The jury verdict holding the F/V Sirius  seaworthy should be questioned

Coordinating The Federal Response To Hurricane-Related Energy Emergencies

(source: http://www.cattlenetwork.com/Coordinating-The-Federal-Response-To-Hurricane-Related-Energy-Emergencies/2009-08-26/Article.aspx?oid=830607&fid=CN-LATEST_NEWS)

Hurricane season officially started on June 1, and the Federal Government, led by the Department of Energy's (DOE) Office of Electricity Delivery and Energy Reliability, is prepared to respond alongside the private sector should a hurricane affect the energy infrastructure of the United States. In early August, the National Oceanic and Atmospheric Administration revised its outlook for the 2009 Atlantic hurricane season, reducing the number of projected named storms and raising the probability of a "below normal" storm season. By comparison to 2008 (Hurricanes Gustav and Ike) or 2005 (Hurricanes Katrina and Rita), the forecast for this season appears relatively benign. Nevertheless, despite NOAA's current assessment that the 2009 storm season has a 90 percent probability of falling into either the near-normal or below-normal range, it could yet hold some surprises and cause considerable damage. Key government agencies remain diligent and ready to respond.

DOE coordinates its emergency response activities both within the DOE itself and with a variety of other Federal agencies that have responsibility for different components of the energy sector. One of DOE's most visible responses is the issuance of Emergency Situation Reports, which provide information on refinery, electricity, pipeline, and offshore production outages, restoration status, and market impacts. The Energy Information Administration also provides status reports on energy supply and markets following major hurricanes. In addition, after a Federal Emergency Management Agency (FEMA) disaster declaration, DOE staff often deploy to disaster sites where they work closely with the Department of Homeland Security (DHS), FEMA, and the Department of Defense (DOD) to coordinate restoration and recovery of damaged energy infrastructure. DOE personnel also coordinate with other Federal, State, and local government agencies, as well as asset owners and operators.

Examples of DOE emergency coordination with other Federal agencies include its ongoing work with the Minerals Management Service to track platform evacuations and measure shut-in production in the Gulf of Mexico. DOE monitors port closures announced by the U.S. Coast Guard (USCG), as other commercial ports will follow USCG guidelines. If floodwaters impact the Gulf Intracoastal Waterway, the Mississippi, or other major rivers, locks may be closed by the DOD, effectively stopping barge traffic from moving refined products and ethanol to markets. DOE coordinates with the Department of Transportation (DOT) and the Federal Energy Regulatory Commission when pipelines moving crude oil, petroleum products, liquefied petroleum gases, or natural gas suffer damage or unexpected shutdowns. DOE also coordinates with DHS when refineries or pipelines shut down.

Depending on the nature of the event, DOE is often asked to perform analysis to support emergency waivers of various statutes or standards. For example, DOE may evaluate a DHS waiver of the Merchant Marine Act of 1920 (the "Jones Act") for certain shipments of crude oil and petroleum products in the Gulf of Mexico. Additionally, DOE works closely with the Environmental Protection Agency to facilitate decision-making regarding temporary waivers of certain fuel requirements following product shortages. DOE may also work with the DOT to coordinate driver-hour waivers for motor carriers hauling emergency relief supplies, including emergency fuel supplies, to various regions of the country.

In the event of a serious electricity issue, DOE has the authority to allow electric interconnections to critical infrastructure and to assist in re-establishing priorities for electric restoration of key assets. Another major response tool for energy emergencies is the Strategic Petroleum Reserve, which stands ready to provide crude oil exchanges or to release crude oil stocks to diminish the harmful effects of petroleum supply disruptions.

Energy disruptions often have secondary effects. For example, damaged natural gas gathering pipelines in the Gulf of Mexico may be unable to pull the natural gas associated with oil wells, effectively stopping crude oil production in certain offshore areas. Electricity outages at ports, refineries, along pipelines, or at terminals can stop the flow of petroleum. Any of these secondary effects may also require DOE coordination to ensure the swiftest restoration of energy supplies.

While no Federal agency can prevent hurricanes or other natural disasters, DOE stands ready to respond to energy emergencies by coordinating with industry and other Federal, State, and local government agencies to secure a reliable flow of energy. Coordinating The Federal Response To Hurricane-Related Energy Emergencies

PRESS RELEASE:  MAJOR CONSTITUTIONAL DECISION AFFECTING TRANSPORTATION INDUSTRY PRIVACY RIGHTS

On Friday, May 15th, the United States Court of Appeals for the District of Columbia decided a case that is styled BNSF Railway Company v. United States Department of Transportation, which determined important privacy rights for aviation, rail, motor carrier, mass transit, maritime and pipeline industries' workers.

The Department of Transportation requires that workers under its purvey, who have either previously refused to submit to a drug test or failed a prior drug test, must successfully complete a drug treatment program and pass a follow up urine analysis before returning to safety-sensitive work.  Then, the worker must undergo a series of six subsequent random urine tests over a twelve month period.

 At issue in this case is whether the Department of Transportation can utilize a direct observation technique in administering these drug tests, where the examiner will literally observe the urine exiting the examinee.  Due to a heightened concern for repeated drug use and in an environment where prolific means have been brought to market for drug test takers to falsify their samples, the court balanced the highly intrusive nature of these direct examinations against the benefit of maintaining a drug free transportation workplace.

One of the interesting factual determiners in this case was the advent of devices marketed to falsify the results of random drug tests.  The "wizzinator," a device the Court particularly highlighted, was designed to closely resemble the male genitalia and to dispense either an artificial urine sample or a previously collected clean urine sample.  The Department argued that such devices necessitate the direct observation of urine sample collection in the instance where the worker has previously failed a drug test or refused to submit to a random drug test because in such instances, the worker supposedly has a heightened incentive to falsify his or her drug test.

In its balancing act, the Court stated that "the Department acted neither arbitrarily nor capriciously in concluding that the growth of an industry devoted to circumventing drug tests, coupled with returning employees' higher rate of drug use and heightened motivation to cheat, presented an elevated risk of cheating on return-to-duty and follow-up tests that justified the mandatory use of direct observation."  Indeed, the Court sided with the Department in outweighing the worker's right to privacy by comparison to the Department's goal of creating a drug-free transportation workplace.

From a Constitutional Law perspective, this decision is a radical departure from the Fourth Amendment "search" law precedent because it sanctions a strip search of a U.S. Citizen in the United States at the time of giving a urine sample, even though there is no justification at that moment for the strip search.  

In addressing the Fourth Amendment issue, the Court stated "that the employees' prior misconduct is particularly salient, especially compared to their choice to work in a pervasively regulated industry.  It's one thing to ask individuals seeking to avoid intrusive testing to forgo a certain career entirely; it's a rather lesser thing to ask them to comply with regulations forbidding drug use.  True, direct observation is extremely invasive, but that intrusion is mitigated by the fact that employees can avoid it altogether by simply complying with the drug regulations.  On the other side of the balance, the Department has reasonably concluded that the proliferation of cheating devices makes direct observation necessary to render these drug tests needed to protect the traveling public from lethal hazards effective.  Weighing these factors, we strike the balance in favor of permitting direct observation testing in these circumstances."

The opinion, though, leaves the reader wondering if foregoing essential privacy, especially in the context of genitalia exposure, should be required of a worker choosing to "work in a pervasively regulated industry."

When juxtaposed to the need to have a drug free workplace in the area of public transportation, the final decision was foreseeable, but clearly it is highly intrusive and is now the law of the land.  The decision can be appealed to the United States Supreme Court, but it is unlikely to be reversed at that level.

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