HR 5710 IH
107th CONGRESS
2d Session
H. R. 5710
To establish the Department of Homeland Security, and for other
purposes.
IN THE HOUSE OF REPRESENTATIVES
NOVEMBER 12, 2002
Mr. ARMEY (for himself, Mr. DELAY, Mr. WATTS of Oklahoma, Ms. PRYCE of Ohio,
Mr. PORTMAN, Mr. THORNBERRY, Mr. GIBBONS, Ms. HARMAN, and Mrs. TAUSCHER)
introduced the following bill; pursuant to House Resolution 449, referred to the
Select Committee on Homeland Security
A BILL
To establish the Department of Homeland Security, and for other
purposes.
Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled,
SECTION 1. SHORT TITLE; TABLE OF CONTENTS.
(a) SHORT TITLE- This Act may be cited as the `Homeland Security Act of
2002'.
(b) TABLE OF CONTENTS- The table of contents for this Act is as
follows:
Sec. 1. Short title; table of contents.
Sec. 3. Construction; severability.
TITLE I--DEPARTMENT OF HOMELAND SECURITY
Sec. 101. Executive department; mission.
Sec. 102. Secretary; functions.
Sec. 103. Other officers.
TITLE II--INFORMATION ANALYSIS AND INFRASTRUCTURE PROTECTION
Subtitle A--Directorate for Information Analysis and Infrastructure
Protection; Access to Information
Sec. 201. Directorate for Information Analysis and Infrastructure
Protection.
Sec. 202. Access to information.
Subtitle B--Critical Infrastructure Information
Sec. 213. Designation of critical infrastructure protection
program.
Sec. 214. Protection of voluntarily shared critical infrastructure
information.
Sec. 215. No private right of action.
Subtitle C--Information Security
Sec. 221. Procedures for sharing information.
Sec. 222. Privacy Officer.
Sec. 223. Enhancement of non-Federal cybersecurity.
Sec. 225. Cyber Security Enhancement Act of 2002.
Subtitle D--Office of Science and Technology
Sec. 231. Establishment of office; Director.
Sec. 232. Mission of office; duties.
Sec. 233. Definition of law enforcement technology.
Sec. 234. Abolishment of Office of Science and Technology of National
Institute of Justice; transfer of functions.
Sec. 235. National Law Enforcement and Corrections Technology
Centers.
Sec. 236. Coordination with other entities within Department of
Justice.
Sec. 237. Amendments relating to National Institute of Justice.
TITLE III--SCIENCE AND TECHNOLOGY IN SUPPORT OF HOMELAND SECURITY
Sec. 301. Under Secretary for Science and Technology.
Sec. 302. Responsibilities and authorities of the Under Secretary for
Science and Technology.
Sec. 303. Functions transferred.
Sec. 304. Conduct of certain public health-related activities.
Sec. 305. Federally funded research and development centers.
Sec. 306. Miscellaneous provisions.
Sec. 307. Homeland Security Advanced Research Projects Agency.
Sec. 308. Conduct of research, development, demonstration, testing and
evaluation.
Sec. 309. Utilization of Department of Energy national laboratories and
sites in support of homeland security activities.
Sec. 310. Transfer of Plum Island Animal Disease Center, Department of
Agriculture.
Sec. 311. Homeland Security Science and Technology Advisory
Committee.
Sec. 312. Homeland Security Institute.
Sec. 313. Technology clearinghouse to encourage and support innovative
solutions to enhance homeland security.
TITLE IV--DIRECTORATE OF BORDER AND TRANSPORTATION SECURITY
Subtitle A--Under Secretary for Border and Transportation Security
Sec. 401. Under Secretary for Border and Transportation Security.
Sec. 402. Responsibilities.
Sec. 403. Functions transferred.
Subtitle B--United States Customs Service
Sec. 411. Establishment; Commissioner of Customs.
Sec. 412. Retention of customs revenue functions by Secretary of the
Treasury.
Sec. 413. Preservation of customs funds.
Sec. 414. Separate budget request for customs.
Sec. 416. GAO report to Congress.
Sec. 417. Allocation of resources by the Secretary.
Sec. 418. Reports to Congress.
Sec. 419. Customs user fees.
Subtitle C--Miscellaneous Provisions
Sec. 421. Transfer of certain agricultural inspection functions of the
Department of Agriculture.
Sec. 422. Functions of Administrator of General Services.
Sec. 423. Functions of Transportation Security Administration.
Sec. 424. Preservation of Transportation Security Administration as a
distinct entity.
Sec. 425. Explosive detection systems.
Sec. 426. Transportation security.
Sec. 427. Coordination of information and information technology.
Sec. 429. Information on visa denials required to be entered into
electronic data system.
Sec. 430. Office for Domestic Preparedness.
Subtitle D--Immigration Enforcement Functions
Sec. 441. Transfer of functions to Under Secretary for Border and
Transportation Security.
Sec. 442. Establishment of Bureau of Border Security.
Sec. 443. Professional responsibility and quality review.
Sec. 444. Employee discipline.
Sec. 445. Report on improving enforcement functions.
Sec. 446. Sense of Congress regarding construction of fencing near San
Diego, California.
Subtitle E--Citizenship and Immigration Services
Sec. 451. Establishment of Bureau of Citizenship and Immigration
Services.
Sec. 452. Citizenship and Immigration Services Ombudsman.
Sec. 453. Professional responsibility and quality review.
Sec. 454. Employee discipline.
Sec. 455. Effective date.
Sec. 457. Funding for citizenship and immigration services.
Sec. 458. Backlog elimination.
Sec. 459. Report on improving immigration services.
Sec. 460. Report on responding to fluctuating needs.
Sec. 461. Application of Internet-based technologies.
Sec. 462. Children's affairs.
Subtitle F--General Immigration Provisions
Sec. 471. Abolishment of INS.
Sec. 472. Voluntary separation incentive payments.
Sec. 473. Authority to conduct a demonstration project relating to
disciplinary action.
Sec. 474. Sense of Congress.
Sec. 475. Director of Shared Services.
Sec. 476. Separation of funding.
Sec. 477. Reports and implementation plans.
Sec. 478. Immigration functions.
TITLE V--EMERGENCY PREPAREDNESS AND RESPONSE
Sec. 501. Under Secretary for Emergency Preparedness and Response.
Sec. 502. Responsibilities.
Sec. 503. Functions transferred.
Sec. 504. Nuclear incident response.
Sec. 505. Conduct of certain public health-related activities.
Sec. 507. Role of Federal Emergency Management Agency.
Sec. 508. Use of national private sector networks in emergency
response.
Sec. 509. Use of commercially available technology, goods, and
services.
TITLE VI--TREATMENT OF CHARITABLE TRUSTS FOR MEMBERS OF THE ARMED FORCES OF
THE UNITED STATES AND OTHER GOVERNMENTAL ORGANIZATIONS
Sec. 601. Treatment of charitable trusts for members of the Armed Forces
of the United States and other governmental organizations.
TITLE VII--MANAGEMENT
Sec. 701. Under Secretary for Management.
Sec. 702. Chief Financial Officer.
Sec. 703. Chief Information Officer.
Sec. 704. Chief Human Capital Officer.
Sec. 705. Establishment of Officer for Civil Rights and Civil
Liberties.
Sec. 706. Consolidation and co-location of offices.
TITLE VIII--COORDINATION WITH NON-FEDERAL ENTITIES; INSPECTOR GENERAL;
UNITED STATES SECRET SERVICE; COAST GUARD; GENERAL PROVISIONS
Subtitle A--Coordination with Non-Federal Entities
Sec. 801. Office for State and Local Government Coordination.
Subtitle B--Inspector General
Sec. 811. Authority of the Secretary.
Sec. 812. Law enforcement powers of Inspector General agents.
Subtitle C--United States Secret Service
Sec. 821. Functions transferred.
Subtitle D--Acquisitions
Sec. 831. Research and development projects.
Sec. 832. Personal services.
Sec. 833. Special streamlined acquisition authority.
Sec. 834. Unsolicited proposals.
Sec. 835. Prohibition on contracts with corporate expatriates.
Subtitle E--Human Resources Management
Sec. 841. Establishment of Human Resources Management System.
Sec. 842. Labor-management relations.
Subtitle F--Federal Emergency Procurement Flexibility
Sec. 852. Procurements for defense against or recovery from terrorism or
nuclear, biological, chemical, or radiological attack.
Sec. 853. Increased simplified acquisition threshold for procurements in
support of humanitarian or peacekeeping operations or contingency
operations.
Sec. 854. Increased micro-purchase threshold for certain
procurements.
Sec. 855. Application of certain commercial items authorities to certain
procurements.
Sec. 856. Use of streamlined procedures.
Sec. 857. Review and report by Comptroller General.
Sec. 858. Identification of new entrants into the Federal
marketplace.
Subtitle G--Support Anti-terrorism by Fostering Effective Technologies Act
of 2002
Sec. 862. Administration.
Sec. 863. Litigation management.
Sec. 864. Risk management.
Subtitle H--Miscellaneous Provisions
Sec. 871. Advisory committees.
Sec. 872. Reorganization.
Sec. 873. Use of appropriated funds.
Sec. 874. Future Year Homeland Security Program.
Sec. 875. Miscellaneous authorities.
Sec. 876. Military activities.
Sec. 877. Regulatory authority and preemption.
Sec. 878. Counternarcotics officer.
Sec. 879. Office of International Affairs.
Sec. 880. Prohibition of the Terrorism Information and Prevention
System.
Sec. 881. Review of pay and benefit plans.
Sec. 882. Office for National Capital Region Coordination.
Sec. 883. Requirement to comply with laws protecting equal employment
opportunity and providing whistleblower protections.
Sec. 884. Federal Law Enforcement Training Center.
Sec. 885. Joint Interagency Task Force.
Sec. 886. Sense of Congress reaffirming the continued importance and
applicability of the Posse Comitatus Act.
Sec. 887. Coordination with the Department of Health and Human Services
under the Public Health Service Act.
Sec. 888. Preserving Coast Guard mission performance.
Sec. 889. Homeland security funding analysis in President's
budget.
Sec. 890. Air Transportation Safety and System Stabilization Act.
Subtitle I--Information Sharing
Sec. 891. Short title; findings; and sense of Congress.
Sec. 892. Facilitating homeland security information sharing
procedures.
Sec. 894. Authorization of appropriations.
Sec. 895. Authority to share grand jury information.
Sec. 896. Authority to share electronic, wire, and oral interception
information.
Sec. 897. Foreign intelligence information.
Sec. 898. Information acquired from an electronic surveillance.
Sec. 899. Information acquired from a physical search.
TITLE IX--NATIONAL HOMELAND SECURITY COUNCIL
Sec. 901. National Homeland Security Council.
Sec. 904. Other functions and activities.
Sec. 905. Staff composition.
Sec. 906. Relation to the National Security Council.
TITLE X--INFORMATION SECURITY
Sec. 1001. Information security.
Sec. 1002. Management of information technology.
Sec. 1003. National Institute of Standards and Technology.
Sec. 1004. Information Security and Privacy Advisory Board.
Sec. 1005. Technical and conforming amendments.
TITLE XI--DEPARTMENT OF JUSTICE DIVISIONS
Subtitle A--Executive Office for Immigration Review
Sec. 1101. Legal status of EOIR.
Sec. 1102. Authorities of the Attorney General.
Sec. 1103. Statutory construction.
Subtitle B--Transfer of the Bureau of Alcohol, Tobacco and Firearms to the
Department of Justice
Sec. 1111. Bureau of Alcohol, Tobacco, Firearms, and Explosives.
Sec. 1112. Technical and conforming amendments.
Sec. 1113. Powers of agents of the Bureau of Alcohol, Tobacco, Firearms,
and Explosives.
Sec. 1114. Explosives training and research facility.
Sec. 1115. Personnel management demonstration project.
Subtitle C--Explosives
Sec. 1122. Permits for purchasers of explosives.
Sec. 1123. Persons prohibited from receiving or possessing explosive
materials.
Sec. 1124. Requirement to provide samples of explosive materials and
ammonium nitrate.
Sec. 1125. Destruction of property of institutions receiving Federal
financial assistance.
Sec. 1126. Relief from disabilities.
Sec. 1127. Theft reporting requirement.
Sec. 1128. Authorization of appropriations.
TITLE XII--AIRLINE WAR RISK INSURANCE LEGISLATION
Sec. 1201. Air carrier liability for third party claims arising out of
acts of terrorism.
Sec. 1202. Extension of insurance policies.
Sec. 1203. Correction of reference.
TITLE XIII--FEDERAL WORKFORCE IMPROVEMENT
Subtitle A--Chief Human Capital Officers
Sec. 1302. Agency Chief Human Capital Officers.
Sec. 1303. Chief Human Capital Officers Council.
Sec. 1304. Strategic human capital management.
Sec. 1305. Effective date.
Subtitle B--Reforms Relating to Federal Human Capital Management
Sec. 1311. Inclusion of agency human capital strategic planning in
performance plans and programs performance reports.
Sec. 1312. Reform of the competitive service hiring process.
Sec. 1313. Permanent extension, revision, and expansion of authorities
for use of voluntary separation incentive pay and voluntary early
retirement.
Sec. 1314. Student volunteer transit subsidy.
Subtitle C--Reforms Relating to the Senior Executive Service
Sec. 1321. Repeal of recertification requirements of senior
executives.
Sec. 1322. Adjustment of limitation on total annual compensation.
Subtitle D--Academic Training
Sec. 1331. Academic training.
Sec. 1332. Modifications to National Security Education Program.
TITLE XIV--ARMING PILOTS AGAINST TERRORISM
Sec. 1402. Federal Flight Deck Officer Program.
Sec. 1403. Crew training.
Sec. 1404. Commercial airline security study.
Sec. 1405. Authority to arm flight deck crew with less-than-lethal
weapons.
Sec. 1406. Technical amendments.
TITLE XV--TRANSITION
Subtitle A--Reorganization Plan
Sec. 1502. Reorganization plan.
Sec. 1503. Review of congressional committee structures.
Subtitle B--Transitional Provisions
Sec. 1511. Transitional authorities.
Sec. 1512. Savings provisions.
Sec. 1514. National identification system not authorized.
Sec. 1515. Continuity of Inspector General oversight.
Sec. 1516. Incidental transfers.
TITLE XVI--CORRECTIONS TO EXISTING LAW RELATING TO AIRLINE TRANSPORTATION
SECURITY
Sec. 1601. Retention of security sensitive information authority at
Department of Transportation.
Sec. 1602. Increase in civil penalties.
Sec. 1603. Allowing United States citizens and United States nationals
as screeners.
TITLE XVII--CONFORMING AND TECHNICAL AMENDMENTS
Sec. 1701. Inspector General Act of 1978.
Sec. 1702. Executive Schedule.
Sec. 1703. United States Secret Service.
Sec. 1705. Strategic national stockpile and smallpox vaccine
development.
Sec. 1706. Transfer of certain security and law enforcement functions
and authorities.
Sec. 1707. Transportation security regulations.
Sec. 1708. National Bio-Weapons Defense Analysis Center.
Sec. 1709. Collaboration with the Secretary of Homeland Security.
Sec. 1710. Railroad safety to include railroad security.
Sec. 1711. Hazmat safety to include hazmat security.
Sec. 1712. Office of Science and Technology Policy.
Sec. 1713. National Oceanographic Partnership Program.
Sec. 1714. Clarification of definition of manufacturer.
Sec. 1715. Clarification of definition of vaccine-related injury or
death.
Sec. 1716. Clarification of definition of vaccine.
Sec. 1717. Effective date.
SEC. 2. DEFINITIONS.
In this Act, the following definitions apply:
(1) Each of the terms `American homeland' and `homeland' means the
United States.
(2) The term `appropriate congressional committee' means any committee
of the House of Representatives or the Senate having legislative or
oversight jurisdiction under the Rules of the House of Representatives or
the Senate, respectively, over the matter concerned.
(3) The term `assets' includes contracts, facilities, property, records,
unobligated or unexpended balances of appropriations, and other funds or
resources (other than personnel).
(4) The term `critical infrastructure' has the meaning given that term
in section 1016(e) of Public Law 107-56 (42 U.S.C. 5195c(e)).
(5) The term `Department' means the Department of Homeland
Security.
(6) The term `emergency response providers' includes Federal, State, and
local emergency public safety, law enforcement, emergency response,
emergency medical (including hospital emergency facilities), and related
personnel, agencies, and authorities.
(7) The term `executive agency' means an executive agency and a military
department, as defined, respectively, in sections 105 and 102 of title 5,
United States Code.
(8) The term `functions' includes authorities, powers, rights,
privileges, immunities, programs, projects, activities, duties, and
responsibilities.
(9) The term `key resources' means publicly or privately controlled
resources essential to the minimal operations of the economy and
government.
(10) The term `local government' means--
(A) a county, municipality, city, town, township, local public
authority, school district, special district, intrastate district, council
of governments (regardless of whether the council of governments is
incorporated as a nonprofit corporation under State law), regional or
interstate government entity, or agency or instrumentality of a local
government;
(B) an Indian tribe or authorized tribal organization, or Alaska
Native village or organization; and
(C) a rural community, unincorporated town or village, or other public
entity.
(11) The term `major disaster' has the meaning given in section 102(2)
of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42
U.S.C. 5122).
(12) The term `personnel' means officers and employees.
(13) The term `Secretary' means the Secretary of Homeland
Security.
(14) The term `State' means any State of the United States, the District
of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam,
American Samoa, the Commonwealth of the Northern Mariana Islands, and any
possession of the United States.
(15) The term `terrorism' means any activity that--
(A) involves an act that--
(i) is dangerous to human life or potentially destructive of
critical infrastructure or key resources; and
(ii) is a violation of the criminal laws of the United States or of
any State or other subdivision of the United States; and
(B) appears to be intended--
(i) to intimidate or coerce a civilian population;
(ii) to influence the policy of a government by intimidation or
coercion; or
(iii) to affect the conduct of a government by mass destruction,
assassination, or kidnapping.
(16)(A) The term `United States', when used in a geographic sense, means
any State of the United States, the District of Columbia, the Commonwealth
of Puerto Rico, the Virgin Islands, Guam, American Samoa, the Commonwealth
of the Northern Mariana Islands, any possession of the United States, and
any waters within the jurisdiction of the United States.
(B) Nothing in this paragraph or any other provision of this Act shall
be construed to modify the definition of `United States' for the purposes of
the Immigration and Nationality Act or any other immigration or nationality
law.
SEC. 3. CONSTRUCTION; SEVERABILITY.
Any provision of this Act held to be invalid or unenforceable by its
terms, or as applied to any person or circumstance, shall be construed so as
to give it the maximum effect permitted by law, unless such holding shall be
one of utter invalidity or unenforceability, in which event such provision
shall be deemed severable from this Act and shall not affect the remainder
thereof, or the application of such provision to other persons not similarly
situated or to other, dissimilar circumstances.
SEC. 4. EFFECTIVE DATE.
This Act shall take effect 60 days after the date of enactment.
TITLE I--DEPARTMENT OF HOMELAND SECURITY
SEC. 101. EXECUTIVE DEPARTMENT; MISSION.
(a) ESTABLISHMENT- There is established a Department of Homeland Security,
as an executive department of the United States within the meaning of title 5,
United States Code.
(1) IN GENERAL- The primary mission of the Department is to--
(A) prevent terrorist attacks within the United States;
(B) reduce the vulnerability of the United States to
terrorism;
(C) minimize the damage, and assist in the recovery, from terrorist
attacks that do occur within the United States;
(D) carry out all functions of entities transferred to the Department,
including by acting as a focal point regarding natural and manmade crises
and emergency planning;
(E) ensure that the functions of the agencies and subdivisions within
the Department that are not related directly to securing the homeland are
not diminished or neglected except by a specific explicit Act of
Congress;
(F) ensure that the overall economic security of the United States is
not diminished by efforts, activities, and programs aimed at securing the
homeland; and
(G) monitor connections between illegal drug trafficking and
terrorism, coordinate efforts to sever such connections, and otherwise
contribute to efforts to interdict illegal drug trafficking.
