ABA Transportation Committee QuarterlyFall 2010 TQ Online Vol. 3, No. 4

Features

Columns

Distracted Driving 3Subway Crashes 4

Chair & Editor’s Column 2

NewsBicycle Sharing Program 5

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Distracted Driving:An Epidemic

Also in This Issue:Federal Response to Subway Crashes

DC Bicycle Sharing Program

ABA Application 11

Editorial StaffJason Schlosberg, EditorAndrew Kawel, Associate EditorNeferteria Francis, Student EditorNicholas Page, Student EditorSydney Patterson, Student Editor

AuthorsAlais L. M. GriffinJason Schlosberg

Photographers & IllustratorsWilliam PhillipsJason Schlosberg

ChairJason Schlosberg

Vice ChairsThomas Newton BollingDavid H. CoburnNeil R. EisnerJudith S. KaletaLinda Lasley-FordWilliam S. Morrow Jr.

TQ is a publication of the Transportation Committee,ABA Section of Administrative Law and Regulatory Practice.

Printing Suggestion(1) high-quality color(2) double-sided(3) two staples

Chair & Editor’s ColumnFrom the Driver’s Seat

Dear Readers:

I am sure that we are all fa-miliar with the near-ubiquitous public service announcements advertising the horrific results of drunk driving. A new, similar problem threatens the lives of millions of Americans: distracted driving. The issue has risen to epidemic levels, causing a signifi-cant national response.

The U.S. Department of Transportation has initiated a crackdown on distracted driv-ing, taking a multi-pronged ap-proach, including convening a national distracted driving sum-mit to help push dozens of states to enact bans on texting or us-ing cell phones without hands-free devices while driving. The Department also helped form an anti-distracted driving advo-cacy group called FocusDriven, patterned after Mothers Against Drunk Driving (MADD).

To better understand the fed-eral government’s response to the issue of distracted driving, Alais Griffin, Chief Counsel to the Federal Motor Carrier Safety Ad-ministration (FMCSA), provides on page 3, a thorough overview, explaining the breadth of the problem and alerting our readers to the steps the Department has taken in response. The Depart-ment’s rulemaking efforts related to this issue are being used as pilot projects between the De-partment, FMCSA, and Cornell University’s e-Rulemaking Ini-tiative (CeRI) to open the fed-eral regulatory process to more effective citizen participation. For more information on this exciting venture, please see the sidebar on page 7 of this issue.

Alais is also in a good position to discuss the effort; she was pre-viously Counselor to the Depart-

ment’s General Counsel, Robert Rivkin, and has worked closely on distracted driving issues.

Alais points out that the Department is concentrating its efforts not only on the high-ways, but also on the rails. For instance, the Federal Railroad Administration (FRA) recently issued a rule concerning the use of wireless communications de-vices for those operating loco-motives.

While the 2008 train crash in Chatsworth, California—pre-sumably caused when a loco-motive engineer may have been using his mobile phone—was an impetus to the FRA rule, a number of local transit crashes have also gained the national spotlight. As a result, a sig-nificant public outcry has asked what the federal government in-tends to do. The issue involves complicated questions regarding federalism and competing juris-dictions between various agen-cies. To help our readers better understand these issues, we have included on page 4 an article de-scribing the respective responsi-bilities and jurisdictions of FRA and its sister agency, the Federal Transit Administration (FTA), and legislation currently being considered in Congress.

In addition, this issue of TQ includes a more unorthodox news article concerning bicy-cling. The Department does not regulate bicycling. I am aware of no federal legislation regarding bicycling. This is an issue usu-ally left to the states. States usu-ally even leave these issues to its cities and local communities, if they attempt to address it at all. However, due to the national in-terest in reducing congestion and increasing livability, the federal government has initiated certain

programs to incentivize bicycle use. Bike sharing programs have gained popularity and the federal government has decided to get in on the action. Just recently, the Department provided a grant to a new bicycle sharing program in Washington, DC. While it is probably too early to gauge the program’s success, I have person-ally noticed a significant number of red bicycles, with the yellow text “Capital Bikeshare,” whiz-zing by in bike lanes throughout the District and in its neighbor-ing Arlington County.

I hope you continue to enjoy TQ, a benefit of membership to the Transportation Committee. If this is the extent of your in-volvement, you are missing out! Contact me immediately to find out how you can benefit more from membership.

Your Editor and Chair,Jason Schlosbergjason.schlosberg@dot.gov

Photo: William Phillips

Editor’s Note: All opinions in TQ are those of their respective authors, should not be construed as legal advice, and do not necessarily reflect the opinions of TQ or its staff, the American Bar Association, including its sections, committees, and members, the U.S. government or any of its departments or agencies, or the authors’ respective employers.

Pub Info

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Driving Out DistractionsDOT Brings Hands, Minds, and Eyes Back on the Road

By Alais L. M. Griffin

Last week, I watched a jaw-dropping video. The camera inside the truck cab had captured several images. The first screen shows the for-ward roadway. It’s a two-lane road heading through a busy intersec-tion into a highway construction zone. The second screen shows the driver. He’s in good spirits as he drives, laughing, smoking a cigarette. With his left hand, he holds a phone to his ear. And with his right hand, he holds a second phone to his right ear. It’s not hands-free cell phone use; it’s hand-free driving. Steering with his knees, he sails through the yellow light without hesitation and speeds on into the construction zone. Had the light been red, or had anything unusual happened on the forward roadway, the video would have likely cap-tured a tragedy.

