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UNITED STATES OF AMERICA
DEPARTMENT OF TRANSPORTATION
FEDERAL HIGHWAY ADMINISTRATION
| ____________________________________ | |||
| DESIGNATION OF SENSITIVE | ) | ||
| SECURITY INFORMATION (SSI): | ) | ORDER 2006-12-FHWA-02 | |
| Inspection Manual for Tunnels and Boat | ) | ||
| Structures, Volume 5 (November 2003). | ) | ||
| ____________________________________ | ) |
I. Summary.
Pursuant to 49 U.S.C. 40119(b)(1) and 49 CFR 15.5(b)(16), and by delegated authority, the Federal Highway Administration (FHWA), an Operating Administration of the United States Department of Transportation (DOT), designates as Sensitive Security Information (SSI) certain portions of the Inspection Manual for Tunnels and Boat Structures, Volume 5 (November 2003) (Inspection Manual) prepared for the Massachusetts Turnpike Authority (MTA) to aid in its inspection of tunnels, boat sections, and various other structural elements within the Central Artery/Tunnel (CA/T) network.
Information designated SSI requires protection against improper disclosure and dissemination limited to authorized persons and is subject to all requirements and restrictions regarding access, control, maintenance, transmission, dissemination, release, and destruction mandated by Department of Transportation regulations, policies, and procedures.[1] Further, information designated SSI is exempt from public disclosure under the Freedom of Information Act (FOIA), 5 U.S.C. 552.
II. Discussion.
A. Authority.
49 U.S.C. 40119(b)(1), as amended by the Homeland Security Act of 2002,[2] authorizes the Secretary of Transportation to designate information meeting certain criteria as SSI:
Notwithstanding section 552 of title 5 and the establishment of the 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.
The phrase "[N]otwithstanding section 552 of title 5"makes information designated SSI exempt from disclosure under FOIA exemption 3 (records exempted from disclosure by a statute). 5 U.S.C. 552(b)(3).
The DOT regulations and interim guidance for the designation and treatment of SSI define it as "sensitive but unclassified information obtained or developed in the conduct of security activities, including research and development, the unauthorized disclosure of which would constitute an unwarranted invasion of privacy, reveal trade secrets or privileged information, or be detrimental to transportation safety" (emphasis supplied).[3]
Information qualifies for SSI designation if it falls within the categories specified in 49 CFR 15.5(b)(1)-(15), or, if not specified, upon the written determination of the Secretary that SSI designation under 49 CFR 15.5(b)(16) is otherwise in the interest of public safety or in furtherance of transportation security.
The authority vested in the Secretary by 49 USC 40119(b)(1) may be delegated;[4] and the Secretary has delegated SSI designation authority to the DOT General Counsel; the Director of the Office of Intelligence, Security, and Emergency Response; and, for information within their respective purviews, the Administrators of the DOT Operating Administrations, including the FHWA.[5]
B. FHWA's Transportation Security Mission.
The highway system, including tunnels and bridges, is critical to the nation's economic vitality and plays a key part in every emergency event, whether resulting from natural hazards or terrorism. For this reason, and in collaboration with the Department of Homeland Security/Transportation Security Administration (DHS/TSA), other Federal agencies, States, local governments, and the private sector, FHWA works to protect and secure the highway system's integrity and performance through the provision of subject matter expertise, the facilitation of communications, and coordination in research and development, technical assistance, and training.[6] For example, FHWA's Turner-Fairbank Highway Research Center is developing a synthesis of latest technologies and best practices for bridge and tunnel surveillance and security in order to assist State decision making. As another example, in collaboration with the Transportation Research Board (TRB), FHWA has developed and published a monograph entitled Making Transportation Tunnels Safe and Secure, and is conducting ongoing research on design guidelines for blast resistant bridges.
C. Prior Vulnerability Assessment.
As part of its security-related work, FHWA's Engineering Assessment Teams provide technical expertise in assessing the structural vulnerabilities of highway transportation assets, upon the request of State and local infrastructure owners. From December, 2003, through March, 2004, at the request of the MTA, a Team comprised of FHWA engineers and a representative of the Department of Homeland Security assessed the structural vulnerability of several transportation assets owned, operated, and identified as critical by the MTA, including the Central Artery Tunnel. The Team's Report, presenting findings and recommendations, including suggested mitigations and countermeasures, clearly qualifies as SSI under 49 CFR 15.5(b)(5) (vulnerability assessments directed, created, held, funded, or approved by DOT). The Report addresses several of the same Central Artery Tunnel structures and systems as the Inspection Manual.
D. Departmental SSI Designation Policy.
It is the policy of the Department of Transportation to balance the need to identify and protect qualifying SSI information against the public's legitimate interest in, and right to know, how the Department carries out its responsibilities. Information is designated SSI only in circumstances where it has been determined that limiting access is necessary to protect personal privacy, trade secrets or privileged commercial information, or, as in this case, to guard against possible circumvention of transportation security by persons or entities who pose, or may pose, a threat. In accord with this policy, only certain sections, or parts of sections, as further described below, of the Inspections Manual have been designated SSI.[7]
E. CA/T Inspection Manual SSI Designations.
The Inspection Manual consists of six (6) numbered sections totaling 129 pages and 10 separate appendices identified as A-J. It was prepared by the firm of Bechtel/Parsons Brinckerhoff for the MTA to aid in the inspection of tunnels, boat sections, and certain other structural elements within the Central Artery/Tunnel (CA/T) network.
