In the order, emanating directly from Foxx's office rather than the Federal Railroad Administration, is a pre-emptive political initiative that short-circuits the usual pace of regulatory action. FRA's ponderous consultative rulemaking has attracted widespread complaint from municipal fire services, railroad executives and, increasingly, Capitol Hill.
FRA critics are less likely to be mollified by a concurrent safety advisory concerning tank car deployments. Issued jointly by FRA and its sibling Pipeline and Hazardous Materials Safety Administration (PHMSA), the voluntary advisory asks shippers to use the most robust tank cars available for shipping crude—unless the shippers themselves judge it to be unreasonably inconvenient.
The twin regulators "urge offerors and carriers of Bakken crude oil by rail tank car to select and use the railroad tank car designs with the highest level of integrity reasonably available within their fleet for shipment of these hazardous materials by rail in interstate commerce. Further, FRA and PHMSA advise offerors and carriers of Bakken crude oil to avoid the use of older, legacy DOT Specification 111 or (Canada's equivalent) CTC 111 tank cars for the shipment of such oil to the extent reasonably practicable."
In other words, the regulators are asking shippers and railroads to voluntary phase out their use of the still-certified DOT-111 tank cars in favor of more robust but unspecified vessels that have no regulatory status. The advisory does not even identify the industry's own CPC-1232 specification, though it is the only available alternative to the DOT-111. To do so could bless the CPC-1232 with effective regulatory approval (as Canada did last month) and thus guarantee that CPC-1232s would be grandfathered if and when the FRA ultimately concludes its deliberations over specifications for a next-generation general purpose tank car.
The voluntary tank car advisory stands in contrast to Canada's compulsory three-year deadline for retirement of DOT-111s from crude service, raising the prospect that shippers will preferentially use the post-2011 CPC-1232s for trains crossing Canadian territory and disproportionately assign obsolete, but still legal, DOT-111s to internal U.S. domestic trains.
On the other hand, Foxx's emergency order on advising state emergency response commissions (SERCs) of Bakken movements exceeds Canada's requirement that carriers periodically provide local agencies with cumulative historical data on hazmat movements. Foxx's order is effective immediately, and requires real-time reporting on movements of Bakken crude. The order applies to all trains hauling more than one million gallons (approximately 35 tank cars) of the problematically volatile oil drawn from mid-continent shale oil deposits.
"The notification must include estimated volumes of Bakken crude oil being transported, frequencies of anticipated train traffic, and the route through which Bakken crude oil will be transported," the order states.
State emergency agencies are authorized to share train data with local first responders, and railroads must cooperate in that information sharing.