Category: Transportation

Lawmakers Respond To Results Of TSA Internal Investigation

Upon news that Transportation Security Administration (TSA) screeners failed to detect prohibited items in 67 out of 70 test cases conducted by U.S. Department of Homeland Security (DHS) Inspector General undercover teams, the acting TSA Administrator was reassigned and replaced by Acting TSA Deputy Administrator Mark Hatfield. Undercover agents posed as passengers and attempted to smuggle mock explosives or banned weapons through airport checkpoints.

President Obama has nominated Coast Guard Vice Admiral Peter Neffenger to serve as TSA Administrator and Assistant Secretary at DHS. His nomination is scheduled for consideration by the Senate Homeland Security and Governmental Affairs Committee this week, following his approval by the Senate Commerce, Science, and Transportation Committee last week. DHS Secretary Jeh Johnson also called for a detailed briefing from the DHS Inspector General and directed TSA to implement a series of immediate and near-term actions.

Both House Homeland Security Committee Chairman Mike McCaul (R-TX) and Ranking Member Rep. Bennie Thompson (D-MS) issued statements expressing concerns with TSA’s ability to prevent weapons from getting onto airplanes, calling the test results disturbing and alarming.

The Senate Homeland Security and Governmental Affairs Committee will hold a hearing on TSA oversight with DHS Inspector General John Roth and other government representatives this week, and continued scrutiny from Capitol Hill will certainly follow.

This Week’s Hearings:

  • Tuesday, June 9: The Senate Homeland Security and Governmental Affairs Committee will hold a hearing titled “Oversight of the Transportation Security Administration: First-Hand and Government Watchdog Accounts of Agency Challenges.”

  • Wednesday, June 10: The Senate Homeland Security and Governmental Affairs Committee will hold a hearing to consider the nomination of Vice Admiral Peter Neffenger to serve as Administrator of the Transportation Security Administration and Assistant Secretary at the Department of Homeland Security.

  • Wednesday, June 10: The House Homeland Security Subcommittee on Emergency Preparedness, Response, and Communication will hold a hearing titled “Defense Support of Civil Authorities: A Vital Resource in the Nation’s Homeland Security Missions.”

ARTICLE BY Ludmilla L. Savelieff & Norma M. Krayem of Squire Patton Boggs (US) LLP
© Copyright 2015 Squire Patton Boggs (US) LLP

As Drones Hit the Sky Lawsuits Predicted to Fly

The rise of Unmanned Aerial Vehicles (“UAV”), also known as drones, is well-documented.  In fact, the global market for non-military drones has recently been estimated as a $2.5 billion industry that is growing at approximately 15 to 20 percent annually.  See Clay Dillow, Get Ready for ‘Drone Nation,’ Fortune, Oct. 27, 2014.  Companies large and small are heavily investing in drone technology and generating business capabilities based on their potential.

While some of the most highly publicized forays into drone usage include Fortune 500 shipping companies – such as Amazon investigating the potential use of drones for their delivery service – less publicized industries are ripe for drone operation.  These industries include agriculture, construction, energy, and mining.  Id.  All of which are industries in which it is easy to imagine the benefits of aerial data.

In fact, the Association for Unmanned Vehicle Systems International predicts that eventually 80 percent of the commercial drone market will relate to agriculture.  See Christopher Doering, Growing Use of Drones Poised to Transform Agriculture, USA Today, Mar. 23, 2014.  This is because a drone’s ability to assist farmers in identifying and analyzing insect problems, watering issues, crop yield, missing cattle, and fertilizing make for a natural union with the industry.

While some farmers may purchase and operate their own drones, it is expected that specialized companies will fill this demand.  One such company is goFarm LLC (“goFarm”)[1], a Michigan-based agri-data business – one of the few companies authorized by the Federal Aviation Administration to legally operate commercial drones in this arena.  GoFarm performs field surveys by drones operating at low altitudes that collect imagery in visible and non-visible bands to determine health of crops.  By analyzing hundreds or thousands of images, goFarm performs detailed assessments of the condition of entire fields and individual plants.

Whether such data is collected by end-user farmers or by specialized third-party companies such as goFarm, all individuals and companies involved need to be cognizant that with great opportunity also comes risk.

