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Thompson Hine LLP, a full-service business law firm with approximately 400 lawyers in 8 offices, was ranked number 1 in the category “Most innovative North American law firms: New working models” by The Financial Times and was 1 of 7 firms shortlisted for The American Lawyer’s inaugural Legal Services Innovation Award. The firm has been recognized by the National Law Journal as a Legal Technology Trailblazer and featured by Bloomberg for its innovative service delivery models, which drive accuracy and predictability. The firm’s commitment to innovation is embodied in Thompson Hine SmartPaTHTM – a smarter way to work – predictable, efficient and aligned with client goals. For more information, please visit ThompsonHine.com and ThompsonHine.com/SmartPaTH.

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Federal agencies that regulate the nation’s rail transportation and hazmat systems have relaxed certain regulatory functions in light of the unprecedented COVID-19 pandemic. The Federal Railroad Administration (“FRA”) opened an emergency relief docket, pursuant to its authority under 49 CFR § 211.45(c), because the agency’s Administrator determined that COVID-19 represented an emergency situation as related to railroad operations. In this emergency relief docket, FRA has begun accepting and expeditiously ruling on petitions for waivers of otherwise applicable rail safety regulations. For example, FRA issued a decision on March 30, granting a rail industry request for a waiver from certain recurrent and refresher employee training requirements. The relief was granted for a period of sixty (60) days, the maximum time permitted under 49 CFR § 211.45(j)(3). Railroads and other non-railroad entities regulated by the FRA have also filed several other waiver request petitions with the agency. However, FRA did not grant emergency waivers from FRA’s random drug and alcohol testing that were requested by the rail industry and related parties. Instead, FRA cited to regulatory guidance that might apply when testing cannot be completed.

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The Pipeline and Hazardous Materials Safety Administration (“PHMSA”) has employed a slightly different strategy in response to the COVID-19 pandemic. On March 25, PHMSA issued an enforcement discretion notice, stating that it “will not take enforcement action against any hazmat employer who is unable to provide recurrent training consistent with HMR training requirements” found at 49 CFR § 172.704(c)(2). Similarly, PHMSA announced on April 6 that it “will not take enforcement action” against anyone who uses a DOT-specification cylinder for transportation via motor vehicle of a Division 2.2 non-flammable gas if the cylinder meets all regulatory requirements except for being overdue for requalification by no more than 12 months.

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FRA’s and PHMSA’s regulations apply to companies beyond railroads or other traditional transportation companies. If you would like more information, or how the regulatory waiver or enforcement issue impacts your business, please contact:

Sandra L. Brown 202.263.4101 <a href="mailto:Sandra.Brown@ThompsonHine.com">Sandra.Brown@ThompsonHine.com</a>

David E. Benz 202.263.4116 <a href="mailto:David.Benz@ThompsonHine.com">David.Benz@ThompsonHine.com</a>

or any member of our <a href="https://www.thompsonhine.com/services/transportation">Transportation</a> practice group.

Additional Resources

We have assembled a firmwide multidisciplinary task force to address clients’ business and legal concerns and needs related to the COVID-19 pandemic. Please see our <a href="https://www.thompsonhine.com/services/covid-19-task-force">COVID-19 Task Force</a> page for additional information and resources.

This advisory bulletin may be reproduced, in whole or in part, with the prior permission of Thompson Hine LLP and acknowledgment of its source and copyright. This publication is intended to inform clients about legal matters of current interest. It is not intended as legal advice. Readers should not act upon the information contained in it without professional counsel.

This document may be considered attorney advertising in some jurisdictions.

https://admin.thompsonhine.com/wp-content/uploads/2022/04/COVID-19_Results_in_FRA_and_PHMSA_Issuing_Regulatory_Waivers_and_Non_Enforcement_Guidance.pdf

COVID-19 Results in FRA and PHMSA Issuing Regulatory Waivers and Non-Enforcement Guidance

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