Distracted driving—most of us have witnessed it; many of us have engaged in it. It’s the non-driving activity that takes motorists’ atten-tion away from the safe operation of their vehicles, and it’s a growing epi-demic on our roads. As cell phones, PDAs, and other mobile devices have become ubiquitous, we seem incapable of not being “connected” at all times. When the devices in-vade dinner or family vacations, it is irritating; when they mix with driving, the results can be deadly. In 2008, the National Highway Traffic Safety Administration (NHTSA) reported that nearly 6,000 people lost their lives and more than half a million people were in-jured in crashes involving driver distraction.1

Experts have identified three types of driver distraction: visual (eyes off the road), manual (hands off the wheel), and cognitive (minds off the road or driving task). Although all kinds of distraction can impact safety, texting and dialing on a cell phone while driving have emerged as two of the most dangerous activities. Texting is particularly hazard-ous because it involves all three types of distraction—visual, manual, and cognitive. In the words of one expert, it is a “perfect storm.”

The Federal Motor Carrier Safety Administration (FMCSA) has seen a number of serious, fatal crashes involving commercial motor vehicles (CMVs), in which the probable cause of the crash was the use of a wireless device. For example, in February 2010, a Pennsylva-nia school-bus driver was allegedly talking on his cell phone before a deadly crash.2 On November 14, 2004, a motorcoach crashed into a bridge overpass on the George Washington Memorial Parkway in Al-exandria, Virginia, injuring eleven students, one seriously. The driver, who had initiated a twelve-minute call the morning of the crash, ad-

1 Nat’l Highway Traffic Safety Administration, Trafffic Safety Facts Research Note: “An Examination of Driver Distraction as Recorded in NHTSA Databases” (Sept. 2009), available at http://www-nrd.nhtsa.dot.gov/Pubs/ 811216.pdf (last visited Sept. 27, 2010).

2 Police: Bus Driver Involved in 1999 Fatal Crash, 6ABC (Feb. 18, 2010), avail-able at http://abclocal.go.com/wpvi/story?section=resources/traffic&id=7285478(last visited Oct. 26, 2010).

mitted that he saw neither warning signs nor the bridge itself before impact. The National Transportation Safety Board determined that one probable cause of the crash was the use of the hands-free cell phone, which had resulted in cognitive distraction.3

In the wake of the Alexandria, Virginia crash, FMCSA sponsored a study, “Driver Distraction in Commercial Vehicle Operations,” which the Virginia Tech Transportation Institute (VTTI) released on October 1, 2009.4 That study investigated the prevalence of driver distraction in CMV safety-critical events (i.e., crashes, near-crashes, and unintentional lane departures) recorded in a naturalistic data set5

that included over 200 truck drivers and 3 million miles of travel. That study, along with other research, has begun to reveal the scope and magnitude of the distracted driving epidemic:• The VTTI study showed that the odds of being involved in a safe-ty-critical event are 23 times greater for commercial motor vehicle driv-ers who text while driving than for those who do not. • The VTTI study further showed that texting drivers took their eyes off the forward roadway for an average of 4.6 seconds during

the 6-second interval surrounding a safety-critical event. At 55 mph, this equates to a driver traveling the approximate length of a football field, including the end zones, without looking at the roadway. Cell-phone dialing took the driver’s eyes off the forward roadway for an average of 3.8 seconds.

• According to the Insurance Institute for Highway Safety, drivers who use cell phones are 4 times more likely to get into crashes that are serious enough to cause driver injuries.6

• A 2009 report by the Pew Internet & American Life Project, Teens and Distracted Driving, indicates that at least 52% of sixteen- and seventeen-year-old teens who own cell phones admit to having

3 Nat’l Transp. Safety Bd., Motorcoach Collision with the Alexan-dria Avenue Bridge Overpass, George Washington Memorial Parkway, Alex-andria, Virginia, November 14, 2004, available at http://www.ntsb.gov/Publictn/2006/HAR0604.pdf (last visited Nov. 1, 2010).

4 Rebecca L. Olson et al., Dept. of Transportation, Driver Distrac-tion in Commercial Vehicle Operations (July 2009), available at http://www.fmcsa.dot.gov/facts-research/research-technology/report/FMCSA-RRR-09-042.pdf (last visited Nov. 1, 2010).

5 Naturalistic data studies assess driver behavior in real world driving condi-tions.  To gather naturalistic driving data, each vehicle typically contains several video cameras (e.g., recording views of the face, over-the-shoulder, front view, rearview, right/left side view, and foot pedals) and vehicle sensors to collect data on vehicle speed, braking intensity, steering input, space between vehicles, and many additional measures. The data collection system is started as soon as the vehicle ignition starts and continues to record until the vehicle is turned off.

6 Insurance Inst. for Highway Safety, 43 Status Report no. 4, at 3 (June 9, 2008), available at http://www.iihs.org/externaldata/srdata/docs/sr4304.pdf (last vis-ited Nov. 1, 2010).

continued on page 6

Features

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By Jason Schlosberg

Despite increased use in safety technology and more stringent fed-eral oversight, train accidents continue to occur across the nation. While freight railroad accidents have significantly decreased over time,1 passenger transit rail accidents have received national media attention.2 For instance, since 2007, the DC Met-ro—more formally known as the Washington Metro Area Transit Authority (WMATA)—has been in-volved in three fatal track worker accidents, more than five derailments, and a serious collision resulting in nine deaths and more than seventy injuries.3 These ac-cidents have prompted the National Transportation Safety Board (NTSB) to criticize DC Metro’s “ane-mic safety culture”4 and have spurred our elected of-ficials into action.

People have begun ask-ing why local transit op-erators have apparently escaped the federal oversight that freight and larger passenger opera-tions receive. If such supervision is necessary, which federal agency will have jurisdiction? What does Congress intend to do, if anything?

