Federal Register: January 18, 2005 (Volume 70, Number 11)
Rules and Regulations             
Page 2819-2820

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DEPARTMENT OF TRANSPORTATION

Office of the Secretary

49 CFR Part 1

[Docket No. OST-1999-6189]
RIN 9991-AA43

 
Sensitive Security Information

AGENCY: Office of the Secretary, Transportation.

ACTION: Final rule.

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

EFFECTIVE DATE: January 5, 2005.

FOR FURTHER INFORMATION CONTACT: Robert I. Ross, Office of the General 
Counsel, U.S. Department of Transportation, 400 7th Street SW., Room 
10102, Washington, DC 20590. Voice: (202) 366-9156. Fax: (202)366-9170. 
E-mail: [email protected]

SUPPLEMENTARY INFORMATION:

Background

    For many years, DOT's Federal Aviation Administration (FAA) had 
statutory authority to prevent disclosure of information related to 
aviation security, termed ``Sensitive Security Information (SSI).'' In 
the leading case of Public Citizen v. Federal Aviation Administration, 
300 U.S. App. DC 238; 988 F.2d 186 (DC Cir. 1993), the court set forth 
three aspects of this authority:
    1. The statute under which FAA restricted disclosure of this 
information--49 U.S.C. App. 1357(d) (2) (1993)--qualified under 
Exemption 3 of the Freedom of Information Act (FOIA) as a ``statute (A) 
[that] requires that the matters be withheld from the public in such a 
way as to leave no discretion on the issue, or (B) establishes 
particular criteria for withholding or refers to particular types of 
matters to be withheld.'' (5 U.S.C. 552(b) (3)). Hence, SSI may be 
withheld from public disclosure under FOIA.
    2. The information may be withheld from the public rulemaking 
record in an informal rulemaking under 5 U.S.C. 553.
    3. The information may be withheld from discovery in civil 
litigation.
    In response to the attacks upon the United States on September 11, 
2001, Congress enacted the Aviation and Transportation Security Act 
(Public Law 107-71, 115 Stat. 597 (2001)), which created in DOT a new 
Transportation Security Administration (TSA). 49 U.S.C. 114. That 
statute also transferred from the FAA to the TSA the authority to 
denominate information as SSI and expanded the scope of that authority 
to all modes of transportation. 49 U.S.C. 114(s). When Congress created 
the Department of Homeland Security (DHS) in the Homeland Security Act 
of 2002, (Public Law 107-295, 116 Stat. 2064 (2002)), it transferred 
TSA from DOT to DHS, continued its SSI authority, and gave similar 
authority to DOT, again as to all modes of transportation. See 49 
U.S.C. 40119(b).
    Both 49 U.S.C. 114(s) and 49 U.S.C. 40119(b) require, as did 49 
U.S.C. App. 1357(d) (2), that the agency administering SSI authority 
promulgate regulations specifying the types of information qualifying 
for SSI treatment. FAA's regulations appeared at 14 CFR part 191; DOT's 
appear at 49 CFR part 15, Protection of Sensitive Security Information; 
TSA's appear at 49 CFR part 1520, Protection of Sensitive Security 
Information.
    Part 15 sets forth categories of information that qualify as SSI 
and authorizes the Secretary of Transportation to determine that 
specific items of information come within any of those categories. The 
purpose of this document is to delegate to all DOT Administrators this 
authority of the Secretary as to matters within their purview, with 
authority to redelegate within their own organizations; and to delegate 
this authority to the General Counsel and the Director of Intelligence 
and Security for all matters in DOT.
    This rule is being published as a final rule and made effective on 
the date signed by the Secretary. As the rule relates to Departmental 
management, procedures, and practices, notice and comment on it are 
unnecessary under 5 U.S.C. 553(b)(3)(A). In addition, since this rule 
relates to internal procedures, there is good cause to make it 
effective in less than 30 days pursuant to 5 U.S.C. 553(d).

Regulatory Analyses and Notices

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

Paperwork Reduction Act

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

Unfunded Mandates Reform Act of 1995

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

List of Subjects in 49 CFR Part 1

    Authority delegations, Organizations and functions.


0
For the reasons set forth in the preamble, the Office of the Secretary 
amends 49 CFR part 1 as follows:

PART 1--ORGANIZATION AND DELEGATION OF POWERS AND DUTIES

0
1. The authority citation for part 1 continues to read as follows:

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


0
2. In Sec.  1.45, add a new paragraph (a)(19) to read as follows:


Sec.  1.45  Delegations to all Administrators.

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


0
3. In Sec.  1.57, add and reserve paragraphs (r) and (s) and add a new 
paragraph (t) to read as follows:


Sec.  1.57  Delegations to General Counsel.

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

0
4. In Sec.  1.69, add a new paragraph (c) to read as follows:

[[Page 2820]]

Sec.  1.69  Delegations to the Director of Intelligence and Security.

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

    Issued in Washington, DC, on this 5th day of January 2005.
Norman Y. Mineta,
Secretary of Transportation.
[FR Doc. 05-866 Filed 1-14-05; 8:45 am]

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