Earlier this month, Rep. Norton (D,DC) introduced HR 4629,
the Save Our Communities from Risky Trains Act of 2017. The bill would make
changes to current statutes (6 USC
1151
and
1201) and regulations (
49
CFR 172.820) related to the protection of security-sensitive
materials in rail transportation.
Security Sensitive Materials
The term ‘security sensitive materials’ was originally
defined by congress in 2007. That definition {6 USC 1151(13)} required TSA to
establish a working definition of the term with a requirement to specifically
consider:
• Class 7 radioactive materials.
• Division 1.1, 1.2, or 1.3
explosives.
• Materials poisonous or toxic by
inhalation, including Division 2.3 gases and Division 6.1 materials.
• A select agent or toxin regulated by the Centers
for Disease Control and Prevention under part 73 of title 42, Code of Federal Regulations.
TSA complied with that mandate in 2008 in 49 CFR 172.820(a)
and modified it in 2015 as part of their highly-hazardous flammable trains
regulations. It did not specifically use the term ‘security sensitive
material’, but required railroads to provide additional security measures to
the following materials:
• More than 2,268 kg (5,000 lbs) in
a single carload of a Division 1.1, 1.2 or 1.3 explosive;
• A quantity of a material
poisonous by inhalation in a single bulk packaging;
• A highway route-controlled
quantity of a Class 7 (radioactive) material, as defined in §173.403 of this
subchapter; or
• A high-hazard flammable train
(HHFT)
Without specifically amending §1151, the bill would again require TSA to establish
a working definition of the term while specifically requiring TSA to consider:
• A highway route-controlled
quantity of a Class 7 (radioactive) material, as defined in section 173.403 of
title 49, Code of Federal Regulations, in a motor vehicle, railroad car, or
freight container.
• More than 25 kilograms of a
division 1.1, 1.2, or 1.3 explosive, as defined in section 173.50 of title 49,
Code of Federal Regulations, in a motor vehicle, rail car, or freight
container.
• More than one liter per package
of a material poisonous by inhalation, as defined in section 171.8 of title 49,
Code of Federal Regulations, that meets the criteria for hazard zone A, as
specified section 173.116(a) or section 173.133(a) of title 49, Code of Federal
Regulations.
• A shipment of a quantity of
hazardous materials in a bulk packaging having a capacity equal to or greater
than 13,248 liters for liquids or gases or more than 13.24 cubic meters for
solids.
• A select agent or toxin regulated
by the Centers for Disease Control and Prevention under part 73 of title 42,
Code of Federal Regulations.
• A quantity of hazardous material
that requires placarding under the provisions of subpart F of part 172 of title
49, Code of Federal Regulations.
Rail Route Analysis
Again, in 2007 Congress mandated (6 USC 1201) that TSA
complete a rulemaking providing a requirement for railroads to enhance the
safety and security of sensitive security materials. Those regulations were to
require railroads to prepare reports on;
• Security-sensitive materials
commodity data;
• The safety and security risks for
the transportation routes identified in the security-sensitive materials
commodity data; and
• An alternative route analysis;
Section 2(c) of the bill sets forth a similar requirement
for commodity data reporting for security sensitive materials. The wording of
paragraph (c) seems to be a little bit different because it includes a
requirement for the commodity data to include ‘storage patterns’ but that
requirement is already included in §1201
by the definition of ‘route’ in §1201(i)(1)
where it specifies that the term includes “storage facilities and trackage used
by railroad cars in transportation in commerce”.
Section 2(d) of the bills addresses the requirement for a
safety/security risk assessment on current security sensitive material routes.
There is one change that this section makes; it requires that the assessment be
“submitted to the Secretary”. Neither this bill nor the existing code makes any
mention of a requirement of governmental approval of the route safety/security
assessment.
Section 2(e) of the bill addresses the alternative route safety/security
risk assessment requirements. Again, the bill requires {§2(e)(1)} that a report on the alternative route
assessment be submitted to the Secretary.