Federal Railroad Administration

Railroading is the oldest regulated industry in the United States. As a technological symbol of the industrial revolution, lawmakers ini-

1 According to the Association of American Railroads (AAR), rail accident rates are down 75% since 1980. See Press Release, Ass’n of Am. R.R., U.S. House of Representatives Knows Freight Rail Works (July 28, 2010), http://www.aar.org/news-andevents/pressreleases/2010/07/2010-07-28-freightrailworks.aspx.

2 See, e.g., Gail Russell Chaddock, D.C. Metro Crash Highlights Underfund-ing of Public Transit Systems, Christian Sci. Monitor, June 26, 2009, http://www.csmonitor.com/USA/2009/0626/p02s15-usgn.html. In reality, while rail transit safety trends are difficult to discern, the number of fatalities has decreased between 1990 and 2007. See David Randall Peterman & William J. Mallett, Cong. Research Serv., R40688, The Federal Role in Rail Transit Safety 34 (2009), available at http://assets.opencrs.com/rpts/R40688_20090706.pdf [hereinafter CRS Report].

3 CRS Report, supra note 2, at Summary.4 See Deborah A.P. Hersman, Chairman, Nat’l Transp. Safety Bd., Open-

ing Statement at Sunshine Meeting: Accident Report—Collision of Two Washing-ton Metropolitan Area Transit Authority Metrorail Trains Near Fort Totten Station, Washington, D.C., June 22, 2009 (July 27, 2010), http://www.ntsb.gov/Events/2010/Washington-DC-Metro/opening-statement.htm [hereinafter NTSB jurisdiction]. The NTSB is an independent federal accident investigation agency. Since its creation in 1967, its mission has been to determine the probable cause of transportation acci-dents and to formulate safety recommendations to improve transportation. While the NTSB reports to Congress, it has no enforcement authority and thus, its consideration is outside the scope of this article.

tially encouraged rail enterprise. By the latter half of the nineteenth century, however, unhappiness with enormous death tolls led to federal regulation.5 As early as 1893, Congress provided some safety authority to the Interstate Commerce Commission.6 After enacting a series of laws that broadened agency authority over rail safety, Con-

gress provided the Federal Railroad Administration (FRA) with plenary safety authority over common carriers engaged in inter-state commerce by rail in the Federal Railroad Safety Act of 1970 (Safety Act).7

FRA currently oversees over 500 freight railroads and over 20 commuter railroads, in addition to Amtrak. FRA can directly enforce safety statutes or regulations against rail-roads by using a “tool-kit” of consequences that vary in severity and can compel compliance with safety regulations. Most commonly, FRA will is-sue a civil penalty, or fine,

against a railroad that has violated a particular regulation. Depending on the infraction, however, FRA can also issue an emergency order—the strongest response to noncompliance— or it can cite a defect —a minor deficiency that needs to be addressed but is not egregious enough to warrant a fine. The agency trains and maintains its own cadre of safety inspectors who are authorized to conduct safety in-spections at any time. In addition to these inspectors, FRA manages a program called the State Rail Safety Participation Program, which allows states to employ their own FRA-certified inspectors to enforce FRA regulations.

FRA has jurisdiction to regulate the safety of portions of rail tran-sit systems that share track or rights-of-way with the general railroad system.8 FRA’s railroad safety jurisdiction extends to all types of rail-

5 Federal regulation was also inspired by unfair rates. While ratemaking au-thority was initially delegated to ICC, today such authority resides with the Surface Transportation Board (STB).

6 Safety Appliance Act of 1893, ch. 196, 27 Stat. 531 (now codified at 49 U.S.C. §§ 20301–20903 (2006)). For a good initial history of federal railroad safety regulation, see James W. Ely, Jr., Railroads & American Law, ch. 9 (2001).

7 Federal Railroad Safety Act of 1970, Pub. L. No. 91-458, 84 Stat. 971 (now codified at 49 U.S.C. §§ 20101–20903 (2006)).

8 For resource and policy reasons, FRA has not extended the reach of most of its regulations (as stated in each rule’s applicability provision) as far as its statutory authority under the Safety Act would have permitted. See 49 C.F.R. pt. 209 app. A (2009) (discussing the extent and exercise of FRA’s safety jurisdiction). Information on FRA’s jurisdiction over rail transit agencies with shared-use track can be found in FTA and FRA policy statements, which clarified FRA’s position on safety jurisdiction over shared track situations. See 65 Fed. Reg. 42,529 (July 10, 2000).

Who’s in Charge Here?!Subway Crashes and the Jursidictional Lines Between Rail and Transit

continued on page 9

Features

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By Jason Schlosberg

Bicycle sharing systems have popped up in various cities across the world, particularly in Europe and the United States. These programs form part of intermodal urban transportation systems that provide an alternative or conduit to motorized travel, reduce traffic conges-tion and carbon footprints, and encourage healthy lifestyles. While not the first one of its kind, the Capital Bikeshare pro-gram in Washington, DC, has taken off recently, lin-ing up 1,100 bicycles at 100 stations within the District and at 14 stations within neighboring Arlington, Vir-ginia. It has quickly become the largest bike-sharing sys-tem in the United States.

On September 20, the Capital Bikeshare program was officially launched on the grounds of the U.S. De-partment of Transportation. To highlight its significance, several dignitaries attended the event, including Mayor Adrian M. Fenty, U.S. De-partment of Transporta-tion Assistant Secretary for Transportation Policy Polly Trottenberg, Congresswoman Eleanor Holmes Norton (D, DC), Ar-lington County Board Chair Jay Fisette, and District Department of Transportation Director (DDOT) Gabe Klein. They were joined by other local and regional partners, representatives, supporters, and bike enthusiasts.

Director Klein remarked, “It is not only bikesharing, it is a new bike transportation network. The installation of bike lanes, bike sig-nals, and now this bikeshare program, will provide people with safer routes throughout the city and into Arlington.  Capital Bikeshare connects to Metro and Circulator routes, providing more options and a more balanced approach to transportation.”

