Robert is a partner with AALRR and a member of the firm’s Return to Work Task Force. He is a co-author of the AALRR Return to Work Tool Kit

Many of the waking hours of executives in the modes and their counsel have been filled with navigating the emergency rules and regulations that have been issued at the federal and state level arising from the Covid-19 Pandemic.

The new legal framework for remote work, economic benefits and relief, social distancing, testing and matters of testing and personal protective hygiene, returning to work poses challenges.  However, returning to normalcy brings its own irony for employers - a return to issues of traditional labor law, albeit in new ways. That is our topic here.

This week’s ATLP Highlights Blog features an interview that I recently conducted with Jay Fox, Deputy General Counsel for the Southeastern Pennsylvania Transportation Authority (“SEPTA”).

SEPTA serves the Philadelphia metropolitan area operating: bus, rapid transit, commuter rail, light rail, and electric trolleybus service.  The transit agency employs over 9,000 people and logs nearly 1.5 trillion passenger miles per year across all modes.

Jay began his career in private practice as a litigator and then as general counsel to an export management firm before joining the Federal Aviation Administration (“FAA”) only a month after the September 11 terrorist attacks.  He then went on to the Federal Transit Administration and Amtrak prior to joining SEPTA. Jay is a graduate of Rutgers Law School.

Jay and I spoke via zoom as both Philadelphia, where Jay lives, and metro Washington D.C., my home, are currently under “stay-at-home” orders in response to the Covid-19 Pandemic.

On April 20, the U.S. Department of Energy (DOE) issued a report to Congress entitled “Crude Oil Characterization Research Study.”  The impetus for this study dates back to the 2013 Lac Megantic tragedy and other derailments of trains carrying Bakken crude oil.  In 2015, the Pipeline and Hazardous Materials Safety Administration (PHMSA) and the Federal Railroad Administration adopted the Tank Car Standards and Operational Controls for High-Hazard Flammable Trains Final Rule.  That rule was grounded in the assumption that crude oil produced in the Bakken region is more flammable than crude produced in other areas, and it imposed additional requirements and restrictions on trains carrying Bakken crude.  Section 7309 of the Fixing America’s Surface Transportation Act, enacted later in 2015, provided for a study to determine the accuracy of this controversial assumption. 

On May 11, PHMSA issued (1) an administrative determination that federal law preempts Washington State’s vapor pressure limit for crude oil in rail tank cars and (2) a notice withdrawing the agency’s Advance Notice of Proposed Rulemaking (ANPRM) regarding vapor pressure for crude oil transported by rail.

PHMSA provided three arguments in support of its preemption determination.  First, it concluded that Washington State’s vapor pressure requirement effectively creates a new class of crude oil subject to special requirements that are not substantively the same as the federal Hazardous Materials Regulations (HMR).  Similarly, PHMSA found that the State’s vapor pressure law imposes requirements on the handling of a hazardous material that are not substantively the same as the requirements of the HMR.  Finally, PHMSA determined that the Washington State vapor pressure requirement is an obstacle to accomplishing and carrying out the federal Hazardous Materials Transportation Act.  Under PHMSA’s regulations, Washington State has until May 31, 2020, to file a petition for reconsideration.

On April 28, the DOT’s Office of Inspector General (OIG) published the results of its audit which assessed various PHMSA activities related to liquefied natural gas (LNG) facilities.  Specifically, the audit examined PHMSA’s (1) inspection of existing interstate LNG facilities, (2) review of applications for proposed new interstate LNG facilities, and (3) evaluation of state gas programs’ oversight of LNG facilities.

On April 15, the Texas Railroad Commission (RRC) issued a notice to pipeline operators that, when applying for a new or amended T-4 permit to operate a pipeline in Texas, they are required to submit digital mapping shapefiles, including abandoned pipelines, through the RRC Online System using the Pipeline Online Permitting System.  The notice reiterates that federal pipeline safety regulations define an abandoned pipeline as one that has been “permanently removed from service.”  The notice explains that this information is required as part of “other information requested by the Commission” under 16 Texas Administrative Code § 3.70.

