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**COMMENTS BY FRIENDS OF THE EARTH ON THE INTERIM FINAL RULE, "HAZARDOUS
MATERIALS: ENHANCING RAIL TRANSPORTATION SAFETY AND SECURITY FOR
HAZARDOUS MATERIALS SHIPMENTS; RAILROAD SAFETY ENFORCEMENT PROCEDURES;
INTERIM FINAL RULE AND PROPOSED RULE"**

**49 CFR PARTS 172, 174, AND 209**

**DEPARTMENT OF TRANSPORTATION**

**PIPELINE AND HAZARDOUS MATERIALS SAFETY ADMINISTRATION**

**FEDERAL RAILROAD ADMINISTRATION**

**Docket No. PHMSA-RSPA-2004-18730 RIN 2137-AE02**

\[Page numbers citations below are to the Federal Register version of
the Interim Final Rule from April 16 2008, "Implementing recommendations
of the 9/11 Commission Act of 2007" -- p. 20755 ff.\]
[[http://edocket.access.gpo.gov/2008/E8-8185.htm]{.underline}](http://edocket.access.gpo.gov/2008/E8-8185.htm)

**Introduction:** Friends of the Earth's comments for the record on the
Interim Final Rule, which will become effective June 1, 2008, can
perhaps assist in showing some ways forward for future, more promising
rail security regulation. As advocates of protective hazmat re-routing,
post-9/11 we were active in Washington DC and 10 other major cities
which introduced ordinances to mandate such re-routing, for through
shipments both by rail and by truck. Some 25 media stories showing lack
of effective rail security helped prompt a national debate and the
eventual introduction in Congress of national re-routing legislation,
which in turn led to this unfortunate rule. We commented very critically
in the Washington DC public meeting on February 1, 2007 and later
electronically on the earlier proposed rule from December 21, 2006. Our
four previous submissions are in the federal docket 18730 at the new
federal website:
<http://www.regulations.gov/fdmspublic/component/main?main=DocketDetail&d=PHMSA-RSPA-2004-18730>

**We unsurprisingly found the current Interim Final Rule did not change
to eliminate any of our fundamental objections.**

**We were warned:** Over a few years we have been fairly explicitly
warned about the Bush Administration agencies' politicized intentions
regarding this rule. Three remarkable examples will make this clear:

1.  Sometime in 2006, in an undated "Synopsis of a Briefing" memo in the
    obscure US Department of Transportation (DOT) rulemaking docket
    (Docket 18730, Document \# 118), the DOT representative to a meeting
    with representatives of nine railroads and the Association of
    American Railroads (AAR) candidly reassured the railroads,
    describing the federal agencies' quite politicized rulemaking
    intentions to extend explicit federal preemption in routing matters
    and the minimal governmental oversight the rule would entail:

*"**HM-232** ...PHMSA \[Pipeline and Hazardous Materials Safety
Administration\] and FRA \[Federal Railroad Administration -- both part
of DOT\] are working on this \[new routing regulatory proposal\] now
with DHS \[Department of Homeland Security\]. It addresses the comments
received as a result of the \[DOT's\] request for comments August 16,
2004.*

***This is being promulgated in order to address the concerns of the
D.C. judge \[US District Court Judge Emmet Sullivan\] that wanted to
halt routing through D.C.** **Hopefully, this will reinforce the
preemption law and help keep the carriers out of court and able to run
your trains over your best established routes.** It will require that
commodity data be available on a route specific basis for each calendar
year. The data needs to be available within 90 days of the end of the
previous year. The data will include the total number of shipments on
the route segment, along with the number of origins and destinations
along the route segment**. They \[the agencies\] are not going to ask
that this data be submitted, just available upon request."*** **\[Fuller
context in APPENDIX ONE below.\]**

> 2\. In the DOT's own April 2006 Regulatory Assessment and Regulatory
> Flexibility Analysis, the agency baldly states:
>
> *"... re-routings as a result of this proposed rule will be infrequent
> and so \[we\]* *have*
>
> *not attempted to estimate the additional* *\[railroad\] cost incurred
> by them."*
>
> *(p. 23))*

3.  And FRA head Joseph Boardman was similarly even more publicly blunt
    in describing the rule during a recent DOT/DHS national conference
    call for reporters, fending off their persistent inquiries on the
    likely re-routing impacts of the rule in protecting target cities:

*"Federal Railroad Administrator Joseph Boardman, who made the
announcement \[April 16, 2008\] ..., said any changes in shipment routes
would depend on the mandated analysis. He refused to predict how many,
if any, routes would be eliminated or moved.*

***'This is about routing, not rerouting,'** Boardman said. 'Anybody
that is predicting no change, I think is premature. My expectation is
that some routes for hazardous materials will be **safer** routes.' \"
\[our emphasis\]*

*\["Feds adopt routing regs for deadly rail tankers" Inside the Bay
Area, by Erik N. Nelson, Staff Writer 4 16 08\]*

Furthermore, Mr. Boardman's quote illustrates a key obfuscating
mechanism which the railroads, the AAR, and the Bush Administration's
federal agencies employ in systematically trying to discredit the value
of protective re-routing, as we will discuss below. In their rhetoric
and in this rule, they **deliberately conflate "security" and "safety"
issues**, and relentlessly suggest publicly and in this regulation that
**re-routing for security** will most likely lead to unacceptable safety
risks.