The $6 million bikeshare program is funded in the District by the U.S. Department of Transportation’s Federal Highway Administra-tion, through its Congestion, Mitigation, and Air Quality (CMAQ)

fund. The CMAQ fund provides 80% of the money, with the re-mainder provided by local funding. The Arlington system includes $835,000 in combined capital from the Virginia Department of Rail and Public Transportation, Arlington County transportation fund-ing, the Crystal City Business Improvement District (BID), and the Potomac Yard Transportation Management Association.

Capital Bikeshare will be operated by Alta Bicycle Share, a U.S.-based compa-ny focused on management and operation of bicycle-share systems. Alta Bicycle Share is implementing or consulting on similar pro-grams in Australia, Europe, China, and other locations in the United States.

The earliest community bicycle program may have started with ten bicycles in 1960s Amsterdam. How-ever, it never took off, pos-sibly because the bicycles were confiscated by the po-lice within a day. In 1974, the French city of La Ro-

chelle launched a success-ful bike-sharing program, and in 1995, Copenha-

gen’s ByCyklen–City Bikes began a new generation of sharing pro-grams that sought to reduce costs and find alternative funding sourc-es. Bike-sharing programs in the United States started in 1994, when Portland, Oregon environmental activists simply released a number of bikes to the streets for unrestricted use. However, more highly organized efforts have been appearing in recent years, including DE-COBIKE in Miami and B-Cycle in Denver and Chicago. While DC has had a SmartBike DC program, sponsored by Clear Channel and DDOT, the new Capital Bikeshare program has quickly become much more visible.

Capital Bikeshare will be similar to the Montreal Public Bike Sys-tem Company (PBSC) program, commonly known as BIXI.  The BIXI system has been running in Montreal since 2009 and has re-cently launched in Minneapolis, London, and Melbourne.

The Red Sea of BicyclesFederal and Local Governments Join Forces to Reduce Traffic Congestion, Carbon Footprint

News

Capital Bikeshare (Washington, DC), www.capitalbikeshare.comB-Cycle (Denver, CO), www.denver.bcycle.com B-Cycle (Chicago, IL), www.chicago.bcycle.com

DECOBIKE (Miami), www.decobike.com SmartBike DC (Washington, DC), www.smartbikedc.com

American City Bike Share Programs

Capital Bikeshare launch at the U.S. Department of Transportation, Washington, DC.Photo courtesy of the Capital Riverfront Business Improvement District (BID)

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talked on a cell phone while driving, while 34% admit to having texted while driving.7

• In 2010, the Pew Internet & American Life Project reported that adults are even more likely than teens to text and talk on the phone while driving. Seventy-five percent of adults who own cell phones say they have talked on a cell phone while driving, and nearly half (47%) of all adults who text say they have sent or read a text message while driving.8

Tackling the Epidemic

In September 2009, U.S. Secretary of Transportation Ray LaHood met this epidemic head-on. Secretary LaHood convened the first na-tional Distracted Driving Summit, bringing together transportation officials, safety advocates, law-enforcement representatives, members of Congress, industry representatives, academics, and young adults to begin solving the problem. Coordinated by the U.S. Department of Transportation’s (DOT’s) Research and Innovative Technology Administration (RITA), the two-day event featured testimony from those who have lost loved ones because a driver chose to send a text, dial a phone, or focus on something other than driving.

At the end of the Summit, Secretary LaHood announced that President Obama had issued an Executive Order banning federal em-

7 Mary Madden & Amanda Lenhart, Teens and Distracted Driving, Pew In-ternet & American Life Project (Nov. 16, 2009), available at http://www.pewinternet.org/~/media//Files/Reports/2009/PIP_Teens_and_Distracted_Driving.pdf (last vis-ited Nov. 1, 2010).

8 Mary Madden & Lee Rainie, Pew Internet & American Life Project, Adults and Cell Phone Distractions (June 18, 2010), available at http://pewin-ternet.org/~/media//Files/Reports/2010/PIP_Cell_Distractions.pdf (last visited Nov. 1, 2010).

ployees from texting or using other devices while driving on official business. The order took effect immediately and covered four million federal employees.9 Secretary LaHood also announced that FMCSA and the Federal Railroad Administration (FRA) would immediately initiate three rulemaking actions: (1) permanently restricting the use of cell phones and other electronic devices in rail operations; (2) ban-ning text messaging and restricting the use of cell phones by interstate truck and bus operators; and 3) disqualifying school bus drivers from maintaining their commercial driver’s license if convicted of texting while driving.10

Since the Summit, DOT has taken a variety of actions to target dangerous behavior behind the wheel. The Department has promot-ed efforts to stop distracted driving by providing sample legislation and by encouraging states to adopt tough distraction laws. As of Au-gust 2010, thirty states, the District of Columbia, and Guam have banned text messaging for all drivers; twelve of these laws have been enacted since the Summit. Eight states, the District of Columbia, and the Virgin Islands have banned the use of all hand-held devices behind the wheel.11

In January 2010, Secretary LaHood and National Safety Council President Janet Froetscher announced the creation of FocusDriven, the first national nonprofit devoted specifically to raising awareness of

9 Exec. Order No. 13,513, 74 Fed. Reg. 51225 (Oct. 6, 2009). 10 Press Release, U.S. Dep’t of Transp. U.S. Transportation Secretary Ray La-

Hood Announces Administration-Wide Effort to Combat Distracted Driving (Oct. 1, 2009), available at http://www.dot.gov/affairs/2009/dot15609.htm (last visited Nov. 1, 2010).

