Federal Register: May 18, 2004 (Volume 69, Number 96)
Rules and Regulations           
Page 28066-28086

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DEPARTMENT OF TRANSPORTATION

Office of the Secretary of Transportation

49 CFR Part 15

DEPARTMENT OF HOMELAND SECURITY

Transportation Security Administration

49 CFR Part 1520

[Docket No. TSA-2003-15569; Amendment No. 1520-1]
RIN 1652-AA08

 
Protection of Sensitive Security Information

AGENCY: Transportation Security Administration (TSA), DHS, and Office 
of the Secretary of Transportation (OST), DOT.

ACTION: Interim final rule; request for comments.

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SUMMARY: TSA is revising its regulation governing the protection of 
sensitive security information (SSI) in order to protect the 
confidentiality of maritime security measures adopted under the U.S. 
Coast Guard's regulations, published on October 22, 2003, implementing 
the Maritime Transportation Security Act (MTSA) and other activities 
related to port and maritime security. SSI is information that TSA has 
determined must be protected from improper disclosure in order to 
ensure transportation security. TSA's SSI regulation establishes 
certain requirements for the handling and dissemination of SSI, 
including restrictions on disclosure and civil penalties for violations 
of those restrictions. Currently, the SSI regulation applies primarily 
to information related to aviation security. Airlines, airports, and 
others operating in civil aviation are required to limit access to this 
information to those personnel who need it to carry out their security 
functions.
    Under MTSA, Congress directed the Coast Guard to issue regulations 
requiring maritime facility and vessel operators to develop security 
plans detailing the types of security measures they will implement 
under varying threat conditions. In order to meet statutory deadlines 
for implementation of these plans, the Coast Guard issued a series of 
final rules on October 22, 2003, requiring facility and vessel 
operators to submit security plans to the Coast Guard for approval. In 
order to protect the security of the facilities and vessels that 
prepare security plans, it is necessary to ensure that the plans and 
related security information are subject to limitations on their 
disclosure. Therefore, TSA is issuing an interim final rule expanding 
the scope of its SSI regulation so that it covers security plans and 
other information about security measures required by the Coast Guard's 
MTSA regulations. The Coast Guard also will supplement the MTSA 
regulations by exercising its longstanding authority under the Ports 
and Waterways Safety Act and the Magnuson Act. Sensitive information 
related to maritime security collected pursuant to these authorities 
should likewise be protected from public disclosure.
    In connection with this revision to the regulations, TSA is 
requiring employees, contractors, grantees, and agents of DHS and DOT 
to follow the same requirements governing protection of SSI as those in 
the transportation sector who are subject to the regulation. This 
change will provide clear standards for those persons employed by and 
acting on behalf of DHS and DOT regarding the obligation to safeguard 
SSI.
    The interim rule also makes clarifying changes to existing 
provisions of the SSI regulation governing aviation security.
    The Office of the Secretary of Transportation (OST) is issuing this 
rule jointly with TSA to implement DOT's parallel authority to protect 
SSI. In

[[Page 28067]]

order to promote the efficiency and effectiveness of the regulation as 
well as ease of compliance, TSA and OST are adopting identical 
regulatory standards governing SSI.

DATES: This rule is effective June 17, 2004. Comments must be received 
by July 19, 2004.

ADDRESSES: You may submit comments, identified by the TSA docket number 
to this rulemaking, using any one of the following methods:
    Comments Filed Electronically: You may submit comments through the 
docket Web site at http://dms.dot.gov. Please be aware that anyone is 
able to search the electronic form of all comments received into any of 
our dockets by the name of the individual submitting the comment (or 
signing the comment, if submitted on behalf of an association, 
business, labor union, etc.). You may review the applicable Privacy Act 
Statement published in the Federal Register on April 11, 2000 (65 FR 
19477), or you may visit http://dms.dot.gov.

    You also may submit comments through the Federal eRulemaking portal 
at http://www.regulations.gov.

    Comments Submitted by Mail, Fax, or In Person: Address or deliver 
your written, signed comments to the Docket Management System, U.S. 
Department of Transportation, Room Plaza 401, 400 Seventh Street, SW., 
Washington, DC 20590-0001; fax: 202-493-2251.
    Comments that include trade secrets, confidential commercial or 
financial information, or sensitive security information (SSI) should 
not be submitted to the public regulatory docket. Please submit such 
comments separately from other comments on the rule. Comments 
containing trade secrets, confidential commercial or financial 
information, or SSI should be appropriately marked as containing such 
information and submitted by mail to Ann Hunt, Office of Aviation 
Operations Litigation Support & Special Activities Staff, TSA-7, 
Transportation Security Administration Headquarters, 601 S. 12th 
Street, Arlington, VA 22202.
    Reviewing Comments in the Docket: You may review the public docket 
containing comments in person in the Dockets Office between 9 a.m. and 
5 p.m., Monday through Friday, except Federal holidays. The Dockets 
Office is located on the plaza level of the NASSIF Building at the 
Department of Transportation address above. Also, you may review public 
dockets on the Internet at http://dms.dot.gov.

    See SUPPLEMENTARY INFORMATION for format and other information 
about comment submissions.

FOR FURTHER INFORMATION CONTACT: For questions on 49 CFR part 15: 
Robert Ross, Office of the General Counsel, Department of 
Transportation, Washington, DC 20590; e-mail: [email protected], 
telephone: (202) 366-9156.
    For questions on 49 CFR part 1520: Ann Hunt, Director, Aviation 
Operations Litigation Support & Special Activities Staff, TSA-7, 
Transportation Security Administration , 601 South 12th Street, 
Arlington, VA 22202-4220; e-mail: [email protected], telephone: (571) 
227-2278.

SUPPLEMENTARY INFORMATION:

Comments Invited

    Interested persons are invited to participate in this rulemaking by 
submitting written data, views, or arguments. We also invite comments 
relating to the economic, environmental, energy, or federalism impacts 
that might result from adopting this amendment. The most helpful 
comments will reference a specific portion of the rule, explain the 
reason for any recommended change, and include supporting data. See 
ADDRESSES above for information on how to submit comments.
    Comments that include trade secrets, confidential commercial or 
financial information, or SSI should not be submitted to the public 
regulatory docket. Please submit such comments separately from other 
comments on the rule. Comments containing this type of information 
should be appropriately marked and submitted to the address specified 
in the ADDRESSES section. Upon receipt of such comments, TSA will not 
place the comments in the public docket and will handle them in 
accordance with applicable safeguards and restrictions on access. TSA 
will hold them in a separate file to which the public does not have 
access, and place a note in the public docket that TSA has received 
such materials from the commenter. If TSA receives a request to examine 
or copy this information, TSA would treat it as any other request under 
the Freedom of Information Act (FOIA) (5 U.S.C. 552) and the Department 
of Homeland Security's FOIA regulation found in 6 CFR part 5.
    With each comment, please include your name and address, identify 
the docket number at the beginning of your comments, and give the 
reason for each comment. The most helpful comments reference a specific 
portion of the proposal, explain the reason for any recommended change, 
and include supporting data. You may submit comments and material 
electronically, in person, by mail, or fax as provided under ADDRESSES, 
but please submit your comments and material by only one means. If you 
submit comments by mail or delivery, submit them in two copies, in an 
unbound format, no larger than 8.5 by 11 inches, suitable for copying 
and electronic filing.
    If you want TSA to acknowledge receipt of your comments on this 
rulemaking, include with your comments a self-addressed, stamped 
postcard on which the docket number appears. We will stamp the date on 
the postcard and mail it to you.
    Except for comments containing confidential information and SSI, we 
will file in the docket all comments we receive, as well as a report 
summarizing each substantive public contact with TSA personnel 
concerning this rulemaking. The docket is available for public 
inspection before and after the comment closing date.
    We will consider all comments we receive on or before the closing 
date for comments. We will consider comments filed late to the extent 
practicable. We may change these rules in light of the comments we 
receive.

Availability of Interim Final Rule

    You can get an electronic copy using the Internet by--
    (1) Searching the Department of Transportation's electronic Docket 
Management System (DMS) Web page (http://dms.dot.gov/search);
    (2) Accessing the Government Printing Office's Web page at http://

http://www.access.gpo.gov/su_docs/aces/aces140.html; or

    (3) Visiting TSA's Law and Policy Web page at http://www.tsa.dot.gov/public/index.jsp
.

    In addition, copies are available by writing or calling the 
individual in the FOR FURTHER INFORMATION CONTACT section. Make sure to 
identify the docket number of this rulemaking.

Small Entity Inquiries

    The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 
1996 requires an agency to comply with small entity requests for 
information and advice about compliance with statutes and regulations 
within the agency's jurisdiction. Any small entity that has a question 
regarding this document may contact persons listed in FOR FURTHER 
INFORMATION CONTACT for information. You can get further information 
regarding SBREFA on the Small Business Administration's Web page at 
http://www.sba.gov/advo/laws/law_lib.html.


[[Page 28068]]

Abbreviations of Terms Used in This Document

ATSA--Aviation and Transportation Security Act
CII--Critical Infrastructure Information
DHS--Department of Homeland Security
DOT--Department of Transportation
FAA--Federal Aviation Administration
FOIA--Freedom of Information Act
HSA--Homeland Security Act of 2002
MTSA--Maritime Transportation Security Act of 2002
SSI--Sensitive Security Information
TSA--Transportation Security Administration

Statutory and Regulatory Background

The Aviation and Transportation Security Act

    Following the terrorist attacks on the United States on September 
11, 2001, Congress passed the Aviation and Transportation Security Act 
(ATSA) on November 19, 2001, Public Law 107-71, which established TSA. 
ATSA established TSA within DOT, operating under the direction of the 
Under Secretary of Transportation for Security (Under Secretary).
    ATSA transferred the responsibility for civil aviation security 
from the Federal Aviation Administration (FAA) to TSA. 49 U.S.C. 
114(d). Among the statutory authorities previously administered by FAA 
that ATSA transferred to TSA's purview was the authority in 49 U.S.C. 
40119 (section 40119), governing the protection of certain information 
related to transportation security.
    Prior to ATSA, section 40119 authorized the Administrator of FAA to 
prescribe regulations prohibiting disclosure of information obtained or 
developed in carrying out security or in research and development 
activities carried out under various FAA authorities, if the FAA 
Administrator determined by regulation that disclosing the information 
would: (1) Be an unwarranted invasion of personal privacy; (2) reveal a 
trade secret or privileged or confidential commercial or financial 
information; or (3) be detrimental to the safety of passengers in air 
transportation.
    FAA implemented this authority by regulation at 14 CFR part 191, 
which established a category of sensitive, but unclassified, 
information known as Sensitive Security Information (SSI), the 
unauthorized disclosure of which could compromise systems that protect 
aviation security. FAA's SSI regulation defined SSI in both general and 
specific terms. It identified specific types of records constituting 
SSI, such as airport and air carrier security programs, as well as 
general categories of SSI, such as information revealing specific 
details of aviation security measures. Consistent with the scope of 
FAA's regulatory authority over aviation, the universe of entities and 
individuals covered by the FAA's SSI regulation was limited to airport 
operators, air carriers, and other aviation-related entities and 
personnel.
    Section 101(e) of ATSA amended the FAA's SSI authority in section 
40119(b) by transferring its administration to the Under Secretary and 
by deleting the word ``air'' modifying ``transportation,'' thereby 
expanding the scope of section 40119 to cover information in all modes 
of transportation. On February 22, 2002, TSA published a final rule 
transferring the bulk of FAA's aviation security regulations to TSA, 
including FAA's SSI regulation, which now is codified at 49 CFR part 
1520, and is administered by TSA (67 FR 8340, 8351).

The Homeland Security Act

    On November 25, 2002, the President signed into law the Homeland 
Security Act of 2002 (HSA), Pub. L. 107-296, which transferred TSA to 
the newly established DHS. In connection with that transfer, the HSA 
transferred TSA's SSI authority under 49 U.S.C. 40119 to 49 U.S.C. 
114(s), and amended section 40119 to vest similar SSI authority in the 
Secretary of DOT. New 49 U.S.C. 114(s) provides:

``(s) NONDISCLOSURE OF SECURITY ACTIVITIES--(1) IN GENERAL--
Notwithstanding section 552 of title 5, the Under Secretary shall 
prescribe regulations prohibiting the disclosure of information 
obtained or developed in carrying out security under authority of 
the Aviation and Transportation Security Act (Public Law 107-71) or 
under chapter 449 of this title if the Under Secretary decides that 
disclosing the information would--(A) Be an unwarranted invasion of 
personal privacy; (B) reveal a trade secret or privileged or 
confidential commercial or financial information; or (C) be 
detrimental to the security of transportation.''

    The SSI authority of the Secretary of DOT is set forth in amended 
49 U.S.C. 40119(b)(1), as follows:

``Notwithstanding section 552 of title 5, and the establishment of a 
Department of Homeland Security, the Secretary of Transportation 
shall prescribe regulations prohibiting disclosure of information 
obtained or developed in ensuring security under this title if the 
Secretary of Transportation decides disclosing the information 
would--(A) Be an unwarranted invasion of personal privacy; (B) 
reveal a trade secret or privileged or confidential commercial or 
financial information; or (C) be detrimental to transportation 
safety.''
    In both sections, Congress made an important change to the previous 
statutory language that broadens the scopes of the SSI authority of 
both the Under Secretary and the Secretary of DOT. Specifically, 
Congress changed the phrase ``detrimental to the safety of passengers 
in transportation'' (emphasis added) to ``detrimental to the security 
of transportation'' and ``detrimental to transportation safety,'' 
respectively. Therefore, the HSA amendments clarified that the SSI 
authority is not limited to passenger modes of transportation. It 
covers all transportation activities, including non-passenger modes 
such as air and maritime cargo, trucking and freight transport, and 
pipelines.
    In conjunction with the transfer of TSA to DHS, the Under Secretary 
has adopted the new title of Administrator. Consequently, in the 
remainder of this document, the Under Secretary is referred to as the 
Administrator or the TSA Administrator.