In a key passage FRA outlines concisely its continued reliance on
corporate shippers and railroads, the agency's refusal to act strongly
(absent an immediate known terrorist threat in a given city) to
protectively re-route around target cities, and its own weighting of
transportation safety issues over security, a leftover pre-9/11 agency
stance identical to that of the railroads, and which has decisively
shaped this regulation:

*\[20761\] FRA has met with the rail carriers \[in Section 333 meetings,
other stakeholders excluded\] to discuss modeling and routing options,
and has held separate meetings with rail shippers of chlorine and
anhydrous ammonia. Further meetings with the rail carriers are
anticipated. Projects agreed to through the*

*conference may need the approval of the STB in order to be
implemented.*

*In light of these efforts, and in the interests of system safety,*

*we will not ban movement of the specified hazardous materials through*

*densely populated or other sensitive areas. Rerouting of hazardous*

*materials shipments over longer, more circuitous alternative routes,*

*most of which traverse urban areas at some point, could actually*

*increase safety and security risks. Rerouting to avoid certain areas*

*could add hundreds of miles and several days to a hazardous materials*

*shipment. Those additional miles and days could be on rail*

*infrastructure less suitable to handling hazardous materials. Such*

*rerouting could also result in additional switching and handling of*

*rail cars and more time in rail yards. Longer distances and transit*

*times, increased car handling, and more time in rail yards contribute*

*to an increase in the safety risks to railroad workers and the public*

*inherent in rail transportation in general and the transportation of*

*hazardous materials. As well, military installations, power plants,
and*

*other potentially attractive terrorist targets are purposely located
on*

*or near rail lines rather than in major metropolitan areas. Such*

*facilities could be placed at greater risk if the Federal government*

*were to require rerouting of highly hazardous materials to avoid*

*densely populated areas. Finally, we would suggest that transportation*

*security is enhanced if terrorists cannot determine whether or when*

*hazardous materials may be rerouted. Such flexibility, provided its
use*

*is not made*

*\[\[Page 20762\]\]*

*public, decreases the likelihood that a target will be where a*

*terrorist may expect it to be.*

*Moreover, the 9/11 Commission Act does not direct the Federal*

*government to mandate specific rail routes for security-sensitive*

*materials; rather, Sec. 1551 of the Act specifically directs the*

*Secretary of Transportation to ensure that the final rule requires
rail*

*carriers to select the safest and most secure route to be used to*

*transport security-sensitive materials based on a safety and security*

*assessment of the current routes utilized and practicable alternative*

*routes.*

*We continue to believe that en route safety and security measures*

*will be most effective when tailored to a railroad\'s specific*

*circumstances and operations. Rail carriers are in the best position
to*

*assess security risks along the full length of the routes available to*

*them and to target enhanced safety and security measures to identified*

*vulnerabilities. Appendix D to the rule lists the wide variety of*

*factors that a carrier must consider in choosing the safest and most
secure route.*

**Railroad insiders have suggested what we consider the only way to make
sense of the railroads' seemingly counter-productive determination to
avoid any serious government-mandated protective re-routing**. The
underlying political-economic aim of railroads and their Bush
Administration and Congressional supporters is to block any actions in
the homeland security area that might set a legal precedent that could
be used by "captive shippers" who are actively seeking that Congress
"re-regulate" the railroads. A long period of the North American
railroads' operating without effective government oversight is
threatened by captive shippers issues, the current desires of the
railroads to seek massive government funding for capacity expansions,
and scattered grassroots fights over expansion of rail capacity and over
intermodal terminal sites, noise and pollution, and congestion.

**At the most basic level of regulatory strategy**, DOT notably locates
the new regulation within the existing "Safety and Security Plan"
section, Subpart 1 of the federal hazmat \[hazardous materials
transportation\] regulations in 49 CFR Part 172. And for an
implementation mechanism, DOT explicitly refers to its existing and also
minimalist post-9/11 hazmat Security Plan regulation HM-232, which like
the routing rule grants maximum "flexibility" to the railroads and has
no standard of adequacy. The new rule vaguely states: "railroads'
security plans must include measures to minimize the safety and security
vulnerabilities identified through the route analyses" \[20763\] The
lack of federal standards in these hazmat transportation security
regulations means no accountability, no way of knowing whether we are
more secure as a result of the regulations, and no serious governmental
oversight possibilities.

The industry and FRA conflation of security with safety has been muddled
still further by the railroads' success in lobbying Congress to
**include "practicable" commercial considerations**, so that the
astonishing new list of 27 "factors" (see Rule, Appendix D) an
individual railroad must consider when evaluating alternative routes is
augmented by commercial factors including existing "customer
relationships". (see #3 below)

The core routing provisions of the 9/11 Commission Act (Section 1551)
might look at first glance to be a new national consensus on protective
rail re-routing:

***\"The Secretary of Transportation shall ensure that the final
regulation requires each railroad carrier transporting
security-sensitive materials in commerce to annually review and select
the practicable route posing the least overall safety and security risk
in accordance with this section.\"** **\-\-\-- *****9/11 Commission Act,
Section 1551**

In fact, however, by lumping together security, safety and commercial
practicability as major factors (notably, unweighted in the
legislation), the provision allows the current US DOT to grant the
railroads so much "flexibility" (in the current routing rule) as to
virtually guarantee a federal rubber stamp on the status quo of rail
hazmat routing through all 60 target cities of cargoes which the federal
regulators have previously characterized as "potential... weapons of
mass destruction."

During the national debate the Association of American Railroads (AAR)
says we have had on re-routing since 9/11, the railroads have often said
that because of their liability concerns, they were willing to enhance
security by protective re-routing where possible, but not if ordered by
a local High Threat Urban Area's ordinance, only if the federal
government ordered it. Then they used their lobbying clout to ensure a
weak federal law that would allow a correspondingly weak federal routing
regulation.

**So despite the large increase in public and media concern about the
massive consequences of potential terrorism using freight rail cargoes,
sensible protective re-routing will not be achieved anytime soon, if
ever.** Most likely re-routing will come not until after a terrorist
attack (successful or not) \[as the Governor of New Jersey lamented in a
post-9/11 TV interview\] using such hazmat cargoes the railroads have
pre-positioned for such possible deadly use. A similar lack of
government foresight and preventive action explains why the ten chlorine
tank cars sitting in plain view at the Blue Plains Water Treatment Plant
in Washington DC were not removed, and the facility switched to the
non-catastrophic alternative chemical (bleach), until
[after]{.underline} the al Qaeda attack on the Pentagon on 9/11.

