The continuing armed conflict between Russia and Ukraine has disrupted commercial maritime trade and stranded ships as well as their crew in the Black Sea and the Sea of Azov. This region historically has been an important area for maritime trade.
The Southwest Airlines Pilots Association (“SWAPA”) sued Boeing in late-2019 in the 160th District Court in Dallas County, Texas, seeking damages arising from the world-wide grounding of 737 MAX aircraft. Southwest Airlines flies a fleet consisting exclusively of Boeing 737 aircraft, had already taken delivery of many MAX aircraft before the grounding, and was expecting to take delivery of a significantly greater number of MAX aircraft during the two-year grounding. The grounding reduced Southwest’s fleet and thus its pilots’ opportunities to earn income, and based on that reduced income, reduced the revenue of the union, to which pilots pay dues as a percentage of income.
The Federal Motor Carrier Safety Administration (FMCSA) issued a notice of supplemental proposed rulemaking on May 4, 2022 (87 FR 26317). This proposed rule is part of the regulatory hokey-pokey between administrations: the Obama Administration put it in, the Trump Administration took it out, and now the Biden Administration is putting it in again.
On April 7, 2022, the Surface Transportation Board (Board) issued a decision announcing that it will hold a public hearing on April 26 and 27, 2022, concerning recent rail service issues and recovery efforts involving several Class I carriers. Urgent Issues in Freight Rail Service, EP 770, slip op. at 1 (STB served Apr. 7, 2022).
On April 1, 2022, the Surface Transportation Board (Board) issued a decision seeking public comment on a petition for rulemaking filed on July 26, 2021 by the North America Freight Car Association, The National Grain and Feed Association, The Chlorine Institute, and The National Oilseed Processors Association (collectively, Petitioners), requesting that the Board exercise its authority under 49 U.S.C. § 11122(a)(2) to promulgate regulations governing the use of private railcars by railroads. Petition for Rulemaking to Adopt Rules Governing Private Railcar Use by Railroads, EP 768 (STB served Apr. 1, 2022).
On March 15 and 16, 2022, the Surface Transportation Board (Board) held a public hearing concerning the reciprocal switching regulations that it proposed in this proceeding. See Reciprocal Switching¸ EP 711 (Sub-No. 1) (STB served Mar. 1, 2022).
On February 15, 2022, the Surface Transportation Board (Board) commenced the initial phase of the public hearing regarding the March 16, 2021 application by the National Railroad Passenger Corporation (Amtrak) for an order allowing additional train operations over CSX Transportation, Inc. (CSXT) and Norfolk Southern Railway Company (NSR) lines along the Gulf Coast. See Application of the Nat’l Passenger R.R. Corp. Under 49 U.S.C. § 24308(E)—CSX Transp., Inc. & Norfolk S. Ry. Co., FD 36496 (STB served Feb. 11, 2022). The second phase, an evidentiary hearing, commenced on April 4, 2022. See Application of the Nat’l Passenger R.R. Corp. Under 49 U.S.C. § 24308(E)—CSX Transp., Inc. & Norfolk S. Ry. Co., FD 36496 (STB served Mar. 23, 2022).
On April 14, 2022, the Surface Transportation Board (Board) issued a decision approving the revised application seeking approval for: (1) CSX Corporation (CSXC), CSX Transportation, Inc. (CSXT), and 747 Merger Sub 2, Inc. (747 Merger Sub 2) to control the railroads controlled by Pan Am Systems, Inc. (Systems) and Pan Am Railways, Inc. (PAR); and (2) CSXT to merge certain PAR subsidiaries into CSXT (the Merger Transaction). CSX Corp.—Control and Merger—Pan Am Systems, Inc., FD 36472 (STB served Apr. 14, 2022).
On March 16, 2022, the Board issued a decision directing the applicants in the proposed Kansas City Southern and Canadian Pacific merger proceeding to address an apparent inconsistency in traffic density data submitted to the Board. Canadian Pac. Ry. Ltd.—Control—Kansas City S., FD 36500 (STB served Mar. 16, 2022). The Board also provided an opportunity for other parties to reply to the applicants’ submission and suspended the procedural schedule.
Allison Ishihara Fultz is no stranger to the ATLP community. Prior to joining the Federal Railroad Administration (“FRA”) as its Chief Counsel, Allison has served as a passenger rail editor to Highlights, a chair of the program committee, and as a vice president and treasurer of ATLP’s board of directors. Allison stepped down from ATLP this past fall to assume her role at FRA. Allison and I recently spoke on the phone to discuss her career in transportation, her transition from private practice to a safety regulator, and current events at the FRA.
One issue that Allison says is an FRA priority in implementing the Infrastructure Investment and Jobs Act, or Bipartisan Infrastructure Law (“BIL”) is ensuring that the agency provides accessible guidance to all potential organizations seeking funds under the new legislation. Allison says FRA understands that sophisticated organizations know how to navigate the federal government’s grant making process. But FRA also wants to ensure that other entities, such as small municipalities – less familiar with the granting process – can access funds to address pressing rail infrastructure issues.