The Maritime Transportation Security Act

    On November 25, 2002, the President signed into law the MTSA, which 
established a new framework for maritime security, to be administered 
largely by the Secretary of DHS, including through TSA, the Coast 
Guard, and the Bureau of Customs and Border Protection, along with the 
Maritime Administration of the DOT. Primary elements of this framework 
are national, area, port, and facility and vessel security plans to be 
approved or required by DHS. Specifically, under the MTSA the Secretary 
of DHS must prepare a National Maritime Transportation Security Plan, 
which, in turn, will identify areas of the country for which DHS will 
adopt Area Maritime Security Plans. Section 70103 of MTSA also directs 
the Secretary of DHS to prescribe regulations requiring certain classes 
of vessels and maritime facilities to adopt plans for deterring a 
transportation security incident. 46 U.S.C. 70103(a).
    The Coast Guard issued final rules on October 22, 2003, that 
require vessel and maritime facility operators to prepare security 
plans for Coast Guard approval. See 68 FR 60448. Currently these types 
of documents are not subject to the disclosure limitations of TSA's SSI 
regulation, nor are maritime facility and vessel operators subject to 
the regulation's requirements to protect these documents from 
unauthorized access or disclosure.
    With the establishment of new Federal security standards for 
maritime transportation comes an immediate

[[Page 28069]]

need to expand the existing legal protections governing SSI so that 
those who will have access to sensitive information related to maritime 
security must safeguard it from improper disclosure. While the MTSA 
provides broad limitations on public disclosure of the information 
related to maritime security requirements (see 46 U.S.C. 70103), it 
does not establish binding requirements for owners and operators of 
maritime transportation facilities and vessels to safeguard the 
information from disclosure. As previously mentioned, the Coast Guard 
also will exercise other authorities to enhance maritime security. 
Without such a legal framework to protect security information, there 
is an increased risk that newly adopted security measures will be 
defeated through their unregulated dissemination.
    In addition, the absence of such regulatory protections has 
inhibited TSA and the Coast Guard from disseminating threat information 
to those who need to act on it in the maritime transportation mode. TSA 
regularly disseminates Information Circulars to airlines and airports 
detailing current threat information related to aviation security. The 
Coast Guard disseminates threat information evaluation reports in 
coordination with the Directorate of Informational Analysis and 
Infrastructure Protection to the maritime industry. The Coast Guard 
also issues guidance related to maritime security through Navigation 
and Vessel Inspection Circulars and similar documents. In order to 
continue to disseminate relevant threat information to maritime 
transportation operators, there must be requirements in place that the 
information be protected by those who receive it. Therefore, there is 
an immediate need to expand the existing regulatory framework governing 
information related to aviation security to cover information related 
to security of maritime transportation.

Critical Infrastructure Information Act of 2002

    The Critical Infrastructure Information Act of 2002 (CII Act), 
enacted as Subtitle B of title II of the HSA, establishes new 
requirements for the Federal Government's handling of information 
related to the nation's critical infrastructure, known as ``critical 
infrastructure information,'' or ``CII'', that is voluntarily submitted 
by the private sector to the Federal Government. The CII Act generally 
prohibits Federal agencies from disclosing such information, except 
within the Federal Government and to State and local governments in 
order to protect critical infrastructure.
    In practice, the situations in which information constitutes both 
SSI and CII may be limited. For the most part, information that is SSI 
is created by TSA or the Coast Guard or is required to be submitted to 
TSA, the Coast Guard, or another part of the Federal Government, such 
as DOT. As further discussed below, SSI includes security programs and 
procedures of airport, aircraft, vessel, and maritime facility 
operators; procedures that TSA uses to perform security screening of 
airline passengers and baggage; and information detailing 
vulnerabilities in transportation systems or facilities. SSI is created 
by airports and aircraft operators and other regulated parties, 
pursuant to regulatory requirements. TSA and the Coast Guard also 
create SSI, such as screening procedures and certain non-public 
security directives issued to regulated parties. The SSI regulation 
prohibits regulated parties from disseminating SSI, except to those 
employees, contractors, or agents who have a need to know the 
information in order to carry out security duties.
    Therefore, information constituting SSI generally is not 
voluntarily submitted to the government, which is required for CII 
designation. In addition, SSI relates to both critical and non-critical 
infrastructure assets. There may be cases, however, where the owner or 
operator of a critical transportation asset voluntarily submits 
information, such as a vulnerability assessment, to TSA or the Coast 
Guard. If that information were to be designated by DHS as CII, it 
would be governed by the requirements for handling of CII, rather than 
by the SSI regulation.
    Another key difference between SSI and CII is the extent to which a 
Federal employee may disclose such information. Under the SSI 
regulation, TSA may disclose SSI to persons with a need to know in 
order to ensure transportation security. This includes persons both 
within and outside the Federal Government. The CII Act, however, 
generally prohibits disclosure of properly designated CII outside the 
Federal Government. Thus, the interim final rule clarifies that in 
cases where information is both SSI and CII, the receipt, maintenance, 
or disclosure of such information by a Federal agency or employee is 
governed by the CII Act and any implementing regulations, not by the 
interim final rule.

Summary of the Interim Final Rule

    In this interim final rule, TSA is revising its SSI regulation to 
expand the existing regulatory framework governing information related 
to aviation security to cover information related to security in 
maritime transportation, consistent with the security framework 
required by the Coast Guard's regulations implementing the MTSA. In 
making this change, TSA is revising part 1520 in its entirety. The 
Section-by Section Analysis describes the relationship between each 
section of the current SSI regulation and the regulation as revised by 
the interim final rule. While the interim final rule largely 
incorporates the substance of the provisions of the current SSI 
regulation, it streamlines and consolidates some of the current 
provisions and expands on some current provisions in order to provide 
additional clarity.
    As discussed above in the Statutory and Regulatory Background 
section, the HSA vested parallel SSI authority in the Secretary of DOT 
under 49 U.S.C. 40119. Because the HSA transferred the SSI regulation 
to TSA, however, there currently is no regulation implementing the DOT 
authority under section 40119. In order to implement that authority, 
DOT is issuing this interim final rule jointly with TSA. In order to 
promote the efficiency and effectiveness of the regulation as well as 
ease of compliance, TSA and DOT are adopting identical regulatory 
standards governing SSI. The DOT regulation will appear in 49 CFR part 
15.

Section-by-Section Analysis

    The following is a section-by-section analysis of the provisions of 
the interim final rule. For ease of reference, the section-by-section 
analysis discusses the sections of 49 CFR part 1520, but the discussion 
is applicable to parallel sections in new part 15 of title 49 CFR.

Section 1520.1--Scope

    Section 1520.1(a) of the SSI regulation currently provides that 
part 1520 governs the release by TSA and other persons of records and 
information obtained or developed during security or research and 
development activities. Current Sec.  1520.1(c) and (d) provide that 
TSA's authority regarding SSI may be further delegated within TSA, and 
that TSA exercises authority to withhold or disclose SSI in 
consultation with the heads of the DOT administrations in cases where 
those administrations hold SSI.
    Section 1520.1 of the interim final rule adds new language to 
clarify that part 1520 governs the maintenance, safeguarding, and 
disclosure of records and information that TSA has determined to be 
SSI, but does not apply to classified national security information or 
to sensitive unclassified

[[Page 28070]]

information that is not SSI, but nonetheless may be exempted from 
public disclosure under the Freedom of Information Act (FOIA). This 
section also makes clear that, in the case of information that has been 
designated as CII under section 214 of the Homeland Security Act, the 
receipt, maintenance, or disclosure of such information by a Federal 
agency or employee is governed by section 214 and any implementing 
regulations, not by part 1520.
    The interim final rule eliminates unnecessary language in current 
Sec.  1520.1(d) regarding the disclosure of SSI held by DOT 
administrations.

Section 1520.3--Terms Used in This Part

    The interim final rule modifies and expands the list of definitions 
now in Sec.  1520.1(b) of the SSI regulation in order to clarify the 
regulation and expand its scope to maritime security matters. Section 
1520.1(b) currently defines the terms ``record'' and ``vulnerability 
assessment''. ``Record'' currently is defined as ``any writing, 
drawing, map, tape, film, photograph, or other means by which 
information is preserved, irrespective of format.'' ``Vulnerability 
assessment'' now is defined as ``any examination of a transportation 
system, vehicle, or facility to determine its vulnerability to unlawful 
interference.'' The interim final rule revises these definitions and 
adds definitions of several new terms.
    Section 1520.3 of the interim final rule modifies the definition of 
``record'' to include any draft, proposed, or recommended change to any 
record. This is not a substantive change. It merely incorporates the 
substance of Sec.  1520.7(l) of the current SSI regulation, which 
provides that SSI includes any draft, proposed, or recommended change 
to information and records that constitute SSI.
    A record subject to the SSI regulation is not necessarily a Federal 
record under the Federal Records Act (5 U.S.C. 105). Therefore, for 
purposes of compliance with the requirements to destroy SSI under Sec.  
1520.19 (which is discussed below in the Section-by-Section Analysis), 
a Federal agency should make a separate determination as to whether a 
record containing SSI is a record for purposes of the Federal Records 
Act, which may override the destruction requirements of Sec.  1520.19.
    Section 1520.3 of the interim final rule revises the definition of 
``vulnerability assessment'' to include expressly the examination of 
any transportation-related automated system or network to determine its 
vulnerability to unlawful interference. The revised definition also 
makes clear that a vulnerability assessment includes any recommended 
actions to address security concerns.
    Section 1520.3 of the interim final rule adds the following new 
definitions. Under the interim final rule, the term ``Administrator'' 
means the Under Secretary of Transportation for Security referred to in 
49 U.S.C. 114(b), or his or her designee. As discussed previously, this 
reflects the Under Secretary's decision to adopt the title of 
Administrator in connection with the transfer of TSA to DHS.
    As further discussed below, the interim final rule introduces the 
concept of a ``covered person'' for purposes of the SSI regulation in 
order to clarify the universe of entities and individuals that are 
subject to the regulation's requirements. Although the list of 
``covered persons'' is set forth in Sec.  1520.7 of the interim final 
rule, TSA is adding a definition of the term ``covered person'' to 
Sec.  1520.3 in order to provide additional clarity. ``Covered person'' 
is defined as any organization, entity, individual, or other person 
described in Sec.  1520.7. In the case of an individual, a ``covered 
person'' includes any individual applying for employment in a position 
that would be a covered person, or in training for such a position, 
regardless of whether that individual is receiving a wage, salary, or 
other form of payment. The definition includes individual applicants 
and trainees because individuals acting in those capacities may receive 
or have access to SSI before they are hired or accepted into a 
permanent position that otherwise would involve access to SSI. 
``Covered person'' includes a person applying for certification or 
other form of approval that, if granted, would make the person a 
covered person. Persons applying for a certification or approval that 
would make them covered persons may have access to SSI as part of the 
application process, and therefore must be subject to a regulatory 
obligation to protect it from unauthorized disclosure. The reference to 
applicants and trainees in the definition of ``covered person'' carries 
forward in substance Sec.  1520.5(f) of the current SSI regulation.
    Section 1520.3 adds a definition of ``DHS'', which means any 
directorate, bureau, or other component within DHS, including the Coast 
Guard. Under some circumstances, the Coast Guard may be temporarily 
transferred to the Department of the Navy and will operate as a service 
with the Navy. See 14 U.S.C. 3. Nonetheless, the SSI regulation would 
continue to apply to information held or distributed by the Coast 
Guard.
    Section 1520.3 also includes a number of new definitions that have 
been added in order to clarify terms currently used in the SSI 
regulation, such as ``security program'', ``security contingency 
plan'', ``security screening'', and ``threat image projection system''. 
In addition to explaining the meaning of these terms, the definitions 
make clear that they apply in the context of maritime transportation.

Section 1520.5--Sensitive Security Information

    Section 1520.3(b) of the SSI regulation currently sets forth the 
general criteria under which TSA determines whether information is SSI. 
It authorizes TSA to prohibit the disclosure of information developed 
in the conduct of security or research and development activities if, 
in TSA's judgment, the disclosure of such information would: (1) 
Constitute an unwarranted invasion of privacy; (2) reveal trade secrets 
or confidential information obtained from any person; or (3) be 
detrimental to the safety of persons traveling in transportation. 
Section 1520.5(a) of the interim final rule carries forward and updates 
this provision to reflect changes to TSA's SSI authority made by the 
HSA, discussed above.
    Section 1520.5(b) of the interim final rule incorporates the 
provisions of current Sec.  1520.7 of the SSI regulation that define 
the types of information that constitute SSI. In large part, Sec.  
1520.5(b) carries forward categories of information or records that 
constitute SSI under the current regulation, while expanding their 
description to make clear that they now encompass information related 
to the security of maritime transportation and are not limited to the 
security of passengers.
    Section 1520.5(b) of the interim final rule carries forward in 
substance the introductory text of Sec.  1520.7 of the current 
regulation, which provides that the specific information described in 
that section is SSI, ``except as otherwise provided in writing by the 
Under Secretary as necessary in the interest of safety of persons in 
transportation * * *'' This exception serves two functions. First, some 
SSI documents contain information that is released to the public. TSA 
may issue press releases or otherwise make this information available 
to the public where TSA determines in writing that such a release is 
appropriate. Second, TSA may publicly release some SSI to help achieve 
compliance with security requirements. For instance, as part of its 
security rules, TSA requires airlines to ask passengers for 
identification at check-in. Although this requirement is

[[Page 28071]]

part of a security procedure that is SSI, TSA has released this 
information to the public in order to facilitate the secure and 
efficient processing of passengers when they arrive at an airport. In 
this type of situation, TSA must determine whether releasing certain 
portions of security procedures will improve transportation security to 
a greater extent than maintaining the confidentiality of the procedure. 
See 62 FR 13471 (Mar. 21, 1997, preamble to 1997 amendments to SSI 
regulation).
    Sections 1520.5(b)(1) through (5) of the interim final rule, which 
cover security programs and contingency plans, Security Directives, 
Information Circulars, performance specifications, and vulnerability 
assessments, carry forward in substance the current provisions of 
Sec. Sec.  1520.7(a) through (e), (g), and (r).
    For instance, Sec.  1520.5(b)(1) carries forward the provisions 
relating to security programs and contingency plans from current Sec.  
1520.7(a) and (d), but expands those provisions to cover national and 
area security plans and security incident response plans established 
under the MTSA, as well as vessel and facility security plans required 
or directed under Federal law. See 46 U.S.C. 70103, 70104.
    Section 1520.5(b)(3) of the interim final rule modifies the 
reference to Information Circulars to include any notice issued by DHS 
or DOT regarding a threat to aviation or maritime transportation. 
Information Circulars are documents that TSA distributes to entities in 
the transportation sector that detail information of security concern. 
The interim final rule clarifies that SSI includes not only Information 
Circulars issued to entities within the aviation sector, but also any 
circular, guidance, or notice regarding threats to aviation or maritime 
transportation that DHS or DOT may issue to a covered person.\1\ For 
instance, the interim final rule covers Navigation or Vessel Inspection 
Circulars issued by the Coast Guard related to maritime security, and 
similar issuances of DOT.
---------------------------------------------------------------------------

