On November 23, 2021, the Board issued a decision accepting for consideration the application filed on October 29, 2021 in Docket No. FD 36500, regarding a potential merger between Kansas City Southern and Canadian Pacific. Canadian Pac. Ry. Ltd.—Control—Kansas City S., FD 36500 (STB served Nov. 23, 2021).
On November 15, 2021, the Board issued a supplemental notice of proposed rulemaking (SNPRM) in Docket Nos. EP 755, Final Offer Rate Review, and EP 665 (Sub-No. 2), Expanding Access to Rate Relief. Final Offer Rate Review, EP 755 (STB served Nov. 15, 2021). The Board stated that, in response to comments received on the notice of proposed rulemaking (NPRM) in those dockets, and to ensure parallel consideration of the proposal in Docket No. EP 765, Joint Petition for Rulemaking to Establish an Alternative Voluntary Arbitration Program for Small Rate Disputes, the Board was inviting parties to comment on certain modifications to the rate reasonableness procedure proposed in the NPRM. Id., slip op. at 1.
On November 15, 2021, the Board issued a notice of proposed rulemaking (NPRM) to modify its regulations at 49 C.F.R. Part 1108, Subpart B to establish a voluntary arbitration program for small rate disputes. Joint Petition for Rulemaking to Establish an Alternative Voluntary Arbitration Program for Small Rate Disputes, EP 765 (STB served Nov. 15, 2021). The Board also stated that it has decided to defer final action in Docket No. EP 755, Final Offer Rate Review,to allow for “parallel consideration of the voluntary, small rate case arbitration program proposed in this docket.” Id., slip op. at 8.
This article will address the ongoing areas in which administrative leadership is moving substantive enforcement changes in core areas of labor law focusing on how Board procedures facilitate such changes. We will discuss shifts in the prosecution of cases by the General Counsel of the National Labor Relations Board in injunction cases and collaborative enforcement with other federal agencies as well as a number of substantive areas.
The significance of involvement of the NLRB in a classification analysis of independent contractor status is both complex and subtle. In traditional civil labor law, states and courts as well as the United States Department of Labor have evolved tests that focus, within different degrees of emphasis on status. These range from a multi-factor test that evaluates the degree to which a worker operates as a self-sufficient business complying with state laws that regulate the work. This has been an approach common in the trucking and intermodal world, buttressed by state licensing and insurance requirements, particular for owner operators in the brokerage industry.
The dramatic collapse of the Fern Hollow Bridge on the east side of Pittsburgh on January 28 has left Pittsburgh residents grateful that no one was killed.
I grew up in this area of Pittsburgh. Fern Hollow Bridge served as my primary route into the city. I used it to get to school, and to visit my grandparents. The bridge spans a ravine in Frick Park (bequeathed by industrialist Henry Clay Frick), which is a large city park in an otherwise urbanized area, with city neighborhoods on either side of the park. The park contains a network of trails and just this past August my Mother and I walked across the bridge in order to access those trails. Prior to Covid, 14,000 commuters per day utilized the Fern Hollow Bridge.
Introduction
In this Passenger Rail Update we mark Congress’s passage of the Infrastructure Investment and Jobs Act in November last year, which provides a range of passenger rail funding opportunities. We also note Amtrak’s announced support for the proposed merger between the Canadian Pacific (“CP”) and the Kansas City Southern (“KCS”) Class I railroads, which is currently pending before the Surface Transportation Board (“STB”). Finally, we review a recent Illinois federal district court case discussing whether a freight railroad’s common carrier obligation includes the obligation to provide passenger rail service (spoiler alert—the court held that it does not).
(The authors note at the outset that they represent the Commuter Rail Division of the Regional Transportation Authority, d/b/a Metra, as a party in the CP-KCS merger proceedings before the STB in FD No. 36500, and as Metra’s outside rail counsel in the Illinois district court case discussed below.)
This week’s Highlights shines a light on a few transportation news pieces that caught our attention, click through to the ATLP website for links to these items:
At ATLP’s final Fall Forum session last month, officials from various modal agencies under the U.S. Department of Transportation (DOT) discussed agency activities related to environmental justice.
The U.S. Environmental Protection Agency defines environmental justice as the “fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income, with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” The Biden Administration has indicated that environmental justice is a priority issue area for the President, as reflected in Executive Order 14,008 (“Tackling the Climate Crisis at Home and Abroad” – issued January 27, 2021) and the whole-of-government Justice 40 Initiative announced in Summer 2021 to implement the environmental justice-related aspects of the E.O.
As frequent readers of this blog will recall, the Montreal Convention exclusively governs lawsuits against air carriers for damage arising from delay of or damage to cargo during international air transportation among signatory nations. A recent decision by the United States Court of Appeals for the Second Circuit illustrates that litigants cannot use artful pleading to avoid application of the Montreal Convention.1
In New Fortune Inc. v. Apex & Aeroflot, plaintiff NFI purchased one million face masks from a Chinese company and hired defendant Apex, a freight forwarder, to transport the masks from China to the U.S.2 Apex was instructed to ship the masks directly from China to New York and complete delivery within two days. Although half of the masks were shipped in the requested manner and timeframe, NFI alleged that the other half was not. Instead of flying directly from China to New York, the second batch of masks was flown on another carrier’s flight (Aeroflot, a Russian carrier) from China to Moscow, where they remained at the airport for over twenty days before being flown to their final destination in New York. NFI alleged that its buyer refused to accept late delivery of the second batch of masks, and further that some of the crates were damaged.
Railway Age is reporting that the Senate voted to approve Karen Hedlund to succeed Board Member Ann Begeman.
