Sensitive Security Information and the Rail Industry: The Economic Dangers of Unintended Consequences

In early 2011, Norfolk Southern Railway (NS) threw an unexpected roadblock in two maximum reasonable rate cases' pending before the Surface Transportation Board (STB). NS refused to produce data that described how and when certain cars and trains had moved over its rail network. Even though NS admitted that the data sought were relevant, even essential, to the pending cases, and even though such data were already safeguarded by a stringent protective order, it refused to provide the data on the grounds that it may be Sensitive Security Information (SSI) under 49 CFR parts 15 and 1520, because NS handled some toxic inhalation hazard commodities, which the Federal Railroad Administration (FRA) and the Transportation Security Administration had previously noted might be of interest to terrorists. Four months after NS objected to producing the data, the FRA issued SSI Order 2011-06-FRA-01, in which it designated the rail traffic information sought by the complainants in the pending cases as SSL.