    \1\ Information Circulars were primarily used by the FAA (and 
are now used by TSA) to pass information of security concern to 
airport and aircraft operators.
---------------------------------------------------------------------------

    The interim final rule carries forward in substance the current 
reference to vulnerability assessments now in Sec.  1520.7(r) of the 
SSI regulation. The revised provision would apply to vulnerability 
assessments created at the initiative of a covered person, but which 
the covered person intends to provide to DOT or DHS in support of a 
Federal security program.
    Section 1520.5(b)(6) of the interim final rule modifies the 
reference now in Sec.  1520.7(h) of the SSI regulation to inspections 
and investigations of regulatory violations. The interim final rule 
expands the current provision so that it applies in the context of 
maritime transportation. The interim final rule also retains, in large 
part, the language now in the SSI regulation detailing the specific 
types of investigative information related to the aviation sector that 
constitutes SSI.
    Section 1520.5(b)(7) of the interim final rule carries forward and 
incorporates the reference in Sec.  1520.7(i) of the SSI regulation to 
information concerning threats against transportation. The revised 
language includes threats against cyber infrastructure in order to make 
clear that information on threats to transportation includes threats to 
computer systems. The provision also is revised to clarify that it 
applies to threat information held by any Federal agency, not just TSA, 
as well as sources and methods used to gather or develop such 
information.
    Section 1520.5(b)(8) of the interim final rule incorporates Sec.  
1520.7(j) of the SSI regulation, which defines as SSI the specific 
details of aviation security measures applied by TSA or another entity, 
including details of the deployment and operations of Federal Air 
Marshals. The interim final rule expands this provision to cover 
specific details of transportation security measures applied in 
maritime transportation and includes security measures and protocols 
recommended by the Federal government. It also now includes information 
concerning the deployments, numbers, and operations of Coast Guard 
personnel engaged in maritime security duties and Federal Flight Deck 
Officers. This section covers the details of deployments, numbers, and 
operations of Federal Air Marshals only to the extent that such 
information is not national security classified information.
    Section 1520.5(b)(9) of the interim final rule consolidates and 
expands the references now in Sec.  1520.7(m) through (q) of the SSI 
regulation to information about security screening. Section 
1520.5(b)(9)(i) adds a new provision stating that SSI includes any 
procedures, including selection criteria and any comments, 
instructions, and implementing guidance pertaining thereto, for 
screening of persons, accessible property, checked baggage, U.S. mail, 
stores, and cargo, that is conducted by the Federal government or any 
other authorized person pursuant to any aviation or maritime 
transportation security requirements of Federal law. This language is 
intended to clarify that aviation or maritime security screening 
procedures carried out not only by TSA, but also by other Federal or 
State government entities, or by private entities, such as operators of 
private air charter operations under TSA regulations, constitute SSI.
    Section 1520.5(b)(9)(ii) adds a new provision clarifying that SSI 
includes information and sources of information used by a passenger or 
property screening program or system, including an automated screening 
system. This is intended to cover information used by a computerized 
passenger screening system, including lists of individuals identified 
as threats to transportation or national security.
    Section 1520.5(b)(10) of the interim final rule adds a new 
provision clarifying that training materials detailing any aviation or 
maritime security measures required or recommended by DHS or DOT are 
SSI. These types of materials contain descriptions of screening 
equipment, particular screening methods, or security measures or 
countermeasures that a terrorist or other criminal could use to 
determine how to defeat security systems or procedures.
    Section 1520.5(b)(11) of the interim final rule adds a new 
provision intended to safeguard lists of information about the 
identities of individuals who hold certain positions with aviation or 
maritime security responsibilities. It covers lists of information that 
would identify individuals as persons: (1) With unescorted access to 
secure or restricted areas of an airport or maritime facility, port 
area, or vessel; (2) acting as security screening personnel employed by 
or under contract to the Federal government pursuant to aviation or 
maritime transportation security requirements of Federal law, when 
aggregated by airport; and (3) acting as Federal Air Marshals, certain 
Coast Guard personnel engaged in maritime security duties. This section 
also covers names, whether or not part of a list, of current, former, 
and applicants to be Federal Flight Deck Officers. These types of 
individuals may be targeted by terrorists or other criminals to obtain 
their security identification cards or credentials or to obtain SSI, 
such as screening procedures or security training methods. Thus, 
information that personally identifies these individuals must be 
protected.
    Section 1520.5(b)(12) of the interim final rule designates as SSI 
certain lists of critical aviation or maritime infrastructure assets 
prepared by Federal, State, or local government

[[Page 28072]]

agencies. Specifically, this provision covers any list identifying 
systems, facilities, or other assets, whether physical or virtual, so 
vital to the transportation system that the incapacity or destruction 
of such assets would have a debilitating impact on transportation 
security. This information constitutes SSI, however, only if it is 
either prepared by DHS or DOT or is prepared by a State or local agency 
and is submitted to DHS or DOT.
    In the course of developing security measures for their 
transportation systems, State and local governments create lists of 
critical transportation systems, facilities, or other assets that may 
be vulnerable to attack. The compilation of these lists does not 
necessarily involve vulnerability assessments of each asset on the 
list. Therefore, the lists may not be protected as vulnerability 
assessments under Sec.  1520.5(b)(5) of the interim final rule. 
Nonetheless, such lists should be SSI because their release to the 
public would increase the risk of attack on critical transportation 
assets. It would be impractical, however, to designate all lists of 
critical aviation and maritime transportation assets prepared by State 
or local governments as SSI. Therefore, the interim final rule 
establishes a clear standard to determine when such lists are covered. 
A list of critical aviation or maritime transportation infrastructure 
assets created by a State or local agency must be submitted to DHS or 
DOT in order to be SSI. Once submitted, the list constitutes SSI both 
in the hands of DHS or DOT and in the hands of the State or local 
agency that prepared it. Lists of such assets created by DHS or DOT 
also constitute SSI under this provision of the interim final rule.
    Section 1520.5(b)(13) of the interim final rule designates as SSI 
any information involving the security of operational or administrative 
data systems that have been identified by DOT or DHS as critical to 
aviation or maritime transportation safety or security. This would 
include automated information security procedures and systems, 
vulnerability information concerning such systems, and security 
inspections. This addition is necessary to protect electronic data 
systems from cyberspace attacks.
    As discussed previously, 49 U.S.C. 114(s)(1)(B) authorizes TSA to 
prescribe regulations restricting the disclosure of information that 
would ``reveal a trade secret or privileged or confidential commercial 
of financial information.'' TSA is adding a new provision to the SSI 
regulation that clarifies this authority.
    In carrying out transportation security responsibilities, TSA 
procures security-related products and services, such as explosive 
detection equipment, risk-assessment systems, and security personnel 
services. TSA obtains these products and services through solicitations 
of proposals under a procurement process, through grants and 
cooperative agreements, and through other types of transactions. In 
addition, TSA receives unsolicited proposals offering security products 
and services. In many cases, materials submitted to TSA in the course 
of these transactions include details of existing or proposed 
transportation security measures, the disclosure of which would 
compromise the effectiveness of those measures. These materials also 
include trade secrets and other confidential commercial or financial 
information that the submitter would not disclose to the public. The 
Coast Guard and agencies within DOT such as the Research and Special 
Programs Administration, the Federal Railroad Administration, and the 
Federal Transit Administration also may obtain this type of information 
in the course of grant and procurement processes.
    While this type of information is to some extent exempt from 
disclosure under FOIA, TSA is clarifying its independent authority 
under 49 U.S.C. 114(s)(1)(B) to protect this information as it relates 
to transportation security.
    Section 1520.5(b)(14)(i) of the interim final rule designates as 
SSI proposals received by DHS or DOT, and negotiations arising 
therefrom, to perform work pursuant to a grant, contract, cooperative 
agreement, or other transaction, to the extent that the subject matter 
of the proposal relates to specific aviation or maritime transportation 
security measures. Section 1520.5(b)(14)(ii) covers trade secret 
information, including information required or requested by regulation 
or Security Directive, obtained by DHS or DOT in carrying out aviation 
or maritime transportation security responsibilities. Section 
1520.5(b)(14)(iii) covers commercial or financial information, 
including information required or requested by regulation or Security 
Directive, obtained by DHS or DOT in carrying out aviation or maritime 
transportation security responsibilities, where the source of the 
information does not customarily disclose it to the public.
    Section 1520.5(b)(15) of the interim final rule adds language 
clarifying the types of research and development information covered by 
the SSI regulation.
    Section 1520.5(b)(16) carries forward in substance Sec.  1520.7(k) 
of the current SSI regulation, which provides that TSA may determine, 
on a case-by-case basis, that information or records not expressly 
listed in the SSI regulation are nonetheless subject to the non-
disclosure requirements of the regulation. The interim final rule also 
adds language to cover the Secretary of DOT acting pursuant to the 
authority in 49 U.S.C. 40119.
    Section 1520.5(c) adds a new provision clarifying that TSA may 
determine that certain information or records are not SSI even though 
they otherwise appear to be covered by one of the categories in Sec.  
1520.5(b)(1) through (16). For example, this situation may arise in the 
case of a Security Directive containing security measures that become 
obsolete. Normally, the passage of time or the updating of security 
procedures or measures does not affect the SSI status of superseded 
security procedures. In most cases, key elements of the superseded 
procedures are carried forward or otherwise reflected in new 
procedures. In addition, where TSA rescinds a Security Directive 
because the particular threat it addresses has receded, TSA may 
reinstitute the security measures described in the directive to address 
threats that may arise in the future. Therefore, improper disclosure of 
the superseded or rescinded procedures would continue to be detrimental 
to transportation security. In some cases, however, security 
information that at one time was SSI is no longer in use, current 
procedures are not derived from that information, and TSA does not 
expect the information to have security implications in the future. 
Therefore, its disclosure would not be detrimental to transportation 
security, and it no longer meets the statutory criteria for designation 
as SSI. In cases where records or information no longer meet the 
statutory criteria, Sec.  1520.5(c) makes clear that TSA may determine 
that the information is no longer SSI.

Section 1520.7--Covered Persons

    The interim final rule incorporates and revises the current 
provisions of the SSI regulation in Sec.  1520.5(a) that define the 
universe of entities and individuals that are subject to the 
regulation's requirements. Section 1520.5(a) currently covers: (1) 
Airport operators; (2) aircraft operators; (3) foreign air carriers; 
(4) indirect air carriers; (5) persons who received SSI as part of a 
legal enforcement action; (6) persons for whom a vulnerability 
assessment had been authorized, approved, or funded by DOT; and (7) 
persons employed by,

[[Page 28073]]

contracted to, or acting for any of the persons listed above.
    The interim final rule adds references to various entities and 
individuals in maritime transportation, such as maritime vessel owners, 
charterers, and operators; owners and operators of maritime facilities; 
and persons participating in national or area security committees 
established under the MTSA. In addition, rail operators, commuter 
authorities, pipeline operators, and other operators of transportation 
facilities may be covered persons if they are required by the Coast 
Guard to have a security plan.
    Section 1520.7(e) of the interim final rule adds a provision 
clarifying that the SSI rule applies to persons performing the function 
of a computer reservation system (CRS) or global distribution system 
(GDS) for airline passenger information. CRSs and GDSs maintain 
electronic reservation systems used by aircraft operators. While these 
persons currently are covered by the SSI regulation under Sec.  
1520.5(a)(1) because they are contracted to or acting for aircraft 
operators, the interim final rule is intended to clarify that CRSs and 
GDSs that have SSI in connection with passenger screening must protect 
that information in accordance with the SSI regulation. For instance, a 
CRS or GDS may have SSI related to the operation of the Computer 
Assisted Passenger Prescreening System.
    Section 1520.7(g) of the interim final rule codifies TSA's current 
practice of sharing SSI with selected individuals working on behalf of 
trade associations pursuant to non-disclosure agreements.
    Sections 1520.7(h) and (k) of the interim final rule expand the 
coverage of the SSI regulation to DHS, DOT, and their employees, 
contractors, grantees, and agents. These individuals currently are not 
covered by the SSI regulation, although in practice they may be 
required to take the same steps as covered persons to safeguard SSI, 
pursuant to agency order or other rule or by agreement. In addition, 
Federal employees are subject to general requirements governing the 
disclosure of information under FOIA and agency regulations. In many 
cases, however, the only consequence of improper disclosure of SSI for 
a Federal employee is the potential for disciplinary action.
    In the interest of transportation security, employees of DHS and 
DOT, which are the departments that administer the SSI authority, 
should be required to follow the requirements of the SSI regulation to 
the same extent as other covered persons. Similarly, these employees 
should be subject to the same consequences for improper disclosure of 
SSI as regulated parties. Under Sec.  1520.7(k), contractors, grantees, 
and agents of DHS and DOT also are covered by the interim final rule. 
Therefore, Federal employees and persons performing contracts with, or 
who obtain SSI in connection with grants from, DHS or DOT are subject 
to civil penalties for non-compliance with part 1520.
    As further discussed below, the SSI regulation permits disclosures 
of SSI to those persons who have a need to know. This is currently 
expressed in Sec.  1520.5(b) of the SSI regulation, which describes 
those categories of persons deemed to have a need to know. The interim 
final rule revises this provision in a new Sec.  1520.11. Section 
1520.7(j) of the interim final rule adds a corresponding provision 
clarifying that individuals or entities who have a need to know, as 
described in new Sec.  1520.11, are covered persons and must comply 
with the requirements of the SSI regulation.
    In some cases, an entity that is a covered person may be owned by a 
State or local government, and individuals covered by the regulation 
may be State or local employees. This is currently the case under part 
1520, which applies to State or local airport operators and, therefore, 
to airport employees who may be State or local government employees and 
to other State or local employees carrying out security functions at an 
airport. For instance, the SSI regulation applies to airport police 
acting on behalf of the airport operator in fulfilling the airport 
operator's duty to provide law enforcement support under TSA's 
regulations.
    Similarly, under the interim final rule, some individuals who are 
covered persons may be State or local employees if they are employed by 
a transportation facility or operator that is a State or local 
government entity, such as a covered maritime facility. The interim 
final rule, however, does not cover State or local employees who are 
not employed by or acting for a covered entity. For instance, the 
interim final rule does not apply generally to State and local 
emergency response workers or law enforcement officers. There may be 
situations, however, where these types of individuals need access to 
SSI in order to prevent or respond to a transportation security 
incident. Therefore, TSA is considering whether to include additional 
State and local entities, such as emergency services providers and 
their employees, as covered persons. TSA requests comment on this 
issue.