On November 12, 2021, the U.S. Court of Appeals, D.C. Circuit, overturned an Obama-era emissions rule directed at newly-manufactured trailers. In order to regulate trailers, either a new regulation will be required, or Congress will need to expressly expand agency authority.
During the Obama Administration, the Environmental Protection Agency (EPA) promulgated numerous regulations aimed at limiting harmful emissions in various industries and sectors across the country. One area of emphasis was shipping and trucking, specifically the use of heavy-duty trucks and vans. In October of 2016, the EPA and the National Highway Traffic Safety Administration (NHTSA) issued a joint final rule, titled “Greenhouse Gas Emissions and Fuel Efficiency Standards for Medium- and Heavy-Duty Engines and Vehicles—Phase 2." 81 FR 73478-01 (Oct. 25, 2016).
On November 4, 2021, the Global Industry Alliance (GIA) for Marine Biosafety, operating under the framework of the GEF-UNDP-IMO GloFouling Partnerships project (www.glofoling.imo.org) released its preliminary results of the study on the Impact of Ship’s Biofouling on Greenhouse Gas Emissions (the “Study”) during the United Nations Climate Change Conference (COP 26). 1 The final Study is expected to be released in 2022.
On September 2, 2021, the Surface Transportation Board (Board) issued a decision stating that it was seeking comments on issues related to first-mile / last-mile (FMLM) service, which refers to the movement of railcars between a local railroad serving yard and a shipper or receiver facility. First-Mile / Last Mile Service, EP 767, slip op. at 1 (STB served Sept. 2, 2021). The Board noted that it is seeking information on FMLM service “[a]fter hearing concerns raised by shippers across numerous industries and requests for transparency of FMLM data.” Id.
On September 30, 2021, the Surface Transportation Board (Board) issued a decision denying requests to reconsider the Board’s January 5, 2021 decision in Docket No. FD 36284, in which the Board preliminarily concluded, subject to completion of the environmental review, that the proposed construction and operation of approximately 85 miles of rail line in Utah meets the statutory exemption standard. Seven Cnty. Infrastructure Coal.—Rail Constr. & Operation Exemption—in Utah, Carbon, Duchesne, & Uintah Counties, Utah,FD 36284 (STB served Sept. 30, 2021).
On October 22, 2021, the Surface Transportation Board (Board) issued a decision, denying a petition for declaratory order filed by the Louisville and Jefferson County Riverport Authority, d/b/a Louisville Riverport Authority (LRA), seeking a finding that its lessee, New Albany Main Street Properties, LLC, d/b/a the Port of Louisville (Port of Louisville), is operating as a common carrier on certain track without authority from the Board. The Louisville and Jefferson County Riverport Authority—Petition for Declaratory Order, FD 36463 (STB served Oct. 22, 2021).
Two potential merger proceedings involving Kansas City Southern have been pending before the Surface Transportation Board (Board) – Docket No. FD 36500, regarding a potential merger with Canadian Pacific, and Docket No. FD 36514, regarding a potential merger with Canadian National. On October 20, 2021, the Board granted Canadian National’s request to withdraw its prefiling notification in the proposed CN/KCS merger proceeding. Canadian Nat’l Ry. Co.—Control—Kansas City S., FD 36514 (STB served Oct. 20, 2021). On October 29, 2021, Canadian Pacific and Kansas City Southern filed an application seeking approval for the proposed CP/KCS merger. Canadian Pac. Ry. Ltd.—Control—Kansas City S., FD 36500 (filed Oct. 29, 2021).
In September, the U.S. Department of Justice filed a lawsuit in federal court in Massachusetts seeking to stop the planned alliance between American Airlines and JetBlue. Six state attorneys general and the District of Columbia joined the lawsuit. The complaint contends that JetBlue is a “uniquely disruptive low-cost carrier” and that proposed alliance would undermine competition on routes to and from four major airports: Boston Logan International Airport (“Boston Logan”), John F. Kennedy International Airport (“JFK”), LaGuardia Airport (“LaGuardia”), and Newark Liberty International Airport (“Newark Liberty”).1
ATLP’s own Allison Ishihara Fultz has been appointed to be the Chief Counsel for the Federal Railroad Administration. FRA’s Chief Counsel is the principal legal advisor to the Administrator and provides executive direction over two divisions: General Law Division and Safety Law Division.
The Occupational and Safety and Health Administration’s (“OSHA”) proposed final rule to implement a Covid vaccination mandate is entering its administrative review phase before it becomes final. This article will focus on potential issues OSHA will face as it implements this new rule.
An OSHA Rule Is Not a General Law As Passed By Congress Or Any Legislature And, As Such, For HR Professionals And General Counsel, Does Not Directly Mesh With Existing Law Or Policies
An OSHA rule is a workplace safety standard, enforceable by citations issued by OSHA inspectors. This means that the regular process for imposing fines and administrative hearings within the Agency applies. However, this process only imposes potential liability on employers who do not implement a compliance policy.
Introduction
This edition of the Commuter Rail Update delves into a recent decision issued by the Surface Transportation Board (“STB”) concerning cost allocation between Regional Transportation Authority’s Commuter Rail Division (“Metra”) and the National Railroad Passenger Corporation (“Amtrak”) for use of Amtrak’s Chicago Union Station. We also highlight New Jersey Transit’s award of a $1.6 billion contract to conduct a much-needed replacement of the Portal North Bridge connecting New Jersey to New York City.
Surface Transportation Board Issues Decision in Dispute Between Amtrak and City of Chicago Over Access to the Chicago Union Station