Today the DHS Transportation Security Administration (TSA)
published a notice in the Federal Register (82 FR
13575) providing notice that it was reopening the comment period for their
Advance Notice of Proposed Rulemaking (ANPRM) on ‘Surface Transportation
Vulnerability Assessments and Security Plans”. The comment period for that
rulemaking originally closed on February 14th, 2017.
A total of nine
comments have been received on that ANPRM. Only one of those was from
someone related to the freight railroad sector; a co-comment from the Association
of American Railroads (AAR) and the American Short Line and Regional Railroad
Association (ASLRRA). Their comments can be summed up by saying: “We already
have this stuff covered, leave us alone.”
The re-opening of the comment period makes it clear that,
now that the Trump Administration’s rulemaking review has been completed, this
rulemaking will proceed since TSA is required to complete the rulemaking by law
(6
USC 1162 and 6
USC 1172). The very small number of comments received for such a
potentially costly rulemaking was obviously engendered by the assumption that
the Trump TSA would not go forward with the rulemaking process.
I suspect that when we finally see the regulations proposed
in the NPRM it will be very minimalist with regards to programs affecting the
freight rail industry, essentially adopting the status quo. The only problem
with that is that the law specifically establishes the mandate that the
regulations require the railroads to “prepare, submit to the Secretary for
approval [emphasis added], and implement a security plan in
accordance with this section that addresses security performance requirements”
{§1162(a)(1)(B)}.
The AAR/ASLRRA comments do not address how TSA should go
about dealing with that requirement. I think we are going to see some
additional comments.
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