Section 1520.9--Restrictions on the Disclosure of SSI

    Section 1520.9 of the interim final rule incorporates the 
provisions of current Sec.  1520.5(a) and (c) of the SSI regulations. 
Section 1520.5(a) of the SSI regulation currently requires covered 
persons to restrict disclosure of and access to SSI to persons with a 
need to know and to refer requests by other persons for SSI to TSA or 
the applicable DOT administration. Section 1520.5(c) currently requires 
that when SSI is released to unauthorized persons, covered persons or 
individuals with knowledge of the release must inform DOT.
    Section 1520.9 of the interim final rule adds new provisions 
specifying restrictions on the disclosure of SSI. Paragraph (a) 
requires all covered persons to restrict disclosure of and access to 
SSI to covered persons with a need to know and to refer requests for 
SSI by other persons to TSA or the applicable agency within DOT or DHS. 
These requirements are the same as the requirements in the current 
Sec.  1520.5(a), except for the reference to DHS.
    Section 1520.9(a) of the interim final rule also requires covered 
persons to mark SSI as specified in Sec.  1520.13 of the interim final 
rule and to dispose of SSI as specified in Sec.  1520.19 of the interim 
final rule. These are new requirements. The marking requirement will 
ensure that persons handling records containing SSI are aware of the 
sensitive nature of the information in the records, the restrictions on 
release of the information, and the consequences of unauthorized 
release. The disposal requirement will ensure that copies and drafts of 
records containing SSI that are no longer needed are destroyed 
promptly.
    Section 1520.9(b) of the interim final rule requires a covered 
person who receives a record containing SSI that is not marked as 
specified in Sec.  1520.13 to mark the record properly and inform the 
sender of the record that the record must be marked as specified in 
Sec.  1520.13 of the interim final rule. These requirements ensure that 
records containing SSI that inadvertently have been left unmarked are 
marked with the SSI notice and treated accordingly.
    Section 1520.9(c) of the interim final rule requires that when a 
covered person becomes aware that SSI has been released to unauthorized 
persons, the covered person must promptly inform TSA or the applicable 
DOT or DHS agency. This requirement is currently contained in Sec.  
1520.5(c) of the SSI regulation.

[[Page 28074]]

    Section 1520.9(d) adds a provision clarifying that in the case of 
information that is both SSI and has been designated as CII under 
section 214 of the Homeland Security Act, any covered person who is a 
Federal employee in possession of such information must comply with the 
disclosure restrictions and other requirements applicable to such 
information under section 214 and any implementing regulations.
    While the interim final rule establishes a broad category of 
covered persons, as a practical matter many persons who fall within the 
coverage of the rule may not have possession of SSI and therefore would 
not be affected by the requirements of Sec.  1520.9.

Section 1520.11--Persons With a Need To Know

    Currently, Sec.  1520.5(b) of the current SSI regulation specifies 
when a person has a need to know SSI. Under that section, a person has 
a need to know in each of the following circumstances: (1) When the 
person needs the SSI to carry out DOT-approved, accepted, or directed 
security duties; (2) when the person is in training to carry out DOT-
approved, accepted, or directed security duties; (3) when the SSI is 
necessary for the person to supervise or manage persons carrying out 
DOT-approved, accepted, or directed security duties; (4) when the 
person needs the SSI to advise other covered persons regarding any DOT 
security-related requirements; and (5) when the person needs the SSI to 
represent covered persons in connection with any judicial or 
administrative proceeding regarding certain requirements. Section 
1520.5(b) also currently specifies that for some specific SSI, TSA can 
make a finding that only specific persons or classes of persons have a 
need to know.
    Section 1520.11(a) of the interim final rule maintains those five 
``need to know'' categories with the following modifications. The 
phrase ``DOT-approved, accepted, or directed security duties'' in the 
first three categories is changed to ``aviation or maritime 
transportation security activities approved, accepted, funded, 
recommended, or directed by DHS or DOT.'' The fourth category is 
revised to read: ``when the person needs the information to provide 
technical or legal advice to a covered person regarding aviation or 
maritime transportation security requirements of Federal law.''
    Section 1520.11(b) of the interim final rule adds new provisions 
describing when Federal employees and contractors have a need to know 
SSI. Section 1520.11(b)(1) provides that a Federal employee has a need 
to know SSI if access to the information is necessary for performance 
of the employee's official duties. Section 1520.11(b)(2) provides that 
a person acting in the performance of a contract with the Federal 
government has a need to know SSI if access to the information is 
necessary to performance of the contract.
    Section 1520.11(c) adds a new provision permitting TSA or the Coast 
Guard to make an individual's access to SSI contingent upon completion 
of a security background check and the imposition of requirements or 
procedures for safeguarding SSI. The purpose of this change is to give 
TSA and the Coast Guard discretion to apply stricter safeguards in 
protecting SSI of a more sensitive nature or in ensuring that 
individuals who receive SSI do not pose a security threat or have a 
history of making improper disclosures of SSI.
    Section 1520.11(d) of the interim final rule carries forward in 
substance Sec.  1520.5(b) of the current SSI regulation, providing that 
DHS or DOT may determine that for some types of SSI only specific 
persons or classes of persons have a need to know.

Section 1520.13--Marking SSI

    Currently, part 1520 does not contain any specific requirement to 
mark records as SSI. Marking of records, however, is an important means 
of protecting SSI from unauthorized disclosure. Therefore, Sec.  
1520.13 of the interim final rule adds a new requirement specifying the 
marking requirements for records containing SSI. Records must be marked 
with both a protective marking and a distribution limitation statement. 
The protective marking reads ``SENSITIVE SECURITY INFORMATION''. The 
distribution limitation statement reads:

    WARNING: This record contains Sensitive Security Information 
that is controlled under 49 CFR parts 15 and 1520. No part of this 
record may be disclosed to persons without a ``need to know'', as 
defined in 49 CFR parts 15 and 1520, except with the written 
permission of the Administrator of the Transportation Security 
Administration or the Secretary of Transportation. Unauthorized 
release may result in civil penalty or other action. For U.S. 
government agencies, public disclosure is governed by 5 U.S.C. 552 
and 49 CFR parts 15 and 1520.

    Paper records must have the protective marking on the top and the 
distribution limitation statement on the bottom of: (1) The outside of 
any front and back cover, including a binder cover or folder; (2) any 
title page; and (3) each page of the document. Non-paper records must 
be marked clearly and conspicuously with the protective marking and 
distribution limitation statement, such that the viewer is reasonably 
likely to see or hear them when obtaining access to the contents of the 
record.
    These marking requirements will ensure that persons handling 
records containing SSI are aware of the sensitive nature of the 
information contained in the records, the restrictions on release of 
the information, and the consequences of unauthorized release. As is 
the case under the current SSI regulation, however, records containing 
SSI that are not so marked are nonetheless subject to the requirements 
of the SSI regulation.

Section 1520.15--SSI Disclosed by TSA or the Coast Guard

    Section 1520.3 of the current SSI regulation describes records and 
information that TSA withholds in response to a FOIA or other request 
for SSI. Section 1520.3(a) provides that notwithstanding FOIA or other 
laws, TSA does not release SSI to the public or make it available for 
public inspection or copying, with two exceptions.
    First, under the current SSI regulation, if a record contains both 
information that is SSI and information that is not SSI, the latter 
information, on a proper FOIA request, is provided for public 
inspection and copying. However, if it is impractical to redact the 
requested information from the record, the entire record is withheld.
    Second, after initiation of legal enforcement action, if the 
alleged violator or designated representative requests it, the TSA 
Chief Counsel, or designee, can provide copies of portions of the 
enforcement investigative report (EIR), including SSI. Such information 
is provided only to the alleged violator or designated representative 
and is not released under FOIA. Whenever such information is provided, 
the Chief Counsel, or designee, currently is required to advise the 
alleged violator or designated representative that the documents are 
provided for the sole purpose of providing information necessary to 
respond to the allegations, and that SSI contained in the records 
provided must be maintained in a confidential manner to prevent 
compromising civil aviation security.
    Section 1520.15 of the interim final rule carries forward 
provisions in the current SSI regulation stating that records 
containing SSI are exempt from disclosure under FOIA, and adds 
appropriate references to the Coast Guard. Section 1520.15 also makes 
clear, however, that records containing SSI are exempt from disclosure 
under

[[Page 28075]]

the Privacy Act (5 U.S.C. 552a), and other laws.
    Under FOIA, Federal agencies are prohibited from disclosing to the 
public any record that is specifically exempted from disclosure by 
statute, where ``such statute (1) requires that the matters be withheld 
from the public in such a manner as to leave no discretion on the 
issue, or (2) establishes particular criteria for withholding or refers 
to particular types of matters to be withheld.'' See 5 U.S.C. 
552(b)(3).
    TSA's authority under 49 U.S.C. 114(s) constitutes a statute 
establishing ``particular criteria for withholding or refer[ing] to 
particular types of matters to be withheld.'' As discussed above, 49 
U.S.C. 114(s) requires TSA to promulgate regulations prohibiting 
disclosure of information obtained or developed in carrying out 
security where disclosure would: (1) Be an unwarranted invasion of 
personal privacy; (2) reveal a trade secret or privileged or 
confidential commercial or financial information; or (3) be detrimental 
to the security of transportation. TSA's regulation at 49 CFR part 1520 
implements this statutory requirement. Consequently, records containing 
SSI are exempt from disclosure under FOIA, to the extent disclosure is 
prohibited by 49 CFR part 1520. Moreover, this exemption applies 
regardless of whether the records are held by TSA, another component of 
DHS, or another Federal agency.
    Section 1520.15 provides for several exceptions to the general rule 
against disclosure of SSI by TSA or the Coast Guard. The first 
exception is substantively the same as the first exception of current 
Sec.  1520.3. It provides that if a record contains both SSI and 
information that is not SSI, the record, on a proper FOIA or Privacy 
Act request, will be disclosed with the SSI redacted from the record, 
provided the record is not otherwise exempt from disclosure under FOIA 
or the Privacy Act.
    The second exception applies to disclosure of SSI to a committee of 
Congress authorized to have the information as provided in 49 U.S.C. 
114(s)(2), or to the General Accounting Office.
    The third exception carries forward the existing procedures that 
provide fair access to SSI for respondents in enforcement proceedings, 
while ensuring that such access is balanced against security concerns 
raised by disclosing the information to individuals and entities that 
do not have a need to know the information. Specifically, Sec.  
1520.15(d) of the interim final rule provides that in cases where TSA 
or the Coast Guard determines that a respondent needs access to SSI in 
order to prepare a response to allegations contained in a legal 
enforcement action document, the agency may provide the SSI to the 
respondent, and may make the release contingent upon the respondent and 
the respondent's counsel completing a security background check. If the 
respondent or his counsel fails to satisfy the background check, TSA or 
the Coast Guard may limit or deny access to the SSI. If TSA or the 
Coast Guard releases SSI, the recipients become covered persons under 
the SSI regulation and must protect the SSI accordingly.
    Section 1520.15(e) adds a new provision that makes express TSA's 
authority to determine on a case-by-case basis that a person who is not 
otherwise within the general categories of persons with a need to know 
SSI under Sec.  1520.11(a) has a need for access to SSI, and that 
granting access, subject to such safeguards as TSA may prescribe, will 
not be detrimental to transportation security. For instance, persons 
who are grantees or contractors of Federal agencies other than DHS or 
DOT may have a need to know SSI in order to carry out functions related 
to aviation or maritime transportation security. Section 1520.15(f) and 
(g) of the interim final rule makes clear that when TSA or the Coast 
Guard discloses SSI to a respondent or his counsel for use in 
responding to allegations contained in a legal enforcement action 
document, and when TSA makes a conditional disclosure under 1520.15(e), 
the recipients of the SSI become covered persons under the SSI 
regulation, and the disclosure is not a public release of information 
under FOIA.
    Section 1520.15(h) makes clear that disclosure of information that 
is both SSI and has been designated as critical infrastructure 
information under section 214 of the Homeland Security Act is governed 
solely by the requirements of section 214 and any implementing 
regulations. As discussed above, a Federal agency or employee generally 
may not disclose information designated as CII under the CII Act, 
except within the Federal Government and to State and local governments 
in order to protect critical infrastructure.

Section 1520.17--Consequences of Unauthorized Disclosure of SSI

    Section 1520.17 of the interim final rule specifies that the 
unauthorized disclosure of SSI is grounds for a civil penalty and other 
enforcement or corrective action by DOT or DHS, including appropriate 
personnel actions for Federal employees. This provision is currently 
contained in Sec.  1520.5(d) of the SSI regulation. Corrective action 
may include issuance of an order requiring retrieval of SSI to remedy 
unauthorized disclosure or an order to cease future unauthorized 
disclosure.

Section 1520.19--Destruction of SSI

    Section 1520.19 of the interim final rule specifies the 
requirements for the destruction of SSI. Currently, part 1520 does not 
contain destruction requirements. However, such requirements are 
necessary to ensure that copies and drafts of records containing SSI 
that are no longer needed are destroyed promptly.
    The interim final rule provides that DHS and DOT destroy SSI when 
no longer needed to carry out their functions. This requirement is 
subject to the requirements of the Federal Records Act (5 U.S.C. 105), 
including the duty to preserve records.
    Other covered persons are required to destroy SSI completely to 
preclude recognition or reconstruction of the information when they no 
longer need the information to carry out transportation security 
measures, with one exception. A State or local government agency is not 
required to destroy information that it is required to preserve under 
State or local law.