Section 2(e)(3) contains an important exemption to the
alternative route assessment that is not found in the current code. It provides
two specific cases where the railroad can make an a priori determination that
the route is not a practical alternative for avoiding an area of concern:
• The shipment originates in or is
destined for the area of concern; or
• There would be no harm beyond the
property of the railroad carrier transporting the shipment or storage facility
storing the shipment in the event of a successful terrorist attack on the
shipment.
Safest Route
Section 1201(e) requires railroads to “to select the safest
and most secure route to be used in transporting security-sensitive materials”.
Section 2(f) of the bill does essentially the same thing except that it
requires the use of the route within 90 days of submission of the report on
alternative routes. It does not, however, use the phrase ‘safest and most secure
route’. Instead the bill uses a more expansive requirement: the route that “best
reduces the risk, including consequences, of a terrorist attack on, or
derailment of, a shipment of security sensitive material that is transported
through or near an area of concern”.
Moving Forward
Norton is a member of the House Transportation and
Infrastructure Committee, the committee to which this bill was assigned for
consideration. This means that it is possible that Norton could have enough
influence to have this bill considered in Committee.
If this bill were passed it would require toughening of
existing regulations concerning the transportation of security sensitive
materials. With no history of terrorist attacks on such materials it is
extremely unlikely that this bill would have the support necessary to pass in
committee or reach the floor of the House in a Republican controlled Congress.
Commentary
There are two major issues with this bill; one is procedural
and the other is a regulatory concern.
The procedural issue is that this bill, in practice, changes
standards set for in existing US Code, but does amend that code. Thus, is would
set up a situation where there would be conflicting requirements laid upon the
Executive Branch. Norton (or more properly her staff) should have set this up as
amendments to 6 USC §1151
and §1201. Only
that would have eliminated the conflicting requirements. Norton has been a
member of Congress for 26 years and there is no excuse for her authoring a bill
that makes this rookie mistake.
The regulatory concern is that this bill would radically
extend the sensitive security requirements of existing regulations when there
has been no practical indication that those regulations have been effective at
their assigned task, reducing the routing of very hazardous materials through
urban areas.
Section 2(b) of this bill radically expands the definition
of sensitive security materials. Three of the specific expansions are ludicrous
when it comes to rail transportation; the 25-kg limit for explosives and the 1-liter
limit for poisonous by inhalation hazard (PIH) material have no practical
effect on rail transportation. Railroads transport commodity amounts of these
materials not commercial quantities. Similarly, select agents or toxins, when
shipped are not sent by rail, the quantities are too small and rail service is too
time consuming for such service. When legislative requirements are this far out
of line with practical issues, they are political posturing not problem
solving.
While those three changes would have no practical effect on
rail transportation the expansion of the sensitive security definition to
effectively all hazardous materials would place an enormous administrative
burden on railroads. And this would be a burden that there is no data to
support a contention that the additional burden (or even the existing burden)
would materially reduce the threat of terrorist attack on the rail
transportation of these materials.
Part of the problem with the existing requirements is that
while DOT is authorized {49 CFR 172.820(j)} to require the use of an alternative
route as being safer and/or more secure, there is no practical way for DOT to
analyze the supporting data in a meaningful way that would stand up to a court
challenge. This bill does require the report (but not necessarily the
supporting data) to be submitted to DOT instead of being made available to
inspectors. That means that DOT would be inundated with reports without having
the tools required to conduct the assessment in a meaningful manner.
I have long maintained that for this route analysis to be an
effective risk reduction tool there has to be an automated analysis and scoring
of the relative risks along each segment of the route. The
current
list of 27 variables that need to be addressed in the analysis ensures that
the analysis is too complicated to be conducted (or reviewed) on a manual basis.
The railroads have come up with an analysis tool, but I have not seen any data
(perhaps because I have not looked closely enough?) that would indicate that
these tools have been adequately reviewed and vetted by an independent agency.
Nor has there been a legal consensus reached on the weights to be applied to
each of the 27 variables.
The expansion by this bill of the definition of sensitive security
materials to essentially include all hazardous material shipped by rail would radically
increase the administrative burden place upon railroads with no apparent
positive effect. Any regulations that would attempt to implement the expanded requirements
of this bill would fail in the courts because of the inability to show any kind
of reasonable cost-benefit ratio.