On the other hand, despite the dampening impact intended by this rule,
it is likely that widespread public pressure for protective re-routing
will continue. Indeed, CSXT Railroad recently declared in the federal
docket that since 9/11, **the US public has reconsidered what is an
acceptable risk**:

*"The support of the public, and of many policy makers, has greatly
eroded since 9/11.  Now the railroads are harshly criticized for
transporting these **\[TIH, or " Toxic by Inhalation" poison gas
cargoes\]** ...Our company's reputation has been assailed...\[and\]
vilified in the media**.  TIH cannot simply continue to move by railroad
indefinitely...Even if the potential for ruinous liability were somehow
erased, the widespread social disapproval of TIH transport by rail would
remain."    ***<http://dmses.dot.gov/docimages/pdf101/456287_web.pdf>

CSXT is being carefully misleading here -- the key issue in the current
debate is the [unnecessary]{.underline} routing of [through]{.underline}
shipments of poison gases and other dangerous rail cargoes into target
cities, which re-routing advocates maintain can be remedied by routing
onto non-target routes. The railroads are routing such cargoes through
all our major cities still, even without being able to buy adequate
insurance, as they have declared in Congressional testimony during the
last three years. One can only conclude that this is a situation the
insurance industry calls "moral hazard", meaning that the railroads,
quite aware of potentially massive numbers of deaths and property losses
in a terrorist attack using rail cargoes, are counting on just the kind
of huge federal taxpayer bailout that the airline industry received for
their massive losses in the aftermath of the 9/11 attacks.

\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*\*

> *[Brief Legislative and Regulatory Background]{.underline}:*
>
> *For many years after 9/11, the Bush Administration promoted in the
> freight rail security area, as in mass transit and chemical facility
> security, only voluntary action by corporations to beef up security.
> This hands-off stance contrasted with much stronger regulatory
> mandates imposed on the airline passenger and port security areas, and
> critics in and out of Congress often highlighted how federal attention
> and funding went disproportionately to the regulated areas.*
>
> *Congress has also found voluntary measures insufficient regarding
> chemical facility security, where similar attractive targets exist,
> and mandated federal security measures. In the rail area, voluntary
> measures have very recently been seen as insufficient by FRA regarding
> the railroads' too-leisurely voluntary plans to upgrade rail tank car
> design, so FRA has recently proposed regulations to replace the whole
> fleet in the near future. The rail industry argued to Congress that
> their ownAAR-led industry efforts and the previous purely voluntary "
> Supplemental Security Action Items" requests made by DOT and DHS of
> the rail industry were yielding dramatic results in improved security,
> but Congress did not find these arguments compelling.*
>
> *The railroads had been feeling the heat \[cf. CSXT's quote above\]
> from numerous critics of routing of through chemical shipments into
> major target cities. So the new Congressional leaders were seen by
> alarmed railroad supporters as likely to regulate in this area.*
>
> *DOT hurriedly put forward on December 21, 2006 a Proposed Rule on
> routing, but it was widely seen as quite weak and a too-obvious
> attempt to pre-empt the new Congress slated to take over in January
> 2007 . Much of that proposed rule has survived, however, in this new
> Interim Final Rule. The newly Democratic Congress eventually enacted
> the 9/11 Commission Act (signed by the President on August 3, 2007,
> with Section 1551 on routing \[including railcar storage\]), both
> responding to widespread post-9/11 public pressure (media, ordinances,
> etc) and explicitly rejecting a totally voluntary approach in freight
> rail security, but mandating only quite weak federal involvement in
> rail routing.*
>
> *The legislative history of the re-routing bill HR 1 and the
> subsequently enacted " 9/11 Commission Act" was starkly uneven
> regarding re-routing, with a compromise House bill gaining bipartisan
> approval in two House committees and on the House floor, but a Senate
> bill with somewhat stronger mandates was soundly defeated on the
> floor. Railroad positions prevailed in much of the final conference
> committee- enacted bill.*
>
> *The Act said a new DOT rule should be "based upon" the 2006
> DOT-proposed rule, but also mandated ways in which the new rule should
> go beyond it. Congress explicitly added some important concepts and
> mandates, such as for railroads to consider interchange agreements in
> order to accomplish re-routing, and explicitly defining "routing" as
> including interim storage of the covered chemicals (poison gases,
> explosives and radioactive cargoes -- the later DOT rule did not
> extend coverage to Liquefied Petroleum Gas but did explicitly include
> anhydrous ammonia) in urban railyards and sidings. **Overall, however,
> the Act was not strong enough to provide a decisive national mandate
> for re-routing that would be immune to further wholesale weakening by
> subsequent DOT rulemaking,** as outlined below.*
>
> *\[US DHS, with its Transportation Security Administration, has been
> relegated to a junior partner relative to the long-established DOT/FRA
> in rail security regulation. DHS is not central to the rail routing
> regulations, but instead has taken on the narrower task of trying to
> beef up physical security in urban railcar storage, some of which
> would be necessary even if through shipments were re-routed. US GAO
> has recently testified (GAO-08-651T) in Congress that, while DHS
> reports it has done vulnerability assessments in eight major target
> cities with poison gas rail corridors and site visits to some 300 rail
> facilities nationwide, DHS efforts to improve freight rail security
> "are still largely in the early stage". GAO identified serious
> "challenges" for DHS including devising standards and performance
> goals and deploying an adequate force of inspectors. DOT is supposed
> only to consult with DHS on rail security routing matters.\]*

**Summary Critique of the April 16, 2008 Interim Final Rule:**

**These regulations not-so-subtly endorse and support the dangerous
urban hazmat routing status quo.** They are seemingly designed, however,
to convey a false sense of security regarding the federal effort
involved, rather than effect serious security risk reduction. The Bush
Administration, along with the US railroads, have for years vigorously
opposed local target city protective re-routing efforts, although a
Federal District Court in 2005 upheld the path-breaking re-routing
ordinance (enacted on a 10-1 vote in the Washington DC Council) as legal
and [not]{.underline} preempted by the Federal Rail Safety Act. The
Administration and CSXT railroad, however, stubbornly continued their
legal challenges to the DC ordinance and reportedly threatened other
concerned cities with similar lawsuits. Ten more major US target cities
and two states (NY and TN) eventually introduced routing ordinances but
did not enact them, waiting to see how the lawsuit against the DC
ordinance would fare. \[The new rule now has made the legal case moot.\]

And now the railroad-friendly Administration is misleading the media and
the public, suggesting these proposed DOT regulations are "requiring
railroads to route hazardous materials" in a way that will promote
homeland security risk reduction. **In fact these regulations are
instead devised mainly** (1) to preemptively crush protective city and
state regulations on re-routing, (2) to keep at-risk citizens in the
dark by smothering in yet more veils of official secrecy the documents
showing the grave potential chemical release risks to our cities and the
lack of progress in reducing these risks, (3) to spare the US railroads
from any inconvenience or even minor expense in having to cooperate
actually to re-route [through]{.underline} hazmat cargoes onto available
alternative routes, (4) to deploy a non-regulatory approach which
disguises the absence of any federal standard for risk reduction, the
absence of a credible federal oversight role, the absence of any real
role for state and local officials, and the absence of any transparency
or accountability.