Good Cause for Immediate Adoption

    TSA and OST are issuing this final rule without prior notice and 
opportunity for comment pursuant to the authority under section 4(a) of 
the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This 
provision allows an agency to issue a final rule without notice and 
opportunity for comment when the agency for good cause finds that 
notice and comment procedures are ``impracticable, unnecessary or 
contrary to the public interest.''
    In response to the terrorist attacks of September 11, 2001, 
Congress enacted a series of statutes intended to strengthen homeland 
security, including the security of the transportation system. On 
November 19, 2001, the President signed into law ATSA, which 
established sweeping new security requirements for commercial air 
passenger transportation and assigned to TSA the responsibility for 
security in all modes of transportation. (Pub. L. 107-71). Over the 
past 24 months, TSA worked to meet congressional deadlines established 
in ATSA for the deployment of a Federal workforce to screen passengers 
and baggage in air transportation. On November 25, 2002, the President 
signed into law MTSA (Pub. L. 107-295), which established a new 
framework for maritime security, to

[[Page 28076]]

be implemented through national, regional, and facility- and vessel-
specific security plans. On November 25, 2002, the President also 
signed into law HSA, which consolidated the components of the Federal 
Government responsible for security of the homeland into a single 
department. (Pub. L. 107-296).
    TSA, the Coast Guard, and other components of DHS are working 
together to implement the maritime security measures required by MTSA 
under an expedited deadline established by Congress. These new 
transportation security measures have created an immediate need for the 
expansion of the existing legal protections governing SSI to include 
entities and individuals operating in maritime transportation. Under 
the MTSA, Congress directed DHS to issue interim rules as soon as 
practicable to implement the new security requirements for maritime 
facilities and vessels. (See 46 U.S.C. 70117). The Coast Guard issued 
final rules on October 22, 2003, that require vessel and maritime 
facility operators to prepare security plans. MTSA requires protection 
of these plans from public disclosure. (See 46 U.S.C. 70103(d)).
    Currently, these types of documents are not subject to the 
disclosure limitations of TSA's SSI regulation, nor are the maritime 
facility or vessel operators subject to the regulation's requirements. 
Therefore, there currently is no legal framework for the protection of 
this type of information to prevent it from falling into the hands of 
those who may seek to do harm to the transportation system. 
Requirements for the protection of this information, including security 
measures adopted by operators on their own initiative, must be put in 
place now so that the information remains useful in carrying out 
security. Without a legal framework limiting the disclosure of security 
measures undertaken by maritime facility and vessel operators, there is 
an increased risk that those measures will become known by individuals 
who seek to disrupt transportation or use them to perpetrate attacks on 
the U.S. In short, if the security plans and other security measures 
called for by Congress under the MTSA are not subject to the SSI 
regulation, there is a greater likelihood that those plans and measures 
may be defeated through their disclosure.
    The existing SSI regulation currently provides the necessary 
information protection requirements in the case of individuals and 
entities operating in the aviation sector. The absence of such 
protections in other transportation sectors, however, has inhibited TSA 
from disseminating threat information to those in maritime 
transportation who need to act on it. In addition, it has inhibited 
maritime transportation operators from sharing their security plans 
with TSA.
    As TSA and the Coast Guard begin to issue standards and required 
security measures and countermeasures to entities and individuals in 
maritime transportation pursuant to the MTSA and other applicable 
authorities, there must be a legal framework in place to ensure that 
those in possession of that information safeguard it from disclosure. 
The issuance of these security measures is imminent, and in some cases 
is already underway. Moreover, even before security measures are put in 
place, TSA and the Coast Guard have a need to provide security 
vulnerability and threat information to these entities that must be 
protected from disclosure.
    For the foregoing reasons, there is a compelling need to expand the 
scope of the SSI rule to maritime transportation through the immediate 
issuance of a regulatory change to 49 CFR part 1520 and the 
establishment of parallel requirements implementing the authority of 
DOT under 49 U.S.C. 40119. In light of the need to protect the efficacy 
of maritime transportation security measures, it would be contrary to 
the public interest to delay the issuance of this regulatory change 
until after a public comment period. This action is necessary to 
prevent an imminent hazard to maritime transportation facilities and 
vessels, as well as persons and property within the United States.
    Although there is good cause to forgo prior notice and comment 
procedures in issuing this rule, TSA and DOT are requesting public 
comments on all aspects of the rule. If, based upon information 
provided in public comments, TSA and DOT determine that changes to the 
rule are necessary to address transportation security more effectively, 
or in a less burdensome but equally effective manner, the agencies will 
not hesitate to make such changes.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires 
consideration of the impact of paperwork and other information 
collection burdens imposed on the public. TSA and DOT have determined 
that there are no new information collection requirements associated 
with this rule.
    As protection provided by the Paperwork Reduction Act, as amended, 
an agency may not conduct or sponsor, and a person is not required to 
respond to, a collection of information unless it displays a currently 
valid Office of Management and Budget (OMB) control number.

Regulatory Impact Analyses


    Changes to Federal regulations must undergo several economic 
analyses. First, Executive Order 12866, Regulatory Planning and Review 
(58 FR 51735, October 4, 1993), directs each Federal agency to propose 
or adopt a regulation only upon a reasoned determination that the 
benefits of the intended regulation justify its costs. Second, the 
Regulatory Flexibility Act of 1980 (5 U.S.C. 601-612) requires agencies 
to analyze the economic impact of regulatory changes on small entities. 
Third, under the Trade Agreement Act of 1979, agencies must assess the 
effect of regulatory changes on international trade. Fourth, the 
Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires 
agencies to prepare a written assessment of the costs, benefits, and 
other effects of proposed or final rules that include a Federal mandate 
likely to result in the expenditure by State, local, or tribal 
governments, in the aggregate, or by the private sector, of $100 
million or more annually (adjusted for inflation.)

Executive Order 12866 Assessment

    Executive Order 12866 (58 FR 51735, October 4, 1993), provides for 
making determinations whether a regulatory action is ``significant'' 
and therefore subject to Office of Management and Budget (OMB) review 
and to the requirements of the Executive Order.
    TSA and DOT have determined that this action is a significant 
regulatory action within the meaning of Executive Order 12866 because 
there is significant public interest in security issues since the 
events of September 11, 2001.
    TSA has performed an analysis of the expected costs of this interim 
final rule. The interim final rule affects entities in the maritime 
transportation sector, including maritime facility and vessel owners 
and operators. The interim final rule requires that, when an affected 
person receives SSI, the person must take appropriate action to 
safeguard its contents and to destroy it when it is no longer needed. 
The interim final rule does not require the use of safes or enhanced 
security equipment or the use of a crosscut shredder. Rather, the 
interim final rule requires only that an affected person restrict 
disclosure of, and access to, the protected information to those with a 
need to know, and destroy such information when it is no longer needed. 
Under the rule, a locked drawer or cabinet is an acceptable

[[Page 28077]]

means of complying with the requirement to secure SSI, and a normal 
paper shredder or manual destruction are acceptable means of destroying 
SSI documents.

Costs

    TSA believes that affected entities will incur minimal costs from 
complying with the interim final rule because, in practice, affected 
entities already have systems in place for securing sensitive 
commercial, trade secret, or personnel information, which are 
appropriate for safeguarding SSI. For instance, a normal filing cabinet 
with a lock may be used to safeguard SSI, and a normal paper shredder 
or manual destruction may be used to destroy SSI. Moreover, TSA does 
not expect compliance with the interim final rule will require affected 
entities to increase existing capacity to secure SSI. Accordingly, the 
agency estimates that there will be minimal costs associated with 
safeguarding SSI.
    The agency has estimated the following costs for placing the 
required protective marking and distribution limitation statement on 
records containing SSI.
    For an electronic document, a person can place the required 
markings on each page with a few keystrokes. The agency estimates that 
there will be no costs associated with this action.
    For a document that is already printed, a person can use a rubber 
stamp for the required markings. Such stamps can be custom ordered and 
last several years. For the protective marking, the agency estimates 
that the cost of a rubber stamp is from $9.90 (for a stamp 5 inches 
wide by \1/4\ inch high) to $10.25 (for a stamp 4\1/4\ inches wide by 
\1/4\ inch high). For the distribution limitation statement, the agency 
estimates that the cost of a rubber stamp is from $16.25 (for a stamp 6 
inches wide by 1 inch high) to $33.25 (for a stamp 5\1/2\ inches wide 
by 2\1/2\ inches high). A single ink pad can be used for both stamps. A 
typical ink pad costs approximately $15.60. A two-ounce bottle of ink 
for the ink pad costs about $3.75.
    For other types of record, such as maps, photos, DVDs, CD-ROMs, and 
diskettes, a person can use a label for the required markings. Labels 
typically cost from $7.87 (for 840 multipurpose labels) to $22.65 (for 
225 diskette inkjet labels) to $34.92 (for 30 DVC/CD-ROM labels). These 
labels can be pre-printed with the required markings, or the affected 
person can print the required markings on an as-aves\rules.xmlneeded 
basis.
    The interim final rule does not require a specific method for 
destroying SSI. Thus, a person may use any method of destruction, so 
long as it precludes recognition or reconstruction of the SSI. TSA 
believes that most affected entities already have the capability to 
destroy SSI in accordance with the requirements in this interim final 
rule. Thus, the agency estimates that there will be no costs associated 
with these destruction requirements.
    Accordingly, TSA believes that the costs associated with this 
interim final rule are minimal.

Benefits

    The primary benefit of the interim final rule will be the potential 
disruption of terrorist attacks on the aviation and maritime 
transportation sectors by ensuring that persons operating in those 
sectors protect SSI. TSA currently provides SSI, including threat 
information, security directives, and information circulars, to 
aircraft operators, airport operators, and other persons in the 
aviation sector that have a need to know, and to act upon, information 
about security concerns related to civil aviation. Some of these 
persons also produce information that is treated as SSI, such as 
airport security programs.
    Prior to providing SSI to entities in maritime transportation, and 
to ensure that any information these entities produce that would be 
treated as SSI is safeguarded, TSA must ensure that those entities are 
under a legal obligation to protect the SSI from disclosure. Absent 
such an obligation, recipients and producers of SSI are not subject to 
the requirements in this rule to protect such information, which may 
undermine the effectiveness of security measures in preventing 
terrorist attacks. Therefore, TSA is amending the SSI regulation by 
adding entities in maritime transportation to the list of persons 
subject to the regulation.
    TSA notes that the unauthorized disclosure of SSI can have a 
detrimental effect on the ability to thwart terrorist and other 
criminal activities in the transportation sector. TSA also notes that 
the disclosure of some types of SSI that are restricted by this interim 
final rule, such as security training programs, security screening 
information, and vulnerability assessments, could aid the planning of a 
terrorist attack or other criminal activities.
    The effectiveness of providing information of security concern to 
persons in maritime transportation, and of security measures developed 
by those persons, depends on strictly limiting access to the 
information to those persons who have a need to know. Given the minimal 
cost associated with this interim final rule and the potential benefits 
of preventing attacks on the transportation sector, TSA believes that 
this interim final rule will be cost beneficial.

Regulatory Flexibility Act Assessment

    Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq., 
as amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), an agency is required to prepare and make available 
a regulatory flexibility analysis that describes the effect of the rule 
on small entities (i.e., small businesses, small organizations, and 
small governmental jurisdictions). Because good cause exists for 
issuing this regulation as an interim final rule, no regulatory 
flexibility analysis is required.
    Although a regulatory flexibility analysis is not required, 
consideration was given to the effect of this interim final rule under 
the Regulatory Flexibility Act. As discussed above in the section on 
Executive Order 12866, this interim final rule will result in minimal 
costs to entities in the maritime transportation sector. Based on this 
analysis, TSA and DOT certify that this interim final rule will not 
have a significant economic impact on a substantial number of small 
entities.

Trade Impact Assessment

    The Trade Agreement Act of 1979 prohibits Federal agencies from 
engaging in any standards or related activities that create unnecessary 
obstacles to the foreign commerce of the United States. Legitimate 
domestic objectives, such as safety and security, are not considered 
unnecessary obstacles. The Act also requires consideration of 
international standards and, where appropriate, that they be the basis 
for U.S. standards. TSA has assessed the potential effect of this 
amendment, and has determined that it will impose the same costs on 
domestic and international entities, and thus will have a neutral trade 
impact.

Unfunded Mandates Reform Act Assessment

    Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) 
requires Federal agencies to prepare a written assessment of the costs, 
benefits, and other effects of proposed or final rules that include a 
Federal mandate likely to result in the expenditure by State, local, or 
tribal governments, in the aggregate, or by the private sector, of more 
than $100 million in any one year (adjusted for inflation with base 
year of 1995). Before promulgating a rule for which a written statement 
is needed,

[[Page 28078]]

section 205 of the UMRA generally requires an agency to identify and 
consider a reasonable number of regulatory alternatives and adopt the 
least costly, most cost-effective, or least burdensome alternative that 
achieves the objective of the rule. The provisions of section 205 do 
not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows an agency to adopt an alternative other than the 
least costly, most cost-effective, or least burdensome alternative if 
the agency publishes with the final rule an explanation why that 
alternative was not adopted.
    This interim final rule will not result in the expenditure by 
State, local, or tribal governments, in the aggregate, or by the 
private sector, of more than $100 million annually. As discussed above 
in the section on Executive Order 12866, this interim final rule will 
result in minimal costs to entities in the transportation sector.

Executive Order 13132 (Federalism)

    TSA has analyzed this rule under the principles and criteria of 
Executive Order 13132, Federalism. We determined that this action would 
not have a substantial direct effect on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government. 
Therefore, we determined that this rule does not have federalism 
implications.

Environmental Analysis

    TSA has reviewed this action for purposes of the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4347) and has 
determined that this action will not have a significant effect on the 
human environment.

Energy Impact

    The energy impact of this rule has been assessed in accordance with 
the Energy Policy and Conservation Act (EPCA), Public Law 94-163, as 
amended (42 U.S.C. 6362). We have determined that this rulemaking is 
not a major regulatory action under the provisions of the EPCA.

List of Subjects

49 CFR Part 15

    Air carriers, Aircraft, Airports, Maritime carriers, Reporting and 
recordkeeping requirements, Security measures, Vessels.

49 CFR Part 1520

    Air carriers, Aircraft, Airports, Maritime carriers, Reporting and 
recordkeeping requirements, Security measures, Vessels.

Department of Transportation

Office of the Secretary of Transportation

49 CFR Subtitle A

0
For the reasons stated in the preamble, the Department of 
Transportation amends subtitle A of title 49, Code of Federal 
Regulations, by adding a new part 15 to read as follows:

PART 15--PROTECTION OF SENSITIVE SECURITY INFORMATION

Sec.
15.1 Scope.
15.3 Terms used in this part.
15.5 Sensitive security information.
15.7 Covered persons.
15.9 Restrictions on the disclosure of SSI.
15.11 Persons with a need to know.
15.13 Marking SSI.
15.15 SSI disclosed by DOT.
15.17 Consequences of unauthorized disclosure of SSI.
15.19 Destruction of SSI.

    Authority: 49 U.S.C. 40119.


Sec.  15.1  Scope.

    (a) Applicability. This part governs the maintenance, safeguarding, 
and disclosure of records and information that the Secretary of DOT has 
determined to be Sensitive Security Information, as defined in Sec.  
15.5. This part does not apply to the maintenance, safeguarding, or 
disclosure of classified national security information, as defined by 
Executive Order 12968, or to other sensitive unclassified information 
that is not SSI, but that nonetheless may be exempt from public 
disclosure under the Freedom of Information Act. In addition, in the 
case of information that has been designated as critical infrastructure 
information under section 214 of the Homeland Security Act, the 
receipt, maintenance, or disclosure of such information by a Federal 
agency or employee is governed by section 214 and any implementing 
regulations, not by this part.
    (b) Delegation. The authority of the Secretary under this part may 
be further delegated within DOT.


