Hazardous Materials:  Enhancing Rail Transportation Security for Toxic Inhalation
2007-01-29 2004-10-04 2004-10-05 2007-02-20 2004-10-22 2008-05-15 2008-05-19 2008-05-19
PHMSA-RSPA-2004-18730-0122 PHMSA-RSPA-2004-18730-0023 PHMSA-RSPA-2004-18730-0024 PHMSA-RSPA-2004-18730-0147 PHMSA-RSPA-2004-18730-0076 PHMSA-RSPA-2004-18730-0204 PHMSA-RSPA-2004-18730-0212 PHMSA-RSPA-2004-18730-0211
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https://api.regulations.gov/v4/comments/PHMSA-RSPA-2004-18730-0122 https://api.regulations.gov/v4/comments/PHMSA-RSPA-2004-18730-0023 https://api.regulations.gov/v4/comments/PHMSA-RSPA-2004-18730-0024 https://api.regulations.gov/v4/comments/PHMSA-RSPA-2004-18730-0147 https://api.regulations.gov/v4/comments/PHMSA-RSPA-2004-18730-0076 https://api.regulations.gov/v4/comments/PHMSA-RSPA-2004-18730-0204 https://api.regulations.gov/v4/comments/PHMSA-RSPA-2004-18730-0212 https://api.regulations.gov/v4/comments/PHMSA-RSPA-2004-18730-0211
Kevin Michael Peter Fred Robert Fred Michael Michael
Kime Labinski Putchinski Millar Mcbride Millar Rush Rush
I HAVE WORKED AS A CONDUCTOR WITH BNSF SINCE 1998 AND HAVE SEEN VERY LITTLE SECURITY AT ALL IN RAILYARDS AND MAIN LINES WHICH ALL TRAINS MUST TRAVEL ON. I THINK BNSF SHOULD DO MORE TRAINING ON THESE ISSUES AND IMPROVE OVERALL ON ITS SECURITY TO HELP MAKE OUR COMMUNITIES SAFER AND A SAFER WORKPLACE FOR THOUSANDS OF RAILROADERS. BNSF HAS MADE RECORD BILLION DOLLARS PROFIT IN THE LAST 3 YEARS AND KEEP TAKING MORE FROM THE UNION WORKERS POCKET. HEALTHCARE COST KEEP GOING UP AND NO RAISES AND JOB CUTS. THE RAILROAD FUTURE PLAN IS TO REDUCE OUR CREW SIZE FROM 2 PERSON TO HAVING ONLY ONE PERSON ON A TRAIN THAT IS CARRYING SEVERAL HAZARDOUS MATERIALS AND ALL DUE TO THEIR STATE OF ART ETMS COMPUTER TRAIN SAFETY SOFTWRE THAT WILL KEEP THE TRAINS FROM COLLIDING BUT NOTHING TO DO WITH HOW UNSAFE IT IS TO HAVE ONLY ONE PERSON TRAVELING MILES AWAY FROM ANY MEDICAL ATTENTION IF NEEDED IF AN EMERGENCY WERE TO ARISE. THIS WOULD ALSO ONLY LEAVE ONE SET OF EYES ON THE ENGINE FOR THE OVERALL SAFETY OF THE WHOLE ENITRE TRAIN THAT MAY BE UP TO 8,000 FT LONG AND TWO SETS OF EYES ARE ALWAYS BETTER THAN ONE AND MUCH SAFER WHEN TRAVELING WHICH RAILROADER DO DAILY ON 12 HOUR TRIPS THAT LEAD TO 12+ HOURS ON DUTY THEN ONLY 10 HOURS OFF DUTY BETWEEN TRIPS WITH NO GIVEN SCHEDULED DAYS OFF MOST RAILROADERS HAVE THE SAME SCHEDULE ON CALL EVERYDAY 24 HOURS A DAY 365 DAYS A YEAR AND WORK EVERYDAY UNLESS YOU TRY TO REQUEST A DAY OFF WHICH THEY DONT WANT TO GIVE US BECAUSE WE ARE USUALLY SHORT HANDED AND SOMETIMES EVEN WHEN WE ARE NOT. THE RAILROADS HAVE POLICIES TO FIRE YOU IF TAKING TOO MANY DAYS OFF EVEN IF DUE TO FATIGUE. RAILROADS HAVE REDUCE CREW SIZES DRAMATICALLY IN THE LAST 20 YEARS WE HAVE GONE FROM 5 MEN CREWS DOWN TO 2 SINCE THERE ARE NO CABOOSES ANYMORE, AND NOW THEY WANT MORE REDUCTION SO THEY CAN PROFIT MORE IN THIS INDUSTY THIS IS NOT A SAFE ROUTE IN ANY WAY FOR THE WORKERS OR THE COUNTRY. RAILROAD COMPANIES NEED BETTER SECURITY, MANAGEMENT, BETTER WORKING CONDITIONS TO INLCUDE REGULAR WORK SCHEDULES FOR UNION EMPLOYEES THAT MOVE THE FREIGHT ACROSS THE COUNTRY. Your plan to remove the placards from railcars containing TIH substances is illconcieved at best. The current placarding system is easily understood by first responders and internationally accepted. Why would you propose dismantelling a system that has been documented to have saved lives and place our first responders in grave danger in response to a perceived threat. From all indications terrorist suspects do their homework before initiating an attack and removal of palcards would not deter them from using railcars as a weapon if they so desired.  The only effect removal of the placards would have, is in unnecessarily increasing the risk already associated with the job of first responders! Omitting railcar ID on toxic material will pose a greater risk to the public and first responders than terrorist activity. The potential release and subsequent damage will be far greater during anticipated accidents than criminal activity. CONTINUE PLACARDING!!!  Rail security comments supplement 2    DOT proposed reg2  18  07Fred Millar    Friends of the Earth[I would like to incorporate as part of my statement for the record, by reference, the DC re-routing court case documents, in the US District Court for the District of Columbia, collected at www.oag.dc.govunder the heading CSXT v. DC.]Overview comments:Hazardous materials (hazmat) will continue to be important to the US economy.Many of these products are most efficiently and safely carried by rail, just as are other bulk commodities such as grain, coal, etc.Safe transport of the most hazardous chemical (hazmat) cargoes by rail will always require trained and alert rail workers as the first line of defense for the workforce and the community against catastrophic releases --  and as the first responders to emergencies as well.In a homeland security context, The National Intelligence Estimate and other evidence suggests that US cities should fear more serious attacks and that the rail system may well provide a very attractive target and fearsome weapons (especially hazmat cargoes). A sustainable chemical and rail industry requires sensible prevention measures in order to avoid, wherever possible, terrorism-caused disasters in railyards, in cities or in ports that could bring hasty, unplanned and severe regulatory consequences.Many citizens, city councils, and rail workers are seeking a protective re-routing of some (less than 1% of the total cargoes) of the most dangerous through hazmat cargoes (e.g., especially TIH or poison gas cargoes) around our HTUAs (46 High Threat Urban Areas, as already designated by the US DHS and given much funding to upgrade their security).This re-routing of through cargoes does not solve all rail hazmat security vulnerability problems, but it yields a significant, immediately achievable and permanent risk reduction.  