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Overall Description of Deadline: According to section 1512 of Public Law 110-53, Implementing Recommendations of the 9/11 Commission Act of 2007 (Aug. 3, 2007; 121 Stat. 266), a final regulation for freight railroads and passenger railroads is due no later than 12 months after the date of enactment of the Act.

Statement of Need: The rulemaking will propose requirements for owner/operators of high-risk freight railroads and high-risk passenger railroads to conduct vulnerability assessments and carry-out security plans to address the railroad carrier's preparedness and response for potential security threats and conditions.

Summary of the Legal Basis: 49 U.S.C. 114; section 1512 of Public Law 110-53, Implementing Recommendations of the 9/11 Commission Act of 2007 (Aug. 3, 2007; 121 Stat. 266).

Alternatives: TSA is required by statute to publish regulations requiring vulnerability assessments and security plans for owner/operators of high-risk freight railroads and high-risk passenger railroads. As part of its notice of proposed rulemaking, TSA will seek public comment on the alternative ways in which the final rule could carry out the requirements of the statute.

Anticipated Costs and Benefits: TSA will estimate the costs that the freight rail systems and passenger railroad carriers covered by this proposed rule would incur following its implementation. These costs will include estimates for the following elements: (1) Completing, modifying, or updating a vulnerability assessment and submitting it to TSA; (2) Developing, modifying, or updating a security plan and submitting it to TSA; (3) Implementing a security plan; (4) Maintaining records, including master copies of the vulnerability assessment and security plan and all plans or documents referenced in the security plan; and (5) Being available for inspection. The expected primary benefit of the Vulnerability Assessment and Security Plan NPRM will be to enhance U.S. surface transportation security by reducing vulnerability to terrorist attacks in two different ways. First, vulnerability assessments, as required in this proposed rule, would identify assets and infrastructure that are critical to owner/operators and provide an assessment of security risks that need to be mitigated at these locations. Second, in an effort to mitigate security risks, security plans would help target resources and mitigation strategies toward security gaps in an owner/operator's specific freight or passenger railroad operation to address the risks identified by the vulnerability assessments. TSA has not quantified benefits. For the purposes of this rulemaking, TSA employs a break even analysis to compare the cost of the risk reduction resulting from the proposed rule with the dollar value of the type of terrorist attacks that could potentially be averted due to the requirements in the proposed rule. This provides a framework for evaluating the tradeoff between program costs and benefits. For purposes of this analysis, TSA evaluates three scenarios in the freight rail mode of surface transportation and three scenarios in the passenger railroad mode of surface transportation covered by the proposed rule. For each scenario, TSA calculates a total monetary consequence from an estimated statistical value of the human casualties and capital replacement resulting from the attack. TSA compared an expected value of the monetary cost of an attack to the each rail mode and TSA's annualized cost of conducting vulnerability assessments and implementing security plans, discounted at 7 percent, to estimate how often an attack of that nature would need to be averted for the expected benefits to equal estimated costs. For a given level of pre-existing or baseline risk of an attack, the calculation of the break-even point—the reduction in baseline risk for which the estimated costs and expected benefits are equal—and a detailed description of each scenario is presented in the regulatory evaluation for this NPRM.

Risks: The Department of Homeland Security aims to prevent terrorist attacks within the United States and to reduce the vulnerability of the United States to terrorism. By providing for owner/operators of high-risk freight railroads and owner/operators of high-risk passenger railroads to conduct vulnerability assessments and adopt and carry out security plans, TSA intends in this rulemaking to reduce the risk of a terrorist attack on the passenger rail transportation sector.