[Federal Register Volume 70, Number 11 (Tuesday, January 18, 2005)]
[Rules and Regulations]
[Pages 2819-2820]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-866]
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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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