(2) RESPONSIBILITY FOR INVESTIGATING AND PROSECUTING TERRORISM- Except
as specifically provided by law with respect to entities transferred to the
Department under this Act, primary
responsibility for investigating and prosecuting acts of terrorism shall be
vested not in the Department, but rather in Federal, State, and local law
enforcement agencies with jurisdiction over the acts in question.
SEC. 102. SECRETARY; FUNCTIONS.
(1) IN GENERAL- There is a Secretary of Homeland Security, appointed by
the President, by and with the advice and consent of the Senate.
(2) HEAD OF DEPARTMENT- The Secretary is the head of the Department and
shall have direction, authority, and control over it.
(3) FUNCTIONS VESTED IN SECRETARY- All functions of all officers,
employees, and organizational units of the Department are vested in the
Secretary.
(b) FUNCTIONS- The Secretary--
(1) except as otherwise provided by this Act, may delegate any of the
Secretary's functions to any officer, employee, or organizational unit of
the Department;
(2) shall have the authority to make contracts, grants, and cooperative
agreements, and to enter into agreements with other executive agencies, as
may be necessary and proper to carry out the Secretary's responsibilities
under this Act or otherwise provided by law; and
(3) shall take reasonable steps to ensure that information systems and
databases of the Department are compatible with each other and with
appropriate databases of other Departments.
(c) COORDINATION WITH NON-FEDERAL ENTITIES- With respect to homeland
security, the Secretary shall coordinate through the Office of State and Local
Coordination (established under section 801) (including the provision of
training and equipment) with State and local government personnel, agencies,
and authorities, with the private sector, and with other entities, including
by--
(1) coordinating with State and local government personnel, agencies,
and authorities, and with the private sector, to ensure adequate planning,
equipment, training, and exercise activities;
(2) coordinating and, as appropriate, consolidating, the Federal
Government's communications and systems of communications relating to
homeland security with State and local government personnel, agencies, and
authorities, the private sector, other entities, and the public; and
(3) distributing or, as appropriate, coordinating the distribution of,
warnings and information to State and local government personnel, agencies,
and authorities and to the public.
(d) MEETINGS OF NATIONAL SECURITY COUNCIL- The Secretary may, subject to
the direction of the President, attend and participate in meetings of the
National Security Council.
(e) ISSUANCE OF REGULATIONS- The issuance of regulations by the Secretary
shall be governed by the provisions of chapter 5 of title 5, United States
Code, except as specifically provided in this Act, in laws granting regulatory
authorities that are transferred by this Act, and in laws enacted after the
date of enactment of this Act.
(f) SPECIAL ASSISTANT TO THE SECRETARY- The Secretary shall appoint a
Special Assistant to the Secretary who shall be responsible for--
(1) creating and fostering strategic communications with the private
sector to enhance the primary mission of the Department to protect the
American homeland;
(2) advising the Secretary on the impact of the Department's policies,
regulations, processes, and actions on the private sector;
(3) interfacing with other relevant Federal agencies with homeland
security missions to assess the impact of these agencies' actions on the
private sector;
(4) creating and managing private sector advisory councils composed of
representatives of industries and associations designated by the Secretary
to--
(A) advise the Secretary on private sector products, applications, and
solutions as they relate to homeland security challenges; and
(B) advise the Secretary on homeland security policies, regulations,
processes, and actions that affect the participating industries and
associations;
(5) working with Federal laboratories, Federally funded research and
development centers, other Federally funded organizations, academia, and the
private sector to develop innovative approaches to address homeland security
challenges to produce and deploy the best available technologies for
homeland security missions;
(6) promoting existing public-private partnerships and developing new
public-private partnerships to provide for collaboration and mutual support
to address homeland security challenges; and
(7) assisting in the development and promotion of private sector best
practices to secure critical infrastructure.
(g) STANDARDS POLICY- All standards activities of the Department shall be
conducted in accordance with section 12(d) of the National Technology Transfer
Advancement Act of 1995 (15 U.S.C. 272 note) and Office of Management and
Budget Circular A-119.
SEC. 103. OTHER OFFICERS.
(a) DEPUTY SECRETARY; UNDER SECRETARIES- There are the following officers,
appointed by the President, by and with the advice and consent of the
Senate:
(1) A Deputy Secretary of Homeland Security, who shall be the
Secretary's first assistant for purposes of subchapter III of chapter 33 of
title 5, United States Code.
(2) An Under Secretary for Information Analysis and Infrastructure
Protection.
(3) An Under Secretary for Science and Technology.
(4) An Under Secretary for Border and Transportation Security.
(5) An Under Secretary for Emergency Preparedness and Response.
(6) A Director of the Bureau of Citizenship and Immigration
Services.
(7) An Under Secretary for Management.
(8) Not more than 12 Assistant Secretaries.
(9) A General Counsel, who shall be the chief legal officer of the
department.
(b) INSPECTOR GENERAL- There is an Inspector General, who shall be
appointed as provided in section 3(a) of the Inspector General Act of 1978.
(c) COMMANDANT OF THE COAST GUARD- To assist the Secretary in the
performance of the Secretary's functions, there is a Commandant of the Coast
Guard, who shall be appointed as provided in section 44 of title 14, United
States Code, and who shall report directly to the Secretary. In addition to
such duties as may be provided in this Act and as assigned to the Commandant
by the Secretary, the duties of the Commandant shall include those required by
section 2 of title 14, United States Code.
(d) OTHER OFFICERS- To assist the Secretary in the performance of the
Secretary's functions, there are the following officers, appointed by the
President:
(1) A Director of the Secret Service.
(2) A Chief Information Officer.
(3) A Chief Human Capital Officer.
(4) A Chief Financial Officer.
(5) An Officer for Civil Rights and Civil Liberties.
(e) PERFORMANCE OF SPECIFIC FUNCTIONS- Subject to the provisions of this
Act, every officer of the Department shall perform the functions specified by
law for the official's office or prescribed by the Secretary.
TITLE II--INFORMATION ANALYSIS AND INFRASTRUCTURE
PROTECTION
Subtitle A--Directorate for Information Analysis and Infrastructure
Protection; Access to Information
SEC. 201. DIRECTORATE FOR INFORMATION ANALYSIS AND INFRASTRUCTURE
PROTECTION.
(a) UNDER SECRETARY OF HOMELAND SECURITY FOR INFORMATION ANALYSIS AND
INFRASTRUCTURE PROTECTION-
(1) IN GENERAL- There shall be in the Department a Directorate for
Information Analysis and Infrastructure Protection headed by an Under
Secretary for Information Analysis and Infrastructure Protection, who shall
be appointed by the President, by and with the advice and consent of the
Senate.
(2) RESPONSIBILITIES- The Under Secretary shall assist the Secretary in
discharging the responsibilities assigned by the Secretary.
(b) ASSISTANT SECRETARY FOR INFORMATION ANALYSIS; ASSISTANT SECRETARY FOR
INFRASTRUCTURE PROTECTION-
(1) ASSISTANT SECRETARY FOR INFORMATION ANALYSIS- There shall be in the
Department an Assistant Secretary for Information Analysis, who shall be
appointed by the President.
(2) ASSISTANT SECRETARY FOR INFRASTRUCTURE PROTECTION- There shall be in
the Department an Assistant Secretary for Infrastructure Protection, who
shall be appointed by the President.
(3) RESPONSIBILITIES- The Assistant Secretary for Information Analysis
and the Assistant Secretary for Infrastructure Protection shall assist the
Under Secretary for Information Analysis and Infrastructure Protection in
discharging the responsibilities of the Under Secretary under this
section.
(c) DISCHARGE OF INFORMATION ANALYSIS AND INFRASTRUCTURE PROTECTION- The
Secretary shall ensure that the responsibilities of the Department regarding
information analysis and infrastructure protection are carried out through the
Under Secretary for Information Analysis and Infrastructure Protection.
(d) RESPONSIBILITIES OF UNDER SECRETARY- Subject to the direction and
control of the Secretary, the responsibilities of the Under Secretary for
Information Analysis and Infrastructure Protection shall be as follows:
(1) To access, receive, and analyze law enforcement information,
intelligence information, and other information from agencies of the Federal
Government, State and local government agencies (including law enforcement
agencies), and private sector entities, and to integrate such information in
order to--
(A) identify and assess the nature and scope of terrorist threats to
the homeland;
(B) detect and identify threats of terrorism against the United
States; and
(C) understand such threats in light of actual and potential
vulnerabilities of the homeland.
(2) To carry out comprehensive assessments of the vulnerabilities of the
key resources and critical infrastructure of the United States, including
the performance of risk assessments to determine the risks posed by
particular types of terrorist attacks within the United States (including an
assessment of the probability of success of such attacks and the feasibility
and potential efficacy of various countermeasures to such attacks).
(3) To integrate relevant information, analyses, and vulnerability
assessments (whether such information, analyses, or assessments are provided
or produced by the Department or others) in order to identify priorities for
protective and support measures by the Department, other agencies of the
Federal Government, State and local government agencies and authorities, the
private sector, and other entities.
(4) To ensure, pursuant to section 202, the timely and efficient access
by the Department to all information necessary to discharge the
responsibilities under this section, including obtaining such information
from other agencies of the Federal Government.
(5) To develop a comprehensive national plan for securing the key
resources and critical infrastructure of the United States, including power
production, generation, and distribution systems, information technology and
telecommunications systems (including satellites), electronic financial and
property record storage and transmission systems, emergency preparedness
communications systems, and the physical and technological assets that
support such systems.
(6) To recommend measures necessary to protect the key resources and
critical infrastructure of the United States in coordination with other
agencies of the Federal Government and in cooperation with State and local
government agencies and authorities, the private sector, and other
entities.
(7) To administer the Homeland Security Advisory System,
including--
(A) exercising primary responsibility for public advisories related to
threats to homeland security; and
(B) in coordination with other agencies of the Federal Government,
providing specific warning information, and advice about appropriate
protective measures and countermeasures, to State and local government
agencies and authorities, the private sector, other entities, and the
public.
(8) To review, analyze, and make recommendations for improvements in the
policies and procedures governing the sharing of law enforcement
information, intelligence information, intelligence-related information, and
other information relating to homeland security within the Federal
Government and between the Federal Government and State and local government
agencies and authorities.
(9) To disseminate, as appropriate, information analyzed by the
Department within the Department, to other agencies of the Federal
Government with responsibilities relating to homeland security, and to
agencies of State and local governments and private sector entities with
such responsibilities in order to assist in the deterrence, prevention,
preemption of, or response to, terrorist attacks against the United
States.
(10) To consult with the Director of Central Intelligence and other
appropriate intelligence, law enforcement, or other elements of the Federal
Government to establish collection priorities and strategies for
information, including law enforcement-related information, relating to
threats of terrorism against the United States through such means as the
representation of the Department in discussions regarding requirements and
priorities in the collection of such information.
(11) To consult with State and local governments and private sector
entities to ensure appropriate exchanges of information, including law
enforcement-related information, relating to threats of terrorism against
the United States.
(A) any material received pursuant to this Act is protected from
unauthorized disclosure and handled and used only for the performance of
official duties; and
(B) any intelligence information under this Act is shared, retained,
and disseminated consistent with the authority of the Director of Central
Intelligence to protect intelligence sources and methods under the
National Security Act of 1947 (50 U.S.C. 401 et seq.) and related
procedures and, as appropriate, similar authorities of the Attorney
General concerning sensitive law enforcement information.
(13) To request additional information from other agencies of the
Federal Government, State and local government agencies, and the private
sector relating to threats of terrorism in the United States, or relating to
other areas of responsibility assigned by the Secretary, including the entry
into cooperative agreements through the Secretary to obtain such
information.
(14) To establish and utilize, in conjunction with the chief information
officer of the Department, a secure communications and information
technology infrastructure, including data-mining and other advanced
analytical tools, in order to access, receive, and analyze data and
information in furtherance of the responsibilities under this section, and
to disseminate information acquired and analyzed by the Department, as
appropriate.
(15) To ensure, in conjunction with the chief information officer of the
Department, that any information databases and analytical tools developed or
utilized by the Department--
(A) are compatible with one another and with relevant information
databases of other agencies of the Federal Government; and
(B) treat information in such databases in a manner that complies with
applicable Federal law on privacy.
(16) To coordinate training and other support to the elements and
personnel of the Department, other agencies of the Federal Government, and
State and local governments that provide information to the Department, or
are consumers of information provided by the Department, in order to
facilitate the identification and sharing of information revealed in their
ordinary duties and the optimal utilization of information received from the
Department.
(17) To coordinate with elements of the intelligence community and with
Federal, State, and local law enforcement agencies, and the private sector,
as appropriate.
(18) To provide intelligence and information analysis and support to
other elements of the Department.
(19) To perform such other duties relating to such responsibilities as
the Secretary may provide.
(1) IN GENERAL- The Secretary shall provide the Directorate with a staff
of analysts having appropriate expertise and experience to assist the
Directorate in discharging responsibilities under this section.
(2) PRIVATE SECTOR ANALYSTS- Analysts under this subsection may include
analysts from the private sector.
(3) SECURITY CLEARANCES- Analysts under this subsection shall possess
security clearances appropriate for their work under this section.
(1) IN GENERAL- In order to assist the Directorate in discharging
responsibilities under this section, personnel of the agencies referred to
in paragraph (2) may be detailed to the Department for the performance of
analytic functions and related duties.
(2) COVERED AGENCIES- The agencies referred to in this paragraph are as
follows:
(A) The Department of State.
(B) The Central Intelligence Agency.
(C) The Federal Bureau of Investigation.
(D) The National Security Agency.
(E) The National Imagery and Mapping Agency.
(F) The Defense Intelligence Agency.
(G) Any other agency of the Federal Government that the President
considers appropriate.
(3) COOPERATIVE AGREEMENTS- The Secretary and the head of the agency
concerned may enter into cooperative agreements for the purpose of detailing
personnel under this subsection.
(4) BASIS- The detail of personnel under this subsection may be on a
reimbursable or non-reimbursable basis.
(g) FUNCTIONS TRANSFERRED- In accordance with title XV, there shall be
transferred to the Secretary, for assignment to the Under Secretary for
Information Analysis and Infrastructure Protection under this section, the
functions, personnel, assets, and liabilities of the following:
(1) The National Infrastructure Protection Center of the Federal Bureau
of Investigation (other than the Computer Investigations and Operations
Section), including the functions of the Attorney General relating
thereto.
(2) The National Communications System of the Department of Defense,
including the functions of the Secretary of Defense relating thereto.
(3) The Critical Infrastructure Assurance Office of the Department of
Commerce, including the functions of the Secretary of Commerce relating
thereto.
(4) The National Infrastructure Simulation and Analysis Center of the
Department of Energy and the energy security and assurance program and
activities of the Department, including the functions of the Secretary of
Energy relating thereto.
(5) The Federal Computer Incident Response Center of the General
Services Administration, including the functions of the Administrator of
General Services relating thereto.
(h) INCLUSION OF CERTAIN ELEMENTS OF THE DEPARTMENT AS ELEMENTS OF THE
INTELLIGENCE COMMUNITY- Section 3(4) of the National Security Act of 1947 (50
U.S.C. 401(a)) is amended--
(1) by striking `and' at the end of subparagraph (I);
(2) by redesignating subparagraph (J) as subparagraph (K); and
(3) by inserting after subparagraph (I) the following new
subparagraph:
`(J) the elements of the Department of Homeland Security concerned
with the analyses of foreign intelligence information; and'.
SEC. 202. ACCESS TO INFORMATION.
(1) THREAT AND VULNERABILITY INFORMATION- Except as otherwise directed
by the President, the Secretary shall have such access as the Secretary
considers necessary to all information, including reports, assessments,
analyses, and unevaluated intelligence relating to threats of
terrorism against the United States and to other areas of responsibility
assigned by the Secretary, and to all information concerning infrastructure or
other vulnerabilities of the United States to terrorism, whether or not such
information has been analyzed, that may be collected, possessed, or prepared by
any agency of the Federal Government.
(2) OTHER INFORMATION- The Secretary shall also have access to other
information relating to matters under the responsibility of the Secretary
that may be collected, possessed, or prepared by an agency of the Federal
Government as the President may further provide.
(b) MANNER OF ACCESS- Except as otherwise directed by the President, with
respect to information to which the Secretary has access pursuant to this
section--
(1) the Secretary may obtain such material upon request, and may enter
into cooperative arrangements with other executive agencies to provide such
material or provide Department officials with access to it on a regular or
routine basis, including requests or arrangements involving broad categories
of material, access to electronic databases, or both; and
(2) regardless of whether the Secretary has made any request or entered
into any cooperative arrangement pursuant to paragraph (1), all agencies of
the Federal Government shall promptly provide to the Secretary--
(A) all reports (including information reports containing intelligence
which has not been fully evaluated), assessments, and analytical
information relating to threats of terrorism against the United States and
to other areas of responsibility assigned by the Secretary;
(B) all information concerning the vulnerability of the infrastructure
of the United States, or other vulnerabilities of the United States, to
terrorism, whether or not such information has been analyzed;
(C) all other information relating to significant and credible threats
of terrorism against the United States, whether or not such information
has been analyzed; and
(D) such other information or material as the President may
direct.
(c) TREATMENT UNDER CERTAIN LAWS- The Secretary shall be deemed to be a
Federal law enforcement, intelligence, protective, national defense,
immigration, or national security official, and shall be provided with all
information from law enforcement agencies that is required to be given to the
Director of Central Intelligence, under any provision of the following:
(1) The USA PATRIOT Act of 2001 (Public Law 107-56).
(2) Section 2517(6) of title 18, United States Code.
(3) Rule 6(e)(3)(C) of the Federal Rules of Criminal Procedure.
(d) ACCESS TO INTELLIGENCE AND OTHER INFORMATION-
(1) ACCESS BY ELEMENTS OF FEDERAL GOVERNMENT- Nothing in this title
shall preclude any element of the intelligence community (as that term is
defined in section 3(4) of the National Security Act of 1947 (50 U.S.C.
401a(4)), or other any element of the Federal Government with responsibility
for analyzing terrorist threat information, from receiving any intelligence
or other information relating to terrorism.
(2) SHARING OF INFORMATION- The Secretary, in consultation with the
Director of Central Intelligence, shall work to ensure that intelligence or
other information relating to terrorism to which the Department has access
is appropriately shared with the elements of the Federal Government referred
to in paragraph (1), as well as with State and local governments, as
appropriate.
Subtitle B--Critical Infrastructure Information
SEC. 211. SHORT TITLE.
This subtitle may be cited as the `Critical Infrastructure Information Act
of 2002'.
SEC. 212. DEFINITIONS.
(1) AGENCY- The term `agency' has the meaning given it in section 551 of
title 5, United States Code.
(2) COVERED FEDERAL AGENCY- The term `covered Federal agency' means the
Department of Homeland Security.
(3) CRITICAL INFRASTRUCTURE INFORMATION- The term `critical
infrastructure information' means information not customarily in the public
domain and related to the security of critical infrastructure or protected
systems--
(A) actual, potential, or threatened interference with, attack on,
compromise of, or incapacitation of critical infrastructure or protected
systems by either physical or computer-based attack or other similar
conduct (including the misuse of or unauthorized access to all types of
communications and data transmission systems) that violates Federal,
State, or local law, harms interstate commerce of the United States, or
threatens public health or safety;
(B) the ability of any critical infrastructure or protected system to
resist such interference, compromise, or incapacitation, including any
planned or past assessment, projection, or estimate of the vulnerability
of critical infrastructure or a protected system, including security
testing, risk evaluation thereto, risk management planning, or risk audit;
or
(C) any planned or past operational problem or solution regarding
critical infrastructure or protected systems, including repair, recovery,
reconstruction, insurance, or continuity, to the extent it is related to
such interference, compromise, or incapacitation.
