[On January 27, 2022 at ATLP’s 93rd Annual Meeting held in Kansas City, Missouri Jameson Rice passed the ATLP’s president’s gavel to Louis Amato-Gauci.  Louis delivered the following remarks to the assembled members.]]

I’m deeply honoured to serve as president of this venerable association, the oldest organization of its kind in North America. I am excited about this upcoming year, and confident that I can count on all of you to help make it a resounding success.

I joined ATLP as a relatively young lawyer, who was just beginning to explore the boundaries of transportation law. I attended the ATLP annual meeting in Memphis, met a few folks and marveled at the depth of their expertise in this niche area of practice, but really had no idea what it takes to make an organization like this run smoothly.

I quickly discovered that much of the credit for the continued success of ATLP is due to the efforts of Lauren Michalski, our Executive Director for many, many years, who has truly been the heartbeat, life and soul of the association. There is something magical about Lauren. I met her when she and I sat at the back of the bus – where all the rowdy kids sat – heading to the midnight tour of the FedEx Hub. By the time that trip ended she had me signed up as a speaker for the next event, followed in rapid succession by an invitation to: (i) publish a paper in the Journal; (ii) serve on the program committee for the next meeting; (iii) co-chair the committee with Jameson for another meeting; and the rest is history.

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.

In this passenger rail update we cover the Federal Railroad Administration’s (“FRA”) new regulations concerning fatigue management and FRA’s introduction of the new intercity passenger Corridor Identification and Development Program. We also provide an update on the Amtrak Gulf Coast proceedings currently pending before the Surface Transportation Board (“STB” or “Board”).

FRA Amends Regulations to Implement Statutory Requirements for Fatigue Management

Pursuant to the requirements of Section 103 of the Rail Safety Improvement Act of 2008 (“RSIA”), 49 U.S.C. § 20156, on June 13, 2022, FRA issued a Notice of Final Rule in the Federal Register requiring that certain railroads include “fatigue management plans” in their safety risk reduction plans (87 Fed. Reg. 35,660).  This requirement applies specifically to Class I railroads, railroads that have been deemed by the Secretary of the Department of Transportation to have inadequate safety performance, and intercity passenger and commuter railroads.  Under current FRA regulations, Class I railroads and those deemed to have inadequate safety performance are required to submit Risk Reduction Program (“RRP”) plans to the FRA while intercity passenger and commuter railroads are required to submit System Safety Program (“SSP”) plans.  However, Section 20156 also requires that fatigue management plans be included in a railroad’s safety risk reduction plan (either an RRP or SSP), which had not previously been included in the applicable regulations (49 C.F.R. Part 270 and Part 271), thus prompting this rulemaking.

As many ATLP members are aware, Canadian Pacific Railway (“CP”) and Kansas City Southern Railway (“KCS”) filed a merger Application with the Surface Transportation Board (“STB”) on October 29, 2021, in Finance Docket 36500.  The transaction would involve CP acquiring KCS and its rail operations in the United States.  This blog post details the possible implications of the proposed merger on HazMat shipments.

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 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:

• STB suspends the CP/KCS procedural schedule.
• Chairman Oberman Appoints Danielle Gosselin as Director of Office of Environmental Analysis of the Surface Transportation Board.  Ms. Gosselin has been Acting Director since the retirement of the prior Director, Vicki Ruston. 
• Surface Transportation Board holds public hearing on EP 711 (sub 1) to solicit public feedback on reciprocal switching.
• The Transportation Security Administration is extending the current mandate for mask use on public transportation and in transportation hubs through April 18.
• The White House seeks to utilize the Federal Maritime Commission to increase oversight of the global shipping industry in an effort to lower consumer prices.
• Budget deal implements spending authorized in the Infrastructure Investment and Jobs Act and provides $102.9 billion in budgetary resources for DOT – an increase of $16.2 billion above the fiscal year 2021 enacted level.  

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. 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”).