Beyond, the obvious risks of property damage that could result from wayward drones, many jurisdictions have, or are in the process of, passing legislation aimed at addressing privacy concerns.  The most recent example of such legislation comes out of Florida.  On May 14, 2015, Florida Governor Rick Scott signed a drone privacy bill into law.  This bill establishes a private right of action for people photographed in their homes by drones without their consent.  Some speculate that this legislation will trigger a wave of litigation.  See Carolina Bolado, New Fla. Drone Privacy Law Could Trigger Litigation Wave, Law360, May 15, 2015.

Legislation similar to that passed in Florida creates substantial risk to drone based companies, even those operating in rural locations typically associated with industries such as agriculture and mining. GoFarm’s Chief Technology Officer, Eric Silberg, explains that “when conducting their assessments, in order to ensure adequate coverage, inevitably pictures are taken of the areas directly surrounding the field goFarm operators are contracted to assess.  These pictures may include property that does not belong to goFarm’s customer, even if the drone never flies over land not belonging to the customer.  This extraneous data is removed during the analysis process, and is not available in any product.”  While companies utilizing drones for photographic purposes will need to alter their operations to comply with any local rules and regulations, inadvertent photographs could result in litigation exposure.

In order to protect themselves from privacy related claims, as well as other liability exposures, companies utilizing drones need to assess their insurance portfolios to ensure adequate coverage.  In particular, companies need to analyze the breadth of their liability policies, including the language of any potentially applicable exclusion contained therein – such as exclusions associated with aviation risk.  This analysis should be conducted with the help of an experienced insurance broker and/or insurance coverage counsel.

In the event that the company’s liability policies are deemed not broad enough to cover its contemplated operations, the company should investigate purchasing UAV coverage.  Given the relative infancy of the drone market, insurance companies are developing and releasing new products associated with drone activity at a breakneck speed.  Consequently, coverages and pricing will likely vary across carriers.  Risk managers should speak with their insurance experts to ensure that an appropriate and cost-effective insurance solution is identified and implemented.

[1] http://www.gofarminc.com.

ARTICLE BY

Jason S. Rubinstein of Gilbert LLP
© 2015 Gilbert LLP

Could Train Control Technology Have Prevented the Amtrak Derailment?

An Amtrak train that derailed on May 12, traveling more than 100 miles per hour on a known dangerous curve, has an unfortunate similarity to the Spuyten Dyvil crash in December 2013. In that incident, a Metro North train traveling at 82 miles per hour derailed on a treacherous curve, traveling at nearly three times the allowed speed.

Four passengers died in the Spuyten Dyvil derailment. Operator fatigue was deemed to be the cause for that accident. This most recent crash killed at least eight people and eight are listed in critical condition. In both cases, National Transportation Safety Board (NTSB) experts contend that a safety measure called “positive train control” (PTC) could have prevented the disasters.

Robert Sumwalt, a member of the NTSB, explained during a press conference on Wednesday that Amtrak already has a system in place called the Advanced Civil Speed Enforcement System (ACES), which is installed throughout most of the Northeast Corridor. “However, it is not installed where the accident occurred,” Sumwalt said. “That type of a system, we call it a positive train control system, is designed to enforce the civil speed, to keep the train below its maximum speed. We have called for positive train control for many years, it’s on our most wanted list. Congress has mandated that it be installed by the end of this year.”

Sumwalt continued, “Based on what we know right now, we feel that, had such a system been installed in this section of track, this accident would not have occurred.”

He said that a thorough walk-through of the accident site was conducted yesterday and that investigators will be looking into the track, the train control signal system and the operations of the train. “Our mission is to not only find out what happened, but why it happened to prevent it from happening again,” he said.

The looming question is why this safety measure was not in place, even though PTC has been called for since a collision in Chatsworth, California killed 25 people. The Rail Safety Improvement Act of 2008 mandates that PTC for passenger and freight trains be operational by the end of 2015. But because of high costs and the complexity of the system, Congress has been considering an extension until 2020.

According to the NTSB website:

In the aftermath of the Chatsworth tragedy, Congress enacted the Rail Safety Improvement Act of 2008. The Act requires each Class 1 rail carrier and each provider of regularly-scheduled intercity or commuter rail passenger service to implement a PTC system by Dec. 31, 2015. Progress is being made toward this lifesaving goal. Metrolink became the first commuter rail system to implement PTC, when it began a revenue service demonstration on the BNSF Railway. This demonstration project is a step in the right direction, and Metrolink reports it will implement PTC fully throughout its entire system before the Congressionally-mandated deadline.