1.  **Preemption of non-federal laws.** The rule is explicitly and
    strongly preemptive and designed to discourage any future state and
    local re-routing legislation. **There is a real legal problem,
    however,** for the railroads in the newly proposed DOT "routing"
    rule. In many respects **these "regulations" offer so much
    "flexibility" to the railroads as to be virtually non-regulations,**
    in which the alleged new "standards" for adequacy in security risk
    reduction are either very vague or unspecified. It remains to be
    seen if judges will look favorably on this kind of non-regulation as
    really "occupying the field" of security regulation and therefore
    able legally to preempt conflicting local and state laws.

The DOT rule's unsubtle bias against re-routing is clear in its
explanation, using the "merely shift the risk" rhetoric identical to
that of the railroads, for why federal preemption is needed:

\[20767\] As we have indicated elsewhere in this rule, rerouting of
hazardous

materials to avoid densely populated or sensitive areas may well

increase safety and security risks. Moreover, routing restrictions or

prohibitions enacted by states or local governments transfer safety and

security risks to other areas but do little to achieve enhanced safety

and security for the rail transportation

\[\[Page 20768\]\]

system as a whole. We note that virtually every urban and suburban

jurisdiction in the United States has a population density that is a

matter of concern in planning for and regulating hazardous materials

transportation; if all of the jurisdictions located on or near rail

routes were to enact routing restrictions applicable to the rail

transportation of hazardous materials, such transportation would come

to a virtual standstill. The provisions adopted in this interim final

rule will reduce the overall risks posed by the movement of explosive,

PIH, and radioactive materials by rail, without imposing an undue

burden on transportation.

2.  **New secrecy measures.** The broad "expansion" of secrecy with a
    new category of "Chemical-Terrorism Vulnerability Information" (CVI)
    designations proposed by the companion DHS rail security regulation,
    and corresponding SSI ("Sensitive Security Information") secrecy
    regimes for virtually all new documentation in the DOT proposed
    regulation, means the key rail security evidence (both
    vulnerabilities and available alternatives) will be carefully kept
    away from the public, and available only to those few officials whom
    the railroads and US DOT decide have a "need to know". Citizens and
    public officials will continue to lack information, e.g., from US
    DHS's many target city vulnerability assessments, from the
    railroads' own security plans under the earlier HM-232 rule, and
    from the individual railroads' route analyses and route selections
    under this rule, **so we will never be able to judge progress or
    lack of same in hazmat rail security.** It will be "trust us"
    forever.

3.  **Minimization of High Threat Urban Area (HTUA) rail hazmat
    re-routing that might inconvenience the railroads.** A close reading
    of the proposed DOT regulation reveals that it makes it as easy as
    possible for a railroad to continue to avoid re-routing. **The
    regulation sets out a long series of 27 new "factors"**, many of
    which are totally non-security-related, which railroads MUST
    consider in future selection of "safest and most secure routes".
    This mandatory process makes it **very unlikely** that any
    protective re-routing, **especially any involving interchanging
    cargoes with another railroad,** would occur.

> It is noteworthy that, presumably using these factors, no railroads
> have voluntarily re-routed around any of the 60 major target cities
> since 9/11. The only analogous development we can cite is that
> reportedly for the few days after 9/11, when officials feared quick
> follow-on attacks on available US targets, government and railroad
> decision-makers forced the most dangerous poison gas railcar cargoes
> off the rails and into some kind of safe haven storage. Shipments
> later resumed with no discernible protective re-routing.
>
> DOT says re-routing [must]{.underline} be based on **[each
> individual]{.underline}** railroad's own considerations of factors
>
> involving security AND safety AND "commercial practicability": *"As
> discussed in the*
>
> *proposed rule,* *'commercially practicable'* *means that the route
> may be utilized by the*
>
> *railroad* ***within the limits of the railroad's particular
> operational constraints, and***
>
> ***further, that the route is economically viable for the specific
> commodity, route, and***
>
> ***customer relationship"*** (p. 31, DOT's Regulatory Assessment, in
> the federal rulemaking
>
> docket).
>
> **In short, the key flaw in this Rule is that the federal government
> will [not]{.underline} force one**
>
> **railroad to "interchange" its most dangerous cargo over to another
> railroad to go around**
>
> **a target city.** The overall result of this generous federal grant
> of "flexibility" is entirely
>
> predictable. As DOT fully expects and astonishingly states in the
> Regulatory Assessment:
>
> *"...re-routings as a result of this proposed rule will be infrequent
> and so \[we\]* *have*
>
> *not attempted to estimate the additional* *\[railroad\] cost incurred
> by them."*
>
> *(p. 23, DOT's Regulatory Assessment)*

4.  **Deployment of a thoroughly non-regulatory approach.** The main
    mechanisms employed by DOT here are interlocking: the absence of any
    federal standard for risk reduction, the absence of a credible
    federal oversight role, the absence of any real role for state and
    local officials, and the absence of any mechanisms for transparency
    or effective accountability.

> **This is very largely a "faith-based" rule, as opposed to deploying a
> vigorous regulatory**
>
> **program.** Throughout DOT emphasizes its reliance on the railroads:
> "we expect that carriers
>
> will make these decisions in good faith, using the financial
> management principles generally
>
> applied in other business decisions affecting safety and security".
> \[20761\] DOT will "expect a
>
> rail carrier to make an informed decision, balancing all factors and
> the best information
>
> available." \[20756\] DOT will "expect railroads to make conscientious
> efforts to develop
>
> logical and defendable systems \[for route analyses and route
> selection\]." \[20766\]
>
> **DOT has decided regarding freight rail security, it is clear, to
> speak softly, since it does not intend to carry a big stick, in
> contrast to the federal regulatory regimes imposed in other homeland
> security areas such as airlines, port security and border security.**

**Key Features of the Interim Final Rule that will make re-routing
virtually impossible:**

1.  **The DOT rule leaves the individual railroads to make all key
    decisions, and DOT takes a hands-off regulatory role, except
    rhetorically.** This stance contrasts starkly with that of the US
    Coast Guard, which has beefed up its staff for the
    Congressionally-mandated review and approvals of the security plans
    for roughly 7500 vessels and 7500 on-shore port facilities in its
    maritime security regulatory regime. The Coast Guard also forces all
    parties in its numerous port-specific Area Maritime Security
    Committees to cooperate openly and regularly in coordinated efforts
    to reduce security risks.