(4) CRITICAL INFRASTRUCTURE PROTECTION PROGRAM- The term `critical
infrastructure protection program' means any component or bureau of a
covered Federal agency that has been designated by the President or any
agency head to receive critical infrastructure information.
(5) INFORMATION SHARING AND ANALYSIS ORGANIZATION- The term `Information
Sharing and Analysis Organization' means any formal or informal entity or
collaboration created or employed by public or private sector organizations,
for purposes of--
(A) gathering and analyzing critical infrastructure information in
order to better understand security problems and interdependencies related
to critical infrastructure and protected systems, so as to ensure the
availability, integrity, and reliability thereof;
(B) communicating or disclosing critical infrastructure information to
help prevent, detect, mitigate, or recover from the effects of a
interference, compromise, or a incapacitation problem related to critical
infrastructure or protected systems; and
(C) voluntarily disseminating critical infrastructure information to
its members, State, local, and Federal Governments, or any other entities
that may be of assistance in carrying
out the purposes specified in subparagraphs (A) and (B).
(6) PROTECTED SYSTEM- The term `protected system'--
(A) means any service, physical or computer-based system, process, or
procedure that directly or indirectly affects the viability of a facility
of critical infrastructure; and
(B) includes any physical or computer-based system, including a
computer, computer system, computer or communications network, or any
component hardware or element thereof, software program, processing
instructions, or information or data in transmission or storage therein,
irrespective of the medium of transmission or storage.
(A) IN GENERAL- The term `voluntary', in the case of any submittal of
critical infrastructure information to a covered Federal agency, means the
submittal thereof in the absence of such agency's exercise of legal
authority to compel access to or submission of such information and may be
accomplished by a single entity or an Information Sharing and Analysis
Organization on behalf of itself or its members.
(B) EXCLUSIONS- The term `voluntary'--
(i) in the case of any action brought under the securities laws as
is defined in section 3(a)(47) of the Securities Exchange Act of 1934
(15 U.S.C. 78c(a)(47))--
(I) does not include information or statements contained in any
documents or materials filed with the Securities and Exchange
Commission, or with Federal banking regulators, pursuant to section
12(i) of the Securities Exchange Act of 1934 (15 U.S.C. 781(I));
and
(II) with respect to the submittal of critical infrastructure
information, does not include any disclosure or writing that when made
accompanied the solicitation of an offer or a sale of securities;
and
(ii) does not include information or statements submitted or relied
upon as a basis for making licensing or permitting determinations, or
during regulatory proceedings.
SEC. 213. DESIGNATION OF CRITICAL INFRASTRUCTURE PROTECTION PROGRAM.
A critical infrastructure protection program may be designated as such by
one of the following:
(2) The Secretary of Homeland Security.
SEC. 214. PROTECTION OF VOLUNTARILY SHARED CRITICAL INFRASTRUCTURE
INFORMATION.
(1) IN GENERAL- Notwithstanding any other provision of law, critical
infrastructure information (including the identity of the submitting person
or entity) that is voluntarily submitted to a covered Federal agency for use
by that agency regarding the security of critical infrastructure and
protected systems, analysis, warning, interdependency study, recovery,
reconstitution, or other informational purpose, when accompanied by an
express statement specified in paragraph (2)--
(A) shall be exempt from disclosure under section 552 of title 5,
United States Code (commonly referred to as the Freedom of Information
Act);
(B) shall not be subject to any agency rules or judicial doctrine
regarding ex parte communications with a decision making
official;
(C) shall not, without the written consent of the person or entity
submitting such information, be used directly by such agency, any other
Federal, State, or local authority, or any third party, in any civil
action arising under Federal or State law if such information is submitted
in good faith;
(D) shall not, without the written consent of the person or entity
submitting such information, be used or disclosed by any officer or
employee of the United States for purposes other than the purposes of this
subtitle, except--
(i) in furtherance of an investigation or the prosecution of a
criminal act; or
(ii) when disclosure of the information would be--
(I) to either House of Congress, or to the extent of matter within
its jurisdiction, any committee or subcommittee thereof, any joint
committee thereof or subcommittee of any such joint committee;
or
(II) to the Comptroller General, or any authorized representative
of the Comptroller General, in the course of the performance of the
duties of the General Accounting Office.
(E) shall not, if provided to a State or local government or
government agency--
(i) be made available pursuant to any State or local law requiring
disclosure of information or records;
(ii) otherwise be disclosed or distributed to any party by said
State or local government or government agency without the written
consent of the person or entity submitting such information;
or
(iii) be used other than for the purpose of protecting critical
infrastructure or protected systems, or in furtherance of an
investigation or the prosecution of a criminal act; and
(F) does not constitute a waiver of any applicable privilege or
protection provided under law, such as trade secret protection.
(2) EXPRESS STATEMENT- For purposes of paragraph (1), the term `express
statement', with respect to information or records, means--
(A) in the case of written information or records, a written marking
on the information or records substantially similar to the following:
`This information is voluntarily submitted to the Federal Government in
expectation of protection from disclosure as provided by the provisions of
the Critical Infrastructure Information Act of 2002.'; or
(B) in the case of oral information, a similar written statement
submitted within a reasonable period following the oral
communication.
(b) LIMITATION- No communication of critical infrastructure information to
a covered Federal agency made pursuant to this subtitle shall be considered to
be an action subject to the requirements of the Federal Advisory Committee Act
(5 U.S.C. App. 2).
(c) INDEPENDENTLY OBTAINED INFORMATION- Nothing in this section shall be
construed to limit or
otherwise affect the ability of a State, local, or Federal Government entity,
agency, or authority, or any third party, under applicable law, to obtain
critical infrastructure information in a manner not covered by subsection (a),
including any information lawfully and properly disclosed generally or broadly
to the public and to use such information in any manner permitted by law.
(d) TREATMENT OF VOLUNTARY SUBMITTAL OF INFORMATION- The voluntary
submittal to the Government of information or records that are protected from
disclosure by this subtitle shall not be construed to constitute compliance
with any requirement to submit such information to a Federal agency under any
other provision of law.
(1) IN GENERAL- The Secretary of the Department of Homeland Security
shall, in consultation with appropriate representatives of the National
Security Council and the Office of Science and Technology Policy, establish
uniform procedures for the receipt, care, and storage by Federal agencies of
critical infrastructure information that is voluntarily submitted to the
Government. The procedures shall be established not later than 90 days after
the date of the enactment of this subtitle.
(2) ELEMENTS- The procedures established under paragraph (1) shall
include mechanisms regarding--
(A) the acknowledgement of receipt by Federal agencies of critical
infrastructure information that is voluntarily submitted to the
Government;
(B) the maintenance of the identification of such information as
voluntarily submitted to the Government for purposes of and subject to the
provisions of this subtitle;
(C) the care and storage of such information; and
(D) the protection and maintenance of the confidentiality of such
information so as to permit the sharing of such information within the
Federal Government and with State and local governments, and the issuance
of notices and warnings related to the protection of critical
infrastructure and protected systems, in such manner as to protect from
public disclosure the identity of the submitting person or entity, or
information that is proprietary, business sensitive, relates specifically
to the submitting person or entity, and is otherwise not appropriately in
the public domain.
(f) PENALTIES- Whoever, being an officer or employee of the United States
or of any department or agency thereof, knowingly publishes, divulges,
discloses, or makes known in any manner or to any extent not authorized by
law, any critical infrastructure information protected from disclosure by this
subtitle coming to him in the course of this employment or official duties or
by reason of any examination or investigation made by, or return, report, or
record made to or filed with, such department or agency or officer or employee
thereof, shall be fined under title 18 of the United States Code, imprisoned
not more than 1 year, or both, and shall be removed from office or
employment.
(g) AUTHORITY TO ISSUE WARNINGS- The Federal Government may provide
advisories, alerts, and warnings to relevant companies, targeted sectors,
other governmental entities, or the general public regarding potential threats
to critical infrastructure as appropriate. In issuing a warning, the Federal
Government shall take appropriate actions to protect from disclosure--
(1) the source of any voluntarily submitted critical infrastructure
information that forms the basis for the warning; or
(2) information that is proprietary, business sensitive, relates
specifically to the submitting person or entity, or is otherwise not
appropriately in the public domain.
(h) AUTHORITY TO DELEGATE- The President may delegate authority to a
critical infrastructure protection program, designated under subsection (e),
to enter into a voluntary agreement to promote critical infrastructure
security, including with any Information Sharing and Analysis Organization, or
a plan of action as otherwise defined in section 708 of the Defense Production
Act of 1950 (50 U.S.C. App. 2158).
SEC. 215. NO PRIVATE RIGHT OF ACTION.
Nothing in this subtitle may be construed to create a private right of
action for enforcement of any provision of this Act.
Subtitle C--Information Security
SEC. 221. PROCEDURES FOR SHARING INFORMATION.
The Secretary shall establish procedures on the use of information shared
under this title that--
(1) limit the redissemination of such information to ensure that it is
not used for an unauthorized purpose;
(2) ensure the security and confidentiality of such information;
(3) protect the constitutional and statutory rights of any individuals
who are subjects of such information; and
(4) provide data integrity through the timely removal and destruction of
obsolete or erroneous names and information.
SEC. 222. PRIVACY OFFICER.
The Secretary shall appoint a senior official in the Department to assume
primary responsibility for privacy policy, including--
(1) assuring that the use of technologies sustain, and do not erode,
privacy protections relating to the use, collection, and disclosure of
personal information;
(2) assuring that personal information contained in Privacy Act systems
of records is handled in full compliance with fair information practices as
set out in the Privacy Act of 1974;
(3) evaluating legislative and regulatory proposals involving
collection, use, and disclosure of personal information by the Federal
Government;
(4) conducting a privacy impact assessment of proposed rules of the
Department or that of the Department on the privacy of personal information,
including the type of personal information collected and the number of
people affected; and
(5) preparing a report to Congress on an annual basis on activities of
the Department that affect privacy, including complaints of privacy
violations, implementation of the Privacy Act of 1974, internal controls,
and other matters.
SEC. 223. ENHANCEMENT OF NON-FEDERAL CYBERSECURITY.
In carrying out the responsibilities under section 201, the Under
Secretary for Information Analysis and Infrastructure Protection shall--
(1) as appropriate, provide to State and local government entities, and
upon request to private entities that own or operate critical information
systems--
(A) analysis and warnings related to threats to, and vulnerabilities
of, critical information systems; and
(B) in coordination with the Under Secretary for Emergency
Preparedness and Response, crisis management support in response to
threats to, or attacks on, critical information systems; and
(2) as appropriate, provide technical assistance, upon request, to the
private sector and other government entities, in coordination with the Under
Secretary for Emergency Preparedness and Response, with respect to emergency
recovery plans to respond to major failures of critical information
systems.
SEC. 224. NET GUARD.
The Under Secretary for Information Analysis and Infrastructure Protection
may establish a national technology guard, to be known as `NET Guard',
comprised of local teams of volunteers with expertise in relevant areas of
science and technology, to assist local communities to respond and recover
from attacks on information systems and communications networks.
SEC. 225. CYBER SECURITY ENHANCEMENT ACT OF 2002.
(a) SHORT TITLE- This section may be cited as the `Cyber Security
Enhancement Act of 2002'.
(b) AMENDMENT OF SENTENCING GUIDELINES RELATING TO CERTAIN COMPUTER
CRIMES-
(1) DIRECTIVE TO THE UNITED STATES SENTENCING COMMISSION- Pursuant to
its authority under section 994(p) of title 28, United States Code, and in
accordance with this subsection, the United States Sentencing Commission
shall review and, if appropriate, amend its guidelines and its policy
statements applicable to persons convicted of an offense under section 1030
of title 18, United States Code.
(2) REQUIREMENTS- In carrying out this subsection, the Sentencing
Commission shall--
(A) ensure that the sentencing guidelines and policy statements
reflect the serious nature of the offenses described in paragraph (1), the
growing incidence of such offenses, and the need for an effective
deterrent and appropriate punishment to prevent such offenses;
(B) consider the following factors and the extent to which the
guidelines may or may not account for them--
(i) the potential and actual loss resulting from the
offense;
(ii) the level of sophistication and planning involved in the
offense;
(iii) whether the offense was committed for purposes of commercial
advantage or private financial benefit;
(iv) whether the defendant acted with malicious intent to cause harm
in committing the offense;
(v) the extent to which the offense violated the privacy rights of
individuals harmed;
(vi) whether the offense involved a computer used by the government
in furtherance of national defense, national security, or the
administration of justice;
(vii) whether the violation was intended to or had the effect of
significantly interfering with or disrupting a critical infrastructure;
and
(viii) whether the violation was intended to or had the effect of
creating a threat to public health or safety, or injury to any
person;
(C) assure reasonable consistency with other relevant directives and
with other sentencing guidelines;
(D) account for any additional aggravating or mitigating circumstances
that might justify exceptions to the generally applicable sentencing
ranges;
(E) make any necessary conforming changes to the sentencing
guidelines; and
(F) assure that the guidelines adequately meet the purposes of
sentencing as set forth in section 3553(a)(2) of title 18, United States
Code.
(c) STUDY AND REPORT ON COMPUTER CRIMES- Not later than May 1, 2003, the
United States Sentencing Commission shall submit a brief report to Congress
that explains any actions taken by the Sentencing Commission in response to
this section and includes any recommendations the Commission may have
regarding statutory penalties for offenses under section 1030 of title 18,
United States Code.
(d) EMERGENCY DISCLOSURE EXCEPTION-
(1) IN GENERAL- Section 2702(b) of title 18, United States Code, is
amended--
(A) in paragraph (5), by striking `or' at the end;
(B) in paragraph (6)(A), by inserting `or' at the end;
(C) by striking paragraph (6)(C); and
(D) by adding at the end the following:
`(7) to a Federal, State, or local governmental entity, if the provider,
in good faith, believes that an emergency involving danger of death or
serious physical injury to any person requires disclosure without delay of
communications relating to the emergency.'.
(2) REPORTING OF DISCLOSURES- A government entity that receives a
disclosure under section 2702(b) of title 18, United States Code, shall
file, not later than 90 days after such disclosure, a report to the Attorney
General stating the paragraph of that section under which the disclosure was
made, the date of the disclosure, the entity to which the disclosure was
made, the number of customers or subscribers to whom the information
disclosed pertained, and the number of communications, if any, that were
disclosed. The Attorney General shall publish all such reports into a single
report to be submitted to Congress 1 year after the date of enactment of
this Act.
(e) GOOD FAITH EXCEPTION- Section 2520(d)(3) of title 18, United States
Code, is amended by inserting `or 2511(2)(i)' after `2511(3)'.
(f) INTERNET ADVERTISING OF ILLEGAL DEVICES- Section 2512(1)(c) of title
18, United States Code, is amended--
(1) by inserting `or disseminates by electronic means' after `or other
publication'; and
(2) by inserting `knowing the content of the advertisement and' before
`knowing or having reason to know'.
(g) STRENGTHENING PENALTIES- Section 1030(c) of title 18, United States
Code, is amended--
(1) by striking `and' at the end of paragraph (3);
(2) in each of subparagraphs (A) and (C) of paragraph (4), by inserting
`except as provided in paragraph (5),' before `a fine under this
title';
(3) in paragraph (4)(C), by striking the period at the end and inserting
`; and'; and
(4) by adding at the end the following:
`(5)(A) if the offender knowingly or recklessly causes or attempts to
cause serious bodily injury from conduct in violation of subsection
(a)(5)(A)(i), a fine under this title or imprisonment for not more than 20
years, or both; and
`(B) if the offender knowingly or recklessly causes or attempts to cause
death from conduct in violation of subsection (a)(5)(A)(i), a fine under
this title or imprisonment for any term of years or for life, or
both.'.
(1) SECTION 2703- Section 2703(e) of title 18, United States Code, is
amended by inserting `, statutory authorization' after `subpoena'.
(2) SECTION 2511- Section 2511(2)(a)(ii) of title 18, United States
Code, is amended by inserting `, statutory authorization,' after `court
order' the last place it appears.
(i) EMERGENCIES- Section 3125(a)(1) of title 18, United States Code, is
amended--
(1) in subparagraph (A), by striking `or' at the end;
(2) in subparagraph (B), by striking the comma at the end and inserting
a semicolon; and
(3) by adding at the end the following:
`(C) an immediate threat to a national security interest; or
`(D) an ongoing attack on a protected computer (as defined in section
1030) that constitutes a crime punishable by a term of imprisonment
greater than one year;'.
(1) SECTION 2511- Section 2511(4) of title 18, United States Code, is
amended--
(A) by striking paragraph (b); and
(B) by redesignating paragraph (c) as paragraph (b).
(2) SECTION 2701- Section 2701(b) of title 18, United States Code, is
amended--
(A) in paragraph (1), by inserting `, or in furtherance of any
criminal or tortious act in violation of the Constitution or laws of the
United States or any State' after `commercial gain';
(B) in paragraph (1)(A), by striking `one year' and inserting `5
years';
(C) in paragraph (1)(B), by striking `two years' and inserting `10
years'; and
(D) by striking paragraph (2) and inserting the following:
`(A) a fine under this title or imprisonment for not more than 1 year
or both, in the case of a first offense under this paragraph; and
`(B) a fine under this title or imprisonment for not more than 5
years, or both, in the case of an offense under this subparagraph that
occurs after a conviction of another offense under this
section.'.
Subtitle D--Office of Science and Technology
SEC. 231. ESTABLISHMENT OF OFFICE; DIRECTOR.
(1) IN GENERAL- There is hereby established within the Department of
Justice an Office of Science and Technology (hereinafter in this title
referred to as the `Office').
(2) AUTHORITY- The Office shall be under the general authority of the
Assistant Attorney General, Office of Justice Programs, and shall be
established within the National Institute of Justice.
(b) DIRECTOR- The Office shall be headed by a Director, who shall be an
individual appointed based on approval by the Office of Personnel Management
of the executive qualifications of the individual.
SEC. 232. MISSION OF OFFICE; DUTIES.
(a) MISSION- The mission of the Office shall be--
(1) to serve as the national focal point for work on law enforcement
technology; and
(2) to carry out programs that, through the provision of equipment,
training, and technical assistance, improve the safety and effectiveness of
law enforcement technology and improve access to such technology by Federal,
State, and local law enforcement agencies.
(b) DUTIES- In carrying out its mission, the Office shall have the
following duties:
(1) To provide recommendations and advice to the Attorney General.
(2) To establish and maintain advisory groups (which shall be exempt
from the provisions of the Federal Advisory Committee Act (5 U.S.C. App.))
to assess the law enforcement technology needs of Federal, State, and local
law enforcement agencies.
(3) To establish and maintain performance standards in accordance with
the National Technology Transfer and Advancement Act of 1995 (Public Law
104-113) for, and test and evaluate law enforcement technologies that may be
used by, Federal, State, and local law enforcement agencies.
(4) To establish and maintain a program to certify, validate, and mark
or otherwise recognize law enforcement technology products that conform to
standards established and maintained by the Office in accordance with the
National Technology Transfer and Advancement Act of 1995 (Public Law
104-113). The program may, at the discretion of the Office, allow for
supplier's declaration of conformity with such standards.
(5) To work with other entities within the Department of Justice, other
Federal agencies, and the executive office of the President to establish a
coordinated Federal approach on issues related to law enforcement
technology.
(6) To carry out research, development, testing, evaluation, and
cost-benefit analyses in fields that would improve the safety,
effectiveness, and efficiency of law enforcement technologies used by
Federal, State, and local law enforcement agencies, including, but not
limited to--
(A) weapons capable of preventing use by unauthorized persons,
including personalized guns;
(C) bullet-resistant and explosion-resistant glass;
(D) monitoring systems and alarm systems capable of providing precise
location information;
(E) wire and wireless interoperable communication
technologies;
(F) tools and techniques that facilitate investigative and forensic
work, including computer forensics;
(G) equipment for particular use in counterterrorism, including
devices and technologies to disable terrorist devices;
(H) guides to assist State and local law enforcement
agencies;
(I) DNA identification technologies; and
(J) tools and techniques that facilitate investigations of computer
crime.