It has been more than 45 years since the NTSB first recommended the forerunner to PTC. In the meantime, more PTC-preventable collisions and derailments occur, more lives are lost, and more people sustain injuries that change their lives forever.

Yet there is still doubt when PTC systems will be implemented nationwide as required by law.

Each death, each injury, and each accident that PTC could have prevented, testifies to the vital importance of implementing PTC now.

ARTICLE BY Caroline McDonald of Risk and Insurance Management Society, Inc. (RIMS)
Copyright 2015 Risk and Insurance Management Society, Inc. All rights reserved.

Are Helmets Required in Pennsylvania and New Jersey?

As most riders know, wearing a helmet is mandatory in New Jersey. Not so in Pennsylvania where anyone 21 years of age or older and has been licensed to operate a motorcycle for not less than two full calendar years OR has completed a motorcycle safety course approved by PennDOT or the Motorcycle Safety Foundation can ride without one. Beyond the arguments for or against mandatory helmet laws is the reality of the dangers associated with riding without one. A few years ago, the Philadelphia Inquirer published an article on the Pennsylvania law that permits riders to forgo a helmet and State Representative Dan Frankel’s effort to reinstate a mandatory helmet law.

According to the National Highway Traffic Safety Institute, in New Jersey for the year 2007, there were 85 motorcycle related fatalities of which 82 % were wearing helmets. The National Highway Safety Institute estimated that 42 people’s lives were saved by wearing helmets and that 6 fatalities would have been prevented with 100% use of helmets. In 2008, 82 fatalities with 87% wearing helmets and NHTSA estimates another 42 lives saved because of helmets and 4 fatalities would have been prevented with 100% use of helmets.

In Pennsylvania in 2007 there were 225 motorcycle related fatalities. 46 % were wearing helmets and another 61 people’s lives were saved by wearing helmets. In 2008, 239 fatalities with 49% wearing helmets and another 70 lives saved because of helmets. The NHTSA also estimated that in 2007 45 lives would have been saved and in 2008 45 lives would have been saved if they were wearing helmets.

Across the US there were over 5000 fatalities in both 2007 and 2008 from motorcycle accidents with only 58% wearing helmets. NHTSA estimated that in those two years there were 3615 lives saved by the use of a helmet and another 1627 lives would have been saved if they were wearing helmets. More recently, in 2012, NHTSA estimates helmets saved the lives of 1,699 motorcyclists and that an additional 781 lives could have been saved if all motorcyclists had worn helmets. In states without universal helmet laws, 62% of the motorcyclists killed in 2012 were not wearing helmets compared to 9% in the states with universal helmet laws. Think about that for a minute.

In addition, NHTSA sponsored a study in 1996 to assess the effect of wearing a helmet upon the ability of motorcycle riders to: (1) visually detect the presence of vehicles in adjacent lanes before changing lanes and (2) to detect traffic sounds when operating at normal speed. The results indicate that wearing helmets does not restrict the ability to hear auditory signals or the likelihood of seeing a vehicle in an adjacent lane prior to changing lanes.

I have no reason to doubt these figures. A few years ago while traveling to Court in rush hour traffic on I 95 towards Philadelphia I saw a rider go flying over his handle bars onto the roadway. It was shocking to say the least. I thought he was unconscious. I pulled over the side of the road and watched as he got up. Another motorist an I assisted the rider to the side of the road. He had a full face helmet and a motorcycle leather jacket and blue jeans. He was disoriented and almost lost consciousness a few times. His knees were scraped through his jeans and bleeding. His jacket showed the signs of a serious incident. His helmet showed damage that would have caused a serious injury to a rider without one. Despite his protective gear, I was sure that he had suffered serious injuries. I am happy to report that he called me the next day to tell me that but for his bruised/scraped knees, he was fine. It is clear to me that his helmet and jacket had adequately protected him from more serious harm. As a rider I routinely see other riders in Pennsylvania riding without helmets. In both states it is common to see riders in shorts, sneakers and T shirts. I rode for many years in jeans and a T shirt but always with a helmet. It is great to ride on a warm summer day without the bulk of protective clothing. It’s also dangerous. At many of the rally’s I attend I am often engaged by visitors about their right to ride without a helmet. It’s a debate worth having. What is often overlooked are the true consequences of that action. As indicated above, helmets save lives. That’s indisputable.