Sec.  15.3  Terms used in this part.

    In addition to the terms in Sec.  15.3 of this chapter, the 
following terms apply in this part:
    Administrator means the Under Secretary of Transportation for 
Security referred to in 49 U.S.C. 114(b), or his or her designee.
    Coast Guard means the United States Coast Guard.
    Covered person means any organization, entity, individual, or other 
person described in Sec.  15.7. In the case of an individual, covered 
person includes any individual applying for employment in a position 
that would be a covered person, or in training for such a position, 
regardless of whether that individual is receiving a wage, salary, or 
other form of payment. Covered person includes a person applying for 
certification or other form of approval that, if granted, would make 
the person a covered person described in Sec.  15.7.
    DHS means the Department of Homeland Security and any directorate, 
bureau, or other component within the Department of Homeland Security, 
including the United States Coast Guard.
    DOT means the Department of Transportation and any operating 
administration, entity, or office within the Department of 
Transportation, including the Saint Lawrence Seaway Development 
Corporation and the Bureau of Transportation Statistics.
    Federal Flight Deck Officer means a pilot participating in the 
Federal Flight Deck Officer Program under 49 U.S.C. 44921 and 
implementing regulations.
    Maritime facility means any facility as defined in 33 CFR part 101.
    Record includes any means by which information is preserved, 
irrespective of format, including a book, paper, drawing, map, 
recording, tape, film, photograph, machine-readable material, and any 
information stored in an electronic format. The term record also 
includes any draft, proposed, or recommended change to any record.
    Security contingency plan means a plan detailing response 
procedures to address a transportation security incident, threat 
assessment, or specific threat against transportation, including 
details of preparation, response, mitigation, recovery, and 
reconstitution procedures, continuity of government, continuity of 
transportation operations, and crisis management.
    Security program means a program or plan and any amendments 
developed for the security of the following, including any comments, 
instructions, or implementing guidance:
    (1) An airport, aircraft, or aviation cargo operation;
    (2) A maritime facility, vessel, or port area; or
    (3) A transportation-related automated system or network for 
information processing, control, and communications.
    Security screening means evaluating a person or property to 
determine whether either poses a threat to security.
    SSI means sensitive security information, as described in Sec.  
15.5.

[[Page 28079]]

    Threat image projection system means an evaluation tool that 
involves periodic presentation of fictional threat images to operators 
and is used in connection with x-ray or explosives detection systems 
equipment.
    TSA means the Transportation Security Administration.
    Vulnerability assessment means any review, audit, or other 
examination of the security of a transportation infrastructure asset; 
airport; maritime facility, port area, vessel, aircraft, train, 
commercial motor vehicle, or pipeline, or a transportation-related 
automated system or network, to determine its vulnerability to unlawful 
interference, whether during the conception, planning, design, 
construction, operation, or decommissioning phase. A vulnerability 
assessment may include proposed, recommended, or directed actions or 
countermeasures to address security concerns.


Sec.  15.5  Sensitive security information.

    (a) In general. In accordance with 49 U.S.C. 40119(b)(1), SSI is 
information obtained or developed in the conduct of security 
activities, including research and development, the disclosure of which 
the Secretary of DOT has determined would--
    (1) Constitute an unwarranted invasion of privacy (including, but 
not limited to, information contained in any personnel, medical, or 
similar file);
    (2) Reveal trade secrets or privileged or confidential information 
obtained from any person; or
    (3) Be detrimental to transportation safety.
    (b) Information constituting SSI. Except as otherwise provided in 
writing by the Secretary of DOT in the interest of public safety or in 
furtherance of transportation security, the following information, and 
records containing such information, constitute SSI:
    (1) Security programs and contingency plans. Any security program 
or security contingency plan issued, established, required, received, 
or approved by DOT or DHS, including--
    (i) Any aircraft operator or airport operator security program or 
security contingency plan under this chapter;
    (ii) Any vessel, maritime facility, or port area security plan 
required or directed under Federal law;
    (iii) Any national or area security plan prepared under 46 U.S.C. 
70103; and
    (iv) Any security incident response plan established under 46 
U.S.C. 70104.
    (2) Security Directives. Any Security Directive or order--
    (i) Issued by TSA under 49 CFR 1542.303, 1544.305, or other 
authority;
    (ii) Issued by the Coast Guard under the Maritime Transportation 
Security Act, 33 CFR part 6, or 33 U.S.C. 1221 et seq. related to 
maritime security; or
    (iii) Any comments, instructions, and implementing guidance 
pertaining thereto.
    (3) Information Circulars. Any notice issued by DHS or DOT 
regarding a threat to aviation or maritime transportation, including 
any--
    (i) Information Circular issued by TSA under 49 CFR 1542.303 or 
1544.305, or other authority; and
    (ii) Navigation or Vessel Inspection Circular issued by the Coast 
Guard related to maritime security.
    (4) Performance specifications. Any performance specification and 
any description of a test object or test procedure, for--
    (i) Any device used by the Federal government or any other person 
pursuant to any aviation or maritime transportation security 
requirements of Federal law for the detection of any weapon, explosive, 
incendiary, or destructive device or substance; and
    (ii) Any communications equipment used by the Federal government or 
any other person in carrying out or complying with any aviation or 
maritime transportation security requirements of Federal law.
    (5) Vulnerability assessments. Any vulnerability assessment 
directed, created, held, funded, or approved by the DOT, DHS, or that 
will be provided to DOT or DHS in support of a Federal security 
program.
    (6) Security inspection or investigative information. (i) Details 
of any security inspection or investigation of an alleged violation of 
aviation or maritime transportation security requirements of Federal 
law that could reveal a security vulnerability, including the identity 
of the Federal special agent or other Federal employee who conducted 
the inspection or audit.
    (ii) In the case of inspections or investigations performed by TSA, 
this includes the following information as to events that occurred 
within 12 months of the date of release of the information: the name of 
the airport where a violation occurred, the airport identifier in the 
case number, a description of the violation, the regulation allegedly 
violated, and the identity of any aircraft operator in connection with 
specific locations or specific security procedures. Such information 
will be released after the relevant 12-month period, except that TSA 
will not release the specific gate or other location on an airport 
where an event occurred, regardless of the amount of time that has 
passed since its occurrence. During the period within 12 months of the 
date of release of the information, TSA may release summaries of an 
aircraft operator's, but not an airport operator's, total security 
violations in a specified time range without identifying specific 
violations or locations. Summaries may include total enforcement 
actions, total proposed civil penalty amounts, number of cases opened, 
number of cases referred to TSA or FAA counsel for legal enforcement 
action, and number of cases closed.
    (7) Threat information. Any information held by the Federal 
government concerning threats against transportation or transportation 
systems and sources and methods used to gather or develop threat 
information, including threats against cyber infrastructure.
    (8) Security measures. Specific details of aviation or maritime 
transportation security measures, both operational and technical, 
whether applied directly by the Federal government or another person, 
including--
    (i) Security measures or protocols recommended by the Federal 
government;
    (ii) Information concerning the deployments, numbers, and 
operations of Coast Guard personnel engaged in maritime security duties 
and Federal Air Marshals, to the extent it is not classified national 
security information; and
    (iii) Information concerning the deployments and operations of 
Federal Flight Deck Officers, and numbers of Federal Flight Deck 
Officers aggregated by aircraft operator.
    (9) Security screening information. The following information 
regarding security screening under aviation or maritime transportation 
security requirements of Federal law:
    (i) Any procedures, including selection criteria and any comments, 
instructions, and implementing guidance pertaining thereto, for 
screening of persons, accessible property, checked baggage, U.S. mail, 
stores, and cargo, that is conducted by the Federal government or any 
other authorized person.
    (ii) Information and sources of information used by a passenger or 
property screening program or system, including an automated screening 
system.
    (iii) Detailed information about the locations at which particular 
screening methods or equipment are used, only if determined by TSA to 
be SSI.
    (iv) Any security screener test and scores of such tests.
    (v) Performance or testing data from security equipment or 
screening systems.

[[Page 28080]]

    (vi) Any electronic image shown on any screening equipment monitor, 
including threat images and descriptions of threat images for threat 
image projection systems.
    (10) Security training materials. Records created or obtained for 
the purpose of training persons employed by, contracted with, or acting 
for the Federal government or another person to carry out any aviation 
or maritime transportation security measures required or recommended by 
DHS or DOT.
    (11) Identifying information of certain transportation security 
personnel. (i) Lists of the names or other identifying information that 
identify persons as--
    (A) Having unescorted access to a secure area of an airport or a 
secure or restricted area of a maritime facility, port area, or vessel 
or;
    (B) Holding a position as a security screener employed by or under 
contract with the Federal government pursuant to aviation or maritime 
transportation security requirements of Federal law, where such lists 
are aggregated by airport;
    (C) Holding a position with the Coast Guard responsible for 
conducting vulnerability assessments, security boardings, or engaged in 
operations to enforce maritime security requirements or conduct force 
protection;
    (D) Holding a position as a Federal Air Marshal; or
    (ii) The name or other identifying information that identifies a 
person as a current, former, or applicant for Federal Flight Deck 
Officer.
    (12) Critical aviation or maritime infrastructure asset 
information. Any list identifying systems or assets, whether physical 
or virtual, so vital to the aviation or maritime transportation system 
that the incapacity or destruction of such assets would have a 
debilitating impact on transportation security, if the list is--
    (i) Prepared by DHS or DOT; or
    (ii) Prepared by a State or local government agency and submitted 
by the agency to DHS or DOT.
    (13) Systems security information. Any information involving the 
security of operational or administrative data systems operated by the 
Federal government that have been identified by the DOT or DHS as 
critical to aviation or maritime transportation safety or security, 
including automated information security procedures and systems, 
security inspections, and vulnerability information concerning those 
systems.
    (14) Confidential business information. (i) Solicited or 
unsolicited proposals received by DHS or DOT, and negotiations arising 
therefrom, to perform work pursuant to a grant, contract, cooperative 
agreement, or other transaction, but only to the extent that the 
subject matter of the proposal relates to aviation or maritime 
transportation security measures;
    (ii) Trade secret information, including information required or 
requested by regulation or Security Directive, obtained by DHS or DOT 
in carrying out aviation or maritime transportation security 
responsibilities; and
    (iii) Commercial or financial information, including information 
required or requested by regulation or Security Directive, obtained by 
DHS or DOT in carrying out aviation or maritime transportation security 
responsibilities, but only if the source of the information does not 
customarily disclose it to the public.
    (15) Research and development. Information obtained or developed in 
the conduct of research related to aviation or maritime transportation 
security activities, where such research is approved, accepted, funded, 
recommended, or directed by the DHS or DOT, including research results.
    (16) Other information. Any information not otherwise described in 
this section that TSA determines is SSI under 49 U.S.C. 114(s) or that 
the Secretary of DOT determines is SSI under 49 U.S.C. 40119. Upon the 
request of another Federal agency, the Secretary of DOT may designate 
as SSI information not otherwise described in this section.
    (c) Loss of SSI designation. The Secretary of DOT may determine in 
writing that information or records described in paragraph (b) of this 
section do not constitute SSI because they no longer meet the criteria 
set forth in paragraph (a) of this section.


Sec.  15.7  Covered persons.

    Persons subject to the requirements of part 15 are:
    (a) Each airport operator and aircraft operator subject to the 
requirements of Subchapter C of this title.
    (b) Each indirect air carrier, as defined in 49 CFR 1540.5.
    (c) Each owner, charterer, or operator of a vessel, including 
foreign vessel owners, charterers, and operators, required to have a 
security plan under Federal or International law.
    (d) Each owner or operator of a maritime facility required to have 
a security plan under the Maritime Transportation Security Act, (Pub. 
L. 107-295), 46 U.S.C. 70101 et seq., 33 CFR part 6, or 33 U.S.C. 1221 
et seq.
    (e) Each person performing the function of a computer reservation 
system or global distribution system for airline passenger information.
    (f) Each person participating in a national or area security 
committee established under 46 U.S.C. 70112, or a port security 
committee.
    (g) Each industry trade association that represents covered persons 
and has entered into a non-disclosure agreement with the DHS or DOT.
    (h) DHS and DOT.
    (i) Each person conducting research and development activities that 
relate to aviation or maritime transportation security and are 
approved, accepted, funded, recommended, or directed by DHS or DOT.
    (j) Each person who has access to SSI, as specified in Sec.  15.11.
    (k) Each person employed by, contracted to, or acting for a covered 
person, including a grantee of DHS or DOT, and including a person 
formerly in such position.
    (l) Each person for which a vulnerability assessment has been 
directed, created, held, funded, or approved by the DOT, DHS, or that 
has prepared a vulnerability assessment that will be provided to DOT or 
DHS in support of a Federal security program.
    (m) Each person receiving SSI under Sec.  1520.15(d) or (e).


Sec.  15.9  Restrictions on the disclosure of SSI.

    (a) Duty to protect information. A covered person must--
    (1) Take reasonable steps to safeguard SSI in that person's 
possession or control from unauthorized disclosure. When a person is 
not in physical possession of SSI, the person must store it a secure 
container, such as a locked desk or file cabinet or in a locked room.
    (2) Disclose, or otherwise provide access to, SSI only to covered 
persons who have a need to know, unless otherwise authorized in writing 
by TSA, the Coast Guard, or the Secretary of DOT.
    (3) Refer requests by other persons for SSI to TSA or the 
applicable component or agency within DOT or DHS.
    (4) Mark SSI as specified in Sec.  15.13.
    (5) Dispose of SSI as specified in Sec.  15.19.
    (b) Unmarked SSI. If a covered person receives a record containing 
SSI that is not marked as specified in Sec.  1520.13, the covered 
person must--
    (1) Mark the record as specified in Sec.  15.13; and
    (2) Inform the sender of the record that the record must be marked 
as specified in Sec.  15.13.
    (c) Duty to report unauthorized disclosure. When a covered person

[[Page 28081]]

becomes aware that SSI has been released to unauthorized persons, the 
covered person must promptly inform TSA or the applicable DOT or DHS 
component or agency.
    (d) Additional requirements for critical infrastructure 
information. In the case of information that is both SSI and has been 
designated as critical infrastructure information under section 214 of 
the Homeland Security Act, any covered person who is a Federal employee 
in possession of such information must comply with the disclosure 
restrictions and other requirements applicable to such information 
under section 214 and any implementing regulations.


Sec.  15.11  Persons with a need to know.