> DOT does not contemplate beefing up its already understaffed rail
> security inspection and enforcement workforce, and cannot hope to
> substantively review more than a handful of the routing analyses and
> route selection documents from the 7 major railroads (in multiple
> major target cities) and 100 short line railroads carrying the covered
> hazardous cargoes. The few DOT reviews that do occur will no doubt
> focus entirely on whether the paperwork even exists, as has occurred
> regarding the DOT's previous Security Plan regulation.
>
> In the Interim Final Rule discussion DOT states:

*\[20765\] **We are not implementing a submission and approval process
for ***

***security plans and route analyses**. The review and approval of
hundreds*

*of security plans and analyses would be extremely resource-intensive*

*and time-consuming. Moreover, the 9/11 Commission Act does not provide*

*for an approval process for route selections made by rail carriers.*

*During FRA\'s normal inspection process, inspectors will review
security*

*plans, route analyses, and route choices for compliance with
applicable*

*regulations to ensure that the chosen route is the safest and most*

*secure practicable route as supported by the analysis done by the*

*carrier. If the inspection identifies deficiencies in the route*

*analyses, security plan, or manner in which the plan is implemented,*

*the deficiencies will be addressed using FRA\'s existing*

*\[\[Page 20766\]\]*

*enforcement procedures. Inspectors will have the discretion to issue*

*notices of non-compliance or to recommend assessment of civil
penalties*

*for probable violations of the regulations. As indicated above, FRA
may*

*require a rail carrier to use an alternative route if the carrier\'s*

*chosen route is found not to be the safest and most secure practicable*

*route available.*

> Immediately after rejecting any "more prescriptive approaches", DOT
> nonetheless does [assert]{.underline} that it intends

*"...to aggressively oversee railroads\' route analyses and route
selection determinations and will use all*

*available tools to enforce compliance with the rule. As the agency with
primary responsibility for railroad safety enforcement, FRA will
incorporate review and inspection of route analyses and selections into
its inspection programs. FRA inspectors may offer suggestions for
modifying or improving the analysis or make changes to a route if the
route selection documentation or underlying analysis is found to be
deficient. If an inspector\'s recommendations are not implemented, FRA*

*may compel a rail carrier to make changes and/or assess a civil
penalty. Further, if the carrier\'s chosen route is found not to be the
safest and most secure practicable route available, **FRA may require
the ***

***use of an alternative route**. \[20756\]*

> These assertions of a potentially vigorous federal regulatory pressure
> are compellingly belied by various other indications current and
> historical:

-   DOT does reserve hypothetically the right to override a railroad's
    "deficient" route selection and even though the agency has said it
    will do so only in the most exigent of cases, this possibility
    raised much concern among railroads. So DOT obligingly also
    published a companion proposed rule in the same April 16, 2008
    Federal Register \[20774-20778\] in which at industry request it
    laid out an elaborate set of procedural safeguards for appeals by
    industry to any such pending or decided DOT override. The main
    problem remains how could the agency determine what is "deficient".
    Notably, there is no such appeal process offered for state and local
    officials or citizen groups aggrieved by railroad routing decisions.

-   The rule sets out no federal standard for (nor even any guidance on)
    the [adequacy]{.underline} of railroads' routing analyses and
    selection -- so any federal challenge to routing analyses and
    decisions will be subject to endless litigation by the railroads.
    \[This approach is consistent with DOT's HM-232 Security Plan
    regulations promulgated earlier, in which DOT also highlighted its
    "basic approach in HM-232 of leaving ultimate hazardous materials
    routing decisions to the rail carriers." \]

-   FRA's record is of weak enforcement capabilities and a long history
    of snugly relations with the railroads, as the New York Times
    vividly documented in a Pulitzer Prize-winning 2004 series by Walt
    Bogdanich.

-   The rule says FRA will be the only enforcing agency: the agencies
    perhaps marginally more inclined to enforce stringently, DHS/TSA
    \[Transportation Security Administration\] and DOT/PHMSA, are
    explicitly cut out of any independent enforcement role, only allowed
    to try to inject themselves in some kind of "cooperation" with FRA
    as the lead agency.

-   DOT expects enforcement needs to be minimal -- no new resources have
    been asked for by DOT. There was a DHS review process originally
    mandated in Section 1444 of HR 1, to be funded at \$2 million per
    year for 3 years, but this was dropped completely in the final
    Section 1555.

-   DOT expects the additional scrutiny of routing documents to add only
    minimal burdens to existing FRA inspections. Based on FRA's record
    in the Security Plan regulations overall, the agency can be expected
    occasionally to cite paperwork violations regarding routing
    documents, but levy no fines at all. (**See Prine)**

-   Even if railroads find security problems along their current routes,
    they may continue to use them if they add "mitigating measures" they
    deem make the route secure enough -- in their own judgment. These
    are decisions many will think need to be made by public security
    officials.

Clearly, if an alternative route, after

analysis, is determined to be the safest and most secure practicable

route, the carrier would either designate it as the primary route or

identify and implement mitigating measures to improve the safety and

security of the analyzed primary route. Each carrier will be required

to use the practicable route posing the least overall safety and

security risk, based on its analysis. \[20762\]

> 2\. DOT's rule virtually metastasizes the likely impacts, and never
> attempts to put limits on the impacts, of **the 9/11 Commission Act's
> unfortunate basic compromise provisions which allow economic
> practicability to be decisive in routing analyses and outcomes:**

In this

interim final rule, we are adopting a requirement for rail carriers to

identify and analyze all practicable alternative routes, rather than a

\`\`commercially practicable\'\' route as proposed in the NPRM. We note
in

this regard, however, that the identification of an alternative

practicable route must necessarily include a determination of its

commercial practicability. Congress recognized this by including in

Sec. 1551(d) a requirement for the alternative route analyses to

include the potential economic effects of using an alternative route.

