The International Maritime Organization (“IMO”) Maritime Safety Committee (“MSC”) convened November 2 – 11, 2022, to consider important amendments to the Convention for the Safety of Life at Sea (“SOLAS”) concerning safety measures for industrial personnel and compliance with the minimum threshold flashpoint for fuel oil carried by ships.  In addition, the MSC adopted the new mandatory International Code of Safety for Ships Carrying Industrial Personnel (“IP Code”).[1]    

On October 19, 2022, the Surface Transportation Board (Board) issued a decision accepting the post-remand briefs and comments filed in a declaratory order proceeding involving Soo Line Railroad Company (CP) and Wisconsin Central, Ltd. (CN) and soliciting public comments regarding the broad legal issues presented by the proceeding.  Wisconsin Central, Ltd.—Pet. for Declaratory Order—Interchange with Soo Line R.R. Co., FD 36397 (STB served Oct. 19, 2022). 

On October 28, 2022, the Surface Transportation Board (Board) announced the final evidentiary hearing dates – November 17 and November 18, 2002 – for the March 16, 2021 application by the National Railroad Passenger Corporation (Amtrak) requesting an order that allowed additional Amtrak train operations over CSX Transportation, Inc. (CSXT) and Norfolk Southern Railway Company (NSR) lines along the Gulf Coast.  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 Oct. 28, 2022).  The Board also announced that it would hold a voting conference on December 7, 2022.  Id.

On September 28, 2022, the Surface Transportation Board (Board) commenced a public hearing in the proposed Kansas City Southern (KCS) and Canadian Pacific (CP) merger proceeding.  See Canadian Pac. Ry. Ltd.—Control—Kansas City S., FD 36500 (STB served September 21, 2022).

The Federal Motor Carrier Safety Administration (FMCSA) has requested public comment on an application for exemption submitted by The Trucking Alliance that would allow trucking companies to use hair testing in addition to urine testing for random drug tests and pre-employment screenings. The exemption also asks that carriers be allowed to publish the results of those tests into the FMCSA’s Drug and Alcohol Clearinghouse, a database that employers must review when hiring a driver and annually during employment.

This article is intended as a part of an ongoing strategy guide for in-house and outside general counsel that provides a primer on the growing union friendly changes in federal and state labor Relations. We shall cover three topics: (1) union organizing models under the National Labor Relations Act and the Railway Labor Act – the primary statutes applicable to the modes; (2) the impact of federal project labor agreements on Transportation Industry Construction and (3) a look into what’s new, focusing on first steps towards mandating so-called “sectoral collective bargaining.”

This article is intended as a strategy guide for in-house and outside general counsel but comments from the Plaintiffs bar are equally appreciated. It is intended to digest the Court’s thoughtful opinion into core decision points.

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.

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. 4^th – (11^th 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”).

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.

Railway Age is reporting that the Senate voted to approve Karen Hedlund to succeed Board Member Ann Begeman. 

On May 26, 2021, the Surface Transportation Board (Board) issued a decision rejecting as incomplete an 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 Proposed Transaction).  CSX Corp.—Control and Merger—Pan Am Systems, Inc., FD 36472 (STB served May 26, 2021). The Board also permitted the applicants to file a revised application.

Pending before the Surface Transportation Board (Board) are two potential merger proceedings involving Kansas City Southern – Docket No. FD 36500, regarding a potential merger with Canadian Pacific, and Docket No. FD 36514, regarding a potential merger with Canadian National.  A summary of these proceedings is provided below.

The U.S. Department of Transportation (DOT) historically has been less prone to large shifts in policy between presidential administrations. Although Presidents Donald Trump and Joe Biden each nominated a Secretary of Transportation from his own party, before that, Presidents Barack Obama and George W. Bush each nominated a member of the opposing party.  While President Biden has not yet put forward his nominee for Administrator of the Federal Motor Carrier Safety Administration (FMCSA), the agency’s leadership and policies have historically followed this bipartisan approach. 

For example, when the Trump Administration took control of the FMCSA, the Obama-era rule requiring that driver hours of service be recorded by electronic logging device (ELD), rather than paper logbook, had not yet gone into effect. The Owner-Operator Independent Drivers Association (OOIDA) – a group that generally comprises many members of President Trump's base – had fought vigorously against the ELD rule. Despite years of effort to implement the ELD rule, it was uncertain if the FMCSA would postpone, chip away at the rule or even reverse course on ELDs. Nonetheless, the agency held firm and implemented the rule.

The once vibrant U.S. cruise industry has been sharply impacted by the COVID-19 pandemic.   On March 14, 2020, in response to the pandemic, the Centers for Disease Control and Prevention (“CDC”) issued a No Sail Order effective for 30 days precluding cruise ship operations arriving or departing from U.S. ports.¹  The CDC Director entered the No Sail Order to mitigate the threat of severe illness and death from COVID-19. The No Sail Order was renewed by the CDC on April 9, 2020, July 16, 2020, and September 30, 2020.²  Over the past eleven months, cruise ship operations were brought to a standstill.

Last summer, the long-running In re: Rail Freight Fuel Surcharge Antitrust Litigation ¹ case took a detour through a rarely cited section of the Staggers Rail Act of 1980 (“Staggers”)² that excludes certain communications and agreements between competing rail lines from evidence in antitrust cases. In response to the parties’ briefing on the scope of the statute, the Court requested the Department of Justice’s views on the statute. Though the DOJ’s guidance was specifically focused on the statute at issue, the advice it contained is relevant for competitors in any industry that have legitimate reasons in certain contexts to communicate with competitors or agree on prices with competitors, even as they otherwise compete on prices with them in the market. In the Rail Freight Fuel Surcharge litigation, the legitimate communications involve interline pricing between rail carriers shipping freight across multiple rail networks. In other industries, for example, it can involve a vertically-integrated company providing logistical or back-office services to a customer-facing competitor with which they compete for retail customers, or other dual distribution circumstances.

Hours of Service Notice of Proposed Rulemaking May be Released Soon