Re-routing is far more effective than the oft-proposed alternatives to re-routing:  physical security measures such as guns, guards and gates [and lights and cameras]  all of which require permanent maintenance, and all of which, experts all agree, will ultimately fail in the face of a determined attack. (cf. London cameras)In its recently proposals,  FRA and industry partnership efforts aim to make improvements in hazmat railcar dwell time in major target cities is explicitly to reduce the vulnerability by 25%.   This is an unacceptably modest goal.It is in no ones interest to have ineffective or pretend regulations. The Bush Administration, both in the enactment of the last-minute Congressional Appropriations rider on chemical facility security and in the proposed rail security regulation, has relied on the same basic, fatally flawed regulatory strategy:  ?provide industry with preemptive federal rule?but also with maximum flexibility under very loose standards, and with no standard of adequacy in the achievement of security (i.e., no Design Basis Threat to measure against as in nuclear plant regulatory context)?require long list of factors that must be considered for re-routing?no single risk-reduction measure can be mandated by the government, even if it is the most effective (this is designed to counter any mandatory Inherent Safe Technology, which in transportation means re-routing)Protective re-routing to non-target rail corridors usually involves re-routing on rail lines through smaller towns and cities, yielding the double benefit, as professional emergency managers have asserted, of eliminating the security risks AND significantly reducing the consequences of an accidental release.These double benefits will accrue BOTH to at-risk citizens and to rail workers. The railroads have up to now (CSXT and NS in the DC case, and UP speaking for all in the Chicago hearing) led the efforts to block initiatives by HTUAs to protect themselves (nine have introduced local re-routing ordinances).The railroads have stubbornly insisted on their right to ship WMD cargoes through HTUAs on their established routes, set up decades/centuries before terrorism in the US became a credible threat, that endanger millions.The railroads (AAR) have even testified in Congress in 2005 and 2006 that with the enormous risks they suffer high and rising insurance premiums and can get only $1B of private insurance in case of toxic gas disaster, so this becomes a bet the business situation for the railroads.Disregarding mounting opposition from the public and scores of critical investigative reports in the media showing no security in the US rail system, the railroads have taken the substantial public relations heat for this business-as-usual. Stay the Course stance, while the chemical shippers have hidden behind the skirts of the railroads.Major chemical shippers have significant economic clout and could be mandating that the carriers avoid HTUAs with their most dangerous cargoes.  But the shippers have been reluctant to risk the wrath of the railroads and the higher fees they fear would be imposed for this policy and program of protecting HTUAs.The RRs veneer of asserted rationales for staying the course turn out to be false:  cost, inconvenience, shifting risks.  Convincing evidence in the DC ordinance Federal District Court case showed that none of these held water.Railroads have refused in court to enter into the normal interchange agreements that could route the most dangerous hazmat cargoes around HTUAs.  Interchange agreements are routinely used and the life blood of the industry, used by CSXT and Norfolk Southern fully 1  million times a year for their own commercial purposes.In these legal, legislative and media-forum disputes on protective re-routing, RRs have mobilized strategies to get protection from an assumed structure of federal preemption, and to trust that a railroad-friendly federal government will allow them to continue Business as Usual routing.a.Bush Administration federal railroad regulators including at FRA and at STB have not acted to protect High Threat Urban Areas. And have actively opposed efforts by DC to mandate protective hazmat re-routing.b.The Republican-dominated Congress in the last session blocked hazmat re-routing bills proposed by Democrats:  Senator Biden and Rep Markey.  Railroad analysts have suggested that the deeper level of (narrow and short-sighted) railroad economic rationality involves:  a.maintaining the economic dominance of a de-regulated and mostly duopolistic corporate interest over competing corporate interests (captive shippers) and b.fear of the potential re-assertion of government control in ordering one railroad to interchange cargo with another in the public interest (as a less railroad-friendly future STB could choose to do within its explicit charter language)Protective re-routing involves mobilizing a protective government that cares about worker and community interests and that does not rely disastrously on the private sector to make life-and-death decisions. (cf. New Orleans protection and cleanup) I beleive this to be a bad plan to remove placards.  It will put MANY persons @ risk. We on the receiving will have NO way to prevent the contamination of our hospital causing complete shutdown due to hazardous material. I understand the risk os some misguided terrorist, but citizens, first reponders, first receivers and may others will be harmed by not knowing.   