Accordingly, we expect rail carriers to address whether a route is

economically viable in light of, but not limited to, market conditions,

legal and regulatory requirements, and the economics of the commodity,

route, offeror, and consignee. A practicable alternative route is one

that may be utilized by the railroad within the limits of the

railroad\'s particular operating constraints and, further, is

economically viable given the economics of the commodity, route, and

customer relationship. The question of commercial practicability must

be reasonably evaluated by each rail carrier as a part of its analysis

based on the specific circumstances of the route and proposed traffic.

If using a possible alternative route would significantly

\[\[Page 20761\]\]

increase a carrier\'s operating costs, as well as the costs to its
customers, the carrier should consider and document these facts in its
route analysis.

> **3. DOT could have interpreted the 9/11 Commission Act in a very
> different way**, setting up a tough federal regulatory program with
> real standards, designating stringent oversight, etc., but would have
> been risking backlash from the railroads, de-regulated since 1980. So
> the agency in this rule has established the most minimal government
> "regulatory" role, in an impressively-crafted series of interlocking
> decisions:

a.  The fact that DOT will not take possession of route analyses and
    selection documents means these documents will not be accessible
    through FOIA requests, which removes one potential external
    mechanism for accountability.

b.  [Individual]{.underline} railroads are left to analyze and select
    routes. DOT admits this is difficult to implement and to "oversee".
    The rule does not even specify any common format for the railroads
    to use in their no doubt complex and perhaps bewilderingly different
    route analyses and route selection documents, which makes any
    oversight virtually impossible either by DOT or by other federal
    bodies such as Congress or the Government Accountability Office. The
    analyses, DOT furthermore says, could involve methods which are
    "quantitative, qualitative, or a combination".

c.  Cooperation among railroads (e.g., the utterly normal "interchange
    agreements" which would be vitally necessary for most of the genuine
    risk-reduction re-routing arrangements that could be achieved around
    major target cities) must, pursuant to the weak language of the Act,
    be "considered", but is not mandated by DOT. Each railroad must
    analyze possible alternative lines, but **only the ones "over which
    it has authority to operate"** (as explicitly allowed in the Act).
    Congressional drafters were aware that mandating cooperation and
    interchanges among railroads would be necessary for re-routing, but
    railroads won weakening language that renders the probability of
    this happening as virtually nil. The rule does leave some ambiguity
    regarding a railroad's using its trackage rights to re-route:

\[20761\] As we acknowledged in the NPRM, in many cases, the only
alternative

route in a particular area may be on another carrier\'s system. A rail

carrier would not be obligated to analyze an alternative route over

which it has no authority to operate. Likewise, in some cases, no

alternative route will be available; in those instances, no alternative

route analysis would be required. This is particularly true in the case

of regional or short-line railroads that are often the only rail

carriers in a given geographic area. However, as discussed below,

carriers must consider the use of interchange agreements when

identifying practicable alternative routes.

When an alternative route is available, the carrier must analyze

that route and document its analysis, including the safety and security

risks presented by the alternative route, any remediation or mitigation

measures in place or available, and the economic effects of using the

alternative route.

Under arrangements known as \`\`trackage rights,\'\' it is not uncommon

for a carrier to conduct train operations over a rail line that is

owned, dispatched, and maintained by another carrier. Such arrangements

typically grant the trackage rights tenant little or no control over

the track and associated infrastructure, including many of the factors

set forth in Appendix D. In completing the route analysis required by

this interim final rule, a carrier may identify specific risk

mitigation measures that are outside its ability to accomplish. Because

it is essential that safety and security measures be coordinated among

all responsible entities, it is incumbent upon the tenant carrier to

work with the owner of the track to evaluate the vulnerabilities and

identify measures to mitigate the risks. If measures required by this

interim final rule cannot be implemented because another entity refuses

or fails to cooperate, the carrier must notify FRA. As stated in the

Compliance and Enforcement section of this interim final rule, FRA

retains the authority to require use of an alternative route until such

time as identified deficiencies are mitigated or corrected.

d.  **[Instead of proposing a new federal standard]{.underline},
    therefore, for cooperation among railroads and for adequacy of
    security risk reduction, DOT resorts to what it calls
    "institutionalizing an assessment process" and "prescribing uniform
    assessment criteria" \[20762\]: offering in Appendix D a list of 27
    new "factors"** each individual railroad must consider. **This list
    conflates wildly disparate factors involving security and safety.
    Commercial "practicability" has been omitted from the new Appendix D
    list of 27 factors and now is seen as a kind of major independent
    mega-factor on a par with safety and security.**

One indication of DOT's struggle to think outside the box of its
traditional role in transportation safety is the very nearly unchanged
Appendix D in the Interim Final Rule.

In this interim final rule, we are adopting the list of factors as

proposed in the NPRM, with modifications for consistency with

requirements of the 9/11 Commission Act. Specifically, we are adding

high consequence **targets**, as defined in Sec. 1551(h)(2) to the list
of

factors that must be considered.\[20766\]

> In the new Appendix D, of the 27 factors that must be considered for
> routing:

a.  1-11, 16, 19, 20, 22, 24-26 are safety factors

b.  12-15, 17-18, 21 and 27 (perhaps) are security factors

c.  23 and 27 (primarily) are economic factors

There is no precedent we can find for this approach, namely, lumping
together very disparate variables which are virtually impossible to put
into any kind of sensible comprehensive assessment methodology, in the
existing academic literature on "catastrophe avoidance routing." A
leading expert in this field bluntly states that of course **"it all
depends on the weighting"** of the factors.

