Regulatory Response

Guidance Issued

Summary of General Requirements for Storage of Crude Oil in Tank Cars
Guidance Regarding Communicating with Employees During an Emergency
Safety Advisory 2020-01: Safety Precautions Related to Coronavirus
When to Report a COVID-19 Case Under Part 225
DOT Required Drug and Alcohol Testing During the Pandemic
Conducting FRA Safety Inspections During the Pandemic

Regulatory Relief

The Federal Railroad Administration has provided relief from a number of regulations during the pandemic in the form of waivers. Many of the original waivers have expired, but ASLRRA has worked with industry and the FRA to maintain several waivers, which was granted on September 18, 2020, and amended on October 5, 2020. These waivers will expire in one calendar year, or three months from the rescinding of the emergency declaration, whichever is sooner.

ASLRRA members desiring to operate under the terms of the waivers must document the basis on which they concluded that availing themselves of the relief was necessary and must report required information weekly to ASLRRA to provide to FRA. For details, please review the ASLRRA-developed recordkeeping reference.

Documentation must be submitted to covid19waivers@aslrra.org by 12:00 pm Eastern on the Thursday of the report end date.

Hours of Service Reminder During COVID-19

The Hours of Service statutory requirements, which limit the service hours of specified railroad employees, are contained in Chapter 211, Title 49 of the U.S. Code. Included in the statute is a non-application provision, at 49 U.S. Code § 21102, commonly referred to as the “emergency provision,” and FRA policy concerning the emergency provision is found at Title 49 Code of Federal Regulations (CFR) Part 228, Appendix A. The policy statement stresses that even in an emergency situation the carrier must make reasonable efforts to relieve the employee. Pursuant to FRA Hours of Service Record keeping regulations at 49 C.F.R. 228.19, each instance of excess service must be reported to FRA within 30 days after the calendar month in which the instance occurred. FRA requires use of its FRA Form 6180.3–Hours of Service Report.

Hazardous Materials Movement During COVID-19 Health Emergency

PHMSA has issued a Frequently Asked Questions document regarding PHMSA’s Hazardous Materials Regulations (HMR) and Coronavirus Disease 2019 (COVID-19).

Several waivers have been issued for the movement of Hazardous Materials by commercial carrier.

• On April 2, the Transportation Security Administration issued a temporary exemption from requirements in 49 CFR part 1572 regarding expiration of TSA security threat assessments (STAs) for Hazardous Material Endorsement (HME) holders. This exemption allows states to extend an expiration for up to 180 days for those expiring between March 1, 2020 and July 31, 2020.
• On April 2, the Pipeline and Hazardous Materials Administration gave notice of temporary relief from the packaging requirements for products containing ethyl alcohol, used in hand sanitizer, and will not take enforcement action against highway carriers for three months, or when the public health emergency is over, whichever is sooner. On April 10, 2020, PHMSA updated its guidance, and on June 24, 2020 PHMSA extended the expiration date through October 31, 2020.
• On March 23, the Pipeline and Hazardous Materials Administration gave notice that it would not take enforcement action against any carrier or offeror who is experiencing difficulty in obtaining or providing recurrent training. The agency updated its guidance to extend through October 31, 2020.
• On July 9, 2020, PHMSA extended additional enforcement action waivers through October 31, 2020 for packaging retesting, for relief of tests and inspections of cargo tanks and portable tanks in Alaska, and for the  transportation of certain hand sanitizing and disinfecting materials. 

The Railroad Retirement Board

On April 7, 2020, an interim final rule amended the definition of “available for work,” due to COVID-19.  §327.5 Meaning of ‘‘available for work” is revised as: (d) Deemed available for work. During the period extending from March 1, 2020 until December 31, 2020, a claimant will be deemed to be available for work during any period for which he or she is subject to a state or local order related to the public health emergency declared effective March 1, 2020 preventing him or her from reporting to work. The rule is effective as of April 3, 2020. Please direct any RRB-specific concerns to Sarah Yurasko.

The Sick and Family Medical expansions provided through the Railroad Retirement Board is another key program. The RRB has issued guidance on benefit flexibilities as a result of COVD-19. A helpful tax impact overview provided by the IRS is here.

The Surface Transportation Board

Starting Tuesday, March 17, 2020, all filings and other submissions should be made electronically. All Board decisions will continue to be available on the Board’s website during this time; however, the Board’s mail room will not be accepting paper filings or providing paper copies of decisions or other materials until further notice.

As we move from containment into recovery, the Board encourages anyone with questions regarding its authority to contact its Rail Customer and Public Assistance Program, available at (866) 254-1792 (toll-free) or 202-245-0238, or by email at rcpa@stb.gov.

Railroad Operations

All reports we have heard so far indicate that the freight railroad network is operating normally. However, there are valid concerns among short lines about the ability to continue operations under a variety of scenarios: for instance, a large group of employees take sick or FMLA leave at the same time, a large group of employees are forced into self-quarantine after a confirmed case in the immediate community, etc.