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 209DEPARTMENT OF TRANSPORTATIONPIPELINE AND HAZARDOUS MATERIALS SAFETY ADMINISTRATIONFEDERAL RAILROAD ADMINISTRATIONDocket 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.htmIntroduction:  Friends of the Earths 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=DocketDetaild=PHMSA-RSPA-2004-18730We 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 [DOTs] 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 DOTs 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] havenot 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. Boardmans quote illustrates a key obfuscating mechanism which the railroads, the AAR, and the Bush Administrations 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 agencys 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 railroads 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 Areas 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 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 companys reputation has been assailed[and] vilified in the media.  TIH cannot simply continue to move by railroad indefinitelyEven 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.pdfCSXT is being carefully misleading here  the key issue in the current debate is the unnecessary routing of through 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:  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. CSXTs 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 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 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 rules 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 DHSs 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 be based on each individual railroads own considerations of factors involving security AND safety AND commercial practicability:  As discussed in theproposed rule, commercially practicable means that the route may be utilized by the railroad within the limits of the railroads particular operational constraints, and further, that the route is economically viable for the specific commodity, route, and customer relationship (p. 31, DOTs Regulatory Assessment, in the federal rulemaking docket).In short, the key flaw in this Rule is that the federal government will not 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] havenot attempted to estimate the additional [railroad] cost incurred by them. (p. 23, DOTs 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 developlogical 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 DOTs 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 FRAs 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 FRAs 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 carriers 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 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 inspectors recommendations are not implemented, FRA may compel a rail carrier to make changes and/or assess a civil penalty. Further, if the carriers 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 railroads 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 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 DOTs 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. ]FRAs 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 FRAs 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.   DOTs rule virtually metastasizes the likely impacts, and never attempts to put limits on the impacts, of  the 9/11 Commission Acts 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 railroads 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 carriers 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 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 railroads 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 carriers 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, 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 DOTs 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 factorsb.12-15, 17-18, 21 and 27 (perhaps) are security factorsc.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 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 AARs 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 ),  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 Buildingf.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 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 parties a veto during mandated consultation on chemical railcar  storage issues. [20764]  g.The DOT rules 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 agencys 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, offerors or consignees 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, DOTs 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 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 118The FRA reps 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 [DOTs] 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 routingthrough 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. Theyare 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, andcomparisons of the alternate routes to include thepotential economic effects of using the alternate routes.Specific measures to address the risk must be identifiedand incorporated into the carriers safety and securityplan.Components of the regulation include;Trip lengthSignalsVolume shippedTrack classGrade and curvature*Known threatsGrade crossingsIconic structuresPlaces of congregationVenuesEnvironmentally sensitive areasPopulation 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 toDecember time frame.http://www.regulations.gov/search/search_results.jsp?No=130sid=119C4B1342FBNe=2+8+11+8053+8054+8098+8074+8066+8084+8055Ntt=18730Ntk=AllNtx=mode+matchallNs=P_FRPublish_Date|1N=0css=0APPENDIX 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; and27. Impact on rail network traffic and congestion. Comments of the Association of American Railroads Comments of Norfolk Southern Corporation