11 The Department’s sample legislation and a list of states and territories that have enacted distracted driving legislation are located at DOT’s Distracted Driving website, http://www.distraction.gov.

Distracted Drivingcontinued from page 3

continued on page 8

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The Cornell Regulation Room Project On January 21, 2009, President Obama issued a Memorandum on Transparency and Open Government, in which he committed to an unprecedented level of openness in Government and to a Government that is both participatory and collaborative. In support of that Memorandum, and using the Federal Motor Carrier Safety Adminis-tration’s (FMCSA’s) notice of proposed rulemaking (NPRM) on texting by interstate commercial motor vehicle (CMV) drivers, DOT and FMCSA partnered with Cornell University’s e-Rulemaking Initiative (CeRI) to open the federal regulatory process to more effective citizen participation. In concert with Secretary LaHood’s announce-ment of the NPRM, CeRI unveiled Regulation Room, an online public participation en-vironment where citizens can learn about and discuss proposed federal regulations and provide effective feedback to agency decisionmakers.

The website provided information on FMCSA’s texting NPRM and on the rulemak-ing process to allow visitors to more fully understand the proposed rule and supply better feedback. To drive traffic to the site, CeRI employed a broad outreach plan that used press releases and e-mail, as well as social media outlets like Twitter and Face-book. During the 34 days that the site was open, it received 3,665 unique visitors. CeRI invited those visitors to comment, discuss, and react to the NPRM and its com-ponents; CeRI then prepared and posted a summary of those comments for the web-site’s visitors to review for accuracy and to edit collaboratively. CeRI submitted that final summary to FMCSA’s rulemaking docket in the name of the participants.

The pilot project proved to be a success. As Cornell Law School Professor Cynthia R. Farina said, “Everyone has the legal right to know about proposed new regulations and give the agency feedback, but few people are aware of their rights and fewer ex-ercise them effectively. We are optimistic that Regulation Room will encourage more meaningful public involvement in the regulatory policy process.” Professor Farina commended DOT and Secretary LaHood for their leadership in finding “innovative ways to inform and engage the public.”

DOT has continued to work with CeRI, which is currently hosting a discussion on the Federal Aviation Administration’s Airline Passenger Rights NPRM on the site. The Regulation Room website can be found at www.regulationroom.org.

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the dangers of distracted driving. The group is led by Jennifer Smith, who has been a passionate and outspoken advocate against distracted driving ever since her mother was killed in 2008 by a motorist talking on a cell phone while driving.

In April 2010, NHTSA launched “Phone in One Hand, Ticket in the Other” pilot programs in Hartford, Connecticut, and Syracuse, New York, to test the extent to which high-visibility law enforcement efforts, combined with public service announcements, can persuade distracted drivers to put down their hand-held cell phones and focus on the road.

And in May 2010, at the United Nations headquarters in New York, Secretary LaHood joined Secretary-General Ban Ki-moon of the United Nations and senior representatives from the United States and Russia to launch a global effort to address the growing and deadly epidemic of distracted driving.

The Rulemaking Fast-Track

FMCSA and FRA also focused on fulfilling Secretary LaHood’s commitment to initiate three rulemaking actions to prohibit distract-ed driving. It is worth noting that the typical rulemaking process—development of a rule, internal review, initial review by the Office of Management and Budget (OMB), public comment period, analysis and incorporation of comments, and final review by OMB—can take at least two years. The Secretary, however, directed FMCSA and FRA to undertake these rulemakings on a much more expedited schedule; within a year, FMCSA was to publish a final rule on texting while driving and to develop a notice of proposed rulemaking (NPRM) on the use of mobile phones, and the FRA was directed to publish its final rule on distracted rail operations.

FMCSA worked quickly to meet the challenge. To put an im-mediate stop to texting while driving, the agency published guid-ance on texting in the Federal Register in January 2010.12 The guid-ance explained that existing regulations that restrict the use of any equipment and accessories that adversely impact the safe operations of CMVs may be enforced against interstate truck and bus drivers who text while driving. On April 1, 2010, FMCSA published an NPRM that proposed a ban on texting by interstate CMV drivers.13 While FMCSA shortened the public comment period on the NPRM through a novel, open-government blogging partnership with Cor-nell University, it was able to encourage broader public participation.

12 Regulatory Guidance Concerning the Applicability of the Federal Motor Carrier Safety Regulations to Texting by Commercial Motor Vehicle Drivers, 75 Fed. Reg. 4305 (Jan. 27, 2010).

13 Limiting the Use of Wireless Communication Devices, 75 Fed. Reg. 16391 (Apr. 1, 2010).

(See sidebar on the Cornell Regulation Room Project, p. 7.) FMC-SA also initiated a rulemaking that would restrict the use of mobile phones while operating a CMV.

One year later, DOT has made good on the commitments made by Secretary LaHood at the first Distracted Driving summit. On Sep-tember 21, 2010, the Secretary convened the second Distracted Driv-ing Summit and announced significant progress on rulemakings that are designed to end distracted driving. FMCSA had published a Final Rule that prohibits texting by interstate CMV drivers and that adds convictions under state or local texting laws to the list of disqualifying offenses for CDL drivers, including school-bus drivers.14 The Pipeline and Hazardous Materials Safety Administration (PHMSA) had pub-lished an NPRM to amend the Hazardous Materials Regulations to restrict texting by drivers (including those intrastate drivers not cov-ered by the FMCSA rule) of motor vehicles that contain hazardous materials.15 The FRA had published an NPRM16 and a Final Rule17 that proposed to amend railroad communications regulations by re-stricting use of mobile telephones and other distracting electronic devices by railroad operating employees.  And FMCSA had sent to OMB the NPRM on the use of mobile telephones by interstate CMV drivers.

