Railroads See Needed COVID-19 Flexibility From Regulator

By Hanna Chouest and Morgan Lindsay
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Law360 (April 10, 2020, 2:25 PM EDT) --
Hanna Chouest
Hanna Chouest
Morgan Lindsay
Morgan Lindsay
Recent Federal Railroad Administration leadership on the interpretation of hours of service requirements in light of the COVID-19 emergency is welcome guidance in this time of significant uncertainty.

The FRA, which enforces and promulgates federal railroad safety requirements, establishes an emergency relief docket each year to hear petitions for emergency waivers of safety rules during an emergency situation.[1] An emergency relief docket was established for 2020 and, since COVID-19 has reached North America, various railroads and related entities have filed petitions for emergency waivers.[2]

Notably, according to the Association of American Railroads, the American Short Line and Regional Railroad Association and the American Public Transportation Association, railroads are anticipating "that staffing levels will be significantly affected as fewer railroad employees and contractors will be available to perform necessary duties due to quarantine, illnesses, and isolation directives, … [which will] affect[] railroads' ability to keep freight trains carrying critical goods and materials necessary for our country's welfare … during this emergency."[3]

While the FRA has waived its own regulations, orders or policies for the sake of assisting railroads experiencing staffing shortages during emergencies, the agency has taken the position in the past that it does not have authority to waive the statutory requirements found in U.S. Code Title 49 Chapter 211 related to hours of service requirements for freight railroads.[4]

Nevertheless, some freight railroads recently requested emergency waivers of hours of service requirements in petitions filed in the 2020 emergency relief docket.[5] Instead of simply denying the requests for waivers of hours of service laws, the FRA, in response to a joint petition filed by several major railroad associations (which did not request a waiver of hours of service laws),[6] stated:

Although Petitioners did not specifically request relief from the hours of service requirements of 49 U.S.C. Chapter 211, FRA notes that the statute itself provides flexibility to respond to certain emergency situations, such as the COVID-19 pandemic. See 49 U.S.C. § 21102(a). However, FRA notes that railroads would be required to employ due diligence to reduce or eliminate excess service. In addition, FRA's hours of service recordkeeping regulations require railroads to identify the reason for each instance of excess service, even where excess service may be appropriate for relief under the statute (e.g., in this instance, where the excess service was unavoidable and a direct result of the impact of the COVID-19 pandemic on a particular railroad).

Additionally, FRA notes that as related to train crews on commuter or intercity passenger railroads, whose hours of service limitations are found at 49 C.F.R. § 228.405, FRA's regulations provide flexibility as related to emergency situations, similar to the flexibility provided in [the] statute for freight railroads. See 49 U.S.C. § 228.403(a).[7]

The FRA did not indicate what type of "situation" described in U.S. Code Title 49 Section 21102(a) for which the COVID-19 pandemic might qualify,[8] but instead seems to interpret Section 21102(a) according to its spirit, which is clearly to provide the "flexibility" described by the FRA in emergency situations.

This interpretation is consistent with federal court precedent. For example, in United States v. New York Central Railroad Co.,[9] the U.S. District Court for the District of Massachusetts explained that, under hours of service laws, an "emergency" exists when there is "an unforeseen, sudden, or unexpected combination of circumstances, which calls for immediate action," which includes "[s]udden illness coupled with the inability to secure another operator." In such a situation, a railroad should not be liable for violating hours of service laws.

The FRA should exercise this flexibility to relieve railroads from hours of service requirements in situations where, due to the impacts of COVID-19, the railroad has no other option but to violate those requirements for the sake of safely continuing its operations or, as the FRA directs: "where the excess service was unavoidable and a direct result of the impact of the COVID-19 pandemic on a particular railroad."[10]

The FRA's interpretation of Section 21102(a) to allow for flexibility with regard to hours of service requirements is clear-minded and important during this unprecedented situation that is increasingly complicating railroad operations.

During this difficult time, which has disrupted and disabled the national economy on so many levels, enabling railroads to continue operating safely while also navigating unavoidable emergency situations is critically important now more than ever.

Hanna M. Chouest is counsel and Morgan B. Lindsay is an associate at Sidley Austin LLP.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the organization or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] See 74 Fed. Reg. 23329; 49 C.F.R. § 211.45; 49 U.S.C. § 20103.

[2] The 2020 Emergency Docket was established in 85 Fed. Reg. 1192, and the Docket No. is FRA-2020-0002.

[3] AAR, ASLRRA & APTA Petition for Emergency Relief, Docket No. FRA-2020-0002 (Mar. 21, 2020).

[4] See, e.g., FRA Letter to New Jersey Transit, Docket No. FRA-2012-0005-0018 (Nov. 26, 2012) ("FRA does not have the authority to otherwise waive the hours of service requirements in 49 U.S.C. Chapter 211 as they are Federal statutes, and not regulations"); Hours of Service, Federal Railroad Administration, https://cms8.fra.dot.gov/legislation-regulations/current-initiatives/hours-service (last visited Mar. 26, 2020) ("Because the HSL [Hours of Service Laws] are currently statutory provisions, not regulations, only Congress can amend them.").

[5] See, e.g., Fort Worth & Western Railroad Petition for Emergency Waiver of Multiple Parts, Docket No. FRA-2020-0002 (Mar. 22, 2020); TNW Corporation, Application for Regulation Relief, Docket No. FRA-2020-0002 (Mar. 22, 2020).

[6] AAR, ASLRRA & APTA Petition for Emergency Relief, Docket No. FRA-2020-0002 (Mar. 21, 2020) (noting an anticipated impact on "staffing levels" but not requesting waiver of hours of service laws).

[7] FRA Emergency Waiver Letter, Docket No. FRA-2020-0002, at 15 (Mar. 25, 2020).

[8] E.g., "(1) a casualty. (2) an unavoidable accident. (3) an act of God. (4) a delay resulting from a cause unknown and unforeseeable to a railroad carrier or its officer or agent in charge of the employee when the employee left a terminal." 49 U.S.C. 21102(a).

[9] United States v. New York Central Railroad Co. , 64 F. Supp. 499 (D. Mass 1946)

[10] FRA Emergency Waiver Letter, Docket No. FRA-2020-0002, at 15 (Mar. 25, 2020).​​​​

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