of new evidence and material error in the original decision dictated reconsideration. STB rejected the carrier's motion to dismiss, asserting that funding considerations had no impact on its decision. NYAR's interpretation of the Appropriations Act was inaccurate, in that the agency did not “risk its funding” under the Act; it merely was prevented from taking certain actions. In this case, STB determined that the relationship between NYAR and Coastal did not trigger the Appropriations Act prohibition. Based on evidence provided, it was determined that, because Coastal was the only party operating the transloading facility and responsible for it with NYAR assuming no liability for Coastal's activities, NYAR's involvement with the transloading activities was insufficient to bring the activities within STB jurisdiction.

As for the carrier's request for reconsideration based on new evidence and material error, STB ruled that a “veto-statement” by the Governor of New York was not new evidence for purposes of reconsideration because it had been available when the decision was first decided. Furthermore, the alleged errors proffered by the carrier in support of its petition for reconsideration, including the failure of the STB to complete an environmental assessment and its inaccurate analysis of the principal-agent relationship between NYAR and Coastal, were insufficient to demonstrate grounds for reconsideration. Thus, the original decision finding no federal preemption for Coastal's transloading activities was affirmed. Town of Babylon and Pinelawn Cemetery-Petition for Declaratory Order (STB) Federal Carriers Reporter ¶37,293.

NTSB Releases Findings of “Most Wanted List” Review
On October 28, 2008, the National Transportation Safety Board (NTSB) announced its “Most Wanted List” of transportation safety improvements for 2009. The list, which was established in 1990, focuses attention on critical changes deemed necessary to reduce accidents and save lives. By highlighting its major safety concerns, the NTSB hopes to increase public awareness of, and support for, action to adopt new safety measures.

NTSB's Most Wanted List identifies safety issues with the greatest impact on transportation safety and rates the modal agencies by the timeliness with which they act to implement the recommendations. In the motor carrier arena, the 2009 “Most Wanted” safety improvement recommendations include:

• Restricting the use of cellular telephones by commercial drivers of school buses and motorcoaches, except in emergencies;
• Improving the safety of motor carrier operations by making the use of an unsafe vehicle or unqualified driver enough to warrant an unsatisfactory safety rating;
• Preventing medically unqualified drivers from operating commercial vehicles;
• Requiring all interstate commercial vehicle carriers to use electronic on-board recorders to collect data on both driver hours of operation and accident conditions;
• Mandating adaptive cruise control and collision warning systems standards for all new passenger and commercial vehicles; and
• Enhancing the protection of motorcoach passengers through redesign, revised standards for stronger bus roofs, and new standards aimed at reducing the risk that a passenger will be ejected from the vehicle when a bus sustains an impact or rolls over.

While several new areas of concern have been added to the list, several issues have been removed. In the rail arena, positive train control, which has been on the list since its inception in 1990, as well as fatigue in the railroad industry, were removed from the list as a result of the passage of the Rail Safety Improvement Act of 2008 (Pub. L. 110-432, 112 Stat. 4848, October 16, 2008).

The goal of the “Most Wanted” program is to encourage the adoption and implementation of safety steps that can help prevent accidents and save lives. Federal Carriers Reporter, Report Letter No. 1546, November 21, 2008.

STB Solicits Comments on Rail Competition Study
The Surface Transportation Board (STB) is seeking comments on an independent study prepared by Christensen Associates, Inc. The study, which was released on November 3, 2008, is entitled, ``A Study on Competition in the U.S. Freight Railroad Industry and Analysis of Proposals that Might Enhance Competition.'' The report provides a comprehensive analysis of a wide range of issues, including competition, capacity, and the interplay between the two. It also includes an examination of various regulatory policy alternatives that could lead to changes in the Board's regulatory approach. The STB held a public meeting on November 6, 2008, to discuss the study with Christensen representatives and has made the report available to the public on its website. Federal Carriers Reporter, Report Letter No. 1545, November 13, 2008.