Wednesday, December 10, 2008

Hazmat Routing Rule Controversy

There is an interesting article in the latest issue of Traffic World that looks at the continuing controversy surrounding the recent final rule on routing analysis and selection for rail cars carrying the most dangerous hazardous materials. The final rule was published in late November (see: “PHMSA Publishes Rail Routing Final Rule The final rule made some minor changes to the interim final rule that has been in effect since June 1st. Midnight Rule Since the final rule went into effect after the election, there are many (including reader Fred Millar who is quoted in the article) who believe this is a so called ‘Midnight Rule’; a last minute rule making effort by a lame duck administration extending its span of control into the new administration. In this particular case, that seems to be an unfair claim. Section 1551(e) of the Implementing Recommendations of the 9/11 Commission Act of 2007 (PL 110-53) required that the final rule be published by May 3, 2008. DHS instead published an interim final rule, allowing for an additional comment period. So this should not be considered a ‘last minute’ rule. Few Routing Decision Changes Having said that, I find myself in significant agreement with one point made by the opponents of this rule; it will probably have little effect on railroad routing decisions. The 27 factors that must be taken into account will make any route selection way too subjective. The analysis for any route over a couple of miles long will be too complex to review and find deficient in a legally defendable manner. This may change when TSA/PHMSA brings their computer based route analysis tool on-line (see: “Several Changes to Rail Hazmat Routing IFR”). Opponents of the Rule The Traffic World article points out that many of the opponents of this rule hope that it will be quickly overturned after the new Obama Administration takes office in January. Since the final rule was published within 60 days of the inauguration there are provisions (rarely used) for Congress to declare the rule null and void. This does not seem likely to occur given the comments made by Rep. Edward J. Markey (D-MA), one of the leading proponents of the routing selection provisions in the authorizing legislation. The article quotes him as saying: “I will be carefully watching the implementation of this law in the coming year and look forward to revisiting the re-routing issue”. Since the first route selection decisions will not be made before September 1st, 2009, it will be some time before Congress actually gets a chance to re-look at the issue. The article points out that the Obama administration could start working on a re-write of the rule when they take office in late January. Effectively, this is a pretty slim hope. The President-Elect is doing a credible job of putting his team together before the inauguration, but he is unlikely to have appointments made down to that level in PHMSA that soon. It is unlikely that any action will be taken until after the initial route analyses are completed in September. ANPRM to Use Computer Model More Likely What is more likely to happen is that if, the new computer model comes on-line as expected, there will be a move from within the staff at PHMSA to initiate an advance notice of proposed rule making to require railroads to use that tool to do their route analysis. This would be more likely to have a realistic affect on route selection than trying to force an ‘out-of-the-cities’ mandate over the objections of the railroads and shippers. In any case, this will be one of the issues that a number of people, me included, will be watching over the coming months.

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