Just last month, the Secretary released updated 2009 fatality and injury data that showed the lowest number of highway deaths since 1950.18 Fatalities declined in all categories of vehicles, including large commercial trucks, which saw a record-breaking 20% decline in traf-fic fatalities. This progress in highway safety is partly a result of strong seat-belt use, anti-drunk-driving enforcement campaigns, and effec-tive partnerships with state and local police agencies. But while the fatality and injury numbers are down, the loss of nearly 34,000 lives each year on our highways is unacceptable. By sparking a national conversation about distracted driving, Secretary LaHood has added another worthy campaign to DOT’s fight to make our roads safer. Through a combination of efforts—research, regulations, outreach, education, and effective enforcement—we will work to eliminate the dangerous choices that drivers make on the road, and save lives in the process.

14 Limiting the Use of Wireless Communication Devices, 75 Fed. Reg. 59,118 (Sept. 27, 2010).

15 Hazardous Materials: Limiting the Use of Electronic Devices by Highway, 75 Fed. Reg. 59,197 (Sept. 27, 2010).

16 Restrictions on Railroad Operating Employees’ Use of Cellular Telephones and Other Electronic Devices, 75 FR 27672 (May 18, 2010). 

17 Restrictions on Railroad Operating Employees’ Use of Cellular Telephones and Other Electronic Devices, 75 Fed. Reg. 59,580 (Sept. 27, 2010).

18 See Press Release, Dept. of Transportation, U.S. Transportation Secretary LaHood Announces Lowest Traffic Fatalities in Six Decades (Sept. 19, 2010), available at http://www.dot.gov/affairs/2010/dot16510.html.

Alais L. M. Griffin is Chief Counsel of the Federal Motor Carrier Safety Administration. She previously served as Counselor to the General Counsel of the U.S. Department of Transportation. Prior to joining the Administration, she was a litigation partner at a law firm in Chicago, Illinois. She earned her B.A. from Harvard University and her J.D. from Northwestern University, where she was Executive Edi-tor of the Northwestern University Law Review and a member of the Order of the Coif.

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Rail and Transit Jurisdictioncontinued from page 4roads—including all commuter railroad operations, even if they use equipment that might be considered light rail or transit equipment, and without regard to their general system connections—except for “rapid transit operations in an urban area that are not connected to the general railroad system of transportation.”9

Federal Transit Administration

Congress has provided limited federal responsibility for rail transit system safety, recognizing that rail transit operations are an inherent-ly local activity.10 Transit issues finally reached the halls of Congress with the Housing Act of 1961.11 Unlike the previously cited stat-utes, the Housing Act provided no safe-ty authority. Instead, it doled out federal financial aid. More funds were appropri-ated without safety authority in the Ur-ban Mass Transpor-tation Act of 1964.12 Responsibility for these programs was given to the newly established Urban Mass Transportation Administration, now the Federal Tran-sit Administration (FTA).13

The FTA’s current statutory authority comes from the Safe, Accountable, Flexible, and Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU).14 SAFETEA-LU provides federal financial assistance to state and local agencies in planning, establishing, and financing local mass-transit systems.15 FTA fulfills its mandate by making grants or loans to state and local agencies. With regard to safety oversight, 49 U.S.C. § 5330 specifically calls upon state and local governments “(A) to require, review, approve, and monitor the carrying out of each plan; (B) to investigate hazardous conditions and accidents on the systems; and (C) to require corrective action to correct or eliminate those conditions.”16

While FTA has a Transportation Safety Institute that provides technical assistance to grantees on safety matters, FTA does not have statutory authority to regulate safety compliance. In 1988, FTA at-tempted to issue safety regulations that required recipients of federal mass transit funds to implement an anti-drug program for employ-

9 49 U.S.C. § 20102. In this context, “rapid transit operations” refers to rail systems that are devoted in substantial part to moving people from point to point within a city’s boundaries. Such systems may use heavy subway and elevated- or light-rail equipment, and is also generally considered “local rail transit” or “light rail transit.”

10 See CRS Report, supra note 2, at Summary.11 Housing Act of 1961, Pub. L. No. 87-70, 75 Stat. 149.12 See Federal Transit Act (Urban Mass Transportation Act of 1964), Pub. L.

No. 88-365, 78 Stat. 302.13 Reorganization Plan No. 2, Pub. L. No. 90-623, 82 Stat. 1316 (1968).14 49 U.S.C. ch. 53. 15 49 U.S.C. § 5301.16 49 U.S.C. § 5330(c)(2).

ees who perform sensitive safety functions.17 FTA argued that grant-conditioning language provided it with the statutory authority to promulgate the safety regulation.18 However, the Court of Appeals for the District of Columbia Circuit held that FTA lacked statutory authority to address mass transit safety hazards by imposing uniform national solutions on local transit authorities.19 The court found that FTA is permitted to investigate conditions in any facility, equipment, or manner of operation financed with federal funds.20 Upon investiga-tion, FTA only has the ability to require the transit authority to draft a plan to eliminate or correct any identified safety hazard.21 However, once this investigation is completed, the statute explicitly leaves any

further safety re-sponsibility to state and local govern-ments.22

Until the 1990s, there was no federal program for address-ing the safety of local rail transit systems that are not subject to FRA’s safety ju-risdiction (i.e., those not connected to the general railroad system). However, faced with the grow-ing movement to de-velop new rail transit systems, Congress addressed the safety of such systems in the Intermodal Sur-

face Transportation Efficiency Act of 1991 (IS-TEA), requiring FTA to issue regulations requiring states with rail fixed guideway mass transportation systems that are “not subject to regulation by the Federal Railroad Adminis-tration” to establish a state safety oversight program.23