What is missing from those statistics are the consequences of sustaining an injury as a result of not wearing a helmet and surviving. NHTSA estimates on a national level we would have saved 2.7 billion dollars in 2007 and 2.9 billion dollars in 2008 if there was 100% helmet use. This of course fails to consider the impact to the rider and their families. Many head injuries are quite serious and have long term consequences, job loss, medical bills and other financial strains. Many of the more serious head injuries lead to long term disability and regular care. We see this regularly when representing injured riders. As many of us in the motorcycle community know, motorcycle insurance provides in most cases no medical benefit and in others, very little coverage. Riders without insurance who suffer serious head injuries become dependent on Federal programs such as SSI and Medicaid. Even people with insurance don’t have enough coverage for a lifetime of care.

I urge anyone reading this to reconsider riding without a helmet. I’m sure the families of those who lost loved ones or who are now watching someone suffer because they were not wearing a helmet would join in my request. Every motorcycle rider understands that there is some danger associate with riding but that doesn’t mean that you should not be prudent and take precautions to minimize your risk.

COPYRIGHT © 2015, STARK & STARK     Authored By:  Joel R. Rosenberg

Three Things Commercial Drone Operators Need to Know Regarding the FAA’s Proposed Rules

Neal, Gerber & Eisenberg LLP

In a long anticipated move, on February 15, 2015, the Federal Aviation Administration (FAA) issued proposed rules that are intended to permit the commercial operation of small unmanned aircraft, commonly referred to as “drones.”

Safety is Key

The proposed rules attempt to balance the risk to public safety while providing a regulatory framework that is reasonably (but not overly) burdensome to the industry to avoid stifling advances in technology and economic competitiveness.  The FAA addresses safety in a number of ways, but most obviously by limiting the weight of the drone, limiting the manner of its operation, and by placing restrictions on the people flying the drone. By providing a regulatory path for at least some commercial operations, the proposed rules help those in the industry avoid uncertainty and substantial costs associated with requesting an FAA exemption or special airworthiness certificate.

Only Small Drones Would Have the Green Light 

Under the proposed rules, commercial operators of a small drone (weighing less than 55 pounds) must not fly higher than 500 feet above ground level, faster than 100 mph, over people who are not directly involved in the operation, at night, or when weather visibility is less than 3 miles.  A small drone must undergo a preflight inspection before use, though FAA airworthiness certification would not be required. With some modifications due to its size, small drones nevertheless would be subject to the same aircraft marking and registration requirements that are applicable to manned aircraft.  And although the drone must remain within the visual line-of-sight of the operator at all times, to meet the needs of commercial operators where limited risk to people or property would be incurred, this requirement may be met by also deploying a visual observer, perhaps in radio contact with the operator, to assist the operator to maintain visual contact with the small drone in place of the operator.

Operators (“Pilots”) of Drones Must Meet Minimum Requirements

To establish at least a reasonable degree of uniformity across all potential commercial uses permitted under the rules and to minimize national security risks within the borders of the U.S., commercial operators of small drones must:

Be at least 17 years old;

Pass an initial and recurrent aeronautical knowledge test at an FAA-approved knowledge test center;

Be vetted by the Transportation Security Administration (TSA);

Obtain an unmanned aircraft operator certificate with a small unmanned aircraft systems (UAS) type rating,

Make available to the FAA the small unmanned aircraft for inspection/testing; and

Report an accident within 10 days of any operation that results in injury or property damage.

To be sure, winners and losers will exist on both sides of the proposed rules.  While crop monitoring, research uses, educational/academic uses, powerline/antenna/bridge inspections, aerial photography, wildlife tracking, and rescue operations may be more easily accommodated under the proposed rules, other commercial uses will remain in the cold, such as anything requiring use of a drone heavier than 55 pounds at takeoff, flights higher than 500 feet, faster than 100 mph, or at distances or under conditions where the operator or visual observer cannot maintain visual line-of-sight with the drone.  Until the FAA obtains data sufficient to warrant expansion of these rules, those who wish to operate a drone outside the proposed rules have the option of pursuing either an FAA exemption or a special airworthiness certificate.

ARTICLE BY

Thomas E. Williams
OF
Neal, Gerber & Eisenberg LLP