Reader Comment 06-14-10 Rail Routing

Earlier this week Fred Millar left a comment on my latest blog post concerning hazmat rail routing rules being affected by the PTC regulations; actually that post of mine was a response to an earlier comment by Fred. He continues to make the point that the hazmat rail routing decisions are being made in secret without significant input from governments and communities along the affected routes. Protected Information Fred is absolutely correct that there has not been, nor will there be, any public discussion of these routing decisions; the information is protected information under Federal law. As I have repeatedly noted about such secrecy rules, there is a difficult balance that has to accomplished between the public right-to-know about hazards to which they are exposed by such shipments and legitimate security concerns about the information getting into the hands of those who would use it to attack that same public. The public would probably be perfectly willing to allow the restriction of such information if they felt that there was some method of checks and balances that was protecting their interest. Unfortunately, as Fred points out, there is no effective review of these routing decisions. While the FRA has assured us that they will ‘aggressively’ pursue evaluations of these routing decisions, they do not have the manpower and/or time to do more than provide a cursory review of the documentation of route analysis. Given the fact that each railroad will be conducting these route security reviews using a mandated 27 different factors, it would take days to effectively review a single route analysis. Even if FRA had the time to do this, there are no standards against which to evaluate such decisions. There is not even a set of guidelines about how to weight the different factors. Congress would have to significantly expand the inspection force employed by the FRA to give that agency any chance of effectively policing this routing rule. Given the current example in the Gulf of what happens when Federal agencies inadequately enforce existing regulations, you would think that Congress might consider such expansions of inspection forces. It’s too bad that our legislators have a real bad reputation for learning lessons from actual problems. Midnight Regulations Fred continues to misuse the term ‘midnight regulations’ to describe the rail routing rule that was published in its final form in the closing days of the Bush administration. There was an extensive comment period on the NPRM for that rule and the FRA was actually well over the statutory time limit in publishing the rule. If this rule had been published in its current form three months earlier (which still would have been late according to the authorizing statute) there would have been nothing more that could have been done to modify the affects of that rule. If the rule had been further delayed, there is no indication that the Obama Administration would have done more than review and approve the current language of that final rule. So continuing to imply that the Bush Administration did something less than ethical (in this case) is not productive. Conflicting Regulations Fred points out that the railroads apparently made some of their re-routing decisions based upon the requirements of the TSA security rules affecting TIH railcar shipments rather than the requirements of the FRA rule. This is almost certainly the case (though I have no hard data, its restricted information remember, to support this assumption) and should come as no surprise to anyone that is paying attention. The fact is that even the more limited TSA inspection force would be able to more effectively police the security rule because it has easier to evaluate compliance.