Our attorneys in the Transportation Practice Group of Keller and Heckman have been actively involved in representing the interests of clients involved in every mode of transportation since 1962. Our clients include shippers who distribute their products throughout the nation and the world via utilization of for-hire motor, rail, air and water carriers, as well as those companies who have elected to operate their own motor carriage fleets and who operate short-line railroads. We assist clients with their economic and regulatory issues, transactions, hazardous materials compliance and enforcement and operational needs.
Keller and Heckman represents clients before all levels of courts and other tribunals and provides compliance counseling concerning the regulatory regimes of numerous transportation-related regulatory bodies, including:
- U.S. Department of Transportation (DOT)
- Federal Aviation Administration (FAA)
- Federal Railroad Administration (FRA)
- Research and Special Programs Administration (RSPA)
- Federal Motor Carrier Safety Administration (FMCSA)
- Surface Transportation Board (STB, formerly Interstate Commerce Commission)
- International Civil Aviation Organization (ICAO)
- International Air Transport Association (IATA)
- International Maritime Organization (IMO)
- Transport Canada
- United Nations Committee of Experts on the Transport of Dangerous Goods
- European Commission (EC) - European Union Regulations
- State Public Service Commissions and Departments of Transportation
Economic and Regulatory Issues
The proceedings in which we have participated have involved, among others:
- Participation in railroad merger cases in an effort to safeguard shipper interests and preserve competitive service;
- Application for interstate and/or intrastate for-hire motor carriage and/or broker authority, and Canadian federal and provincial motor carrier operating authority;
- Challenges to the reasonableness and applicability of carrier freight rates and practices, including maritime regulatory proceedings before the European Union;
- Defense of shippers in Federal and state courts throughout the country and at the former Interstate Commerce Commission against claims by motor common carriers for alleged rate undercharges;
- Prosecution of loss and damage claims under both land and maritime transportation laws; and
- Engagement in virtually every significant STB/ICC/DOT agency rulemaking proceeding involving the transportation industry in the last 30 years.
The firm also has counseled and represented a number of rail shipper clients on securing competitive service from a second carrier through build-ins/build-outs and transloads. Working with clients both individually and collectively on a major rail line construction project entailed organizing and representing a consortium of petrochemical shippers who entered into a joint venture with a major rail carrier to construct a new rail line to bring competitive service to both their plants and other facilities in a major industrial complex.
Marrying our transportation expertise with our transactional capabilities, we advise and assist clients in negotiating and drafting a variety of transportation-related agreements. These include:
- Service contracts for rail and motor carrier transportation;
- Motor carrier leases and operating agreements;
- Railroad line development agreements involving single and multiple shippers with a rail carrier;
- Siding, industrial track and storage track agreements for rail-served facilities;
- Railroad trackage rights agreements; and
- Maritime service contracts with ocean carriers and conferences of ocean carriers, as well as charter party agreements involving the shipper's use of an entire vessel.
Our attorneys advise shipper entities establishing or operating their own motor carriage fleets on the trade-offs and operational considerations relating to the choice between private and for-hire operations. Such issues include, for private carriage, whether to purchase or lease equipment, hire or lease drivers, implement compensated intercorporate hauling for affiliates, utilize owner-operators, and trip lease equipment and drivers to third parties to avoid empty backhaul costs. These choices involve tax, labor, and accounting considerations. On the other hand, by establishing for-hire carriage service to be performed by a corporate affiliate, companies may be able to qualify for various state sales and use tax exemption benefits accorded with respect to the purchase or lease of motor vehicle equipment and the acquisition of motor vehicle repair parts and components, lubricants, fuels and truck services.
Hazardous Materials Regulations
Determining whether a substance's nature and properties gives rise to shipping-related, regulatory responsibilities requires the ability to understand and apply legal definitions and interpretations in a prudent and scientifically credible manner. The packaging, labeling, and transporting of hazardous materials invoke a host of regulatory requirements that are constantly evolving with the increased emphasis on security and the global harmonization of hazardous materials regulations. Our lawyers, scientists, and regulatory specialists operate as an interdisciplinary team bringing their expertise to assist clients develop and implement practical solutions to address these requirement, including:
- Product classification and evaluation of whether a shipper, carrier or shipment is subject to HazMat regulations;
- Compliance with hazardous materials shipping documentation, labeling, packaging, marking and placarding requirements;
- Responding to citations for violation of the HazMat Regulations when shipping by motor, rail, water or air carriers domestically or internationally, including the development of remediation programs;
- Preparing and reviewing material safety data sheets (MSDS); and
- Providing, with respect to hazardous materials compliance, general awareness, function specific, and emergency response DOT mandated hazardous materials training.
Motor Carriage Operations
Keller and Heckman's attorneys also advise clients on the development and implementation of programs and procedures designed to ensure compliance with the DOT's Federal Motor Carrier Safety Regulations ("FMCSR"), including:
- DOT mandated drug and alcohol testing procedures and requirements;
- Preparation and maintenance of driver qualification files, driver hours of service limitations and log preparation obligations and driving safety training guidelines;
- Preparation of vehicle inspection reports, equipment maintenance requirements and preparation and retention of accident registers;
- Representing clients in FAA, FMCSA, FRA, RSPA, and other enforcement proceedings and negotiating fair and reasonable penalty settlements; and
- Assisting motor carrier clients in implementing remedial measures to enhance their overall DOT safety compliance posture, and improve their assigned DOT safety ratings.
Keller and Heckman has been at the forefront in efforts over the past 15 years to reduce federal and state regulation of the transportation industry. We played a leading role in securing passage of the Motor Carrier Act of 1980, the Staggers Rail Act of 1980, the Negotiated Rates Act of 1993, the Trucking Industry Regulatory Reform Act of 1994, and the 1994 federal law preempting state regulation of intrastate motor carriers. More recently, the firm has advised clients on the implications of the (i) Interstate Commerce Commission's abolishment caused by the ICC Termination Act of 1995 and the transfer of ICC oversight functions to the STB and DOT, and (ii) the Ocean Shipping Reform Act of 1998.
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Members of the Transportation Practice Group often serve as guest speakers on panels and as part of seminar faculties which focus on DOT safety compliance, rail competition and reform and motor carriage productivity options.