(7) To administer a program of research, development, testing, and
demonstration to improve the interoperability of voice and data public
safety communications.
(8) To serve on the Technical Support Working Group of the Department of
Defense, and on other relevant interagency panels, as requested.
(9) To develop, and disseminate to State and local law enforcement
agencies, technical assistance and training materials for law enforcement
personnel, including prosecutors.
(10) To operate the regional National Law Enforcement and Corrections
Technology Centers and,
to the extent necessary, establish additional centers through a competitive
process.
(11) To administer a program of acquisition, research, development, and
dissemination of advanced investigative analysis and forensic tools to
assist State and local law enforcement agencies in combating
cybercrime.
(12) To support research fellowships in support of its mission.
(13) To serve as a clearinghouse for information on law enforcement
technologies.
(14) To represent the United States and State and local law enforcement
agencies, as requested, in international activities concerning law
enforcement technology.
(15) To enter into contracts and cooperative agreements and provide
grants, which may require in-kind or cash matches from the recipient, as
necessary to carry out its mission.
(16) To carry out other duties assigned by the Attorney General to
accomplish the mission of the Office.
(c) COMPETITION REQUIRED- Except as otherwise expressly provided by law,
all research and development carried out by or through the Office shall be
carried out on a competitive basis.
(d) INFORMATION FROM FEDERAL AGENCIES- Federal agencies shall, upon
request from the Office and in accordance with Federal law, provide the Office
with any data, reports, or other information requested, unless compliance with
such request is otherwise prohibited by law.
(e) PUBLICATIONS- Decisions concerning publications issued by the Office
shall rest solely with the Director of the Office.
(f) TRANSFER OF FUNDS- The Office may transfer funds to other Federal
agencies or provide funding to non-Federal entities through grants,
cooperative agreements, or contracts to carry out its duties under this
section.
(g) ANNUAL REPORT- The Director of the Office shall include with the
budget justification materials submitted to Congress in support of the
Department of Justice budget for each fiscal year (as submitted with the
budget of the President under section 1105(a) of title 31, United States Code)
a report on the activities of the Office. Each such report shall include the
following:
(1) For the period of 5 fiscal years beginning with the fiscal year for
which the budget is submitted--
(A) the Director's assessment of the needs of Federal, State, and
local law enforcement agencies for assistance with respect to law
enforcement technology and other matters consistent with the mission of
the Office; and
(B) a strategic plan for meeting such needs of such law enforcement
agencies.
(2) For the fiscal year preceding the fiscal year for which such budget
is submitted, a description of the activities carried out by the Office and
an evaluation of the extent to which those activities successfully meet the
needs assessed under paragraph (1)(A) in previous reports.
SEC. 233. DEFINITION OF LAW ENFORCEMENT TECHNOLOGY.
For the purposes of this title, the term `law enforcement technology'
includes investigative and forensic technologies, corrections technologies,
and technologies that support the judicial process.
SEC. 234. ABOLISHMENT OF OFFICE OF SCIENCE AND TECHNOLOGY OF NATIONAL
INSTITUTE OF JUSTICE; TRANSFER OF FUNCTIONS.
(a) AUTHORITY TO TRANSFER FUNCTIONS- The Attorney General may transfer to
the Office any other program or activity of the Department of Justice that the
Attorney General, in consultation with the Committee on the Judiciary of the
Senate and the Committee on the Judiciary of the House of Representatives,
determines to be consistent with the mission of the Office.
(b) TRANSFER OF PERSONNEL AND ASSETS- With respect to any function, power,
or duty, or any program or activity, that is established in the Office, those
employees and assets of the element of the Department of Justice from which
the transfer is made that the Attorney General determines are needed to
perform that function, power, or duty, or for that program or activity, as the
case may be, shall be transferred to the Office.
(c) REPORT ON IMPLEMENTATION- Not later than 1 year after the date of the
enactment of this Act, the Attorney General shall submit to the Committee on
the Judiciary of the Senate and the Committee on the Judiciary of the House of
Representatives a report on the implementation of this title. The report
shall--
(1) provide an accounting of the amounts and sources of funding
available to the Office to carry out its mission under existing
authorizations and appropriations, and set forth the future funding needs of
the Office; and
(2) include such other information and recommendations as the Attorney
General considers appropriate.
SEC. 235. NATIONAL LAW ENFORCEMENT AND CORRECTIONS TECHNOLOGY CENTERS.
(a) IN GENERAL- The Director of the Office shall operate and support
National Law Enforcement and Corrections Technology Centers (hereinafter in
this section referred to as `Centers') and, to the extent necessary, establish
new centers through a merit-based, competitive process.
(b) PURPOSE OF CENTERS- The purpose of the Centers shall be to--
(1) support research and development of law enforcement
technology;
(2) support the transfer and implementation of technology;
(3) assist in the development and dissemination of guidelines and
technological standards; and
(4) provide technology assistance, information, and support for law
enforcement, corrections, and criminal justice purposes.
(c) ANNUAL MEETING- Each year, the Director shall convene a meeting of the
Centers in order to foster collaboration and communication between Center
participants.
(d) REPORT- Not later than 12 months after the date of the enactment of
this Act, the Director shall transmit to the Congress a report assessing the
effectiveness of the existing system of Centers and identify the number of
Centers necessary to meet the technology needs of Federal, State, and local
law enforcement in the United States.
SEC. 236. COORDINATION WITH OTHER ENTITIES WITHIN DEPARTMENT OF
JUSTICE.
Section 102 of the Omnibus Crime Control and Safe Streets Act of 1968 (42
U.S.C. 3712) is amended in subsection (a)(5) by inserting `coordinate and'
before `provide'.
SEC. 237. AMENDMENTS RELATING TO NATIONAL INSTITUTE OF JUSTICE.
Section 202(c) of the Omnibus Crime Control and Safety Streets Act of 1968
(42 U.S.C. 3722(c)) is amended--
(1) in paragraph (3) by inserting `, including cost effectiveness where
practical,' before `of projects'; and
(2) by striking `and' after the semicolon at the end of paragraph (8),
striking the period at the end
of paragraph (9) and inserting `; and', and by adding at the end the
following:
`(10) research and development of tools and technologies relating to
prevention, detection, investigation, and prosecution of crime; and
`(11) support research, development, testing, training, and evaluation
of tools and technology for Federal, State, and local law enforcement
agencies.'.
TITLE III--SCIENCE AND TECHNOLOGY IN SUPPORT OF HOMELAND
SECURITY
SEC. 301. UNDER SECRETARY FOR SCIENCE AND TECHNOLOGY.
There shall be in the Department a Directorate of Science and Technology
headed by an Under Secretary for Science and Technology.
SEC. 302. RESPONSIBILITIES AND AUTHORITIES OF THE UNDER SECRETARY FOR
SCIENCE AND TECHNOLOGY.
The Secretary, acting through the Under Secretary for Science and
Technology, shall have the responsibility for--
(1) advising the Secretary regarding research and development efforts
and priorities in support of the Department's missions;
(2) developing, in consultation with other appropriate executive
agencies, a national policy and strategic plan for, identifying priorities,
goals, objectives and policies for, and coordinating the Federal
Government's civilian efforts to identify and develop countermeasures to
chemical, biological, radiological, nuclear, and other emerging terrorist
threats, including the development of comprehensive, research-based
definable goals for such efforts and development of annual measurable
objectives and specific targets to accomplish and evaluate the goals for
such efforts;
(3) supporting the Under Secretary for Information Analysis and
Infrastructure Protection, by assessing and testing homeland security
vulnerabilities and possible threats;
(4) conducting basic and applied research, development, demonstration,
testing, and evaluation activities that are relevant to any or all elements
of the Department, through both intramural and extramural programs, except
that such responsibility does not extend to human health-related research
and development activities;
(5) establishing priorities for, directing, funding, and conducting
national research, development, test and evaluation, and procurement of
technology and systems for--
(A) preventing the importation of chemical, biological, radiological,
nuclear, and related weapons and material; and
(B) detecting, preventing, protecting against, and responding to
terrorist attacks;
(6) establishing a system for transferring homeland security
developments or technologies to federal, state, local government, and
private sector entities;
(7) entering into work agreements, joint sponsorships, contracts, or any
other agreements with the Department of Energy regarding the use of the
national laboratories or sites and support of the science and technology
base at those facilities;
(8) collaborating with the Secretary of Agriculture and the Attorney
General as provided in section 212 of the Agricultural Bioterrorism
Protection Act of 2002 (7 U.S.C. 8401), as amended by section 1709(b);
(9) collaborating with the Secretary of Health and Human Services and
the Attorney General in determining any new biological agents and toxins
that shall be listed as `select agents' in Appendix A of part 72 of title
42, Code of Federal Regulations, pursuant to section 351A of the Public
Health Service Act (42 U.S.C. 262a);
(10) supporting United States leadership in science and
technology;
(11) establishing and administering the primary research and development
activities of the Department, including the long-term research and
development needs and capabilities for all elements of the Department;
(12) coordinating and integrating all research, development,
demonstration, testing, and evaluation activities of the Department;
(13) coordinating with other appropriate executive agencies in
developing and carrying out the science and technology agenda of the
Department to reduce duplication and identify unmet needs; and
(14) developing and overseeing the administration of guidelines for
merit review of research and development projects throughout the Department,
and for the dissemination of research conducted or sponsored by the
Department.
SEC. 303. FUNCTIONS TRANSFERRED.
In accordance with title XV, there shall be transferred to the Secretary
the functions, personnel, assets, and liabilities of the following
entities:
(1) The following programs and activities of the Department of Energy,
including the functions of the Secretary of Energy relating thereto (but not
including programs and activities relating to the strategic nuclear defense
posture of the United States):
(A) The chemical and biological national security and supporting
programs and activities of the nonproliferation and verification research
and development program.
(B) The nuclear smuggling programs and activities within the
proliferation detection program of the nonproliferation and verification
research and development program. The programs and activities described in
this subparagraph may be designated by the President either for transfer
to the Department or for joint operation by the Secretary and the
Secretary of Energy.
(C) The nuclear assessment program and activities of the assessment,
detection, and cooperation program of the international materials
protection and cooperation program.
(D) Such life sciences activities of the biological and environmental
research program related to microbial pathogens as may be designated by
the President for transfer to the Department.
(E) The Environmental Measurements Laboratory.
(F) The advanced scientific computing research program and activities
at Lawrence Livermore National Laboratory.
(2) The National Bio-Weapons Defense Analysis Center of the Department
of Defense, including the functions of the Secretary of Defense related
thereto.
(3) The Plum Island Animal Disease Center of the Department of
Agriculture, as provided in section 310.
SEC. 304. CONDUCT OF CERTAIN PUBLIC HEALTH-RELATED ACTIVITIES.
(a) IN GENERAL- With respect to civilian human health-related research and
development activities relating to countermeasures for chemical, biological,
radiological, and nuclear and other emerging terrorist threats carried out by
the Department of Health and Human Services (including the Public Health
Service), the Secretary of
Health and Human Services shall set priorities, goals, objectives, and
policies and develop a coordinated strategy for such activities in collaboration
with the Secretary of Homeland Security to ensure consistency with the national
policy and strategic plan developed pursuant to section 302(2).
(b) EVALUATION OF PROGRESS- In carrying out subsection (a), the Secretary
of Health and Human Services shall collaborate with the Secretary in
developing specific benchmarks and outcome measurements for evaluating
progress toward achieving the priorities and goals described in such
subsection.
(c) ADMINISTRATION OF COUNTERMEASURES AGAINST SMALLPOX- Section 224 of the
Public Health Service Act (42 U.S.C. 233) is amended by adding the
following:
`(p) ADMINISTRATION OF SMALLPOX COUNTERMEASURES BY HEALTH
PROFESSIONALS-
`(1) IN GENERAL- For purposes of this section, and subject to other
provisions of this subsection, a covered person shall be deemed to be an
employee of the Public Health Service with respect to liability arising out
of administration of a covered countermeasure against smallpox to an
individual during the effective period of a declaration by the Secretary
under paragraph (2)(A).
`(2) DECLARATION BY SECRETARY CONCERNING COUNTERMEASURE AGAINST
SMALLPOX-
`(A) AUTHORITY TO ISSUE DECLARATION-
`(i) IN GENERAL- The Secretary may issue a declaration, pursuant to
this paragraph, concluding that an actual or potential bioterrorist
incident or other actual or potential public health emergency makes
advisable the administration of a covered countermeasure to a category
or categories of individuals.
`(ii) COVERED COUNTERMEASURE- The Secretary shall specify in such
declaration the substance or substances that shall be considered covered
countermeasures (as defined in paragraph (8)(A)) for purposes of
administration to individuals during the effective period of the
declaration.
`(iii) EFFECTIVE PERIOD- The Secretary shall specify in such
declaration the beginning and ending dates of the effective period of
the declaration, and may subsequently amend such declaration to shorten
or extend such effective period, provided that the new closing date is
after the date when the declaration is amended.
`(iv) PUBLICATION- The Secretary shall promptly publish each such
declaration and amendment in the Federal Register.
`(B) LIABILITY OF UNITED STATES ONLY FOR ADMINISTRATIONS WITHIN SCOPE
OF DECLARATION- Except as provided in paragraph (5)(B)(ii), the United
States shall be liable under this subsection with respect to a claim
arising out of the administration of a covered countermeasure to an
individual only if--
`(i) the countermeasure was administered by a qualified person, for
a purpose stated in paragraph (7)(A)(i), and during the effective period
of a declaration by the Secretary under subparagraph (A) with respect to
such countermeasure; and
`(ii)(I) the individual was within a category of individuals covered
by the declaration; or
`(II) the qualified person administering the countermeasure had
reasonable grounds to believe that such individual was within such
category.
`(C) PRESUMPTION OF ADMINISTRATION WITHIN SCOPE OF DECLARATION IN CASE
OF ACCIDENTAL VACCINIA INOCULATION-
`(i) IN GENERAL- If vaccinia vaccine is a covered countermeasure
specified in a declaration under subparagraph (A), and an individual to
whom the vaccinia vaccine is not administered contracts vaccinia, then,
under the circumstances specified in clause (ii), the
individual--
`(I) shall be rebuttably presumed to have contracted vaccinia from
an individual to whom such vaccine was administered as provided by
clauses (i) and (ii) of subparagraph (B); and
`(II) shall (unless such presumption is rebutted) be deemed for
purposes of this subsection to be an individual to whom a covered
countermeasure was administered by a qualified person in accordance
with the terms of such declaration and as described by subparagraph
(B).
`(ii) CIRCUMSTANCES IN WHICH PRESUMPTION APPLIES- The presumption
and deeming stated in clause (i) shall apply if--
`(I) the individual contracts vaccinia during the effective period
of a declaration under subparagraph (A) or by the date 30 days after
the close of such period; or
`(II) the individual resides or has resided with an individual to
whom such vaccine was administered as provided by clauses (i) and (ii)
of subparagraph (B) and contracts vaccinia after such
date.
`(3) EXCLUSIVITY OF REMEDY- The remedy provided by subsection (a) shall
be exclusive of any other civil action or proceeding for any claim or suit
this subsection encompasses.
`(4) CERTIFICATION OF ACTION BY ATTORNEY GENERAL- Subsection (c) applies
to actions under this subsection, subject to the following provisions:
`(A) NATURE OF CERTIFICATION- The certification by the Attorney
General that is the basis for deeming an action or proceeding to be
against the United States, and for removing an action or proceeding from a
State court, is a certification that the action or proceeding is against a
covered person and is based upon a claim alleging personal injury or death
arising out of the administration of a covered countermeasure.
`(B) CERTIFICATION OF ATTORNEY GENERAL CONCLUSIVE- The certification
of the Attorney General of the facts specified in subparagraph (A) shall
conclusively establish such facts for purposes of jurisdiction pursuant to
this subsection.
`(5) DEFENDANT TO COOPERATE WITH UNITED STATES-
`(A) IN GENERAL- A covered person shall cooperate with the United
States in the processing and defense of a claim or action under this
subsection based upon alleged acts or omissions of such person.
`(B) CONSEQUENCES OF FAILURE TO COOPERATE- Upon the motion of the
United
States or any other party and upon finding that such person has failed to so
cooperate--
`(i) the court shall substitute such person as the party defendant
in place of the United States and, upon motion, shall remand any such
suit to the court in which it was instituted if it appears that the
court lacks subject matter jurisdiction;
`(ii) the United States shall not be liable based on the acts or
omissions of such person; and
`(iii) the Attorney General shall not be obligated to defend such
action.
`(6) RECOURSE AGAINST COVERED PERSON IN CASE OF GROSS MISCONDUCT OR
CONTRACT VIOLATION-
`(A) IN GENERAL- Should payment be made by the United States to any
claimant bringing a claim under this subsection, either by way of
administrative determination, settlement, or court judgment, the United
States shall have, notwithstanding any provision of State law, the right
to recover for that portion of the damages so awarded or paid, as well as
interest and any costs of litigation, resulting from the failure of any
covered person to carry out any obligation or responsibility assumed by
such person under a contract with the United States or from any grossly
negligent, reckless, or illegal conduct or willful misconduct on the part
of such person.
`(B) VENUE- The United States may maintain an action under this
paragraph against such person in the district court of the United States
in which such person resides or has its principal place of
business.
`(7) DEFINITIONS- As used in this subsection, terms have the following
meanings:
`(A) COVERED COUNTERMEASURE- The term `covered countermeasure', or
`covered countermeasure against smallpox', means a substance that
is--
`(i)(I) used to prevent or treat smallpox (including the vaccinia or
another vaccine); or
`(II) vaccinia immune globulin used to control or treat the adverse
effects of vaccinia inoculation; and
`(ii) specified in a declaration under paragraph (2).
`(B) COVERED PERSON- The term `covered person', when used with respect
to the administration of a covered countermeasure, includes any person who
is--
`(i) a manufacturer or distributor of such
countermeasure;
`(ii) a health care entity under whose auspices such countermeasure
was administered;
`(iii) a qualified person who administered such countermeasure;
or
`(iv) an official, agent, or employee of a person described in
clause (i), (ii), or (iii).
`(C) QUALIFIED PERSON- The term `qualified person', when used with
respect to the administration of a covered countermeasure, means a
licensed health professional or other individual who is authorized to
administer such countermeasure under the law of the State in which the
countermeasure was administered.'.
SEC. 305. FEDERALLY FUNDED RESEARCH AND DEVELOPMENT CENTERS.
The Secretary, acting through the Under Secretary for Science and
Technology, shall have the authority to establish or contract with 1 or more
federally funded research and development centers to provide independent
analysis of homeland security issues, or to carry out other responsibilities
under this Act, including coordinating and integrating both the extramural and
intramural programs described in section 308.
SEC. 306. MISCELLANEOUS PROVISIONS.
(a) CLASSIFICATION- To the greatest extent practicable, research conducted
or supported by the Department shall be unclassified.
(b) CONSTRUCTION- Nothing in this title shall be construed to preclude any
Under Secretary of the Department from carrying out research, development,
demonstration, or deployment activities, as long as such activities are
coordinated through the Under Secretary for Science and Technology.
(c) REGULATIONS- The Secretary, acting through the Under Secretary for
Science and Technology, may issue necessary regulations with respect to
research, development, demonstration, testing, and evaluation activities of
the Department, including the conducting, funding, and reviewing of such
activities.
(d) NOTIFICATION OF PRESIDENTIAL LIFE SCIENCES DESIGNATIONS- Not later
than 60 days before effecting any transfer of Department of Energy life
sciences activities pursuant to section 303(1)(D) of this Act, the President
shall notify the appropriate congressional committees of the proposed transfer
and shall include the reasons for the transfer and a description of the effect
of the transfer on the activities of the Department of Energy.
SEC. 307. HOMELAND SECURITY ADVANCED RESEARCH PROJECTS AGENCY.