    (a) In general. A person has a need to know SSI in each of the 
following circumstances:
    (1) When the person requires access to specific SSI to carry out 
aviation or maritime transportation security activities approved, 
accepted, funded, recommended, or directed by DHS or DOT.
    (2) When the person is in training to carry out aviation or 
maritime transportation security activities approved, accepted, funded, 
recommended, or directed by DHS or DOT.
    (3) When the information is necessary for the person to supervise 
or otherwise manage individuals carrying out aviation or maritime 
transportation security activities approved, accepted, funded, 
recommended, or directed by the DHS or DOT.
    (4) When the person needs the information to provide technical or 
legal advice to a covered person regarding aviation or maritime 
transportation security requirements of Federal law.
    (5) When the person needs the information to represent a covered 
person in connection with any judicial or administrative proceeding 
regarding those requirements.
    (b) Federal employees, contractors, and grantees. (1) A Federal 
employee has a need to know SSI if access to the information is 
necessary for performance of the employee's official duties.
    (2) A person acting in the performance of a contract with or grant 
from DHS or DOT has a need to know SSI if access to the information is 
necessary to performance of the contract or grant.
    (c) Background check. The Secretary of DOT may make an individual's 
access to the SSI contingent upon satisfactory completion of a security 
background check and the imposition of procedures and requirements for 
safeguarding SSI that are satisfactory to the Secretary.
    (d) Need to know further limited by the DHS or DOT. For some 
specific SSI, DHS or DOT may make a finding that only specific persons 
or classes of persons have a need to know.


Sec.  15.13  Marking SSI.

    (a) Marking of paper records. In the case of paper records 
containing SSI, a covered person must mark the record by placing the 
protective marking conspicuously on the top, and the distribution 
limitation statement on the bottom, of--
    (1) The outside of any front and back cover, including a binder 
cover or folder, if the document has a front and back cover;
    (2) Any title page; and
    (3) Each page of the document.
    (b) Protective marking. The protective marking is: SENSITIVE 
SECURITY INFORMATION.

    (c) Distribution limitation statement. The distribution limitation 
statement is:

    WARNING: This record contains Sensitive Security Information 
that is controlled under 49 CFR parts 15 and 1520. No part of this 
record may be disclosed to persons without a ``need to know'', as 
defined in 49 CFR parts 15 and 1520, except with the written 
permission of the Administrator of the Transportation Security 
Administration or the Secretary of Transportation. Unauthorized 
release may result in civil penalty or other action. For U.S. 
government agencies, public disclosure is governed by 5 U.S.C. 552 
and 49 CFR parts 15 and 1520.

    (d) Other types of records. In the case of non-paper records that 
contain SSI, including motion picture films, videotape recordings, 
audio recording, and electronic and magnetic records, a covered person 
must clearly and conspicuously mark the records with the protective 
marking and the distribution limitation statement such that the viewer 
or listener is reasonably likely to see or hear them when obtaining 
access to the contents of the record.


Sec.  15.15  SSI disclosed by DOT.

    (a) In general. Except as otherwise provided in this section, and 
notwithstanding the Freedom of Information Act (5 U.S.C. 552), the 
Privacy Act (5 U.S.C. 552a), and other laws, records containing SSI are 
not available for public inspection or copying, nor does DOT release 
such records to persons without a need to know.
    (b) Disclosure under the Freedom of Information Act and the Privacy 
Act. If a record contains both SSI and information that is not SSI, 
DOT, on a proper Freedom of Information Act or Privacy Act request, may 
disclose the record with the SSI redacted, provided the record is not 
otherwise exempt from disclosure under the Freedom of Information Act 
or Privacy Act.
    (c) Disclosures to committees of Congress and the General 
Accounting Office. Nothing in this part precludes DOT from disclosing 
SSI to a committee of Congress authorized to have the information or to 
the Comptroller General, or to any authorized representative of the 
Comptroller General.
    (d) Disclosure in enforcement proceedings. (1) In general. The 
Secretary of DOT may provide SSI to a person in the context of an 
administrative enforcement proceeding when, in the sole discretion of 
the Secretary, access to the SSI is necessary for the person to prepare 
a response to allegations contained in a legal enforcement action 
document issued by DOT.
    (2) Security background check. Prior to providing SSI to a person 
under paragraph (d)(1) of this section, the Secretary of DOT may 
require the individual or, in the case of an entity, the individuals 
representing the entity, and their counsel, to undergo and satisfy, in 
the judgment of the Secretary of DOT, a security background check.
    (e) Other conditional disclosure. The Secretary of DOT may 
authorize a conditional disclosure of specific records or information 
that constitute SSI upon the written determination by the Secretary 
that disclosure of such records or information, subject to such 
limitations and restrictions as the Secretary may prescribe, would not 
be detrimental to transportation safety.
    (f) Obligation to protect information. When an individual receives 
SSI pursuant to paragraph (d) or (e) of this section that individual 
becomes a covered person under Sec.  15.7 and is subject to the 
obligations of a covered person under this part.
    (g) No release under FOIA. When DOT discloses SSI pursuant to 
paragraphs (b) through (e) of this section, DOT makes the disclosure 
for the sole purpose described in that paragraph. Such disclosure is 
not a public release of information under the Freedom of Information 
Act.
    (h) Disclosure of Critical Infrastructure Information. Disclosure 
of information that is both SSI and has been designated as critical 
infrastructure information under section 214 of the Homeland Security 
Act is governed solely by the requirements of section 214 and any 
implementing regulations.

[[Page 28082]]

Sec.  15.17  Consequences of unauthorized disclosure of SSI.

    Violation of this part is grounds for a civil penalty and other 
enforcement or corrective action by DOT, and appropriate personnel 
actions for Federal employees. Corrective action may include issuance 
of an order requiring retrieval of SSI to remedy unauthorized 
disclosure or an order to cease future unauthorized disclosure.


Sec.  15.19  Destruction of SSI.

    (a) DOT. Subject to the requirements of the Federal Records Act (5 
U.S.C. 105), including the duty to preserve records containing 
documentation of a Federal agency's policies, decisions, and essential 
transactions, DOT destroys SSI when no longer needed to carry out the 
agency's function.
    (b) Other covered persons. (1) In general. A covered person must 
destroy SSI completely to preclude recognition or reconstruction of the 
information when the covered person no longer needs the SSI to carry 
out transportation security measures.
    (2) Exception. Paragraph (b)(1) of this section does not require a 
State or local government agency to destroy information that the agency 
is required to preserve under State or local law.

    Issued in Washington, DC, on May 6, 2004.
Norman Y. Mineta,
Secretary of Transportation.

Department of Homeland Security

Transportation Security Administration

49 CFR Chapter XII

0
For the reasons stated in the preamble, the Transportation Security 
Administration amends chapter XII of title 49, Code of Federal 
Regulations, by revising part 1520 to read as follows:

PART 1520--PROTECTION OF SENSITIVE SECURITY INFORMATION

Sec.
1520.1 Scope.
1520.3 Terms used in this part.
1520.5 Sensitive security information.
1520.7 Covered persons.
1520.9 Restrictions on the disclosure of SSI.
1520.11 Persons with a need to know.
1520.13 Marking SSI.
1520.15 SSI disclosed by TSA or the Coast Guard.
1520.17 Consequences of unauthorized disclosure of SSI.
1520.19 Destruction of SSI.

    Authority: 46 U.S.C. 70102-70106, 70117; 49 U.S.C. 114, 40113, 
44901-44907, 44913-44914, 44916-44918, 44935-44936, 44942, 46105.


Sec.  1520.1  Scope.

    (a) Applicability. This part governs the maintenance, safeguarding, 
and disclosure of records and information that TSA has determined to be 
Sensitive Security Information, as defined in Sec.  1520.5. This part 
does not apply to the maintenance, safeguarding, or disclosure of 
classified national security information, as defined by Executive Order 
12968, or to other sensitive unclassified information that is not SSI, 
but that nonetheless may be exempt from public disclosure under the 
Freedom of Information Act. In addition, in the case of information 
that has been designated as critical infrastructure information under 
section 214 of the Homeland Security Act, the receipt, maintenance, or 
disclosure of such information by a Federal agency or employee is 
governed by section 214 and any implementing regulations, not by this 
part.
    (b) Delegation. The authority of TSA and the Coast Guard under this 
part may be further delegated within TSA and the Coast Guard, 
respectively.


Sec.  1520.3  Terms used in this part.

    In addition to the terms in Sec.  1500.3 of this chapter, the 
following terms apply in this part:
    Administrator means the Under Secretary of Transportation for 
Security referred to in 49 U.S.C. 114(b), or his or her designee.
    Coast Guard means the United States Coast Guard.
    Covered person means any organization, entity, individual, or other 
person described in Sec.  1520.7. In the case of an individual, covered 
person includes any individual applying for employment in a position 
that would be a covered person, or in training for such a position, 
regardless of whether that individual is receiving a wage, salary, or 
other form of payment. Covered person includes a person applying for 
certification or other form of approval that, if granted, would make 
the person a covered person described in Sec.  1520.7.
    DHS means the Department of Homeland Security and any directorate, 
bureau, or other component within the Department of Homeland Security, 
including the United States Coast Guard.
    DOT means the Department of Transportation and any operating 
administration, entity, or office within the Department of 
Transportation, including the Saint Lawrence Seaway Development 
Corporation and the Bureau of Transportation Statistics.
    Federal Flight Deck Officer means a pilot participating in the 
Federal Flight Deck Officer Program under 49 U.S.C. 44921 and 
implementing regulations.
    Maritime facility means any facility as defined in 33 CFR part 101.
    Record includes any means by which information is preserved, 
irrespective of format, including a book, paper, drawing, map, 
recording, tape, film, photograph, machine-readable material, and any 
information stored in an electronic format. The term record also 
includes any draft, proposed, or recommended change to any record.
    Security contingency plan means a plan detailing response 
procedures to address a transportation security incident, threat 
assessment, or specific threat against transportation, including 
details of preparation, response, mitigation, recovery, and 
reconstitution procedures, continuity of government, continuity of 
transportation operations, and crisis management.
    Security program means a program or plan and any amendments, 
developed for the security of the following, including any comments, 
instructions, or implementing guidance:
    (1) An airport, aircraft, or aviation cargo operation;
    (2) A maritime facility, vessel, or port area; or
    (3) A transportation-related automated system or network for 
information processing, control, and communications.
    Security screening means evaluating a person or property to 
determine whether either poses a threat to security.
    SSI means sensitive security information, as described in Sec.  
1520.5.
    Threat image projection system means an evaluation tool that 
involves periodic presentation of fictional threat images to operators 
and is used in connection with x-ray or explosives detection systems 
equipment.
    TSA means the Transportation Security Administration.
    Vulnerability assessment means any review, audit, or other 
examination of the security of a transportation infrastructure asset; 
airport; maritime facility, port area, vessel, aircraft, train, 
commercial motor vehicle, or pipeline, or a transportation-related 
automated system or network, to determine its vulnerability to unlawful 
interference, whether during the conception, planning, design, 
construction, operation, or decommissioning phase. A vulnerability 
assessment may include proposed, recommended, or directed actions or 
countermeasures to address security concerns.


Sec.  1520.5  Sensitive security information.

    (a) In general. In accordance with 49 U.S.C. 114(s), SSI is 
information obtained or developed in the conduct of security 
activities, including research and development, the disclosure of which 
TSA has determined would--

[[Page 28083]]

    (1) Constitute an unwarranted invasion of privacy (including, but 
not limited to, information contained in any personnel, medical, or 
similar file);
    (2) Reveal trade secrets or privileged or confidential information 
obtained from any person; or
    (3) Be detrimental to the security of transportation.
    (b) Information constituting SSI. Except as otherwise provided in 
writing by TSA in the interest of public safety or in furtherance of 
transportation security, the following information, and records 
containing such information, constitute SSI:
    (1) Security programs and contingency plans. Any security program 
or security contingency plan issued, established, required, received, 
or approved by DOT or DHS, including--
    (i) Any aircraft operator or airport operator security program or 
security contingency plan under this chapter;
    (ii) Any vessel, maritime facility, or port area security plan 
required or directed under Federal law;
    (iii) Any national or area security plan prepared under 46 U.S.C. 
70103; and
    (iv) Any security incident response plan established under 46 
U.S.C. 70104.
    (2) Security Directives. Any Security Directive or order--
    (i) Issued by TSA under 49 CFR 1542.303, 1544.305, or other 
authority;
    (ii) Issued by the Coast Guard under the Maritime Transportation 
Security Act, 33 CFR part 6, or 33 U.S.C. 1221 et seq. related to 
maritime security; or
    (iii) Any comments, instructions, and implementing guidance 
pertaining thereto.
    (3) Information Circulars. Any notice issued by DHS or DOT 
regarding a threat to aviation or maritime transportation, including 
any--
    (i) Information Circular issued by TSA under 49 CFR 1542.303, 
1544.305, or other authority; and
    (ii) Navigation or Vessel Inspection Circular issued by the Coast 
Guard related to maritime security.
    (4) Performance specifications. Any performance specification and 
any description of a test object or test procedure, for--
    (i) Any device used by the Federal government or any other person 
pursuant to any aviation or maritime transportation security 
requirements of Federal law for the detection of any weapon, explosive, 
incendiary, or destructive device or substance; and
    (ii) Any communications equipment used by the Federal government or 
any other person in carrying out or complying with any aviation or 
maritime transportation security requirements of Federal law.
    (5) Vulnerability assessments. Any vulnerability assessment 
directed, created, held, funded, or approved by the DOT, DHS, or that 
will be provided to DOT or DHS in support of a Federal security 
program.
    (6) Security inspection or investigative information. (i) Details 
of any security inspection or investigation of an alleged violation of 
aviation or maritime transportation security requirements of Federal 
law that could reveal a security vulnerability, including the identity 
of the Federal special agent or other Federal employee who conducted 
the inspection or audit.
    (ii) In the case of inspections or investigations performed by TSA, 
this includes the following information as to events that occurred 
within 12 months of the date of release of the information: the name of 
the airport where a violation occurred, the airport identifier in the 
case number, a description of the violation, the regulation allegedly 
violated, and the identity of any aircraft operator in connection with 
specific locations or specific security procedures. Such information 
will be released after the relevant 12-month period, except that TSA 
will not release the specific gate or other location on an airport 
where an event occurred, regardless of the amount of time that has 
passed since its occurrence. During the period within 12 months of the 
date of release of the information, TSA may release summaries of an 
aircraft operator's, but not an airport operator's, total security 
violations in a specified time range without identifying specific 
violations or locations. Summaries may include total enforcement 
actions, total proposed civil penalty amounts, number of cases opened, 
number of cases referred to TSA or FAA counsel for legal enforcement 
action, and number of cases closed.
    (7) Threat information. Any information held by the Federal 
government concerning threats against transportation or transportation 
systems and sources and methods used to gather or develop threat 
information, including threats against cyber infrastructure.
    (8) Security measures. Specific details of aviation or maritime 
transportation security measures, both operational and technical, 
whether applied directly by the Federal government or another person, 
including--
    (i) Security measures or protocols recommended by the Federal 
government;
    (ii) Information concerning the deployments, numbers, and 
operations of Coast Guard personnel engaged in maritime security duties 
and Federal Air Marshals, to the extent it is not classified national 
security information; and
    (iii) Information concerning the deployments and operations of 
Federal Flight Deck Officers, and numbers of Federal Flight Deck 
Officers aggregated by aircraft operator.
    (9) Security screening information. The following information 
regarding security screening under aviation or maritime transportation 
security requirements of Federal law:
    (i) Any procedures, including selection criteria and any comments, 
instructions, and implementing guidance pertaining thereto, for 
screening of persons, accessible property, checked baggage, U.S. mail, 
stores, and cargo, that is conducted by the Federal government or any 
other authorized person.
    (ii) Information and sources of information used by a passenger or 
property screening program or system, including an automated screening 
system.
    (iii) Detailed information about the locations at which particular 
screening methods or equipment are used, only if determined by TSA to 
be SSI.
    (iv) Any security screener test and scores of such tests.
    (v) Performance or testing data from security equipment or 
screening systems.
    (vi) Any electronic image shown on any screening equipment monitor, 
including threat images and descriptions of threat images for threat 
image projection systems.
    (10) Security training materials. Records created or obtained for 
the purpose of training persons employed by, contracted with, or acting 
for the Federal government or another person to carry out any aviation 
or maritime transportation security measures required or recommended by 
DHS or DOT.
    (11) Identifying information of certain transportation security 
personnel. (i) Lists of the names or other identifying information that 
identify persons as--
    (A) Having unescorted access to a secure area of an airport or a 
secure or restricted area of a maritime facility, port area, or vessel 
or;
    (B) Holding a position as a security screener employed by or under 
contract with the Federal government pursuant to aviation or maritime 
transportation security requirements of Federal law, where such lists 
are aggregated by airport;
    (C) Holding a position with the Coast Guard responsible for 
conducting vulnerability assessments, security boardings, or engaged in 
operations to