Development of the Manual was a requirement of Federal funding for the CA/T project, and a copy was submitted to the FHWA for review and approval. Following a fatality in the Tunnel in July, 2006, FHWA received a number of FOIA requests for the Inspection Manual, leading to reexamination of the Manual and consideration of the appropriateness of its general public release from a security perspective.
This reexamination revealed that portions of the Manual provide detailed information, including diagrams and photographs, of the CA/T tunnel and associated structures, with specific descriptions and locations of a number of security-critical structural elements, such as pumping stations, ventilation ducts, and mechanical systems – in some cases, the same structures and systems previously assessed for vulnerabilities by the FHWA Engineering Assessment Team.
Because the Inspection Manual was not developed for security purposes, information regarding specific aspects of tunnel and related structures inspection may appear innocuous when considered alone. However, the FHWA has concluded that the compilation and aggregation of this information into a single document makes it a more effective information tool for persons who might plan damage to the tunnel or associated structures.
For these reasons, portions of the Inspection Manual, identified below, are designated SSI and may not be disclosed to the general public. All non-designated portions may be disclosed, as follows:
F. Treatment of SSI Information.
Upon designation of information as SSI, the safeguarding and non-disclosure restrictions of 49 CFR Part 15 and the Department's Guidance apply to all persons who receive or have access to the information, including all employees, contractors, grantees, consultants, licensees, and regulated entities of DOT/FHWA and MTA, all of whom are identified as "covered persons" under the regulation.[8]
The standard for access to SSI is "need to know," which means access must be limited to persons with legitimate requirements for the information in order to perform official duties; carry out the requirements of a Federal contract, agreement, grant, or license; operate as a regulated entity; or perform directed transportation security tasks.[9]
Access to SSI creates obligations, and all covered persons have a duty to protect SSI from unauthorized disclosure; provide access only to other covered persons who have a need to know; and mark, dispose of, and report all unauthorized disclosure of the information, as specified in Part 15.[10] Violation of these provisions may result in administrative, civil, or criminal penalties.[11] Persons granted access to SSI must be informed in writing of their obligations under Part 15 to safeguard the information and of the penalties for unauthorized disclosure.
FHWA has carefully considered the possible burdens of handling information designated SSI, and, on balance, has concluded that possible transportation security concerns arising from public disclosure of the portions of the Inspection Manual designated SSI outweigh possible burdens associated with the SSI designation.
III. Order.
ACCORDINGLY, for the reasons discussed, it is hereby ordered that the identified selected portions of the Inspection Manual for Tunnels and Boat Structures, Volume 5 (November 2003), prepared by Bechtel/Parsons Brinckerhoff for the MTA, including addenda, revisions, and prior or future drafts, irrespective of the medium in which they appear, are designated Sensitive Security Information (SSI) in the interest of public safety and in furtherance of transportation security and are subject to all requirements and restrictions set out in 49 CFR Part 15 and the Department of Transportation's Guidance: Interim Policies and Procedures for 49 CFR Part 15, Protection of Sensitive Security Information (June 7, 2005) (copies attached) including, but not limited to, no disclosure by or to any person not authorized to receive the information.
ORDERED this ___ 6th ____ day of ______ December _______, 2006.
For the Secretary of Transportation
By:
original signed by
_______________________________________
Frederick G. Wright, Jr.
Executive Director
Federal Highway Administration
Attachments:
49 CFR Part 15
GUIDANCE: Interim Policies and Procedures for 49 CFR Part 15
[1] 49 CFR Part 15 (see, also, technical amendment to Sec. 15.11 removing restrictive words "aviation or maritime." 70 Fed Reg 1379 (Jan. 7, 2005)) and GUIDANCE: Interim Policies and Procedures for 49 CFR Part 15.
[2] Pub. L. 107-296, 116 Stat. 2064 (2002).
[3] See, 49 CFR 15.5 and Guidance at 1.
[4] 49 CFR 1.45 (2005).
[5] FHWA Administrator J. Richard Capka has recused himself from matters related to the Central Artery Project. Delegated decisional authority in this matter is exercised by FHWA Executive Director Frederick G. Wright, Jr.
[6] Improvement of highway transportation security is one of the FHWA's key strategic goals. See, FY 2006 FHWA Strategic Implementation Plan at www.fhwa.dot.gov/policy/fhplan.html.
[7] In some portions of the Manual, non-exempt information that might otherwise be disclosed is so inextricably intertwined with SSI information that segregation is not reasonably possible. In these circumstances, the FHWA has designated the entire portion as SSI.
[8] 49 CFR 15.7. The term also includes persons employed by, contracted to, or acting for a covered person, as well as persons formerly in such positions.
[9] The circumstances under which a "need to know" arises are described in 49 CFR 15.11. Note that each person granted access under section 15.11 is deemed a "covered person."
[10] Respectively: 49 CFR 15.13, 15.9, and 15.15.
[11] 49 CFR 15.17.
