Tuesday, March 14, 2017

TSA Reopening Comment Period on Security Plan ANPRM

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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