The U.S. Court of Appeals for the Eleventh Circuit recently affirmed a jury’s decision that a passenger was 99 percent liable for her injuries arising from severe turbulence because she was not wearing her seatbelt despite instructions to do so.[1]

Plaintiff Fanny Quevedo, an experienced traveler, was travelling from Miami to Milan with a layover in Madrid.  The segment from Madrid to Milan, an Iberia Airlines flight, was intended to land at Milan-Malpensa airport.  Prior to takeoff, the Iberia flight crew provided the passengers with the regular safety instructions, including that seatbelts must remain fastened at all times when the seatbelt light is on, and that Iberia recommended that seatbelts remained fastened “at all times.”  The fastened seatbelt recommendation is reflected in Iberia’s policies: when the seatbelt light is on passengers are reminded to keep their seatbelts fastened every fifteen minutes, and if a flight crew member cannot see a passenger’s seatbelt when securing the cabin, they are required to move clothing and wake up sleeping passengers to ensure that seatbelts are fastened.

Since at least the time of the SARS epidemic in 2005, when it issued an ultimately abandoned notice of proposed rulemaking, the Centers for Disease Control (“CDC”) has been interested in gathering information from airlines on passengers arriving in the United States. CDC wants such information to engage in contact tracing, a term that perhaps few of us ever heard of before COVID-19, but now has entered the popular lexicon. In essence, contact tracing refers to identifying the persons with whom an infected or contagious person may have been in contact for the purpose of requiring the contacted persons to quarantine and thereby avoid further infection of others. Such tracing will need to be an essential part of efforts to reopen the US economy. The problem for airlines is that for about half of their passengers, they don’t currently collect the contact data that CDC needs.

The Federal Motor Carrier Safety Administration (FMCSA) has expanded and extended its Emergency Declaration through May 15, 2020, or until the COVID-19 national emergency declaration from the President of the United States is revoked.  The Emergency Declaration exempts motor carriers and drivers from federal regulations located at 49 CFR Parts 390-399 (which includes the hours of service requirements) when providing “direct assistance” in support of relief efforts related to COVID-19.  The Emergency Declaration was initially issued on Friday March 13, 2020 and expanded on March 18, 2020.  It was set to expire on April 15, 2020.  Before it expired, on April 8, 2020, the Emergency Declaration was extended until May 15, 2020, and was revised.  Under the updated Emergency Declaration, “direct assistance” now includes the following:

The United States is awash in oil.  The Coronavirus Pandemic has collapsed global demand and at the same time recent increased oil production by Saudi Arabia and Russia has caused oil supply to surge.  Facing a potential need for storage, Bloomberg is reporting that oil companies are considering rail cars to store excess crude oil.  Railroads and shippers need to understand the regulatory implications of doing so.

Both the Surface Transportation Board (STB or Board) and the Federal Railroad Administration (FRA) have taken certain steps to address impacts of the COVID-19 pandemic.  The Board announced that, starting on March 17, 2020, all filings and other submissions should be made electronically.  Until further notice, the Board will not be accepting paper filings or providing paper copies of any decisions or other materials.  STB Homepage, https://prod.stb.gov/.  The STB has also granted certain deadline extensions in proceedings where requested due to COVID-19 impacts.  E.g., Ass’n of Am. R.Rs.—Petition for Declaratory Order, FD 36369 (STB served March 19, 2020); Petition by the Nat’l R.R. Passenger Corp. (Amtrak) for Proceeding under 49 U.S.C. § 24903(c)(2), FD 36332 (STB served March 17, 2020). 

NOTE ON THIS UPDATE:

This update contains additional information related to site disinfection and mask and respirator usage and employee safety training and meetings. These are identified as Special Notes and set out in italics.  Contact Robert Fried with interim questions and to provide updates, insights and best practices that will amplify future updates.

Overview

While the serious impact of the COVID-19 pandemic is broadly understood, the role of industry leaders and their counsel is to identify the functional planning measures inherent in their industries as action steps. The protocols necessarily go beyond remote work, social distancing, testing and matters of personal protective hygiene.  This article approaches this subject in terms of the collected views of experts in the basic modes – ships, planes, trucking and trains, and transit hubs, incorporating all of them from the viewpoint of micro-protocols. 

