HR 4629 Introduced – Chemical Transportation Security

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.