The American Short Line and Regional Railroad Association and the Association of American Railroads (AAR) on Dec. 4 filed an amicus brief in support of petitioners CN and the Illinois Central Railroad Company in their suit against the Transportation Security Administration (TSA) concerning the TSA’s “use of emergency authority to issue security directives and bypass notice-and-comment rulemaking.“
The amicus brief (download below) says that while the TSA “can use statutory emergency authority when necessary to immediately protect transportation security, the agency has used this same authority to regulate cybersecurity practices of the rail industry for several years.” The associations argue TSA has “failed to show the existence of emergency circumstances that would support the continuous renewal or modification of the security directive it first published in October 2022.”
The associations also say the use of emergency authority “prevents stakeholders like ASLRRA and AAR from exercising their right to engage in the rulemaking process through submission of comments.” Both associations routinely take part in the notice-and-comment rulemaking process and have done so on several occasions with other proposed regulations concerning cybersecurity, according to the amicus brief, which also makes other arguments, such as “any emergency rulemaking authority should be invoked narrowly to respond to a specific event for a finite period of time.”
The same day ASLRRA and AAR submitted their amicus brief, the office of the South Carolina attorney general filed an amicus brief on behalf of South Carolina and eight other states, including Georgia, Idaho, Kansas, Louisiana, Montana, North Dakota, South Dakota and Utah, in favor of the petitioners.
The states’ amicus brief (download below) specifically addresses the TSA’s security directive from July 2024, calling it “a legislative rule that should go through the notice-and-comment process.” The states go on to say that the TSA’s use of emergency authority is “an unlawful way to avoid the formal rulemaking process, and the use of emergency powers should be used sparingly and with care.”
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