Prior to earning her law degree from the American University Washington College of Law, Allison trained to become an architect by earning her AB and Master of Architecture degrees from Princeton University and then practiced architecture for 13 years, designing and directing construction projects and feasibility studies.
This article reflects on how, led by changes in retail and logistics, the dynamics of union organizing have made rapid shifts, and how changes in legal policy at the federal level are accelerating and supporting those changes.
ATLP’s Annual Meeting is 79 days away. The agenda is packed full of transportation topics in sync with this week’s transportation news. In this Highlights post we review this week’s news and preview related annual meeting sessions.
Maritime
The Senate sent its version of the Ocean Shipping Reform Act to the House of Representatives this past Monday. The House had already passed its version of the act and now the chambers must reconcile the differences between the bills.
In this edition of the Passenger Rail Highlight we cover recent updates and guidance from the Federal Transit Administration (FTA) regarding implementation of changes to requirements for federal transit funding recipients and applicants provided under the recently passed Infrastructure and Investment Jobs Act, Public Law 117-58 (IIJA). First, FTA Administrator Nuria Fernandez issued a Dear Colleague Letter reminding transit agencies of new requirements regarding the establishment of Safety Committees. FTA also issued new proposed guidance regarding its Capital Investment Grants (CIG) program, while signaling more comprehensive changes to CIG policy guidance on the horizon.
In recent months, the federal agencies have continued efforts to harden the cyber defenses of critical energy and transportation infrastructure. In December 2021, the Department of Homeland Security’s (DHS) Transportation Security Administration (TSA) announced two new Security Directives providing additional guidance to strengthen cybersecurity across the transportation and critical infrastructure sectors. Most of the Security Directives were implemented for owners and operators of critical natural gas pipelines and liquefied natural gas facilities following the May 2021 cyberattack on Colonial Pipeline. The December 2021 Security Directives made these requirements applicable to higher-risk freight railroads, passenger rail, and rail transit. The Directives require owners and operators to:
Some motor carrier Highlights posts are quite technical. Not this one. This is a practical update about trucking: a change in acting leadership at the Federal Motor Carrier Safety Administration, and a discussion about parking.
FMCSA Leadership Change
Head of the FMCSA Meera Joshi left the administration in January to take a role as New York City deputy mayor for operations in the Adams administration. Joshi had been confirmed as deputy administrator and nominated to be the administrator of the agency, but left before she could be confirmed by the Senate to that position. She had previously held several positions in New York City, including head of the New York City Taxi and Limousine Commission.
Continuing with this space’s recent focus on cases analyzing the scope of the Montreal Convention, this blog entry discusses yet another recent Montreal Convention case that establishes the broad scope of the Convention’s preemptive effect. As frequent readers of this blog will recall, the Montreal Convention exclusively governs lawsuits against air carriers for damage arising from air transportation, and aircraft embarkation and disembarkation among signatory nations. That is, the Montreal Convention preempts claims for damages that either are not enumerated within the Convention or are based on laws other than the Convention, such as state laws. Further, because the Montreal Convention is a treaty of the United States, defendants almost always remove such cases to federal court.
Earlier this month, a Panel of the Eleventh Circuit considered two issues of first impression construing contribution and liability of a vessel owner under the Oil Pollution Act of 1990 (“OPA”) 33 U.S.C. §§ 2701 – 2720. In Savage Services Corporation v. United States of America—F. 4th – (11th Cir. 2022), the Court held that OPA did not create a cause of action for contribution for the cost of oil removal by a vessel operator against the United States. Second, the Court determined that a vessel pushing a tank barge discharging oil into the navigable waters of the United States could not be shielded from all statutory liability for remedial costs by asserting that the federal government was solely negligent. Finally, the Panel held that the comprehensive liability scheme within OPA both displaced and preempted a vessel owner’s claim against the United States arising under the Suits in Admiralty Act, 46 U.S.C. §§ 30901- 30918 (“SSA”).
On January 13-14, 2022, the Surface Transportation Board (Board) held a public hearing in the CSXT/Pan Am control and merger proceeding, in which the applicants are seeking approval for: (1) CSX Corporation (CSXC), CSX Transportation, Inc. (CSXT), and 747 Merger Sub 2, Inc. (747 Merger Sub 2) to control the railroads controlled by Pan Am Systems, Inc. (Systems) and Pan Am Railways, Inc. (PAR); and (2) CSXT to merge certain PAR subsidiaries into CSXT (the Proposed Transaction). See CSX Corp.—Control and Merger—Pan Am Systems, Inc., FD 36472 (STB served Dec. 10, 2021).
On December 28, 2021, the Surface Transportation Board (Board) issued a decision announcing that it would hold a public hearing on March 15 and 16, 2022, concerning the reciprocal switching regulations that it proposed in this proceeding. Reciprocal Switching¸ EP 711 (Sub-No. 1), slip op. at 1 (STB served Dec. 28, 2021).