(a) DEFINITIONS- In this section:
(1) FUND- The term `Fund' means the Acceleration Fund for Research and
Development of Homeland Security Technologies established in subsection
(c).
(2) HOMELAND SECURITY RESEARCH- The term `homeland security research'
means research relevant to the detection of, prevention of, protection
against, response to, attribution of, and recovery from homeland security
threats, particularly acts of terrorism.
(3) HSARPA- The term `HSARPA' means the Homeland Security Advanced
Research Projects Agency established in subsection (b).
(4) UNDER SECRETARY- The term `Under Secretary' means the Under
Secretary for Science and Technology.
(1) ESTABLISHMENT- There is established the Homeland Security Advanced
Research Projects Agency.
(2) DIRECTOR- HSARPA shall be headed by a Director, who shall be
appointed by the Secretary. The Director shall report to the Under
Secretary.
(3) RESPONSIBILITIES- The Director shall administer the Fund to award
competitive, merit-reviewed grants, cooperative agreements or contracts to
public or private entities, including businesses, federally funded research
and development centers, and universities. The Director shall administer the
Fund to--
(A) support basic and applied homeland security research to promote
revolutionary changes in technologies that would promote homeland
security;
(B) advance the development, testing and evaluation, and deployment of
critical homeland security technologies; and
(C) accelerate the prototyping and deployment of technologies that
would address homeland security vulnerabilities.
(4) TARGETED COMPETITIONS- The Director may solicit proposals to address
specific vulnerabilities identified by the Director.
(5) COORDINATION- The Director shall ensure that the activities of
HSARPA are coordinated with those of other relevant research agencies, and
may run projects jointly with other agencies.
(6) PERSONNEL- In hiring personnel for HSARPA, the Secretary shall have
the hiring and management authorities described in section 1101 of the Strom
Thurmond National Defense Authorization Act for Fiscal Year 1999 (5 U.S.C.
3104 note; Public Law 105-261). The term of appointments for employees under
subsection (c)(1) of that section may not exceed 5 years before the granting
of any extension under subsection (c)(2) of that section.
(7) DEMONSTRATIONS- The Director, periodically, shall hold homeland
security technology demonstrations to improve contact among technology
developers, vendors and acquisition personnel.
(1) ESTABLISHMENT- There is established the Acceleration Fund for
Research and Development of Homeland Security Technologies, which shall be
administered by the Director of HSARPA.
(2) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be
appropriated $500,000,000 to the Fund for fiscal year 2003 and such sums as
may be necessary thereafter.
(3) COAST GUARD- Of the funds authorized to be appropriated under
paragraph (2), not less than 10 percent of such funds for each fiscal year
through fiscal year 2005 shall be authorized only for the Under Secretary,
through joint agreement with the Commandant of the Coast Guard, to carry out
research and development of improved ports, waterways and coastal security
surveillance and perimeter protection capabilities for the purpose of
minimizing the possibility that Coast Guard cutters, aircraft, helicopters,
and personnel will be diverted from non-homeland security missions to the
ports, waterways and coastal security mission.
SEC. 308. CONDUCT OF RESEARCH, DEVELOPMENT, DEMONSTRATION, TESTING AND
EVALUATION.
(a) IN GENERAL- The Secretary, acting through the Under Secretary for
Science and Technology, shall carry out the responsibilities under section
302(4) through both extramural and intramural programs.
(1) IN GENERAL- The Secretary, acting through the Under Secretary for
Science and Technology, shall operate extramural research, development,
demonstration, testing, and evaluation programs so as to--
(A) ensure that colleges, universities, private research institutes,
and companies (and consortia thereof) from as many areas of the United
States as practicable participate;
(B) ensure that the research funded is of high quality, as determined
through merit review processes developed under section 302(14);
and
(C) distribute funds through grants, cooperative agreements, and
contracts.
(2) UNIVERSITY-BASED CENTERS FOR HOMELAND SECURITY-
(A) ESTABLISHMENT- The Secretary, acting through the Under Secretary
for Science and Technology, shall establish within 1 year of the date of
enactment of this Act a university-based center or centers for homeland
security. The purpose of this center or centers shall be to establish a
coordinated, university-based system to enhance the Nation's homeland
security.
(B) CRITERIA FOR SELECTION- In selecting colleges or universities as
centers for homeland security, the Secretary shall consider the following
criteria:
(i) Demonstrated expertise in the training of first
responders.
(ii) Demonstrated expertise in responding to incidents involving
weapons of mass destruction and biological warfare.
(iii) Demonstrated expertise in emergency medical
services.
(iv) Demonstrated expertise in chemical, biological, radiological,
and nuclear countermeasures.
(v) Strong affiliations with animal and plant diagnostic
laboratories.
(vi) Demonstrated expertise in food safety.
(vii) Affiliation with Department of Agriculture laboratories or
training centers.
(viii) Demonstrated expertise in water and wastewater
operations.
(ix) Demonstrated expertise in port and waterway
security.
(x) Demonstrated expertise in multi-modal
transportation.
(xi) Nationally recognized programs in information
security.
(xii) Nationally recognized programs in engineering.
(xiii) Demonstrated expertise in educational outreach and technical
assistance.
(xiv) Demonstrated expertise in border transportation and
security.
(xv) Demonstrated expertise in interdisciplinary public policy
research and communication outreach regarding science, technology, and
public policy.
(C) DISCRETION OF SECRETARY- The Secretary shall have the discretion
to establish such centers and to consider additional criteria as necessary
to meet the evolving needs of homeland security and shall report to
Congress concerning the implementation of this paragraph as
necessary.
(D) AUTHORIZATION OF APPROPRIATIONS- There are authorized to be
appropriated such sums as may be necessary to carry out this
paragraph.
(1) CONSULTATION- In carrying out the duties under section 302, the
Secretary, acting through the Under Secretary for Science and Technology,
may draw upon the expertise of any laboratory of the Federal Government,
whether operated by a contractor or the Government.
(2) LABORATORIES- The Secretary, acting through the Under Secretary for
Science and Technology, may establish a headquarters laboratory for the
Department at any laboratory or site and may establish additional laboratory
units at other laboratories or sites.
(3) CRITERIA FOR HEADQUARTERS LABORATORY- If the Secretary chooses to
establish a headquarters laboratory pursuant to paragraph (2), then the
Secretary shall do the following:
(A) Establish criteria for the selection of the headquarters
laboratory in consultation with the National Academy of Sciences,
appropriate Federal agencies, and other experts.
(B) Publish the criteria in the Federal Register.
(C) Evaluate all appropriate laboratories or sites against the
criteria.
(D) Select a laboratory or site on the basis of the criteria.
(E) Report to the appropriate congressional committees on which
laboratory was selected, how the selected laboratory meets the published
criteria, and what duties the headquarters laboratory shall
perform.
(4) LIMITATION ON OPERATION OF LABORATORIES- No laboratory shall begin
operating as the headquarters laboratory of the Department until at least 30
days after the transmittal of the report required by paragraph (3)(E).
SEC. 309. UTILIZATION OF DEPARTMENT OF ENERGY NATIONAL LABORATORIES AND
SITES IN SUPPORT OF HOMELAND SECURITY ACTIVITIES.
(a) AUTHORITY TO UTILIZE NATIONAL LABORATORIES AND SITES-
(1) IN GENERAL- In carrying out the missions of the Department, the
Secretary may utilize the Department of Energy national laboratories and
sites through any 1 or more of the following methods, as the Secretary
considers appropriate:
(A) A joint sponsorship arrangement referred to in subsection
(b).
(B) A direct contract between the Department and the applicable
Department of Energy laboratory or site, subject to subsection
(c).
(C) Any `work for others' basis made available by that laboratory or
site.
(D) Any other method provided by law.
(2) ACCEPTANCE AND PERFORMANCE BY LABS AND SITES- Notwithstanding any
other law governing the administration, mission, use, or operations of any
of the Department of Energy national laboratories and sites, such
laboratories and sites are authorized to accept and perform work for the
Secretary, consistent with resources provided, and perform such work on an
equal basis to other missions at the laboratory and not on a noninterference
basis with other missions of such laboratory or site.
(b) JOINT SPONSORSHIP ARRANGEMENTS-
(1) LABORATORIES- The Department may be a joint sponsor, under a
multiple agency sponsorship arrangement with the Department of Energy, of 1
or more Department of Energy national laboratories in the performance of
work.
(2) SITES- The Department may be a joint sponsor of a Department of
Energy site in the performance of work as if such site were a federally
funded research and development center and the work were performed under a
multiple agency sponsorship arrangement with the Department.
(3) PRIMARY SPONSOR- The Department of Energy shall be the primary
sponsor under a multiple agency sponsorship arrangement referred to in
paragraph (1) or (2).
(4) LEAD AGENT- The Secretary of Energy shall act as the lead agent in
coordinating the formation and performance of a joint sponsorship
arrangement under this subsection between the Department and a Department of
Energy national laboratory or site.
(5) FEDERAL ACQUISITION REGULATION- Any work performed by a Department
of Energy national laboratory or site under a joint sponsorship arrangement
under this subsection shall comply with the policy on the use of federally
funded research and development centers under the Federal Acquisition
Regulations.
(6) FUNDING- The Department shall provide funds for work at the
Department of Energy national laboratories or sites, as the case may be,
under a joint sponsorship arrangement under this subsection under the same
terms and conditions as apply to the primary sponsor of such national
laboratory under section 303(b)(1)(C) of the Federal Property and
Administrative Services Act of 1949 (41 U.S.C. 253 (b)(1)(C)) or of such
site to the extent such section applies to such site as a federally funded
research and development center by reason of this subsection.
(c) SEPARATE CONTRACTING- To the extent that programs or activities
transferred by this Act from the Department of Energy to the Department of
Homeland Security are being carried out through direct contracts with the
operator of a national laboratory or site of the Department of Energy, the
Secretary of Homeland Security and the Secretary of Energy shall ensure that
direct contracts for such programs and activities between the Department of
Homeland Security and such operator are separate from the direct contracts of
the Department of Energy with such operator.
(d) AUTHORITY WITH RESPECT TO COOPERATIVE RESEARCH AND DEVELOPMENT
AGREEMENTS AND LICENSING AGREEMENTS- In connection with any utilization of the
Department of Energy national laboratories and sites under this section, the
Secretary may permit the director of any such national laboratory or site to
enter into cooperative research and development agreements or to negotiate
licensing agreements with any person, any agency or instrumentality, of the
United States, any unit of State or local government, and any other entity
under the authority granted by section 12 of the Stevenson-Wydler Technology
Innovation Act of 1980 (15 U.S.C. 3710a). Technology may be transferred to a
non-Federal party to such an agreement consistent with the provisions of
sections 11 and 12 of that Act (15 U.S.C. 3710, 3710a).
(e) REIMBURSEMENT OF COSTS- In the case of an activity carried out by the
operator of a Department of Energy national laboratory or site in connection
with any utilization of such laboratory or site under this section, the
Department of Homeland Security shall reimburse the Department of Energy for
costs of such activity through a method under which the Secretary of Energy
waives any requirement for the Department of Homeland Security to pay
administrative charges or personnel costs of the Department of Energy or its
contractors in excess of the amount that the Secretary of Energy pays for an
activity carried out by such contractor and paid for by the Department of
Energy.
(f) LABORATORY DIRECTED RESEARCH AND DEVELOPMENT BY THE DEPARTMENT OF
ENERGY- No funds authorized to be appropriated or otherwise made available to
the Department in any fiscal year may be obligated or expended for laboratory
directed research and development activities carried out by the Department of
Energy unless such activities support the missions of the Department of
Homeland Security.
(g) OFFICE FOR NATIONAL LABORATORIES- There is established within the
Directorate of Science and Technology an Office for National Laboratories,
which shall be responsible for the coordination and utilization of the
Department of Energy national laboratories and sites under this section in a
manner to create a networked laboratory system for the purpose of supporting
the missions of the Department.
(h) DEPARTMENT OF ENERGY COORDINATION ON HOMELAND SECURITY RELATED
RESEARCH- The Secretary of Energy shall ensure that any research, development,
test, and evaluation activities conducted within the Department of Energy that
are directly or indirectly related to homeland security are fully coordinated
with the Secretary to minimize duplication of effort and maximize the
effective application of Federal budget resources.
SEC. 310. TRANSFER OF PLUM ISLAND ANIMAL DISEASE CENTER, DEPARTMENT OF
AGRICULTURE.
(a) IN GENERAL- In accordance with title XV, the Secretary of Agriculture
shall transfer to the Secretary of
Homeland Security the Plum Island Animal Disease Center of the Department of
Agriculture, including the assets and liabilities of the Center.
(b) CONTINUED DEPARTMENT OF AGRICULTURE ACCESS- On completion of the
transfer of the Plum Island Animal Disease Center under subsection (a), the
Secretary of Homeland Security and the Secretary of Agriculture shall enter
into an agreement to ensure that the Department of Agriculture is able to
carry out research, diagnostic, and other activities of the Department of
Agriculture at the Center.
(c) DIRECTION OF ACTIVITIES- The Secretary of Agriculture shall continue
to direct the research, diagnostic, and other activities of the Department of
Agriculture at the Center described in subsection (b).
(1) IN GENERAL- At least 180 days before any change in the biosafety
level at the Plum Island Animal Disease Center, the President shall notify
Congress of the change and describe the reasons for the change.
(2) LIMITATION- No change described in paragraph (1) may be made earlier
than 180 days after the completion of the transition period (as defined in
section 1501.
SEC. 311. HOMELAND SECURITY SCIENCE AND TECHNOLOGY ADVISORY COMMITTEE.
(a) ESTABLISHMENT- There is established within the Department a Homeland
Security Science and Technology Advisory Committee (in this section referred
to as the `Advisory Committee'). The Advisory Committee shall make
recommendations with respect to the activities of the Under Secretary for
Science and Technology, including identifying research areas of potential
importance to the security of the Nation.
(1) APPOINTMENT- The Advisory Committee shall consist of 20 members
appointed by the Under Secretary for Science and Technology, which shall
include emergency first-responders or representatives of organizations or
associations of emergency first-responders. The Advisory Committee shall
also include representatives of citizen groups, including economically
disadvantaged communities. The individuals appointed as members of the
Advisory Committee--
(A) shall be eminent in fields such as emergency response, research,
engineering, new product development, business, and management
consulting;
(B) shall be selected solely on the basis of established records of
distinguished service;
(C) shall not be employees of the Federal Government; and
(D) shall be so selected as to provide representation of a
cross-section of the research, development, demonstration, and deployment
activities supported by the Under Secretary for Science and
Technology.
(2) NATIONAL RESEARCH COUNCIL- The Under Secretary for Science and
Technology may enter into an arrangement for the National Research Council
to select members of the Advisory Committee, but only if the panel used by
the National Research Council reflects the representation described in
paragraph (1).
(1) IN GENERAL- Except as otherwise provided in this subsection, the
term of office of each member of the Advisory Committee shall be 3
years.
(2) ORIGINAL APPOINTMENTS- The original members of the Advisory
Committee shall be appointed to three classes of three members each. One
class shall have a term of 1 year, 1 a term of 2 years, and the other a term
of 3 years.
(3) VACANCIES- A member appointed to fill a vacancy occurring before the
expiration of the term for which the member's predecessor was appointed
shall be appointed for the remainder of such term.
(d) ELIGIBILITY- A person who has completed two consecutive full terms of
service on the Advisory Committee shall thereafter be ineligible for
appointment during the 1-year period following the expiration of the second
such term.
(e) MEETINGS- The Advisory Committee shall meet at least quarterly at the
call of the Chair or whenever one-third of the members so request in writing.
Each member shall be given appropriate notice of the call of each meeting,
whenever possible not less than 15 days before the meeting.
(f) QUORUM- A majority of the members of the Advisory Committee not having
a conflict of interest in the matter being considered by the Advisory
Committee shall constitute a quorum.
(g) CONFLICT OF INTEREST RULES- The Advisory Committee shall establish
rules for determining when 1 of its members has a conflict of interest in a
matter being considered by the Advisory Committee.
(1) ANNUAL REPORT- The Advisory Committee shall render an annual report
to the Under Secretary for Science and Technology for transmittal to
Congress on or before January 31 of each year. Such report shall describe
the activities and recommendations of the Advisory Committee during the
previous year.
(2) ADDITIONAL REPORTS- The Advisory Committee may render to the Under
Secretary for transmittal to Congress such additional reports on specific
policy matters as it considers appropriate.
(i) FACA EXEMPTION- Section 14 of the Federal Advisory Committee Act shall
not apply to the Advisory Committee.
(j) TERMINATION- The Department of Homeland Security Science and
Technology Advisory Committee shall terminate 3 years after the effective date
of this Act.
SEC. 312. HOMELAND SECURITY INSTITUTE.
(a) ESTABLISHMENT- The Secretary shall establish a federally funded
research and development center to be known as the `Homeland Security
Institute' (in this section referred to as the `Institute').
(b) ADMINISTRATION- The Institute shall be administered as a separate
entity by the Secretary.
(c) DUTIES- The duties of the Institute shall be determined by the
Secretary, and may include the following:
(1) Systems analysis, risk analysis, and simulation and modeling to
determine the vulnerabilities of the Nation's critical infrastructures and
the effectiveness of the systems deployed to reduce those
vulnerabilities.
(2) Economic and policy analysis to assess the distributed costs and
benefits of alternative approaches to enhancing security.
(3) Evaluation of the effectiveness of measures deployed to enhance the
security of institutions, facilities, and infrastructure that may be
terrorist targets.
(4) Identification of instances when common standards and protocols
could improve the interoperability and effective utilization of tools
developed for field operators and first responders.
(5) Assistance for Federal agencies and departments in establishing
testbeds to evaluate the effectiveness of technologies under development and
to assess the appropriateness of such technologies for deployment.
(6) Design of metrics and use of those metrics to evaluate the
effectiveness of homeland security
programs throughout the Federal Government, including all national
laboratories.
(7) Design of and support for the conduct of homeland security-related
exercises and simulations.
(8) Creation of strategic technology development plans to reduce
vulnerabilities in the Nation's critical infrastructure and key
resources.
(d) CONSULTATION ON INSTITUTE ACTIVITIES- In carrying out the duties
described in subsection (c), the Institute shall consult widely with
representatives from private industry, institutions of higher education,
nonprofit institutions, other Government agencies, and federally funded
reseach and development centers.
(e) USE OF CENTERS- The Institute shall utilize the capabilities of the
National Infrastructure Simulation and Analysis Center.
(f) ANNUAL REPORTS- The Institute shall transmit to the Secretary and
Congress an annual report on the activities of the Institute under this
section.
(g) TERMINATION- The Homeland Security Institute shall terminate 3 years
after the effective date of this Act.
SEC. 313. TECHNOLOGY CLEARINGHOUSE TO ENCOURAGE AND SUPPORT INNOVATIVE
SOLUTIONS TO ENHANCE HOMELAND SECURITY.
(a) ESTABLISHMENT OF PROGRAM- The Secretary, acting through the Under
Secretary for Science and Technology, shall establish and promote a program to
encourage technological innovation in facilitating the mission of the
Department (as described in section 101).
(b) ELEMENTS OF PROGRAM- The program described in subsection (a) shall
include the following components:
(1) The establishment of a centralized Federal clearinghouse for
information relating to technologies that would further the mission of the
Department for dissemination, as appropriate, to Federal, State, and local
government and private sector entities for additional review, purchase, or
use.
(2) The issuance of announcements seeking unique and innovative
technologies to advance the mission of the Department.
(3) The establishment of a technical assistance team to assist in
screening, as appropriate, proposals submitted to the Secretary (except as
provided in subsection (c)(2)) to assess the feasibility, scientific and
technical merits, and estimated cost of such proposals, as
appropriate.
(4) The provision of guidance, recommendations, and technical
assistance, as appropriate, to assist Federal, State, and local government
and private sector efforts to evaluate and implement the use of technologies
described in paragraph (1) or (2).
(5) The provision of information for persons seeking guidance on how to
pursue proposals to develop or deploy technologies that would enhance
homeland security, including information relating to Federal funding,
regulation, or acquisition.
