[Congressional Record: September 28, 2006 (House)]
[Page H7784-H7848]


    CONFERENCE REPORT ON H.R. 5441, DEPARTMENT OF HOMELAND SECURITY
                        APPROPRIATIONS ACT, 2007

              Conference Report (House Rept. No. 109-699)

[...]

       Sec. 525. (a) Within 30 days after enactment of this Act,
     the Secretary of Homeland Security shall revise Department of
     Homeland Security (DHS) Management Directive (MD) 11056 to
     provide for the following:
       (1) That when a lawful request is made to publicly release
     a document containing information designated as sensitive
     security information
     (SSI), the document shall be reviewed in a timely manner to
     determine whether any information contained in the document
     meets the criteria for continued SSI protection under
     applicable law and regulation and shall further provide that
     all portions that no longer require SSI designation be
     released, subject to applicable law, including sections 552
     and 552a of title 5, United States Code;
       (2) That sensitive security information that is three years
     old and not incorporated in a current transportation security
     directive, security plan, contingency plan, or information
     circular; or does not contain current information in one of
     the following SSI categories: equipment or personnel
     performance specifications, vulnerability assessments,
     security inspection or investigative information, threat
     information, security measures, security screening
     information, security training materials, identifying
     information of designated transportation security personnel,
     critical aviation or maritime infrastructure asset
     information, systems security information, confidential
     business information, or research and development information
     shall be subject to release upon request unless:
       (A) the Secretary or his designee makes a written
     determination that identifies a rational reason why the
     information must remain SSI; or
       (B) such information is otherwise exempt from disclosure
     under applicable law:
     Provided, That any determination made by the Secretary under
     clause (a)(2)(A) shall be provided to the party making a
     request to release such information and to the Committees on
     Appropriations of the Senate and the House of Representatives
     as part of the annual reporting requirement pursuant to
     section 537 of the Department of Homeland Security
     Appropriations Act, 2006 (Public Law 109-90; 119 Stat. 2088);
     and
       (3) Common and extensive examples of the individual
     categories of SSI information cited under 49 CFR 1520(b)(1)
     through (16) in order to minimize and standardize judgment by
     covered persons in the application of SSI marking.
       (b) Not later than 120 days after the date of enactment of
     this Act, the Secretary of Homeland Security shall report to
     the Committees on Appropriations of the Senate and the House
     of Representatives on the progress that the Department has
     made in implementing the requirements of this section and of
     section 537 of the Department of Homeland Security
     Appropriations Act, 2006 (Public Law 109-90; 119 Stat. 2088).
       (c) Not later than one year from the date of enactment of
     this Act, the Government Accountability Office shall report
     to the Committees on Appropriations of the Senate and the
     House of Representatives on DHS progress and procedures in
     implementing the requirements of this section.
       (d) That in civil proceedings in the United States District
     Courts, where a party seeking access to SSI demonstrates that
     the party has substantial need of relevant SSI in the
     preparation of the party's case and that the party is unable
     without undue hardship to obtain the substantial equivalent
     of the information by other means, the party or party's
     counsel shall be designated as a covered person under 49 CFR
     Part 1520.7 in order to have access to the SSI at issue in
     the case, provided that the overseeing judge enters an order
     that protects the SSI from unauthorized or unnecessary
     disclosure and specifies the terms and conditions of access,
     unless upon completion of a criminal history check and
     terrorist assessment like that done for aviation workers on
     the persons seeking access to SSI, or based on the
     sensitivity of the information, the Transportation Security
     Administration or DHS demonstrates that such access to the
     information for the proceeding presents a risk of harm to the
     nation: Provided, That notwithstanding any other provision of
     law, an order granting access to SSI under this section shall
     be immediately appealable to the United States Courts of
     Appeals, which shall have plenary review over both the
     evidentiary finding and the sufficiency of the order
     specifying the terms and conditions of access to the SSI in
     question: Provided further, That notwithstanding any other
     provision of law, the Secretary may assess a civil penalty of
     up to $50,000 for each violation of 49 CFR Part 1520 by
     persons provided access to SSI under this provision.

[...]

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       Section 525. The conferees continue and modify a provision
     proposed by the House and Senate requiring DHS to revise,
     within 30 days after enactment, its management directive on
     Sensitive Security Information (SSI) to among other things,
     provide for the release of certain SSI information that is
     three years old unless the Secretary makes a written
     determination that identifies a rational reason why the
     information must remain SSI. The conferees expect this
     rational reason written determination to identify and
     describe the specific risk to the national transportation
     system. The provision also contains a mechanism for SSI to be
     used in civil judicial proceedings if the judge determines
     that is needed. The conferees expect that a party will be
     able to demonstrate undue hardship to the judge if equivalent
     information is not available in one month's time. The
     conferees expect the criminal history records check and
     terrorist threat assessment on the persons seeking access to
     SSI in civil proceedings to be identical to that conducted
     for aviation workers. The conferees further expect any DHS
     demonstration of risk or harm to the nation in a judicial
     proceeding include a description of the specific risk to the
     national transportation system. This is consistent with
     demonstrations made for classified information.