Emergency Justification Memo

U S . Depnrtment of Homeland Security
Arlington. \'ireinin 22202-4220

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MEMORANDUM FOR:

Nathan Lesser
OMB DHS Desk Officer

THROUGH

Lisa Dean

; Security

Administration

Security Administration
FROM:

Scott Charbo
Chief Information Officer, Department of Homeland Security

SUBJECT:

Request for Emergency Clearance for the Security Threat
Assessment Questionnaire

TSA is seeking emergency processing of this information collection request to implement
Section 525(d) of the Department of Homeland Security Appropriations Act of 2007 (DHS
Appropriations Act) and meet ongoing litigation deadlines in pending litigation, including those
in In Re: September 11 Litigation, 21 MC 97 &lo1 (AKH) (S.D.N.Y.).
Section 525(d) of the Department of Homeland Security Appropriations Act of 2007 (DHS
Appropriations Act) provides that in civil proceedings in the U.S. District Courts, where a party
seeking access to Sensitive Security Information (SSI) demonstrates a substantial need for
relevant SSI in the preparation of the party's case and an undue hardship to obtain equivalent
information by other means, the party or party's counsel shall be designated as a covered person
under 49 CFR part 1520.7, provided that the overseeing judge enters an order protecting the SSI
from unauthorized disclosure; the individual undergoes a criminal history records check and
threat assessment; and the provision of access to the specific SSI in question in a particular
proceeding does not present a risk of harm to the nation.
With passage of section 525(d) in October 2006, Congress directed that, subject to the
conducting of appropriate background checks, TSA authorize SSI access in In Re: September 11
Litigation, Nos. 21 MC 97 & 101 (S.D.N.Y.), the consolidated tort litigation arising out of the
events of September 11,200 1, and other pending federal district court cases, overruling TSA's
long-stated policy that access would not be granted to non-regulated parties in civil litigation
under any condition. TSA believes use of the normal clearance procedures at this time would
frustrate Congressional intent to provide this access in a timely manner, thereby resulting in
public harm. TSA is unable to determine whether the relevant individuals can receive SSI access
until it receives this clearance from OMB, and without emergency approval, the individuals will
be unable to meet ongoing litigation deadlines in pending litigation. By way of example, more
than 60 attorneys representing plaintiffs and defendants in the 911 1 litigation currently seek
access to SSI for use in the litigation. The parties are heavily engaged in discovery based on
pressure by the Court to complete in the near term what already has been many years of
discovery. As a result, multiple depositions are scheduled for almost every week for the next
several months, and the Court has directed the parties to begin double-tracking depositions in
February in order to speed things up. Although the Court has not set a firm discovery cut-off

date, Judge Hellerstein has indicated that March 3 1, 2007, is his goal. The parties cannot
complete discovery without access to SSI and likely will have to recall witnesses for questioning
on relevant SSI once they are permitted access to the information. The parties and the Court
expect that TSA will complete the clearances as soon as possible, and TSA has represented to the
Court that it is working to do so.
While TSA is seeking emergency review of this request, after receiving the OMB control
number, TSA will immediately proceed to follow the normal clearance process, which includes
publishing the required Federal Register notices soliciting public comment. Your expedited
action on this request is appreciated.