(c) MISCELLANEOUS PROVISIONS-
(1) IN GENERAL- Nothing in this section shall be construed as
authorizing the Secretary or the technical assistance team established under
subsection (b)(3) to set standards for technology to be used by the
Department, any other executive agency, any State or local government
entity, or any private sector entity.
(2) CERTAIN PROPOSALS- The technical assistance team established under
subsection (b)(3) shall not consider or evaluate proposals submitted in
response to a solicitation for offers for a pending procurement or for a
specific agency requirement.
(3) COORDINATION- In carrying out this section, the Secretary shall
coordinate with the Technical Support Working Group (organized under the
April 1982 National Security Decision Directive Numbered 30).
TITLE IV--DIRECTORATE OF BORDER AND TRANSPORTATION
SECURITY
Subtitle A--Under Secretary for Border and Transportation
Security
SEC. 401. UNDER SECRETARY FOR BORDER AND TRANSPORTATION SECURITY.
There shall be in the Department a Directorate of Border and
Transportation Security headed by an Under Secretary for Border and
Transportation Security.
SEC. 402. RESPONSIBILITIES.
The Secretary, acting through the Under Secretary for Border and
Transportation Security, shall be responsible for the following:
(1) Preventing the entry of terrorists and the instruments of terrorism
into the United States.
(2) Securing the borders, territorial waters, ports, terminals,
waterways, and air, land, and sea transportation systems of the United
States, including managing and coordinating those functions transferred to
the Department at ports of entry.
(3) Carrying out the immigration enforcement functions vested by statute
in, or performed by, the Commissioner of Immigration and Naturalization (or
any officer, employee, or component of the Immigration and Naturalization
Service) immediately before the date on which the transfer of functions
specified under section 441 takes effect.
(4) Establishing and administering rules, in accordance with section
428, governing the granting of visas or other forms of permission, including
parole, to enter the United States to individuals who are not a citizen or
an alien lawfully admitted for permanent residence in the United
States.
(5) Establishing national immigration enforcement policies and
priorities.
(6) Except as provided in subtitle C, administering the customs laws of
the United States.
(7) Conducting the inspection and related administrative functions of
the Department of Agriculture transferred to the Secretary of Homeland
Security under section 421.
(8) In carrying out the foregoing responsibilities, ensuring the speedy,
orderly, and efficient flow of lawful traffic and commerce.
SEC. 403. FUNCTIONS TRANSFERRED.
In accordance with title XV (relating to transition provisions), there
shall be transferred to the Secretary the functions, personnel, assets, and
liabilities of--
(1) the United States Customs Service of the Department of the Treasury,
including the functions of the Secretary of the Treasury relating
thereto;
(2) the Transportation Security Administration of the Department of
Transportation, including the functions of the Secretary of Transportation,
and of the Under Secretary of Transportation for Security, relating
thereto;
(3) the Federal Protective Service of the General Services
Administration, including the functions of the Administrator of General
Services relating thereto;
(4) the Federal Law Enforcement Training Center of the Department of the
Treasury; and
(5) the Office for Domestic Preparedness of the Office of Justice
Programs, including the functions of the Attorney General relating
thereto.
Subtitle B--United States Customs Service
SEC. 411. ESTABLISHMENT; COMMISSIONER OF CUSTOMS.
(a) ESTABLISHMENT- There is established in the Department the United
States Customs Service, under the
authority of the Under Secretary for Border and Transportation Security,
which shall be vested with those functions including, but not limited to those
set forth in section 415(7), and the personnel, assets, and liabilities
attributable to those functions.
(b) COMMISSIONER OF CUSTOMS-
(1) IN GENERAL- There shall be at the head of the Customs Service a
Commissioner of Customs, who shall be appointed by the President, by and
with the advice and consent of the Senate.
(2) COMPENSATION- Section 5314 of title 5, United States Code, is
amended by striking--
`Commissioner of Customs, Department of the Treasury'
`Commissioner of Customs, Department of Homeland Security.'.
(3) CONTINUATION IN OFFICE- The individual serving as the Commissioner
of Customs on the day before the effective date of this Act may serve as the
Commissioner of Customs on and after such effective date until a
Commissioner of Customs is appointed under paragraph (1).
SEC. 412. RETENTION OF CUSTOMS REVENUE FUNCTIONS BY SECRETARY OF THE
TREASURY.
(a) RETENTION OF CUSTOMS REVENUE FUNCTIONS BY SECRETARY OF THE
TREASURY-
(1) RETENTION OF AUTHORITY- Notwithstanding section 403(a)(1), authority
related to Customs revenue functions that was vested in the Secretary of the
Treasury by law before the effective date of this Act under those provisions
of law set forth in paragraph (2) shall not be transferred to the Secretary
by reason of this Act, and on and after the effective date of this Act, the
Secretary of the Treasury may delegate any such authority to the Secretary
at the discretion of the Secretary of the Treasury. The Secretary of the
Treasury shall consult with the Secretary regarding the exercise of any such
authority not delegated to the Secretary.
(2) STATUTES- The provisions of law referred to in paragraph (1) are the
following: the Tariff Act of 1930; section 249 of the Revised Statutes of
the United States (19 U.S.C. 3); section 2 of the Act of March 4, 1923 (19
U.S.C. 6); section 13031 of the Consolidated Omnibus Budget Reconciliation
Act of 1985 (19 U.S.C. 58c); section 251 of the Revised Statutes of the
United States (19 U.S.C. 66); section 1 of the Act of June 26, 1930 (19
U.S.C. 68); the Foreign Trade Zones Act (19 U.S.C. 81a et seq.); section 1
of the Act of March 2, 1911 (19 U.S.C. 198); the Trade Act of 1974; the
Trade Agreements Act of 1979; the North American Free Trade Area
Implementation Act; the Uruguay Round Agreements Act; the Caribbean Basin
Economic Recovery Act; the Andean Trade Preference Act; the African Growth
and Opportunity Act; and any other provision of law vesting customs revenue
functions in the Secretary of the Treasury.
(b) MAINTENANCE OF CUSTOMS REVENUE FUNCTIONS-
(1) MAINTENANCE OF FUNCTIONS- Notwithstanding any other provision of
this Act, the Secretary may not consolidate, discontinue, or diminish those
functions described in paragraph (2) performed by the United States Customs
Service (as established under section 411) on or after the effective date of
this Act, reduce the staffing level, or reduce the resources attributable to
such functions, and the Secretary shall ensure that an appropriate
management structure is implemented to carry out such functions.
(2) FUNCTIONS- The functions referred to in paragraph (1) are those
functions performed by the following personnel, and associated support
staff, of the United States Customs Service on the day before the effective
date of this Act: Import Specialists, Entry Specialists, Drawback
Specialists, National Import Specialist, Fines and Penalties Specialists,
attorneys of the Office of Regulations and Rulings, Customs Auditors,
International Trade Specialists, Financial Systems Specialists.
(c) NEW PERSONNEL- The Secretary of the Treasury is authorized to appoint
up to 20 new personnel to work with personnel of the Department in performing
customs revenue functions.
SEC. 413. PRESERVATION OF CUSTOMS FUNDS.
Notwithstanding any other provision of this Act, no funds available to the
United States Customs Service or collected under paragraphs (1) through (8) of
section 13031(a) of the Consolidated Omnibus Budget Reconciliation Act of 1985
may be transferred for use by any other agency or office in the Department.
SEC. 414. SEPARATE BUDGET REQUEST FOR CUSTOMS.
The President shall include in each budget transmitted to Congress under
section 1105 of title 31, United States Code, a separate budget request for
the United States Customs Service.
SEC. 415. DEFINITION.
In this subtitle, the term `customs revenue function' means the
following:
(1) Assessing and collecting customs duties (including antidumping and
countervailing duties and duties imposed under safeguard provisions), excise
taxes, fees, and penalties due on imported merchandise, including
classifying and valuing merchandise for purposes of such assessment.
(2) Processing and denial of entry of persons, baggage, cargo, and mail,
with respect to the assessment and collection of import duties.
(3) Detecting and apprehending persons engaged in fraudulent practices
designed to circumvent the customs laws of the United States.
(4) Enforcing section 337 of the Tariff Act of 1930 and provisions
relating to import quotas and the marking of imported merchandise, and
providing Customs Recordations for copyrights, patents, and
trademarks.
(5) Collecting accurate import data for compilation of international
trade statistics.
(6) Enforcing reciprocal trade agreements.
(7) Functions performed by the following personnel, and associated
support staff, of the United States Customs Service on the day before the
effective date of this Act: Import Specialists, Entry Specialists, Drawback
Specialists, National Import Specialist, Fines and Penalties Specialists,
attorneys of the Office of Regulations and Rulings, Customs Auditors,
International Trade Specialists, Financial Systems Specialists.
(8) Functions performed by the following offices, with respect to any
function described in any of paragraphs (1) through (7), and associated
support staff, of the United States Customs Service on the day before the
effective date of this Act: the Office of Information and Technology, the
Office of Laboratory Services, the Office of the Chief Counsel, the Office
of Congressional Affairs, the Office of International Affairs, and the
Office of Training and Development.
SEC. 416. GAO REPORT TO CONGRESS.
Not later than 3 months after the effective date of this Act, the
Comptroller General of the United States shall submit to Congress a report
that sets forth all trade functions performed by the executive branch,
specifying each agency that performs each such function.
SEC. 417. ALLOCATION OF RESOURCES BY THE SECRETARY.
(a) IN GENERAL- The Secretary shall ensure that adequate staffing is
provided to assure that levels of
customs revenue services provided on the day before the effective date of
this Act shall continue to be provided.
(b) NOTIFICATION OF CONGRESS- The Secretary shall notify the Committee on
Ways and Means of the House of Representatives and the Committee on Finance of
the Senate at least 90 days prior to taking any action which would--
(1) result in any significant reduction in customs revenue services,
including hours of operation, provided at any office within the Department
or any port of entry;
(2) eliminate or relocate any office of the Department which provides
customs revenue services; or
(3) eliminate any port of entry.
(c) DEFINITION- In this section, the term `customs revenue services' means
those customs revenue functions described in paragraphs (1) through (6) and
paragraph (8) of section 415.
SEC. 418. REPORTS TO CONGRESS.
(a) CONTINUING REPORTS- The United States Customs Service shall, on and
after the effective date of this Act, continue to submit to the Committee on
Ways and Means of the House of Representatives and the Committee on Finance of
the Senate any report required, on the day before such the effective date of
this Act, to be so submitted under any provision of law.
(b) REPORT ON CONFORMING AMENDMENTS- Not later than 60 days after the date
of enactment of this Act, the Secretary of the Treasury shall submit a report
to the Committee on Finance of the Senate and the Committee on Ways and Means
of the House of Representatives of proposed conforming amendments to the
statutes set forth under section 412(a)(2) in order to determine the
appropriate allocation of legal authorities described under this subsection.
The Secretary of the Treasury shall also identify those authorities vested in
the Secretary of the Treasury that are exercised by the Commissioner of
Customs on or before the effective date of this section.
SEC. 419. CUSTOMS USER FEES.
(a) IN GENERAL- Section 13031(f) of the Consolidated Omnibus Budget
Reconciliation Act of 1985 (19 U.S.C. 58c(f)) is amended--
(1) in paragraph (1), by striking subparagraph (B) and inserting the
following:
`(B) amounts deposited into the Customs Commercial and Homeland
Security Automation Account under paragraph (5).';
(2) in paragraph (4), by striking `(other than the excess fees
determined by the Secretary under paragraph (5))'; and
(3) by striking paragraph (5) and inserting the following:
`(5)(A) There is created within the general fund of the Treasury a
separate account that shall be known as the `Customs Commercial and Homeland
Security Automation Account'. In each of fiscal years 2003, 2004, and 2005
there shall be deposited into the Account from fees collected under subsection
(a)(9)(A), $350,000,000.
`(B) There is authorized to be appropriated from the Account in fiscal
years 2003 through 2005 such amounts as are available in that Account for the
development, establishment, and implementation of the Automated Commercial
Environment computer system for the processing of merchandise that is entered
or released and for other purposes related to the functions of the Department
of Homeland Security. Amounts appropriated pursuant to this subparagraph are
authorized to remain available until expended.
`(C) In adjusting the fee imposed by subsection (a)(9)(A) for fiscal year
2006, the Secretary of the Treasury shall reduce the amount estimated to be
collected in fiscal year 2006 by the amount by which total fees deposited to
the Account during fiscal years 2003, 2004, and 2005 exceed total
appropriations from that Account.'.
(b) CONFORMING AMENDMENT- Section 311(b) of the Customs Border Security
Act of 2002 (Public Law 107-210) is amended by striking paragraph (2).
Subtitle C--Miscellaneous Provisions
SEC. 421. TRANSFER OF CERTAIN AGRICULTURAL INSPECTION FUNCTIONS OF THE
DEPARTMENT OF AGRICULTURE.
(a) TRANSFER OF AGRICULTURAL IMPORT AND ENTRY INSPECTION FUNCTIONS- There
shall be transferred to the Secretary the functions of the Secretary of
Agriculture relating to agricultural import and entry inspection activities
under the laws specified in subsection (b).
(b) COVERED ANIMAL AND PLANT PROTECTION LAWS- The laws referred to in
subsection (a) are the following:
(1) The Act commonly known as the Virus-Serum-Toxin Act (the eighth
paragraph under the heading `Bureau of Animal Industry' in the Act of March
4, 1913; 21 U.S.C. 151 et seq.).
(2) Section 1 of the Act of August 31, 1922 (commonly known as the
Honeybee Act; 7 U.S.C. 281).
(3) Title III of the Federal Seed Act (7 U.S.C. 1581 et seq.).
(4) The Plant Protection Act (7 U.S.C. 7701 et seq.).
(5) The Animal Health Protection Act (subtitle E of title X of Public
Law 107-171; 7 U.S.C. 8301 et seq.).
(6) The Lacey Act Amendments of 1981 (16 U.S.C. 3371 et seq.).
(7) Section 11 of the Endangered Species Act of 1973 (16 U.S.C.
1540).
(c) EXCLUSION OF QUARANTINE ACTIVITIES- For purposes of this section, the
term `functions' does not include any quarantine activities carried out under
the laws specified in subsection (b).
(1) COMPLIANCE WITH DEPARTMENT OF AGRICULTURE REGULATIONS- The authority
transferred pursuant to subsection (a) shall be exercised by the Secretary
in accordance with the regulations, policies, and procedures issued by the
Secretary of Agriculture regarding the administration of the laws specified
in subsection (b).
(2) RULEMAKING COORDINATION- The Secretary of Agriculture shall
coordinate with the Secretary whenever the Secretary of Agriculture
prescribes regulations, policies, or procedures for administering the
functions transferred under subsection (a) under a law specified in
subsection (b).
(3) EFFECTIVE ADMINISTRATION- The Secretary, in consultation with the
Secretary of Agriculture, may issue such directives and guidelines as are
necessary to ensure the effective use of personnel of the Department of
Homeland Security to carry out the functions transferred pursuant to
subsection (a).
(1) AGREEMENT REQUIRED; REVISION- Before the end of the transition
period, as defined in section 1501, the Secretary of Agriculture and the
Secretary shall enter into an agreement to effectuate the transfer of
functions required by subsection (a). The Secretary of Agriculture and the
Secretary may jointly revise the agreement as necessary thereafter.
(2) REQUIRED TERMS- The agreement required by this subsection shall
specifically address the following:
(A) The supervision by the Secretary of Agriculture of the training of
employees of the Secretary to carry out the functions transferred pursuant
to subsection (a).
(B) The transfer of funds to the Secretary under subsection
(f).
(3) COOPERATION AND RECIPROCITY- The Secretary of Agriculture and the
Secretary may include as part of the agreement the following:
(A) Authority for the Secretary to perform functions delegated to the
Animal and Plant Health Inspection Service of the Department of
Agriculture regarding the protection of domestic livestock and plants, but
not transferred to the Secretary pursuant to subsection (a).
(B) Authority for the Secretary of Agriculture to use employees of the
Department of Homeland Security to carry out authorities delegated to the
Animal and Plant Health Inspection Service regarding the protection of
domestic livestock and plants.
(f) PERIODIC TRANSFER OF FUNDS TO DEPARTMENT OF HOMELAND SECURITY-
(1) TRANSFER OF FUNDS- Out of funds collected by fees authorized under
sections 2508 and 2509 of the Food, Agriculture, Conservation, and Trade Act
of 1990 (21 U.S.C. 136, 136a), the Secretary of Agriculture shall transfer,
from time to time in accordance with the agreement under subsection (e), to
the Secretary funds for activities carried out by the Secretary for which
such fees were collected.
(2) LIMITATION- The proportion of fees collected pursuant to such
sections that are transferred to the Secretary under this subsection may not
exceed the proportion of the costs incurred by the Secretary to all costs
incurred to carry out activities funded by such fees.
(g) TRANSFER OF DEPARTMENT OF AGRICULTURE EMPLOYEES- Not later than the
completion of the transition period defined under section 1501, the Secretary
of Agriculture shall transfer to the Secretary not more than 3,200 full-time
equivalent positions of the Department of Agriculture.
(h) PROTECTION OF INSPECTION ANIMALS- Title V of the Agricultural Risk
Protection Act of 2000 (7 U.S.C. 2279e, 2279f) is amended--
(A) by inserting `or the Department of Homeland Security' after
`Department of Agriculture'; and
(B) by inserting `or the Secretary of Homeland Security' after
`Secretary of Agriculture';
(2) by striking `Secretary' each place it appears (other than in
sections 501(a) and 501(e)) and inserting `Secretary concerned'; and
(3) by adding at the end of section 501 the following new
subsection:
`(e) SECRETARY CONCERNED DEFINED- In this title, the term `Secretary
concerned' means--
`(1) the Secretary of Agriculture, with respect to an animal used for
purposes of official inspections by the Department of Agriculture; and
`(2) the Secretary of Homeland Security, with respect to an animal used
for purposes of official inspections by the Department of Homeland
Security.'.
SEC. 422. FUNCTIONS OF ADMINISTRATOR OF GENERAL SERVICES.
(a) OPERATION, MAINTENANCE, AND PROTECTION OF FEDERAL BUILDINGS AND
GROUNDS- Nothing in this Act may be construed to affect the functions or
authorities of the Administrator of General Services with respect to the
operation, maintenance, and protection of buildings and grounds owned or
occupied by the Federal Government and under the jurisdiction, custody, or
control of the Administrator. Except for the law enforcement and related
security functions transferred under section 403(3), the Administrator shall
retain all powers, functions, and authorities vested in the Administrator
under chapter 10 of title 40, United States Code, and other provisions of law
that are necessary for the operation, maintenance, and protection of such
buildings and grounds.
(b) COLLECTION OF RENTS AND FEES; FEDERAL BUILDINGS FUND-
(1) STATUTORY CONSTRUCTION- Nothing in this Act may be construed--
(A) to direct the transfer of, or affect, the authority of the
Administrator of General Services to collect rents and fees, including
fees collected for protective services; or
(B) to authorize the Secretary or any other official in the Department
to obligate amounts in the Federal Buildings Fund established by section
490(f) of title 40, United States Code.
(2) USE OF TRANSFERRED AMOUNTS- Any amounts transferred by the
Administrator of General Services to the Secretary out of rents and fees
collected by the Administrator shall be used by the Secretary solely for the
protection of buildings or grounds owned or occupied by the Federal
Government.
SEC. 423. FUNCTIONS OF TRANSPORTATION SECURITY ADMINISTRATION.
(a) CONSULTATION WITH FEDERAL AVIATION ADMINISTRATION- The Secretary and
other officials in the Department shall consult with the Administrator of the
Federal Aviation Administration before taking any action that might affect
aviation safety, air carrier operations, aircraft airworthiness, or the use of
airspace. The Secretary shall establish a liaison office within the Department
for the purpose of consulting with the Administrator of the Federal Aviation
Administration.