According to the statute, FTA cannot regulate safety and security operations at transit agencies except for purposes of national defense or in cases of regional or national emergency.24 In addition, FTA does not have safety inspectors. FTA may institute non-regulatory safety and security activities, however, including safety- and security-related training, research, and demonstration projects. In addition, FTA may promote safety and security through grant-making author-ity. Specifically, FTA may stipulate conditions of grants, such as cer-tain safety and security statutory and regulatory requirements, and FTA may withhold funds for noncompliance with the conditions of a grant.25 For instance, FTA may withhold up to 5% of a transit agency’s urbanized area formula grant if the state is not meeting the

17 See Amalgamated Transit Union v. Skinner, 894 F.2d 1362, 1364 (D.C. Cir. 1990).

18 See id. 19 See id. at 1369.20 Id.21 See id.22 See id. at 1366–69.23 49 U.S.C. § 5330. 24 49 U.S.C. § 5334(b). Thus, Congress has now defined the federal role

with respect to the oversight of both railroads subject to FRA’s safety jurisdiction and rail transit systems not connected to the general railroad system.

25 See 49 U.S.C. §§ 5330, 5334(b).

Union Station: Where rail and transit meet in Washington, DC

10

requirements of the oversight program.In response to IS-TEA, FTA issued regulations that apply where

FRA does not regulate.26 Through its State Safety Oversight program, FTA requires states to designate an agency to oversee the safety and security of rail transit agencies that receive federal funding.27 In terms of funding, although states can use federal New Starts28 funding to set up a new oversight agency, states must support the continuing opera-tion of the oversight agency with other (generally nonfederal) sources of funding. FTA also develops safety and security rules and guidance that those designated agencies are to use to perform their oversight. For instance, 49 C.F.R. part 659 (Rail Fixed Guideway Systems; State Safety Oversight) applies to all states with rail fixed guideway sys-tems operating in their jurisdictions. This FTA rule defines a rail fixed guideway system as any light, heavy, or rapid rail system; monorail, inclined plane, funicular, trolley, or automated guideway that is not regulated by FRA. FTA’s rule states that rail systems that are regulated by FRA, such as commuter railroads, are not considered rail transit agencies and are therefore not subject to its rule.

Mutual FTA and FRA Understandings

FTA and FRA have been working closely together for several years to ensure proper coordination of their safety programs. In October 1998, FRA and FTA entered into an agreement designed to enhance their efforts in identifying and resolving safety issues in rail-related projects funded by FTA. Under the agreement, the agencies agreed to take actions that will ensure that FRA’s rail safety expertise is brought to bear on safety issues inherent in commuter rail grant proposals early in the planning and development process.

FRA and FTA, however, recognized ongoing industry confusion regarding the agencies’ respective jurisdictions. Thus, in 2000, the agencies proactively issued in the Federal Register a joint policy state-ment concerning safety issues relating to light rail transit operations that share use of the general railroad system track with conventional policy.29

According to the policy statement, the safety rules of FRA and FTA are mutually exclusive. If FRA regulates a rail system, FTA’s rules on state safety oversight do not apply. Conversely, if FRA does not regulate a system, FTA’s rules do apply, assuming that the system otherwise meets the definition of a “rail fixed guideway system” under 49 C.F.R. part 659.5.

The primary issue addressed by the policy statement is the means by which FRA and FTA propose to coordinate their safety programs with regard to rail transit systems that share tracks with freight rail-

26 See Rail Fixed Guideway Systems; State Safety Oversight, 60 Fed. Reg. 67,034 (Dec. 27, 1995) (codified at 49 C.F.R. pt. 659).

27 Oversight agencies are responsible for developing a program standard that transit agencies must meet and for reviewing each transit agencies’ performance against that standard. The designated state oversight agencies directly oversee transit agencies’ activities. Among other things, they review transit agencies’ safety and security system plans, audit the transit agencies at least every three years, and conduct periodic reviews of safety and security trends.

28 The New Starts program awards full-funding grant agreements for capital expenses for fixed guideway rail projects and certain bus, trolley, and ferry projects. A full-funding grant agreement establishes the terms and conditions for federal participa-tion in a project, including the maximum amount of federal funds available that, by statute, cannot exceed 80% of the project’s net cost.

29 See Joint Statement of Agency Policy Concerning Shared Use of the Tracks of the General Railroad System by Conventional Railroads and Light Rail Transit Sys-tems, 65 Fed. Reg. 42,526 (July 10, 2000); see also FRA, Statement of Agency Policy Concerning Jurisdiction Over the Safety of Railroad Passenger Operations and Waiv-ers Related to Shared Use of the Tracks of the General Railroad System by Light Rail and Conventional Equipment, 65 Fed. Reg. 42,529 (July 10, 2000).

roads. According to the joint policy statement, light rail operators in-tending to share use of the general railroad system with conventional rail equipment will either have to comply with FRA’s safety rules or obtain a waiver of appropriate rules. The agencies also generally agreed that FRA provides safety oversight of all railroad operations except rapid transit operations that have no significant connection to the general railroad system, such as the Chicago Transit Authority (CTA) in Chicago, the Washington Metro, and the subway systems in New York, Boston, and Philadelphia.30 As explained at length in the policy statement, and as is clear from the statutory language, Congress specifically intended that FRA make jurisdictional deter-minations based on the nature of the operation, not the type of rail equipment being used.31

Where Do We Go From Here?

The federal government has for some time considered expanding FTA’s regulatory authority over rail transit safety. Apparently, the fed-eral government either has become dissatisfied with local safety over-sight or may no longer be concerned with not entering into an area that has been historically considered a local state function. Or both.

