Only Minor Changes to Hazmat Routing Appeal Rule

As I noted in Friday’s blog (see: “FRA Publishes Rail Hazmat Routing Appeal Rule”), the Federal Railroad Administration (FRA) published their final rule on how railroads may appeal an adverse decision of their hazmat rail shipment route selection. Since this was the shorter and less complicated of the two route selection rules published on Wednesday, November 26th, this was the first that I read through completely. Background Back on April 16th the FRA issued the NPRM for this rule. I did a very basic analysis of the NPRM in an earlier blog (see: “Appeal Procedures for Route Security Finding”) and looked at the limited number of comments (only 3) received in yet another blog (see: “Comments on Rail Security and Safety Rules – 6-16-08”). Finally, this rule is very dependant on a companion rule published on the same day by the Pipeline and Hazardous Material Safety Administration (see: “PHMSA Publishes Rail Routing Final Rule”). Only Minor Changes in Rule In the entire preamble to the final rule the FRA has identified only two editorial changes and no substantive changes in the rule. One of the editorial changes is the correction of an apparent typographical error (page 72197) in § 209.501(e)(2). This change removes a small amount of confusion in the wording of the regulation. The other change involves the description of the standard used in evaluating the hazmat rail routes (page 72195). The NPRM used the phrase “safest and most secure route”, but the interim final rule issued by the PHMSA for the actual route analysis process used the phrase “poses the least overall safety and security risk”. The FRA changed the wording in § 209.501(a), and else where, to that used by PHMSA. This change is probably of interest only to potential litigants. More Important Discussions in Preamble More important than these editorial changes is the FRA discussion of the status of hazmat shippers and local jurisdictions in the appeal process. Comments made by Dow Chemical and the Mayo Clinic argued that shippers and local jurisdictions should be allowed to take part in the appeal process to protect their respective interests. The FRA maintains that they have no standing under the authorizing legislation (§1551 of the Implementing Recommendations of the 9/11 Commission Act of 2007 – PL 110-53), so they cannot be included in the regulations. The FRA also points out that any final actions under these regulations will take place only after the Assistant Administrator consults with the Surface Transportation Board (STB) which would have access to the information that would be provided by hazmat shippers or local jurisdictions. This would protect what ever limited interests that those entities might have in the proceedings. For example, in the discussion of §201.509(c) on page 72197 the preamble states that:

“As stated above, FRA believes the detailed information that will be in the railroad carriers' analyses and input from the STB will be sufficient to protect shippers' interests, and that no separate provision for securing shippers' input is necessary.”

If the PHMSA takes a similar view in their final rule, which is quite likely, there are going to be a number of groups that will find these two rules unacceptable. Whether or not those groups will have the political clout to see these rules overturned by either the Obama administration or the 111th Congress remains to be seen. If not overturned politically, they will certainly be challenged in court.