(b) REPORT TO CONGRESS- Not later than 60 days after the date of enactment
of this Act, the Secretary of Transportation shall transmit to Congress a
report containing a plan for complying with the requirements of section
44901(d) of title 49, United States Code, as amended by section 426 of this
Act.
(c) LIMITATIONS ON STATUTORY CONSTRUCTION-
(1) GRANT OF AUTHORITY- Nothing in this Act may be construed to vest in
the Secretary or any other official in the Department any authority over
transportation security that is not vested in the Under Secretary of
Transportation for Security, or in the Secretary of Transportation under
chapter 449 of title 49, United States Code, on the day before the date of
enactment of this Act.
(2) OBLIGATION OF AIP FUNDS- Nothing in this Act may be construed to
authorize the Secretary or any other official in the Department to obligate
amounts made available under section 48103 of title 49, United States
Code.
SEC. 424. PRESERVATION OF TRANSPORTATION SECURITY ADMINISTRATION AS A
DISTINCT ENTITY.
(a) IN GENERAL- Notwithstanding any other provision of this Act, and
subject to subsection (b), the Transportation Security Administration shall be
maintained as a distinct entity within the Department under the Under
Secretary for Border Transportation and Security.
(b) SUNSET- Subsection (a) shall cease to apply 2 years after the date of
enactment of this Act.
SEC. 425. EXPLOSIVE DETECTION SYSTEMS.
Section 44901(d) of title 49, United States Code, is amended by adding at
the end the following:
`(A) IN GENERAL- If, in his discretion or at the request of an
airport, the Under Secretary of Transportation for Security determines
that the Transportation Security Administration is not able to deploy
explosive detection systems required to be deployed under paragraph (1) at
all airports where explosive detection systems are required by December
31, 2002, then with respect to each airport for which the Under Secretary
makes that determination--
`(i) the Under Secretary shall submit to the Senate Committee on
Commerce, Science, and Transportation and the House of Representatives
Committee on Transportation and Infrastructure a detailed plan (which
may be submitted in classified form) for the deployment of the number of
explosive detection systems at that airport necessary to meet the
requirements of paragraph (1) as soon as practicable at that airport but
in no event later than December 31, 2003; and
`(ii) the Under Secretary shall take all necessary action to ensure
that alternative means of screening all checked baggage is implemented
until the requirements of paragraph (1) have been met.
`(B) CRITERIA FOR DETERMINATION- In making a determination under
subparagraph (A), the Under Secretary shall take into account--
`(i) the nature and extent of the required modifications to the
airport's terminal buildings, and the technical, engineering, design and
construction issues;
`(ii) the need to ensure that such installations and modifications
are effective; and
`(iii) the feasibility and cost-effectiveness of deploying explosive
detection systems in the baggage sorting area or other non-public area
rather than the lobby of an airport terminal building.
`(C) RESPONSE- The Under Secretary shall respond to the request of an
airport under subparagraph (A) within 14 days of receiving the request. A
denial of request shall create no right of appeal or judicial
review.
`(D) AIRPORT EFFORT REQUIRED- Each airport with respect to which the
Under Secretary makes a determination under subparagraph (A)
shall--
`(i) cooperate fully with the Transportation Security Administration
with respect to screening checked baggage and changes to accommodate
explosive detection systems; and
`(ii) make security projects a priority for the obligation or
expenditure of funds made available under chapter 417 or 471 until
explosive detection systems required to be deployed under paragraph (1)
have been deployed at that airport.
`(3) REPORTS- Until the Transportation Security Administration has met
the requirements of paragraph (1), the Under Secretary shall submit a
classified report every 30 days after the date of enactment of the Aviation
Security Improvement Act to the Senate Committee on Commerce, Science, and
Transportation and the House of Representatives Committee on Transportation
and Infrastructure describing the progress made toward meeting such
requirements at each airport.'.
SEC. 426. TRANSPORTATION SECURITY.
(a) TRANSPORTATION SECURITY OVERSIGHT BOARD-
(1) ESTABLISHMENT- Section 115(a) of title 49, United States Code, is
amended by striking `Department of Transportation' and inserting `Department
of Homeland Security'.
(2) MEMBERSHIP- Section 115(b)(1) of title 49, United States Code, is
amended--
(A) by striking subparagraph (G);
(B) by redesignating subparagraphs (A) through (F) as subparagraphs
(B) through (G), respectively; and
(C) by inserting before subparagraph (B) (as so redesignated) the
following:
`(A) The Secretary of Homeland Security, or the Secretary's
designee.'.
(3) CHAIRPERSON- Section 115(b)(2) of title 49, United States Code, is
amended by striking `Secretary of Transportation' and inserting `Secretary
of Homeland Security'.
(b) APPROVAL OF AIP GRANT APPLICATIONS FOR SECURITY ACTIVITIES- Section
47106 of title 49, United States Code, is amended by adding at the end the
following:
`(g) CONSULTATION WITH SECRETARY OF HOMELAND SECURITY- The Secretary shall
consult with the Secretary of Homeland Security before approving an
application under this subchapter for an airport development project grant for
activities described in section 47102(3)(B)(ii) only as they relate to
security equipment or section 47102(3)(B)(x) only as they relate to
installation of bulk explosive detection system.'.
SEC. 427. COORDINATION OF INFORMATION AND INFORMATION TECHNOLOGY.
(a) DEFINITION OF AFFECTED AGENCY- In this section, the term `affected
agency' means--
(2) the Department of Agriculture;
(3) the Department of Health and Human Services; and
(4) any other department or agency determined to be appropriate by the
Secretary.
(b) COORDINATION- The Secretary, in coordination with the Secretary of
Agriculture, the Secretary of Health and Human Services, and the head of each
other department or agency determined to be appropriate by the Secretary,
shall ensure that appropriate information (as determined by the Secretary)
concerning inspections of articles that are imported or entered into the
United States, and are inspected or regulated by 1 or more affected agencies,
is timely and efficiently exchanged between the affected agencies.
(c) REPORT AND PLAN- Not later than 18 months after the date of enactment
of this Act, the Secretary, in consultation with the Secretary of Agriculture,
the Secretary of Health and Human Services, and the head of each other
department or agency determined to be appropriate by the Secretary, shall
submit to Congress--
(1) a report on the progress made in implementing this section;
and
(2) a plan to complete implementation of this section.
SEC. 428. VISA ISSUANCE.
(a) DEFINITION- In this subsection, the term `consular office' has the
meaning given that term under section 101(a)(9) of the Immigration and
Nationality Act (8 U.S.C. 1101(a)(9)).
(b) IN GENERAL- Notwithstanding section 104(a) of the Immigration and
Nationality Act (8 U.S.C.
1104(a)) or any other provision of law, and except as provided in subsection
(c) of this section, the Secretary--
(1) shall be vested exclusively with all authorities to issue
regulations with respect to, administer, and enforce the provisions of such
Act, and of all other immigration and nationality laws, relating to the
functions of consular officers of the United States in connection with the
granting or refusal of visas, and shall have the authority to refuse visas
in accordance with law and to develop programs of homeland security training
for consular officers (in addition to consular training provided by the
Secretary of State), which authorities shall be exercised through the
Secretary of State, except that the Secretary shall not have authority to
alter or reverse the decision of a consular officer to refuse a visa to an
alien; and
(2) shall have authority to confer or impose upon any officer or
employee of the United States, with the consent of the head of the executive
agency under whose jurisdiction such officer or employee is serving, any of
the functions specified in paragraph (1).
(c) AUTHORITY OF THE SECRETARY OF STATE-
(1) IN GENERAL- Notwithstanding subsection (b), the Secretary of State
may direct a consular officer to refuse a visa to an alien if the Secretary
of State deems such refusal necessary or advisable in the foreign policy or
security interests of the United States.
(2) CONSTRUCTION REGARDING AUTHORITY- Nothing in this section,
consistent with the Secretary of Homeland Security's authority to refuse
visas in accordance with law, shall be construed as affecting the
authorities of the Secretary of State under the following provisions of
law:
(A) Section 101(a)(15)(A) of the Immigration and Nationality Act (8
U.S.C. 1101(a)(15)(A)).
(B) Section 204(d)(2) of the Immigration and Nationality Act (8 U.S.C.
1154) (as it will take effect upon the entry into force of the Convention
on Protection of Children and Cooperation in Respect to Inter-Country
adoption).
(C) Section 212(a)(3)(B)(i)(IV)(bb) of the Immigration and Nationality
Act (8 U.S.C. 1182(a)(3)(B)(i)(IV)(bb)).
(D) Section 212(a)(3)(B)(i)(VI) of the Immigration and Nationality Act
(8 U.S.C. 1182(a)(3)(B)(i)(VI)).
(E) Section 212(a)(3)(B)(vi)(II) of the Immigration and Nationality
Act (8 U.S.C. 1182(a)(3)(B)(vi)(II)).
(F) Section 212(a)(3(C) of the Immigration and Nationality Act (8
U.S.C. 1182(a)(3)(C)).
(G) Section 212(a)(10)(C) of the Immigration and Nationality Act (8
U.S.C. 1182(a)(10)(C)).
(H) Section 212(f) of the Immigration and Nationality Act (8 U.S.C.
1182(f)).
(I) Section 219(a) of the Immigration and Nationality Act (8 U.S.C.
1189(a)).
(J) Section 237(a)(4)(C) of the Immigration and Nationality Act (8
U.S.C. 1227(a)(4)(C)).
(K) Section 401 of the Cuban Liberty and Democratic Solidarity
(LIBERTAD) Act of 1996 (22 U.S.C. 6034; Public Law 104-114).
(L) Section 613 of the Departments of Commerce, Justice, and State,
the Judiciary and Related Agencies Appropriations Act, 1999 (as contained
in section 101(b) of division A of Public Law 105-277) (Omnibus
Consolidated and Emergency Supplemental Appropriations Act, 1999); 112
Stat. 2681; H.R. 4328 (originally H.R. 4276) as amended by section 617 of
Public Law 106-553.
(M) Section 103(f) of the Chemical Weapon Convention Implementation
Act of 1998 (112 Stat. 2681-865).
(N) Section 801 of H.R. 3427, the Admiral James W. Nance and Meg
Donovan Foreign Relations Authorization Act, Fiscal Years 2000 and 2001,
as enacted by reference in Public Law 106-113.
(O) Section 568 of the Foreign Operations, Export Financing, and
Related Programs Appropriations Act, 2002 (Public Law 107-115).
(P) Section 51 of the State Department Basic Authorities Act of 1956
(22 U.S.C. 2723).
(d) CONSULAR OFFICERS AND CHIEFS OF MISSIONS-
(1) IN GENERAL- Nothing in this subsection may be construed to alter or
affect--
(A) the employment status of consular officers as employees of the
Department of State; or
(B) the authority of a chief of mission under section 207 of the
Foreign Service Act of 1980 (22 U.S.C. 3927).
(2) CONSTRUCTION REGARDING DELEGATION OF AUTHORITY- Nothing in this
section shall be construed to affect any delegation of authority to the
Secretary of State by the President pursuant to any proclamation issued
under section 212(f) of the Immigration and Nationality Act (8 U.S.C.
1182(f)), consistent with the Secretary of Homeland Security's authority to
refuse visas in accordance with law.
(e) ASSIGNMENT OF HOMELAND SECURITY EMPLOYEES TO DIPLOMATIC AND CONSULAR
POSTS-
(1) IN GENERAL- The Secretary is authorized to assign employees of the
Department to each diplomatic and consular post at which visas are issued,
unless the Secretary determines that such an assignment at a particular post
would not promote homeland security.
(2) FUNCTIONS- Employees assigned under paragraph (1) shall perform the
following functions:
(A) Provide expert advice and training to consular officers regarding
specific security threats relating to the adjudication of individual visa
applications or classes of applications.
(B) Review any such applications, either on the initiative of the
employee of the Department or upon request by a consular officer or other
person charged with adjudicating such applications.
(C) Conduct investigations with respect to consular matters under the
jurisdiction of the Secretary.
(3) EVALUATION OF CONSULAR OFFICERS- The Secretary of State shall
evaluate, in consultation with the Secretary, as deemed appropriate by the
Secretary, the performance of consular officers with respect to the
processing and adjudication of applications for visas in accordance with
performance standards developed by the Secretary for these procedures.
(4) REPORT- The Secretary shall, on an annual basis, submit a report to
Congress that describes the basis for each determination under paragraph (1)
that the assignment of an employee of the
Department at a particular diplomatic post would not promote homeland
security.
(5) PERMANENT ASSIGNMENT; PARTICIPATION IN TERRORIST LOOKOUT COMMITTEE-
When appropriate, employees of the Department assigned to perform functions
described in paragraph (2) may be assigned permanently to overseas
diplomatic or consular posts with country-specific or regional
responsibility. If the Secretary so directs, any such employee, when present
at an overseas post, shall participate in the terrorist lookout committee
established under section 304 of the Enhanced Border Security and Visa Entry
Reform Act of 2002 (8 U.S.C. 1733).
(A) IN GENERAL- The Secretary shall ensure, to the extent possible,
that any employees of the Department assigned to perform functions under
paragraph (2) and, as appropriate, consular officers, shall be provided
the necessary training to enable them to carry out such functions,
including training in foreign languages, interview techniques, and fraud
detection techniques, in conditions in the particular country where each
employee is assigned, and in other appropriate areas of study.
(B) USE OF CENTER- The Secretary is authorized to use the National
Foreign Affairs Training Center, on a reimbursable basis, to obtain the
training described in subparagraph (A).
(7) REPORT- Not later than 1 year after the date of enactment of this
Act, the Secretary and the Secretary of State shall submit to
Congress--
(A) a report on the implementation of this subsection; and
(B) any legislative proposals necessary to further the objectives of
this subsection.
(8) EFFECTIVE DATE- This subsection shall take effect on the earlier
of--
(A) the date on which the President publishes notice in the Federal
Register that the President has submitted a report to Congress setting
forth a memorandum of understanding between the Secretary and the
Secretary of State governing the implementation of this section;
or
(B) the date occurring 1 year after the date of enactment of this
Act.
(f) NO CREATION OF PRIVATE RIGHT OF ACTION- Nothing in this section shall
be construed to create or authorize a private right of action to challenge a
decision of a consular officer or other United States official or employee to
grant or deny a visa.
(g) STUDY REGARDING USE OF FOREIGN NATIONALS-
(1) IN GENERAL- The Secretary of Homeland Security shall conduct a study
of the role of foreign nationals in the granting or refusal of visas and
other documents authorizing entry of aliens into the United States. The
study shall address the following:
(A) The proper role, if any, of foreign nationals in the process of
rendering decisions on such grants and refusals.
(B) Any security concerns involving the employment of foreign
nationals.
(C) Whether there are cost-effective alternatives to the use of
foreign nationals.
(2) REPORT- Not later than 1 year after the date of the enactment of
this Act, the Secretary shall submit a report containing the findings of the
study conducted under paragraph (1) to the Committee on the Judiciary, the
Committee on International Relations, and the Committee on Government Reform
of the House of Representatives, and the Committee on the Judiciary, the
Committee on Foreign Relations, and the Committee on Government Affairs of
the Senate.
(h) REPORT- Not later than 120 days after the date of the enactment of
this Act, the Director of the Office of Science and Technology Policy shall
submit to Congress a report on how the provisions of this section will affect
procedures for the issuance of student visas.
(i) VISA ISSUANCE PROGRAM FOR SAUDI ARABIA- Notwithstanding any other
provision of law, after the date of the enactment of this Act all third party
screening programs in Saudi Arabia shall be terminated. On-site personnel of
the Department of Homeland Security shall review all visa applications prior
to adjudication.
SEC. 429. INFORMATION ON VISA DENIALS REQUIRED TO BE ENTERED INTO ELECTRONIC
DATA SYSTEM.
(a) IN GENERAL- Whenever a consular officer of the United States denies a
visa to an applicant, the consular officer shall enter the fact and the basis
of the denial and the name of the applicant into the interoperable electronic
data system implemented under section 202(a) of the Enhanced Border Security
and Visa Entry Reform Act of 2002 (8 U.S.C. 1722(a)).
(b) PROHIBITION- In the case of any alien with respect to whom a visa has
been denied under subsection (a)--
(1) no subsequent visa may be issued to the alien unless the consular
officer considering the alien's visa application has reviewed the
information concerning the alien placed in the interoperable electronic data
system, has indicated on the alien's application that the information has
been reviewed, and has stated for the record why the visa is being issued or
a waiver of visa ineligibility recommended in spite of that information;
and
(2) the alien may not be admitted to the United States without a visa
issued in accordance with the procedures described in paragraph (1).
SEC. 430. OFFICE FOR DOMESTIC PREPAREDNESS.
(a) IN GENERAL- The Office for Domestic Preparedness shall be within the
Directorate of Border and Transportation Security.
(b) DIRECTOR- There shall be a Director of the Office for Domestic
Preparedness, who shall be appointed by the President, by and with the advice
and consent of the Senate. The Director of the Office for Domestic
Preparedness shall report directly to the Under Secretary for Border and
Transportation Security.
(c) RESPONSIBILITIES- The Office for Domestic Preparedness shall have the
primary responsibility within the executive branch of Government for the
preparedness of the United States for acts of terrorism, including--
(1) coordinating preparedness efforts at the Federal level, and working
with all State, local, tribal, parish, and private sector emergency response
providers on all matters pertaining to combating terrorism, including
training, exercises, and equipment support;
(2) coordinating or, as appropriate, consolidating communications and
systems of communications relating to homeland security at all levels of
government;
(3) directing and supervising terrorism preparedness grant programs of
the Federal Government (other than those programs administered by the
Department of Health and Human Services) for all emergency response
providers;
(4) incorporating the Strategy priorities into planning guidance on an
agency level for the preparedness efforts of the Office for Domestic
Preparedness;
(5) providing agency-specific training for agents and analysts within
the Department, other agencies,
and State and local agencies and international entities;
(6) as the lead executive branch agency for preparedness of the United
States for acts of terrorism, cooperating closely with the Federal Emergency
Management Agency, which shall have the primary responsibility within the
executive branch to prepare for and mitigate the effects of
nonterrorist-related disasters in the United States;
(7) assisting and supporting the Secretary, in coordination with other
Directorates and entities outside the Department, in conducting appropriate
risk analysis and risk management activities of State, local, and tribal
governments consistent with the mission and functions of the Directorate;
and
(8) those elements of the Office of National Preparedness of the Federal
Emergency Management Agency which relate to terrorism, which shall be
consolidated within the Department in the Office for Domestic Preparedness
established under this section.
(d) FISCAL YEARS 2003 and 2004- During fiscal year 2003 and fiscal year
2004, the Director of the Office for Domestic Preparedness established under
this section shall manage and carry out those functions of the Office for
Domestic Preparedness of the Department of Justice (transferred under this
section) before September 11, 2001, under the same terms, conditions,
policies, and authorities, and with the required level of personnel, assets,
and budget before September 11, 2001.
Subtitle D--Immigration Enforcement Functions
SEC. 441. TRANSFER OF FUNCTIONS TO UNDER SECRETARY FOR BORDER AND
TRANSPORTATION SECURITY.
In accordance with title XV (relating to transition provisions), there
shall be transferred from the Commissioner of Immigration and Naturalization
to the Under Secretary for Border and Transportation Security all functions
performed under the following programs, and all personnel, assets, and
liabilities pertaining to such programs, immediately before such transfer
occurs:
(1) The Border Patrol program.
(2) The detention and removal program.
(3) The intelligence program.
(4) The investigations program.
(5) The inspections program.
SEC. 442. ESTABLISHMENT OF BUREAU OF BORDER SECURITY.
(a) ESTABLISHMENT OF BUREAU-
(1) IN GENERAL- There shall be in the Department of Homeland Security a
bureau to be known as the `Bureau of Border Security'.
