The Broward County Board of County Commissioners unanimously approved a memorandum of understanding with Florida East Coast Railway to construct and operate an intermodal container transfer facility on a 42.5-acre site at Port Everglades.  The memorandum outlines a 30-year agreement between the railroad and the County for the $72.8 million facility, which will be funded through a loan from the Florida State Infrastructure Bank, a grant from the Florida Department of Transportation, and equity contributed by the railroad.  Read detailed coverage here.

On August 12, 2011, the Federal Railroad Administration (FRA) issued a final rule to establish hours of service limitations on train employees of commuter and intercity rail providers.  The rule becomes effective on October 15, 2011.  This is the first time requirements specifically limiting work hours and mandating minimum rest periods for passenger rail employees have been issued.  Previous hours of service requirements applied to both freight and passenger rail employees.  Additionally, the new rule introduces a requirement that railroads apply fatigue science to model the risk of fatigue for employees working schedules that include certain night time hours.  The new rule permits employees to work up to 12 consecutive hours on duty, or 12 nonconsecutive hours within a 24 hour period if such hours on duty are broken by at least 4 consecutive hours off duty.  Off duty-periods vary from 8 to 48 hours depending on the length and times of day of duty time preceding the rest period.  The new rule distinguishes between duty tours during hours where the risk of fatigue is deemed to be low, and hours (generally after 8 p.m. and before 4 a.m.) where an elevated risk of fatigue must be mitigated.  In order to mitigate the risk of fatigue during night time duty hours, railroads must use biomathematical performance and fatigue models to analyze the risk, implement fatigue mitigation plans on the basis of the completed models, and train employees in fatigue mitigation.  Generally, railroads must submit their work schedules and fatigue mitigation regimes for approval by FRA by April 12, 2012.  The new rule also applies to train employees engaged in tourist, scenic, historic and excursion rail transportation.

On June 1, 2011, Judge Luis Lavin, Superior Court of California, County of Los Angeles, issued a declaratory judgment in favor of the Southern California Rail Authority (SCRRA) finding that the use of inward-facing video cameras in commuter rail engines did not violate due process or privacy rights of the engineers operating the train and was not preempted by state law. SCRRA is the first railroad in the country to install the cameras to monitor compliance with rules prohibiting the use of handheld electronic devices, unauthorized personnel and sleeping in the cabs of its commuter rail locomotives. Kaplan Kirsch & Rockwell represented SCRRA in the suit, which was brought by one of the Metrolink engineers and the engineers’ union, the Brotherhood of Locomotive Engineers and Trainmen (BLET). The suit alleged that the camera system violated the engineers’ rights to procedural and substantive due process, invaded the privacy rights of the engineers and was an impermissible attempt by SCRRA to regulate railroad safety matters that only the California Public Utilities Commission can regulate. In granting summary judgment in favor of SCRRA and dismissing the case, Judge Lavin held that plaintiffs had failed to establish any of their claims. Of particular importance, Judge Lavin held that the use of cameras was rationally related to the legitimate goal of promoting safety and that the use of a camera system in locomotive cabs was not the kind of highly offensive or shocking behavior that would trigger due process or privacy concerns. Read the Court’s Decision to grant summary judgment on all counts.

BLET had also challenged SCRRA’s use of the cameras in federal court.  Kaplan Kirsch & Rockwell obtained a judgment in favor of SCRRA in that case in June, 2010, and BLET has appealed that decision to the U.S. Court of Appeals for the Ninth Circuit.  Because SCRRA was the first commuter rail system to install inward-facing cameras, these two cases, if affirmed on appeal, would establish important precedent affirming the legality of such systems to promote safety and facilitate accident investigations.