Significantly, DOT does not even try to [rank]{.underline} these
factors, as asked by the explosives industry \[20766\], and does not
(yet) even offer any guidance \[e.g., in other chemical risk regulatory
programs such as under EPCRA, the Clean Air Act Amendments of 1990
(Section 112 r) and Pipeline Safety\] on what they admit will be the
**crucial weighting decisions**, leaving these to each railroad in a
completely non-transparent process, guaranteeing maximum bias toward the
status quo and no accountability.

e.  DOT and DHS did agree with industry "how these factors are weighted
    and used is an extremely important aspect of an overall safety and
    security risk assessment methodology". So they concluded that **some
    "weighting" methodology with a federal blessing would be useful to
    railroads as they decide on routing selections. This is mentioned
    explicitly in the rule.** \[20766\]

> For Fiscal Year 2005 DHS unabashedly gave a \$5 million grant to an
> allegedly independent organization -- the Railroad Research
> Foundation, whose president is also president of AAR. DOT/FRA
> apparently has the federal agency project "oversight", and reportedly
> AAR's spokesperson Nancy Wilson is project manager. DOT has not
> involved environmental or state and local or environmental
> stakeholders in "tool" development. DOT expects the tool \[which we
> expect to be an extremely technically challenging effort to produce a
> pseudo-scientific-looking methodology for "balancing" the 27 factors\]
> to be available sometime in 2008.
>
> Again, the likely outcome is utterly predictable: the railroads since
> 9/11 have NEVER voluntarily re-routed while presumably considering
> these factors, since their own "weighting" biases have \-- in every
> single case \-- meant that business-as-usual triumphed, and reckless
> routing has continued through 60 major target cities. The only partial
> exception is very revealing: the "voluntary" CSXT re-routing around
> their photo-op line, the "I-95 line", one of their two lines through
> Washington DC, after years of citizen and media pressure. In the DC
> court case (see "CSXT v. DC" documents at
> [www.oag.dc.gov](http://www.oag.dc.gov/) ), CSXT said they would
> refuse to interchange its most dangerous cargoes and use the nearby
> Norfolk Southern alternative route around DC, through small towns like
> Luray VA. They would send these instead on "their next available CSXT
> route", a long ludicrously more dangerous, looping route through the
> target cities of Cincinnati, Cleveland, Buffalo, Syracuse, Albany and
> finally south through the NY City metro area to Northern New Jersey
> destinations. We presume CSXT is in fact using this routing as a
> public relations necessity, in order to avoid what had become their
> iconic "photo-op line" which featured ominously photogenic chlorine
> tank cars running just four blocks in front of the US Capitol Building

f.  **The DOT rule leaves no significant role for state and local
    officials:** they can only supply information on local threats, but
    have no institutionalized power to influence decisions, much less
    any veto \[20759\]. DOT and the railroads continue to be very stingy
    about sharing even hazmat commodity flow information with
    data-starved local officials, and certainly never with the public,
    even though the individual chemical cargoes are clearly placarded
    for all to see. \[One suspects that it is the
    [proprietary]{.underline} security of the information which is the
    overiding reason for this withholding of information which the
    railroads have readily available in their operations computers\] :

The City of Cleveland, Ohio, suggests that we revise the proposal

in the NPRM to require rail carriers to share the commodity data with

local governments responsible for the geographic areas through which

hazardous materials are transported. We agree that state and local

governments should have access to such information, provided access to

the information is limited to those with a \`\`need-to-know\'\' for

transportation safety and security purposes, and further provided that

such information may not be publicly disclosed pursuant to any state,

local, or tribal law. Because of the security sensitivity of the

commodity data, it is not appropriate for it to be broadly disclosed to

government or private entities. We note that AAR Circular OT-55-I

provides for disclosure of certain commodity flow data, upon request,

to local emergency response agencies and planning groups. At a minimum,

such information is to include rank-order identification of the top 25

hazardous commodities transported through the community. \[20759\]

> **In a starkly revealing contrast**, moreover, DOT proposes, regarding
> urban storage of hazmat railcars (which HR 1 and the Act defined as
> part of "routing"), a very different mechanism to prevent any
> risk-reducing change in the current dangerous storage patterns, which
> mechanism was suggested by ACC and accepted into the Interim Final
> Rule by DOT. That is, **DOT will give all [corporate]{.underline}
> parties a veto during mandated consultation on chemical railcar
> storage issues**. \[20764\]

g.  The DOT rule's "enhanced" secrecy measures for hazmat security
    eliminate both any outside pressure for accountability and any of
    the **Congressionally-mandated Right-To-Know** mechanisms available
    in similar chemical facility risk situations. There is no thought
    that an informed public has the right to know what routing decisions
    have been made or to influence the results.

h.  In its minimizing cost-benefit defense of the rule, instead of using
    as their benefit measure (as other security regulations have done)
    the large death tolls and enormous multi-billion dollar costs of a
    major terrorist attack that the rule might help avert (e.g., the
    9/11 attacks in 2001 that killed 3000, or the 1995 Oklahoma City
    truck bombing that killed 168), DOT used a recent chlorine accident
    releasing one railcar, the 2005 Graniteville SC accident that killed
    9 people, in total estimated by DOT as costing a mere \$126 million.
    \[ 20769\]

> This again perhaps illustrates a clueless agency's conflation of
> security with safety issues, or some kind of agency denial of the real
> possibility of a successful terrorist attack using hazmat. But more
> likely it serves only to be more commensurate with, and justify
> somehow, the very small investment that this virtually non-regulation
> will demand from the railroads and the government. See the tiny costs
> of the rule outlined at 20769.
>
> **The cost benefit analysis again shows the DOT basically punting the
> hard routing decisions over to the railroads, allowing that these
> decisions will require "judgment" and necessarily be "subjective",
> displaying a series of regulatory abdications and rhetoric which
> overall do not take seriously the need to protect target cities:**

Estimating the security benefits of the new requirements is

challenging. Accident causation probabilities can be estimated based on

accident histories in a way that the probability of a criminal or

terrorist act cannot. The threat of an attack is virtually impossible

to assess from a quantitative standpoint. It is undeniable that

hazardous materials in transportation are a possible target of

terrorism or sabotage. The probability that hazardous materials will be

targeted is, at best, a guess. Similarly, the projected outcome of a

terrorist attack cannot be precisely estimated. It is assumed choices

will be made to maximize consequences and damages. Scenarios can be

envisioned in which hazardous materials could be used to inflict

hundreds or even thousands of fatalities. To date, there have been no

known or specific threats against freight railroads, rail cars, or tank

cars, which makes all of these elements even more difficult to

quantify. Security plans lower risk through the identification and

mitigation of vulnerabilities. Therefore, rail carriers and the public

benefit from the development and implementation of security plans.