I hope this letter finds you healthy and dealing the best you can with the Coronavirus (COVID-19) pandemic. The Association of Transportation Law Professionals (ATLP) prides itself on the value that its programs bring to you as well as the opportunity for you to network and continue to develop relationships with your colleagues. Unfortunately, as a result of the pandemic, we have been forced to cancel the 2020 Annual Meeting set for Vancouver, BC in June. Given the current travel restrictions between the US and Canada, as well as the 14-day quarantine for US travelers who enter Canada and the numerous “shelter in place” orders enacted by a majority of states, the meeting is not feasible. Needless to say, this is a great disappointment for all, but rest assured that we are looking at other opportunities to bring you updated information relevant to your business, even if it must be done virtually.

On March 30, 2020, the Supreme Court decision in Citgo Asphalt Refining Company v. Frescati Shipping Co., Ltd, No. 18-565, held that a safe-berth clause in a charter party (a maritime contract for the use of a vessel) constitutes a warranty of safety imposing liability on the charterer, notwithstanding its diligence to select a berth.  The landmark decision, authored by Justice Sotomayor, affirmed the Third Circuit Court of Appeals and resolved a split between the Fifth Circuit and the Second Circuit.  The Court rejected the argument that a charterer may avoid liability under a charter party by simply exercising due diligence in selecting a berth. 

NOTE ON THIS UPDATE:

This update contains additional information related to port and transit operations; temperature testing and DOT mandated drug and alcohol testing; air transport and labor relations, including preliminary observations on collective bargaining provisions that are expected to be in the current stimulus bill relating to federal financial assistance. Please note further updates will be issued. Contact Robert Fried with interim questions and to provide updates, insights and best practices that will amplify future updates.

California and New York have issued stay at home orders and governors across the country are implementing or are considering restrictions to halt the spread of Covid-19.  Governor Newsom’s order exempts workers in essential services.

But, what type of work is designated essential?

A valuable resource for hazmat transportation practitioners is the US Department of Transportation - Office of Inspector General’s (“DOT-OIG”) website, www.oig.dot.gov, which provides valuable up to date information on recent hazmat transportation civil and criminal enforcement actions. Practitioners can stay informed of these developments in real-time by signing up for the DOT-OIG’s email notification list. In addition to enforcement cases, the OIG reports on audits and oversight results.

ATLP's 91st Annual Meeting is fast approaching and we wanted to share some exciting things to do in Vancouver leading up to the event.

Of the many current lawsuits against Boeing arising from the 737 MAX crisis, perhaps one of the more interesting ones was brought by Southwest Airlines passengers against Southwest and Boeing alleging that they were overcharged at the moment that they purchased tickets for travel aboard Southwest’s 737 MAX aircraft.[1]  These passengers, who brought putative class-action claims, alleged that the 737 MAX was fatally defective, that they never would have purchased their tickets on Southwest’s 737 MAX aircraft had they known of the defects, and that Boeing’s and Southwest’s misrepresentations and omissions concerning the safety of the 737 MAX enabled Southwest to overcharge for tickets.  Plaintiffs brought causes of action against both defendants for, broadly speaking: (1) violations of the RICO Act; (2) concealment and misrepresentation; (3) unjust enrichment; and (4) negligence.  Other than the RICO Act claims, Plaintiffs’ claims all were state law claims.

Welcome to the first Editor-in-Chief commentary under the ATLP’s new blog format.  As you probably know or have deduced, ATLP has transitioned Association Highlights from a bi-monthly newsletter format publishing six issues per year to a blog format endeavoring to publish weekly.  Under this new format, you will continue to receive informative transportation content delivered via email.  You can access the Association Highlights blog posts at the ATLP website, https://www.atlp.org/association-highlights-blog.  We hope that you find this new format to make it easier for you to read all of the high-quality content produced by the ATLP Highlights editors.