[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)

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       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.