[[Page 28084]]

enforce maritime security requirements or conduct force protection;
    (D) Holding a position as a Federal Air Marshal; or
    (ii) The name or other identifying information that identifies a 
person as a current, former, or applicant for Federal Flight Deck 
Officer.
    (12) Critical aviation or maritime infrastructure asset 
information. Any list identifying systems or assets, whether physical 
or virtual, so vital to the aviation or maritime transportation system 
that the incapacity or destruction of such assets would have a 
debilitating impact on transportation security, if the list is--
    (i) Prepared by DHS or DOT; or
    (ii) Prepared by a State or local government agency and submitted 
by the agency to DHS or DOT.
    (13) Systems security information. Any information involving the 
security of operational or administrative data systems operated by the 
Federal government that have been identified by the DOT or DHS as 
critical to aviation or maritime transportation safety or security, 
including automated information security procedures and systems, 
security inspections, and vulnerability information concerning those 
systems.
    (14) Confidential business information. (i) Solicited or 
unsolicited proposals received by DHS or DOT, and negotiations arising 
therefrom, to perform work pursuant to a grant, contract, cooperative 
agreement, or other transaction, but only to the extent that the 
subject matter of the proposal relates to aviation or maritime 
transportation security measures;
    (ii) Trade secret information, including information required or 
requested by regulation or Security Directive, obtained by DHS or DOT 
in carrying out aviation or maritime transportation security 
responsibilities; and
    (iii) Commercial or financial information, including information 
required or requested by regulation or Security Directive, obtained by 
DHS or DOT in carrying out aviation or maritime transportation security 
responsibilities, but only if the source of the information does not 
customarily disclose it to the public.
    (15) Research and development. Information obtained or developed in 
the conduct of research related to aviation or maritime transportation 
security activities, where such research is approved, accepted, funded, 
recommended, or directed by the DHS or DOT, including research results.
    (16) Other information. Any information not otherwise described in 
this section that TSA determines is SSI under 49 U.S.C. 114(s) or that 
the Secretary of DOT determines is SSI under 49 U.S.C. 40119. Upon the 
request of another Federal agency, TSA or the Secretary of DOT may 
designate as SSI information not otherwise described in this section.
    (c) Loss of SSI designation. TSA or the Coast Guard may determine 
in writing that information or records described in paragraph (b) of 
this section do not constitute SSI because they no longer meet the 
criteria set forth in paragraph (a) of this section.


Sec.  1520.7  Covered persons.

    Persons subject to the requirements of part 1520 are:
    (a) Each airport operator and aircraft operator subject to the 
requirements of Subchapter C of this title.
    (b) Each indirect air carrier, as defined in 49 CFR 1540.5.
    (c) Each owner, charterer, or operator of a vessel, including 
foreign vessel owners, charterers, and operators, required to have a 
security plan under Federal or International law.
    (d) Each owner or operator of a maritime facility required to have 
a security plan under the Maritime Transportation Security Act, (Pub.L. 
107-295), 46 U.S.C. 70101 et seq., 33 CFR part 6, or 33 U.S.C. 1221 et 
seq.
    (e) Each person performing the function of a computer reservation 
system or global distribution system for airline passenger information.
    (f) Each person participating in a national or area security 
committee established under 46 U.S.C. 70112, or a port security 
committee.
    (g) Each industry trade association that represents covered persons 
and has entered into a non-disclosure agreement with the DHS or DOT.
    (h) DHS and DOT.
    (i) Each person conducting research and development activities that 
relate to aviation or maritime transportation security and are 
approved, accepted, funded, recommended, or directed by DHS or DOT.
    (j) Each person who has access to SSI, as specified in Sec.  
1520.11.
    (k) Each person employed by, contracted to, or acting for a covered 
person, including a grantee of DHS or DOT, and including a person 
formerly in such position.
    (l) Each person for which a vulnerability assessment has been 
directed, created, held, funded, or approved by the DOT, DHS, or that 
has prepared a vulnerability assessment that will be provided to DOT or 
DHS in support of a Federal security program.
    (m) Each person receiving SSI under Sec.  1520.15(d) or (e).


Sec.  1520.9  Restrictions on the disclosure of SSI.

    (a) Duty to protect information. A covered person must--
    (1) Take reasonable steps to safeguard SSI in that person's 
possession or control from unauthorized disclosure. When a person is 
not in physical possession of SSI, the person must store it a secure 
container, such as a locked desk or file cabinet or in a locked room.
    (2) Disclose, or otherwise provide access to, SSI only to covered 
persons who have a need to know, unless otherwise authorized in writing 
by TSA, the Coast Guard, or the Secretary of DOT.
    (3) Refer requests by other persons for SSI to TSA or the 
applicable component or agency within DOT or DHS.
    (4) Mark SSI as specified in Sec.  1520.13.
    (5) Dispose of SSI as specified in Sec.  1520.19.
    (b) Unmarked SSI. If a covered person receives a record containing 
SSI that is not marked as specified in Sec.  1520.13, the covered 
person must--
    (1) Mark the record as specified in Sec.  1520.13; and
    (2) Inform the sender of the record that the record must be marked 
as specified in Sec.  1520.13.
    (c) Duty to report unauthorized disclosure. When a covered person 
becomes aware that SSI has been released to unauthorized persons, the 
covered person must promptly inform TSA or the applicable DOT or DHS 
component or agency.
    (d) Additional Requirements for Critical Infrastructure 
Information. In the case of information that is both SSI and has been 
designated as critical infrastructure information under section 214 of 
the Homeland Security Act, any covered person who is a Federal employee 
in possession of such information must comply with the disclosure 
restrictions and other requirements applicable to such information 
under section 214 and any implementing regulations.


Sec.  1520.11  Persons with a need to know.

    (a) In general. A person has a need to know SSI in each of the 
following circumstances:
    (1) When the person requires access to specific SSI to carry out 
aviation or maritime transportation security activities approved, 
accepted, funded, recommended, or directed by DHS or DOT.
    (2) When the person is in training to carry out aviation or 
maritime transportation security activities approved, accepted, funded, 
recommended, or directed by DHS or DOT.

[[Page 28085]]

    (3) When the information is necessary for the person to supervise 
or otherwise manage individuals carrying out aviation or maritime 
transportation security activities approved, accepted, funded, 
recommended, or directed by the DHS or DOT.
    (4) When the person needs the information to provide technical or 
legal advice to a covered person regarding aviation or maritime 
transportation security requirements of Federal law.
    (5) When the person needs the information to represent a covered 
person in connection with any judicial or administrative proceeding 
regarding those requirements.
    (b) Federal employees, contractors, and grantees. (1) A Federal 
employee has a need to know SSI if access to the information is 
necessary for performance of the employee's official duties.
    (2) A person acting in the performance of a contract with or grant 
from DHS or DOT has a need to know SSI if access to the information is 
necessary to performance of the contract or grant.
    (c) Background check. TSA or Coast Guard may make an individual's 
access to the SSI contingent upon satisfactory completion of a security 
background check or other procedures and requirements for safeguarding 
SSI that are satisfactory to TSA or the Coast Guard.
    (d) Need to know further limited by the DHS or DOT. For some 
specific SSI, DHS or DOT may make a finding that only specific persons 
or classes of persons have a need to know.


Sec.  1520.13  Marking SSI.

    (a) Marking of paper records. In the case of paper records 
containing SSI, a covered person must mark the record by placing the 
protective marking conspicuously on the top, and the distribution 
limitation statement on the bottom, of--
    (1) The outside of any front and back cover, including a binder 
cover or folder, if the document has a front and back cover;
    (2) Any title page; and
    (3) Each page of the document.
    (b) Protective marking. The protective marking is: SENSITIVE 
SECURITY INFORMATION.
    (c) Distribution limitation statement. The distribution limitation 
statement is:

WARNING: This record contains Sensitive Security Information that is 
controlled under 49 CFR parts 15 and 1520. No part of this record 
may be disclosed to persons without a ``need to know'', as defined 
in 49 CFR parts 15 and 1520, except with the written permission of 
the Administrator of the Transportation Security Administration or 
the Secretary of Transportation. Unauthorized release may result in 
civil penalty or other action. For U.S. government agencies, public 
disclosure is governed by 5 U.S.C. 552 and 49 CFR parts 15 and 1520.

    (d) Other types of records. In the case of non-paper records that 
contain SSI, including motion picture films, videotape recordings, 
audio recording, and electronic and magnetic records, a covered person 
must clearly and conspicuously mark the records with the protective 
marking and the distribution limitation statement such that the viewer 
or listener is reasonably likely to see or hear them when obtaining 
access to the contents of the record.


Sec.  1520.15  SSI disclosed by TSA or the Coast Guard.

    (a) In general. Except as otherwise provided in this section, and 
notwithstanding the Freedom of Information Act (5 U.S.C. 552), the 
Privacy Act (5 U.S.C. 552a), and other laws, records containing SSI are 
not available for public inspection or copying, nor does TSA or the 
Coast Guard release such records to persons without a need to know.
    (b) Disclosure under the Freedom of Information Act and the Privacy 
Act. If a record contains both SSI and information that is not SSI, TSA 
or the Coast Guard, on a proper Freedom of Information Act or Privacy 
Act request, may disclose the record with the SSI redacted, provided 
the record is not otherwise exempt from disclosure under the Freedom of 
Information Act or Privacy Act.
    (c) Disclosures to committees of Congress and the General 
Accounting Office. Nothing in this part precludes TSA or the Coast 
Guard from disclosing SSI to a committee of Congress authorized to have 
the information or to the Comptroller General, or to any authorized 
representative of the Comptroller General.
    (d) Disclosure in enforcement proceedings. (1) In general. TSA or 
the Coast Guard may provide SSI to a person in the context of an 
administrative enforcement proceeding when, in the sole discretion of 
TSA or the Coast Guard, as appropriate, access to the SSI is necessary 
for the person to prepare a response to allegations contained in a 
legal enforcement action document issued by TSA or the Coast Guard.
    (2) Security background check. Prior to providing SSI to a person 
under paragraph (d)(1) of this section, TSA or the Coast Guard may 
require the individual or, in the case of an entity, the individuals 
representing the entity, and their counsel, to undergo and satisfy, in 
the judgment of TSA or the Coast Guard, a security background check.
    (e) Other conditional disclosure. TSA may authorize a conditional 
disclosure of specific records or information that constitute SSI upon 
the written determination by TSA that disclosure of such records or 
information, subject to such limitations and restrictions as TSA may 
prescribe, would not be detrimental to transportation security.
    (f) Obligation to protect information. When an individual receives 
SSI pursuant to paragraph (d) or (e) of this section that individual 
becomes a covered person under Sec.  1520.7 and is subject to the 
obligations of a covered person under this part.
    (g) No release under FOIA. When TSA discloses SSI pursuant to 
paragraphs (b) through (e) of this section, TSA makes the disclosure 
for the sole purpose described in that paragraph. Such disclosure is 
not a public release of information under the Freedom of Information 
Act.
    (h) Disclosure of Critical Infrastructure Information. Disclosure 
of information that is both SSI and has been designated as critical 
infrastructure information under section 214 of the Homeland Security 
Act is governed solely by the requirements of section 214 and any 
implementing regulations.


Sec.  1520.17  Consequences of unauthorized disclosure of SSI.

    Violation of this part is grounds for a civil penalty and other 
enforcement or corrective action by DHS, and appropriate personnel 
actions for Federal employees. Corrective action may include issuance 
of an order requiring retrieval of SSI to remedy unauthorized 
disclosure or an order to cease future unauthorized disclosure.


Sec.  1520.19  Destruction of SSI.

    (a) DHS. Subject to the requirements of the Federal Records Act (5 
U.S.C. 105), including the duty to preserve records containing 
documentation of a Federal agency's policies, decisions, and essential 
transactions, DHS destroys SSI when no longer needed to carry out the 
agency's function.
    (b) Other covered persons. (1) In general. A covered person must 
destroy SSI completely to preclude recognition or reconstruction of the 
information when the covered person no longer needs the SSI to carry 
out transportation security measures.
    (2) Exception. Paragraph (b)(1) of this section does not require a 
State or local government agency to destroy

[[Page 28086]]

information that the agency is required to preserve under State or 
local law.

    Issued in Arlington, VA, on May 6, 2004.
David M. Stone,
Acting Administrator, Transportation Security Administration.
[FR Doc. 04-11142 Filed 5-17-04; 8:45 am]

BILLING CODE 4910-62-P