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

COVID-19 Update

Date: April 13, 2020

Key Notes:

  • The FRA has temporarily waived certain regulations in light of COVID-19
  • The FRA is accepting other requests for waivers
  • PHMSA has issued non-enforcement notices regarding certain requirements


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.

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.

FOR MORE INFORMATION

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
Sandra.Brown@ThompsonHine.com

David E. Benz
202.263.4116
David.Benz@ThompsonHine.com

or any member of our Transportation 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 COVID-19 Task Force page for additional information and resources.

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