05-866. Sensitive Security Information

AGENCY:

Office of the Secretary, Transportation.

ACTION:

Final rule.

SUMMARY:

The Office of the Secretary of Transportation (OST) is amending its regulations to reflect a change in Secretarial delegations. The Secretary is delegating to the Administrators of all Department of Transportation (DOT) agencies, the General Counsel, and the Director of Intelligence and Security the Secretary's authority to determine that information is Sensitive Security Information and available only under prescribed circumstances.

EFFECTIVE DATE:

January 5, 2005.

FOR FURTHER INFORMATION CONTACT:

Robert I. Ross, Office of the General Counsel, U.S. Department of Transportation, 400 7th Street SW., Room 10102, Washington, DC 20590. Voice: [phone]. Fax: [phone]. E-mail: [e-mail].

SUPPLEMENTARY INFORMATION:

Background

For many years, DOT's Federal Aviation Administration (FAA) had statutory authority to prevent disclosure of information related to aviation security, termed “Sensitive Security Information (SSI).” In the leading case of Public Citizen v. Federal Aviation Administration, 300 U.S. App. DC 238; 988 F.2d 186 (DC Cir. 1993), the court set forth three aspects of this authority:

1. The statute under which FAA restricted disclosure of this information—49 U.S.C. App. 1357(d) (2) (1993)—qualified under Exemption 3 of the Freedom of Information Act (FOIA) as a “statute (A) [that] requires that the matters be withheld from the public in such a way as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld.” (5 U.S.C. 552(b) (3)). Hence, SSI may be withheld from public disclosure under FOIA.

2. The information may be withheld from the public rulemaking record in an informal rulemaking under 5 U.S.C. 553.

3. The information may be withheld from discovery in civil litigation.

In response to the attacks upon the United States on September 11, 2001, Congress enacted the Aviation and Transportation Security Act (Public Law 107-71, 115 Stat. 597 (2001)), which created in DOT a new Transportation Security Administration (TSA). 49 U.S.C. 114. That statute also transferred from the FAA to the TSA the authority to denominate information as SSI and expanded the scope of that authority to all modes of transportation. 49 U.S.C. 114(s). When Congress created the Department of Homeland Security (DHS) in the Homeland Security Act of 2002, (Public Law 107-295, 116 Stat. 2064 (2002)), it transferred TSA from DOT to DHS, continued its SSI authority, and gave similar authority to DOT, again as to all modes of transportation. See 49 U.S.C. 40119(b).

Both 49 U.S.C. 114(s) and 49 U.S.C. 40119(b) require, as did 49 U.S.C. App. 1357(d) (2), that the agency administering SSI authority promulgate regulations specifying the types of information qualifying for SSI treatment. FAA's regulations appeared at 14 CFR part 191; DOT's appear at 49 CFR part 15, Protection of Sensitive Security Information; TSA's appear at 49 CFR part 1520, Protection of Sensitive Security Information.

Part 15 sets forth categories of information that qualify as SSI and authorizes the Secretary of Transportation to determine that specific items of information come within any of those categories. The purpose of this document is to delegate to all DOT Administrators this authority of the Secretary as to matters within their purview, with authority to redelegate within their own organizations; and to delegate this authority to the General Counsel and the Director of Intelligence and Security for all matters in DOT.

This rule is being published as a final rule and made effective on the date signed by the Secretary. As the rule relates to Departmental management, procedures, and practices, notice and comment on it are unnecessary under 5 U.S.C. 553(b)(3)(A). In addition, since this rule relates to internal procedures, there is good cause to make it effective in less than 30 days pursuant to 5 U.S.C. 553(d).

Regulatory Analyses and Notices

The Office of the Secretary of Transportation (OST) has determined that this action is not a significant regulatory action under Executive Order 12866 or under the Department's Regulatory Policies and Procedures. There are no costs associated with this rule. Because this rule will only apply to internal DOT operations, OST certifies that this rule will not have a significant economic impact on a substantial number of small entities. OST also has determined that there are not sufficient federalism implications to warrant preparation of a federalism statement.

Paperwork Reduction Act

This rule contains no information collection requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

Unfunded Mandates Reform Act of 1995

OST has determined that the requirements of Title II of the Unfunded Mandates Reform Act of 1995 do not apply to this rulemaking.

List of Subjects in 49 CFR Part 1

• Authority delegations
• Organizations and functions

For the reasons set forth in the preamble, the Office of the Secretary amends 49 CFR part 1 as follows:

PART 1—ORGANIZATION AND DELEGATION OF POWERS AND DUTIES

1. The authority citation for part 1 continues to read as follows:

Authority: 49 U.S.C. 322; 46 U.S.C. 2104(a); 28 U.S.C. 2672; 31 U.S.C. 3711(a)(2); Pub. L. 101-552, 104 Stat. 2736; Pub. L. 106-159, 113 Stat. 1748; Pub. L. 107-71, 115 Stat. 597.

2. In § 1.45, add a new paragraph (a)(19) to read as follows:

§ 1.45

Delegations to all Administrators.

(a) * * *

(19) Carry out the functions vested in the Secretary by 49 U.S.C. 40119(b), as implemented by 49 CFR part 15, relating to the determination that information is Sensitive Security Information within their respective organizations.

* * * * *

3. In § 1.57, add and reserve paragraphs (r) and (s) and add a new paragraph (t) to read as follows:

§ 1.57

Delegations to General Counsel.

* * * * *

(t) Carry out the functions vested in the Secretary by 49 U.S.C. 40119(b), as implemented by 49 CFR part 15, relating to the determination that information is Sensitive Security Information.

4. In § 1.69, add a new paragraph (c) to read as follows:

§ 1.69

Delegations to the Director of Intelligence and Security.

* * * * *

(c) Carry out the functions vested in the Secretary by 49 U.S.C. 40119(b), as implemented by 49 CFR part 15, relating to the determination that information is Sensitive Security Information.

Issued in Washington, DC, on this 5th day of January 2005.

Norman Y. Mineta,

Secretary of Transportation.