2020: Year in Review?

I titled this column with a question mark because one might legitimately ask whether anyone is interested in reviewing a year we would rather all forget. Clearly this was a year most of us would rather not dwell on, a year in which we stopped being physically close to family and friends, traveling, eating out, going to the theater or otherwise living our normal nonwork and work live as we knew them. But the show goes on and, like it or not, there were some developments in 2020 transportation law world that are worth looking back on, even if the year as a whole was much less than rosy.

Starting with Congress, this past year offers an illustration of Congress at its best and its worst. The most important legislation to emerge as a result of COVID-19 in 2020 was the Coronavirus Aid, Relief and Economic Security Act, otherwise known as the CARES Act, a huge measure which was impressively put together quickly and enacted before the end of the first month of the full-fledged pandemic in this country, on March 27, 2020. The $2.2 trillion Act not only helped sustain the economy generally, but helped keep certain passenger transportation sectors afloat. Airlines, airports, public rail and bus transit agencies, and Amtrak received billions in aid, allowing them to keep their operations going and their payrolls significantly intact even while the general public was being told not to engage in any non-essential travel. The other side of the story is that Congress so far has failed to follow up with more needed aid in the latter part of this year as CARES Act funding dries up together with the willingness of partisans to compromise. As I write this, however, it appears that another relief measure may finally be coming together as a result of the efforts of Congress’s bi-partisan Problem Solvers Caucus. It appears that this next relief measure will provide assistance to the passenger transportation sector and perhaps prevent the privately-owned bus industry, left out of CARES, with some much needed aid.

Transportation regulatory agencies responded to COVID-19 too. For example, FMCSA waived its hours of service requirements for truck drivers transporting shipments related to COVID relief, including medicines and protective gear, while also transforming motor carrier compliance reviews into virtual events by terminating on-site inspections. FRA waived its rail safety rules on an emergency basis to reduce the opportunities for worker and inspector exposure, while FTA provided CARES Act grants to transit agencies, offered safety guidance for travel by transit and waived certain safety inspection and other rules. But despite pleas from transportation workers and others, DOT refused to require interstate passengers on any mode to wear masks, underscoring the Trump Administration’s politicization of masks. The Biden team has already made clear that that will change quickly after January 20.

Customs and Border Protection, as well as DOT, CDC and other agencies, considered gathering contact data from airline passengers to facilitate tracing in the event of a transmission during air travel. CDC even adopted a rule, which it never enforced, requiring collection of such data by airlines for passengers arriving from China. But ultimately the Trump Administration chose to do nothing to facilitate air passenger contact tracing, citing privacy concerns. TSA security screening procedures were modified to reduce contacts between passengers and screeners.

There were some noteworthy regulatory developments unrelated to COVID in 2020. In the passenger transportation world, the STB, in a reversal, determined in July 2020 that Texas Central Railroad -- a proposed Dallas-Houston hi-speed passenger rail project -- was (as it claimed) an interstate railroad subject to STB jurisdiction and would be required to file an application for approval of its construction and operation. The decision was based on new information presented to the agency about planned through ticketing and other commercial arrangements between the Texas Central and Amtrak designed to facilitate interstate travel by rail. In September, 2020, FRA issued a set of particularized safety rules for the same project, thus further facilitating development of the project. Another fast passenger railroad project that is already partially built, Brightline in Florida, won an important DC Circuit decision in late 2019 affirming its ability to receive DOT approval to sell tax-free private activity bonds to fund construction, and this year the Supreme Court denied cert, putting an end to years of litigation. In November 2020, FRA issued a very important along awaited decision establishing metrics for measuring Amtrak’s on-time performance when Amtrak trains operate on freight rail systems. Viewed as a victory for Amtrak, the rule could spawn more disputes between Amtrak and the freight railroads. Those disputes would be heard by the STB, which reached its full strength of 5 Board Members with the Senate confirmation of Commissioners Michelle Schultz and Robert Primus in November 2020.

In the relatively less-COVID impacted freight rail world, the STB issued several decisions of note. Among these, was an April decision adopting a Policy Statement on Demurrage and Accessorial Rules and Charges, in which the Board clarified its policies on issues relating to demurrage and related charges, free time policies, credits and a variety of other issues. The Board also issued a supplemental rulemaking proposal in April addressing demurrage billing requirements, which remains pending. In August 2020, the Board adopted new rules for determining market dominance in rate reasonableness cases. Pending before the Board is a September 2020 petition by several Class I railroads to revise the STB’s process for making annual revenue adequacy determinations and a new rulemaking proceeding initiated in November 2020 to consider the establishment of an alternative voluntary arbitration program for small rate disputes.

Trucking regulation also saw at least one significant rule change in 2020, liberalization of the hours of service rules for truckers, apart from the COVID-related rules noted above. Among the changes, which were announced in May 2020, is that truckers can now satisfy the 30 minute rest break requirement with on-duty, non-driving time; sleeper berth time can be split between two separate periods; the adverse driving condition exception is extended by two hours; and the short-haul exception was liberalized in terms of time and miles. FMCSA also used its authority in January 2020 to find that the application of California’s meal and rest break rules to bus drivers was preempted by federal hours of service law, something it had earlier done for truckers. Both preemption decisions are now being challenged by the State and labor unions in the Ninth Circuit. And in November 2020, FMCSA initiated a proceeding to review its broker transparency rules. The proceeding was initiated in response to owner-operator and other interests which assert that the long-standing broker recordkeeping rules do not offer sufficient transparency on broker compensation.

In the world of hazardous materials and pipelines, in June 2020 PHMSA (jointly with FRA) announced new rules for transporting liquified natural gas in rail cars equipped with special protections. The rule, unflatteringly dubbed the “bomb train” rule by its detractors, has been challenged in the DC Circuit through a lawsuit filed by a group of states and another by environmental interest groups. With respect to pipelines, in February 2020 PHMSA issued a proposed rule to require remote controlled and similarly modern valves on all new gas and hazardous liquid pipelines.

Some other developments merit brief note. In January 2020, the DC Circuit dismissed a suit brought by representatives of passengers of the disappeared Malaysian Airlines Flight 370 on forum non conveniens grounds, finding that redress in Malaysian courts was available. In June, the US District Court for DC dismissed a suit challenging MarAd’s determination that APL is a US citizen for Maritime Security Program purposes, finding that the suit should have been brought in the US Court of Appeals under the Hobbs Act. And in November, California voters approved a measure that will allow drivers for Uber and Lyft to retain their independent contractor status, albeit with some required wage and other benefits. The Uber/Lyft measure is in effect an exemption from a California law, commonly known as AB-5, which took effect on January 1, 2020 and sets up a test that generally makes it more difficult to classify workers as independent contractors as opposed to employees in California. AB-5 remains under legal attack at this point, including a pending Ninth Circuit lawsuit filed by the trucking industry.

In sum, there are developments worth remembering in a year worth forgetting, and the ATLP Highlights Blog will continue to keep you updated on these and other matters. And one more thing is worth keeping in mind as we approach 2021. The global cargo transportation network, air and ground, is about to be tested like never before in the face of the monumental task of distributing COVID vaccines to every corner of this nation and every other nation in the world. As they were in the face of the pandemic this year, the heroes of this effort will be the front line transportation workers who have kept the transportation world running in the face of personal peril. They deserve a special place in our thoughts as we thankfully bring 2020 to a close.

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