Sensitive Security Information - Background: Legislative and Regulatory History

Background: Legislative and Regulatory History

Following the September 11, 2001 terrorist attacks in the United States, Congress passed the Aviation and Transportation Security Act (Pub. L. No. 107-71) known as ATSA, which established the DOT Transportation Security Administration (TSA). The Act also transferred the responsibility for civil aviation security from FAA to TSA. On February 22, 2002, FAA and TSA published a joint final rule transferring the bulk of FAA's aviation security rules, including FAA's SSI regulation to TSA as 49 CFR Part 1520. It also specified in more detail which information is SSI, and protected vulnerability assessments for all modes of transportation. The Homeland Security Act of 2002 (Pub. L. No. 107-296) established the Department of Homeland Security (DHS) and transferred TSA from DOT to DHS. The Act also amended Title 49 U.S.C. §40119 to retain SSI authority for the Secretary of Transportation, and added subsection (s) to 49 U.S.C. § 114, reaffirming TSA’s authority under DHS to prescribe SSI regulations. TSA and DOT expanded the SSI regulation to incorporate maritime security measures implemented by U.S. Coast Guard regulations and clarify preexisting SSI provisions in an interim final rule (IFR) issued on May 18, 2004. The DOT SSI regulation is at 49 CFR Part 15, and the TSA SSI regulation remains at 49 CFR Part 1520.

The REAL ID Act of 2005 (Pub. L. No. 109–13) required DHS to establish standards for driver’s licenses that Federal agencies could accept for official identification purposes, including “boarding federally regulated commercial aircraft.” Title 6 CFR Part 37 was published January 29, 2008, and requires a security plan and related vulnerability assessments that are defined as SSI and governed by 49 CFR 1520.

The Homeland Security Appropriations Act of 2006 (Pub. L. No. 109-90, codified at 6 U.S.C. § 114) required DHS to provide department-wide policies for designating, safeguarding, and marking documents as SSI, along with auditing and accountability procedures. The Act also required that DHS report to Congress the number of SSI Coordinators within DHS, and provide a list of documents designated as SSI in their entirety. It also required that DHS provide guidance that includes extensive examples of SSI to further define the individual categories found under 49 CFR section 1520.5(b)(1) through (16). The Act directed that such guidance serve as the primary basis and authority for protecting, sharing, and marking information as SSI.

The Homeland Security Appropriations Act of 2007 (Pub. L. No. 109-295) required DHS to revise its SSI directives and mandated timely review of SSI requests. It also contained reporting requirements, mandated expanded access to SSI in litigation, and required that all SSI over three years old, and not in current SSI categories, be released upon request unless the DHS Secretary makes a written determination that the information must remain SSI.

The Rail Transportation Security Final Rule, published in the Federal Register on November 26, 2008, adds rail-related terms and covered persons to Part 1520, including railroad carriers, rail facilities, rail hazardous materials shippers and receivers, and rail transit systems that are detailed in a new Part 1580. Although rail vulnerability assessments and threat information were already SSI under Part 1520, this rail final rule specifies that information on rail security investigations and inspections, security measures, security training materials, critical rail infrastructure assets, and research and development is also SSI.