However, forecasting the benefits likely to result from plan

implementation requires the exercise of judgment and necessarily

includes subjective elements. \[20769\]

i.  The DOT routing rule, at the suggestion of Dow Chemical, exempts
    from coverage any hazmat railcar storage on private track, private
    sidings, offeror's or consignee's facility \[20759-60\]. So state
    and local officials can still regulate safety and security in some
    ways in these facilities. No jurisdiction is doing so to our
    knowledge. Most officials do not even know the distinction between
    "private track" and "railroad track" -- storage on the latter is
    preempted by the DOT rule -- not where these types exist in their
    jurisdictions.

j.  This rule is designed to be very cheap for railroads \[see 20770\].
    The estimated cost for data and analyses for the 100 small railroads
    (\$3-20 million revenue annually) is estimated by DOT to average
    "\$2776.70/year -- not significant". The total costs are estimated
    at \$831,000/yr for information and record-keeping.

**Overall, the whole impact and costs of this exercise in federal
non-regulation are tiny:** for the new proposed DOT rail security
program, DOT's Regulatory Assessment estimates costs to all railroads at
\$19.4 million total over a 20-year period. As for the estimated burden
on the government: "**No** additional inspection time \[by FRA
inspectors\] will be required to comply..." DOT [guesses]{.underline}
railroads are already spending between \$45m-\$495 million on "safety
AND security". DOT tellingly does not even attempt to separately
estimate the two costs.

The counterpart DHS proposed "chain of custody" regulation, for hazmat
railcar storage in cities, offers some useful, if very belated, measures
for beefing up physical security, but even its larger scope (\$162
million cost to industry over 10 years) is tiny compared with post 9/11
federal security efforts in aviation or ports. The DHS-proposed
measures, moreover, **arguably offer much smaller risk reduction
benefits than re-routing the railcars to avoid cities altogether,** and
DHS makes no attempt to compare these types of benefits.

As the Security Chief of the London Transit Authority usefully and
forcefully warned US security officials after four simultaneous bombs in
2005 killed about 50 Londoners, "We had 7000 cameras in our system, and
they did not prevent a single attack." **Physical security measures,
security experts agree, always ultimately will fail.**

Releasing a poison gas cargo in a large city seems clearly **the easiest
way terrorists can fulfill their stated goal to kill many more Americans
in their next set of spectacular attacks than the 3000 killed on 9/11.**
Re-routing through cargoes wherever possible is essential as a first
major risk reduction measure.

**APPENDIX ONE:**

FRA reps excerpt of summary re meeting with railroad reps

NPRM docket 18730 Document no 118

**The FRA rep's summary from the meeting discusses future regulatory
proposals on hazmat routing** (my emphasis):

"PHMSA and FRA are working on this \[new routing regulatory proposal\]
now with DHS. It addresses the comments received as a result of the
\[DOT's\] request for comments August 16, 2004.

This is being promulgated in order to address the concerns of the D.C.
judge that wanted to halt routing

through D.C. **Hopefully, this will reinforce the preemption law and
help keep the carriers out of court and able to run your trains over
your best established routes.** It will require that commodity data be
available on a route specific basis for each calendar year. The data
needs to be available within 90 days of the end of the previous year.
The data will include the total number of shipments on the route
segment, along with the number of origins and destinations along the
route segment**. They**

**are not going to ask that this data be submitted, just available upon
request.** The chemicals of concern will be Class 1.1 & 1.2 explosives,
bulk TIH, and highway route controlled quantities of radioactive
material.

It requires a route analysis with alternates, and

comparisons of the alternate routes to include the

potential economic effects of using the alternate routes.

Specific measures to address the risk must be identified

and incorporated into the carrier's safety and security

plan.

**Components of the regulation include;**

Trip length

Signals

Volume shipped

Track class

Grade and curvature\*

Known threats

Grade crossings

Iconic structures

Places of congregation

Venues

Environmentally sensitive areas

Population density along route\*

Emergency response capability\*

**\* FRA will attempt to have these elements removed.**

This will come out as a NPRM in the mid-November to

December time frame...."

[http://www.regulations.gov/search/search_results.jsp?No=130&sid=119C4B1342FB&Ne=2+8+11+8053+8054+8098+8074+8066+8084+8055&Ntt=18730&Ntk=All&Ntx=mode+matchall&Ns=P_FRPublish_Date\|1&N=0&css=0](http://www.regulations.gov/search/search_results.jsp?No=130&sid=119C4B1342FB&Ne=2+8+11+8053+8054+8098+8074+8066+8084+8055&Ntt=18730&Ntk=All&Ntx=mode+matchall&Ns=P_FRPublish_Date|1&N=0&css=0)

**APPENDIX TWO:** 27 new "factors" the individual railroad must consider
in routing:

1\. Volume of hazardous material transported;

2\. Rail traffic density;

3\. Trip length for route;

4\. Presence and characteristics of railroad facilities;

5\. Track type, class, and maintenance schedule;

6\. Track grade and curvature;

7\. Presence or absence of signals and train control systems along the
route (\'\'dark\'\' versus signaled territory);

8\. Presence or absence of wayside hazard detectors;

9\. Number and types of grade crossings;

10\. Single versus double track territory;

11\. Frequency and location of track turnouts;

12\. Proximity to iconic targets;

13\. Environmentally sensitive or significant areas;

14\. Population density along the route;

15\. Venues along the route (stations, events, places of congregation);

16\. Emergency response capability along the route;

17\. Areas of high consequence along the route, including high
consequence targets as defined in § 172.820(c);

18\. Presence of passenger traffic along route (shared track);

19\. Speed of train operations;

20\. Proximity to en-route storage or repair facilities;

21\. Known threats, including any nonpublic threat scenarios provided by
the Department of Homeland Security or the Department of Transportation
for carrier use in the development of the route assessment;

22\. Measures in place to address apparent safety and security risks;

23\. Availability of practicable alternative routes;

24\. Past incidents;

25\. Overall times in transit;

26\. Training and skill level of crews; and

27\. Impact on rail network traffic and congestion.