Even before the aforementioned DC Metro collision, the federal government looked closely at the federal role in transit safety. For instance, in 2006, the Government Accountability Office (GAO) issued a study indicating that additional federal leadership would enhance FTA’s State Safety Oversight Program.32 The House Com-

30 65 Fed. Reg. 42,531 states in pertinent part:Congress flatly wanted FRA to have and exercise jurisdic-

tion over all commuter operations and to not have or exercise jurisdiction over urban railroad transit operations that stand apart from the general rail system. We doubt that Congress considered how difficult it may be to draw the line where sys-tems have characteristics of both types of operations. We have based our definitions, as best we could, on the plain mean-ing and legislative history of the statutory terms as used in the railroad safety statutes. Also, in a non-safety context, Congress has listed certain specific rail systems as commuter authorities in the Northeast Rail Service Act of 1981 (“NERSA”), Pub. L. No. 97-35, 45 U.S.C. § 1104(3). In subsequently defin-ing “railroad” in the safety statutes, Congress clearly intended to include “commuter service.” 49 U.S.C. § 20102. We think the 1981 statute is a useful guide as to Congress’ concept of commuter service, at least with regard to the listed systems. The same committees of the same Congress produced both NERSA in 1981 and the 1982 safety legislation and used very similar terminology to refer to commuter operations, and the legislative history of the 1982 safety amendments expressly ac-knowledges what was then the recent transition of some com-muter service to new commuter authorities, which NERSA had authorized. We see no reason to conclude that Congress intended that the particular systems it identified as commuter operations in 1981 be considered anything but commuter op-erations under the safety statutes.

(Citation omitted.)31 65 Fed. Reg. 42,531 (quoting 49 U.S.C. § 20102). The statute speaks of

commuter “service” and rapid transit “operations,” not the equipment used in either service. Given the vast range of rail passenger equipment already in use in this country and available from suppliers around the world, basing jurisdictional decisions on the type of equipment is an impossible task. There is simply no rational basis for drawing clear jurisdictional lines between types of equipment or for thinking that Congress intended FRA to do so. More important, if equipment were the deciding factor, the equipment outside of FRA’s jurisdiction could run anywhere at any time, including mixed in with conventional freight and passenger operations without regard to the attendant safety risks of collisions between equipment of vastly different structural strengths, and yet avoid FRA’s regulatory program. There is no evidence of such an intent in the statute.

32 U.S. Gov’t Accountability Office, GAO-06-821, Rail Transit: Ad-ditional Federal Leadership Would Enhance FTA’s State Safety Oversight

11

mittee on Transportation and Infrastructure’s Subcommittee on Highways, Transit, and Pipelines also held a hearing on FTA’s State Safety Oversight Program.33

In December 2009, the Obama Administration sent Congress a bill, now called the Public Transportation Safety Program Act of 2010, which would authorize the Department of Transportation to establish federal safety standards for rail transit systems.34 According to Secretary of Transportation Ray LaHood, “without national safety standards, programs pre-venting major rail transit acci-dents will remain uneven, with no assurance that safety issues are adequately addressed. The [proposed] legislation is de-signed to address and prevent that unacceptable result.”35

The proposed legislation would provide DOT, and pre-sumably FTA, authorities simi-lar to those delegated to FRA, including the ability to inspect and test public transportation systems and to promulgate and enforce regulations. The bill also directs DOT to establish a federal public safety program for rail fixed guideway transportation systems and to develop a federal certification program for certain transit em-ployees and contractors. The bill also includes provisions affecting local authorities by delineating requirements for state preemption of federal law with respect to public transportation safety and allowing each state to establish a state public transportation safety program that complies with federal regulations and policies.

Program (2006), http://www.gao.gov/new.items/d06821.pdf. 33 The Federal Transit Administration’s State Safety Oversight Program: Hearing

Before the Subcomm. on Highways, Transit and Pipelines of the H. Comm. on Transp. and Infrastructure, 109th Cong. 109–90 (2006).

34 Public Transportation Safety Program Act of 2010, S. 3015, H.R. 4643, 111th Cong. (2010).

35 Letter from Ray LaHood, Sec’y of Transp., to Nancy Pelosi, Speaker of the House of Representatives (Dec. 7, 2009), http://testimony.ost.dot.gov/final/Pelosi-Transit.PDF.

In anticipation of the final legislation being passed by Congress and signed by the President, the U.S. Department of Transporta-tion recently established a Transit Rail Advisory Committee for Safety (TRACS) to guide the FTA’s safety rulemaking agenda and

assist the FTA in developing national safety standards for rail transit.36 According to FTA, TRACS was created af-ter a series of accidents in Chi-cago, Washington, D.C., San Francisco, and Boston raised widespread concern regarding the safety of rail transit passen-gers and employees. Charged with analyzing transit safety issues and developing recom-mendations for minimum na-tional transit safety standards, TRACS first met on Septem-ber 9, 2010.37

Conclusion

The Department under the Obama Administration clearly desires to expand FTA’s safety authority (not FRA’s) and be-lieves that it has crafted legisla-

tion designed to comport with the rules of federalism, including the interstate commerce clause of the U.S. Constitution. If passed, FTA will be faced with significant challenges to maintain that line while venturing into an area historically reserved for local governance.

36 Press Release, Fed. Transit Admin., U.S. Transportation Secretary Ray La-Hood Announces New Rail Advisory Committee for Safety (June 23, 2010), http://www.fta.dot.gov/news/news_events_11786.html.

37 Press Release, Fed. Transit Admin., Secretary LaHood Opens Historic First Meeting of Transit Oversight Group (Sept. 9, 2010), http://www.fta.dot.gov/news/news_events_11980.html.

Jason Schlosberg–TQ Editor and Transportation Committee Chair–is an attorney with the U.S. Department of Transporta-tion’s Federal Railroad Administration, where he is the expert attorney on administrative law and technology matters.

12

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