(2) ASSISTANT SECRETARY- The head of the Bureau of Border Security shall
be the Assistant Secretary of the Bureau of Border Security, who--
(A) shall report directly to the Under Secretary for Border and
Transportation Security; and
(B) shall have a minimum of 5 years professional experience in law
enforcement, and a minimum of 5 years of management experience.
(3) FUNCTIONS- The Assistant Secretary of the Bureau of Border
Security--
(A) shall establish the policies for performing such functions as
are--
(i) transferred to the Under Secretary for Border and Transportation
Security by section 441 and delegated to the Assistant Secretary by the
Under Secretary for Border and Transportation Security; or
(ii) otherwise vested in the Assistant Secretary by law;
(B) shall oversee the administration of such policies; and
(C) shall advise the Under Secretary for Border and Transportation
Security with respect to any policy or operation of the Bureau of Border
Security that may affect the Bureau of Citizenship and Immigration
Services established under subtitle E, including potentially conflicting
policies or operations.
(4) PROGRAM TO COLLECT INFORMATION RELATING TO FOREIGN STUDENTS- The
Assistant Secretary of the Bureau of Border Security shall be responsible
for administering the program to collect information relating to
nonimmigrant foreign students and other exchange program participants
described in section 641 of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (8 U.S.C. 1372), including the Student and
Exchange Visitor Information System established under that section, and
shall use such information to carry out the enforcement functions of the
Bureau.
(5) MANAGERIAL ROTATION PROGRAM-
(A) IN GENERAL- Not later than 1 year after the date on which the
transfer of functions specified under section 441 takes effect, the
Assistant Secretary of the Bureau of Border Security shall design and
implement a managerial rotation program under which employees of such
bureau holding positions involving supervisory or managerial
responsibility and classified, in accordance with chapter 51 of title 5,
United States Code, as a GS-14 or above, shall--
(i) gain some experience in all the major functions performed by
such bureau; and
(ii) work in at least one local office of such bureau.
(B) REPORT- Not later than 2 years after the date on which the
transfer of functions specified under section 441 takes effect, the
Secretary shall submit a report to the Congress on the implementation of
such program.
(b) CHIEF OF POLICY AND STRATEGY-
(1) IN GENERAL- There shall be a position of Chief of Policy and
Strategy for the Bureau of Border Security.
(2) FUNCTIONS- In consultation with Bureau of Border Security personnel
in local offices, the Chief of Policy and Strategy shall be responsible
for--
(A) making policy recommendations and performing policy research and
analysis on immigration enforcement issues; and
(B) coordinating immigration policy issues with the Chief of Policy
and Strategy for the Bureau of Citizenship and Immigration Services
(established under subtitle E), as appropriate.
(c) LEGAL ADVISOR- There shall be a principal legal advisor to the
Assistant Secretary of the Bureau of Border Security. The legal advisor shall
provide specialized legal advice to the Assistant Secretary of the Bureau of
Border Security and shall represent the bureau in all exclusion, deportation,
and removal proceedings before the Executive Office for Immigration Review.
SEC. 443. PROFESSIONAL RESPONSIBILITY AND QUALITY REVIEW.
The Under Secretary for Border and Transportation Security shall be
responsible for--
(1) conducting investigations of noncriminal allegations of misconduct,
corruption, and fraud involving any employee of the Bureau of Border
Security that are not subject to investigation by the Inspector General for
the Department;
(2) inspecting the operations of the Bureau of Border Security and
providing assessments of the
quality of the operations of such bureau as a whole and each of its
components; and
(3) providing an analysis of the management of the Bureau of Border
Security.
SEC. 444. EMPLOYEE DISCIPLINE.
The Under Secretary for Border and Transportation Security may,
notwithstanding any other provision of law, impose disciplinary action,
including termination of employment, pursuant to policies and procedures
applicable to employees of the Federal Bureau of Investigation, on any
employee of the Bureau of Border Security who willfully deceives the Congress
or agency leadership on any matter.
SEC. 445. REPORT ON IMPROVING ENFORCEMENT FUNCTIONS.
(a) IN GENERAL- The Secretary, not later than 1 year after being sworn
into office, shall submit to the Committees on Appropriations and the
Judiciary of the House of Representatives and of the Senate a report with a
plan detailing how the Bureau of Border Security, after the transfer of
functions specified under section 441 takes effect, will enforce
comprehensively, effectively, and fairly all the enforcement provisions of the
Immigration and Nationality Act (8 U.S.C. 1101 et seq.) relating to such
functions.
(b) CONSULTATION- In carrying out subsection (a), the Secretary of
Homeland Security shall consult with the Attorney General, the Secretary of
State, the Director of the Federal Bureau of Investigation, the Secretary of
the Treasury, the Secretary of Labor, the Commissioner of Social Security, the
Director of the Executive Office for Immigration Review, and the heads of
State and local law enforcement agencies to determine how to most effectively
conduct enforcement operations.
SEC. 446. SENSE OF CONGRESS REGARDING CONSTRUCTION OF FENCING NEAR SAN
DIEGO, CALIFORNIA.
It is the sense of the Congress that completing the 14-mile border fence
project required to be carried out under section 102(b) of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1103
note) should be a priority for the Secretary.
Subtitle E--Citizenship and Immigration Services
SEC. 451. ESTABLISHMENT OF BUREAU OF CITIZENSHIP AND IMMIGRATION
SERVICES.
(a) ESTABLISHMENT OF BUREAU-
(1) IN GENERAL- There shall be in the Department a bureau to be known as
the `Bureau of Citizenship and Immigration Services'.
(2) DIRECTOR- The head of the Bureau of Citizenship and Immigration
Services shall be the Director of the Bureau of Citizenship and Immigration
Services, who--
(A) shall report directly to the Deputy Secretary;
(B) shall have a minimum of 5 years of management experience;
and
(C) shall be paid at the same level as the Assistant Secretary of the
Bureau of Border Security.
(3) FUNCTIONS- The Director of the Bureau of Citizenship and Immigration
Services--
(A) shall establish the policies for performing such functions as are
transferred to the Director by this section or this Act or otherwise
vested in the Director by law;
(B) shall oversee the administration of such policies;
(C) shall advise the Deputy Secretary with respect to any policy or
operation of the Bureau of Citizenship and Immigration Services that may
affect the Bureau of Border Security of the Department, including
potentially conflicting policies or operations;
(D) shall establish national immigration services policies and
priorities;
(E) shall meet regularly with the Ombudsman described in section 452
to correct serious service problems identified by the Ombudsman;
and
(F) shall establish procedures requiring a formal response to any
recommendations submitted in the Ombudsman's annual report to Congress
within 3 months after its submission to Congress.
(4) MANAGERIAL ROTATION PROGRAM-
(A) IN GENERAL- Not later than 1 year after the effective date
specified in section 455, the Director of the Bureau of Citizenship and
Immigration Services shall design and implement a managerial rotation
program under which employees of such bureau holding positions involving
supervisory or managerial responsibility and classified, in accordance
with chapter 51 of title 5, United States Code, as a GS-14 or above,
shall--
(i) gain some experience in all the major functions performed by
such bureau; and
(ii) work in at least one field office and one service center of
such bureau.
(B) REPORT- Not later than 2 years after the effective date specified
in section 455, the Secretary shall submit a report to Congress on the
implementation of such program.
(5) PILOT INITIATIVES FOR BACKLOG ELIMINATION- The Director of the
Bureau of Citizenship and Immigration Services is authorized to implement
innovative pilot initiatives to eliminate any remaining backlog in the
processing of immigration benefit applications, and to prevent any backlog
in the processing of such applications from recurring, in accordance with
section 204(a) of the Immigration Services and Infrastructure Improvements
Act of 2000 (8 U.S.C. 1573(a)). Such initiatives may include measures such
as increasing personnel, transferring personnel to focus on areas with the
largest potential for backlog, and streamlining paperwork.
(b) TRANSFER OF FUNCTIONS FROM COMMISSIONER- There are transferred from
the Commissioner of Immigration and Naturalization to the Director of the
Bureau of Citizenship and Immigration Services the following functions, and
all personnel, infrastructure, and funding provided to the Commissioner in
support of such functions immediately before the effective date specified in
section 455:
(1) Adjudications of immigrant visa petitions.
(2) Adjudications of naturalization petitions.
(3) Adjudications of asylum and refugee applications.
(4) Adjudications performed at service centers.
(5) All other adjudications performed by the Immigration and
Naturalization Service immediately before the effective date specified in
section 455.
(c) CHIEF OF POLICY AND STRATEGY-
(1) IN GENERAL- There shall be a position of Chief of Policy and
Strategy for the Bureau of Citizenship and Immigration Services.
(2) FUNCTIONS- In consultation with Bureau of Citizenship and
Immigration Services personnel in field offices, the Chief of Policy and
Strategy shall be responsible for--
(A) making policy recommendations and performing policy research and
analysis on immigration services issues; and
(B) coordinating immigration policy issues with the Chief of Policy
and Strategy for the Bureau of Border Security of the Department.
(1) IN GENERAL- There shall be a principal legal advisor to the Director
of the Bureau of Citizenship and Immigration Services.
(2) FUNCTIONS- The legal advisor shall be responsible for--
(A) providing specialized legal advice, opinions, determinations,
regulations, and any other assistance to the Director of the Bureau of
Citizenship and Immigration Services with respect to legal matters
affecting the Bureau of Citizenship and Immigration Services; and
(B) representing the Bureau of Citizenship and Immigration Services in
visa petition appeal proceedings before the Executive Office for
Immigration Review.
(1) IN GENERAL- There shall be a Budget Officer for the Bureau of
Citizenship and Immigration Services.
(A) IN GENERAL- The Budget Officer shall be responsible for--
(i) formulating and executing the budget of the Bureau of
Citizenship and Immigration Services;
(ii) financial management of the Bureau of Citizenship and
Immigration Services; and
(iii) collecting all payments, fines, and other debts for the Bureau
of Citizenship and Immigration Services.
(f) CHIEF OF OFFICE OF CITIZENSHIP-
(1) IN GENERAL- There shall be a position of Chief of the Office of
Citizenship for the Bureau of Citizenship and Immigration Services.
(2) FUNCTIONS- The Chief of the Office of Citizenship for the Bureau of
Citizenship and Immigration Services shall be responsible for promoting
instruction and training on citizenship responsibilities for aliens
interested in becoming naturalized citizens of the United States, including
the development of educational materials.
SEC. 452. CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN.
(a) IN GENERAL- Within the Department, there shall be a position of
Citizenship and Immigration Services Ombudsman (in this section referred to as
the `Ombudsman'). The Ombudsman shall report directly to the Deputy Secretary.
The Ombudsman shall have a background in customer service as well as
immigration law.
(b) FUNCTIONS- It shall be the function of the Ombudsman--
(1) to assist individuals and employers in resolving problems with the
Bureau of Citizenship and Immigration Services;
(2) to identify areas in which individuals and employers have problems
in dealing with the Bureau of Citizenship and Immigration Services;
and
(3) to the extent possible, to propose changes in the administrative
practices of the Bureau of Citizenship and Immigration Services to mitigate
problems identified under paragraph (2).
(1) OBJECTIVES- Not later than June 30 of each calendar year, the
Ombudsman shall report to the Committee on the Judiciary of the House of
Representatives and the Senate on the objectives of the Office of the
Ombudsman for the fiscal year beginning in such calendar year. Any such
report shall contain full and substantive analysis, in addition to
statistical information, and--
(A) shall identify the recommendations the Office of the Ombudsman has
made on improving services and responsiveness of the Bureau of Citizenship
and Immigration Services;
(B) shall contain a summary of the most pervasive and serious problems
encountered by individuals and employers, including a description of the
nature of such problems;
(C) shall contain an inventory of the items described in subparagraphs
(A) and (B) for which action has been taken and the result of such
action;
(D) shall contain an inventory of the items described in subparagraphs
(A) and (B) for which action remains to be completed and the period during
which each item has remained on such inventory;
(E) shall contain an inventory of the items described in subparagraphs
(A) and (B) for which no action has been taken, the period during which
each item has remained on such inventory, the reasons for the inaction,
and shall identify any official of the Bureau of Citizenship and
Immigration Services who is responsible for such inaction;
(F) shall contain recommendations for such administrative action as
may be appropriate to resolve problems encountered by individuals and
employers, including problems created by excessive backlogs in the
adjudication and processing of immigration benefit petitions and
applications; and
(G) shall include such other information as the Ombudsman may deem
advisable.
(2) REPORT TO BE SUBMITTED DIRECTLY- Each report required under this
subsection shall be provided directly to the committees described in
paragraph (1) without any prior comment or amendment from the Secretary,
Deputy Secretary, Director of the Bureau of Citizenship and Immigration
Services, or any other officer or employee of the Department or the Office
of Management and Budget.
(d) OTHER RESPONSIBILITIES- The Ombudsman--
(1) shall monitor the coverage and geographic allocation of local
offices of the Ombudsman;
(2) shall develop guidance to be distributed to all officers and
employees of the Bureau of Citizenship and Immigration Services outlining
the criteria for referral of inquiries to local offices of the
Ombudsman;
(3) shall ensure that the local telephone number for each local office
of the Ombudsman is published and available to individuals and employers
served by the office; and
(4) shall meet regularly with the Director of the Bureau of Citizenship
and Immigration Services to identify serious service problems and to present
recommendations for such administrative action as may be appropriate to
resolve problems encountered by individuals and employers.
(1) IN GENERAL- The Ombudsman shall have the responsibility and
authority--
(A) to appoint local ombudsmen and make available at least 1 such
ombudsman for each State; and
(B) to evaluate and take personnel actions (including dismissal) with
respect to any employee of any local office of the Ombudsman.
(2) CONSULTATION- The Ombudsman may consult with the appropriate
supervisory personnel of the Bureau of Citizenship and Immigration Services
in carrying out the Ombudsman's responsibilities under this
subsection.
(f) RESPONSIBILITIES OF BUREAU OF CITIZENSHIP AND IMMIGRATION SERVICES-
The Director of the Bureau of Citizenship and Immigration Services shall
establish procedures requiring a formal response to all
recommendations submitted to such director by the Ombudsman within 3 months
after submission to such director.
(g) OPERATION OF LOCAL OFFICES-
(1) IN GENERAL- Each local ombudsman--
(A) shall report to the Ombudsman or the delegate thereof;
(B) may consult with the appropriate supervisory personnel of the
Bureau of Citizenship and Immigration Services regarding the daily
operation of the local office of such ombudsman;
(C) shall, at the initial meeting with any individual or employer
seeking the assistance of such local office, notify such individual or
employer that the local offices of the Ombudsman operate independently of
any other component of the Department and report directly to Congress
through the Ombudsman; and
(D) at the local ombudsman's discretion, may determine not to disclose
to the Bureau of Citizenship and Immigration Services contact with, or
information provided by, such individual or employer.
(2) MAINTENANCE OF INDEPENDENT COMMUNICATIONS- Each local office of the
Ombudsman shall maintain a phone, facsimile, and other means of electronic
communication access, and a post office address, that is separate from those
maintained by the Bureau of Citizenship and Immigration Services, or any
component of the Bureau of Citizenship and Immigration Services.
SEC. 453. PROFESSIONAL RESPONSIBILITY AND QUALITY REVIEW.
(a) IN GENERAL- The Director of the Bureau of Citizenship and Immigration
Services shall be responsible for--
(1) conducting investigations of noncriminal allegations of misconduct,
corruption, and fraud involving any employee of the Bureau of Citizenship
and Immigration Services that are not subject to investigation by the
Inspector General for the Department;
(2) inspecting the operations of the Bureau of Citizenship and
Immigration Services and providing assessments of the quality of the
operations of such bureau as a whole and each of its components; and
(3) providing an analysis of the management of the Bureau of Citizenship
and Immigration Services.
(b) SPECIAL CONSIDERATIONS- In providing assessments in accordance with
subsection (a)(2) with respect to a decision of the Bureau of Citizenship and
Immigration Services, or any of its components, consideration shall be given
to--
(1) the accuracy of the findings of fact and conclusions of law used in
rendering the decision;
(2) any fraud or misrepresentation associated with the decision;
and
(3) the efficiency with which the decision was rendered.
SEC. 454. EMPLOYEE DISCIPLINE.
The Director of the Bureau of Citizenship and Immigration Services may,
notwithstanding any other provision of law, impose disciplinary action,
including termination of employment, pursuant to policies and procedures
applicable to employees of the Federal Bureau of Investigation, on any
employee of the Bureau of Citizenship and Immigration Services who willfully
deceives Congress or agency leadership on any matter.
SEC. 455. EFFECTIVE DATE.
Notwithstanding section 4, sections 451 through 456, and the amendments
made by such sections, shall take effect on the date on which the transfer of
functions specified under section 441 takes effect.
SEC. 456. TRANSITION.
(a) REFERENCES- With respect to any function transferred by this subtitle
to, and exercised on or after the effective date specified in section 455 by,
the Director of the Bureau of Citizenship and Immigration Services, any
reference in any other Federal law, Executive order, rule, regulation, or
delegation of authority, or any document of or pertaining to a component of
government from which such function is transferred--
(1) to the head of such component is deemed to refer to the Director of
the Bureau of Citizenship and Immigration Services; or
(2) to such component is deemed to refer to the Bureau of Citizenship
and Immigration Services.
(b) OTHER TRANSITION ISSUES-
(1) EXERCISE OF AUTHORITIES- Except as otherwise provided by law, a
Federal official to whom a function is transferred by this subtitle may, for
purposes of performing the function, exercise all authorities under any
other provision of law that were available with respect to the performance
of that function to the official responsible for the performance of the
function immediately before the effective date specified in section
455.
(2) TRANSFER AND ALLOCATION OF APPROPRIATIONS AND PERSONNEL- The
personnel of the Department of Justice employed in connection with the
functions transferred by this subtitle (and functions that the Secretary
determines are properly related to the functions of the Bureau of
Citizenship and Immigration Services), and the assets, liabilities,
contracts, property, records, and unexpended balance of appropriations,
authorizations, allocations, and other funds employed, held, used, arising
from, available to, or to be made available to, the Immigration and
Naturalization Service in connection with the functions transferred by this
subtitle, subject to section 202 of the Budget and Accounting Procedures Act
of 1950, shall be transferred to the Director of the Bureau of Citizenship
and Immigration Services for allocation to the appropriate component of the
Department. Unexpended funds transferred pursuant to this paragraph shall be
used only for the purposes for which the funds were originally authorized
and appropriated. The Secretary shall have the right to adjust or realign
transfers of funds and personnel effected pursuant to this subtitle for a
period of 2 years after the effective date specified in section 455.
SEC. 457. FUNDING FOR CITIZENSHIP AND IMMIGRATION SERVICES.
Section 286(m) of the Immigration and Nationality Act (8 U.S.C. 1356(m))
is amended by striking `services, including the costs of similar services
provided without charge to asylum applicants or other immigrants.' and
inserting `services.'.
SEC. 458. BACKLOG ELIMINATION.
Section 204(a)(1) of the Immigration Services and Infrastructure
Improvements Act of 2000 (8 U.S.C. 1573(a)(1)) is amended by striking `not
later than one year after the date of enactment of this Act;' and inserting `1
year after the date of the enactment of the Homeland Security Act of
2002;'.
SEC. 459. REPORT ON IMPROVING IMMIGRATION SERVICES.
(a) IN GENERAL- The Secretary, not later than 1 year after the effective
date of this Act, shall submit to the Committees on the Judiciary and
Appropriations of the House of Representatives and of the Senate a report with
a plan detailing how the Bureau of Citizenship and Immigration Services, after
the transfer of functions specified in this subtitle takes effect, will
complete efficiently, fairly, and within a reasonable time, the adjudications
described in paragraphs (1) through (5) of section 451(b).
(b) CONTENTS- For each type of adjudication to be undertaken by the
Director of the Bureau of Citizenship
and Immigration Services, the report shall include the following:
(1) Any potential savings of resources that may be implemented without
affecting the quality of the adjudication.
(2) The goal for processing time with respect to the application.
(3) Any statutory modifications with respect to the adjudication that
the Secretary considers advisable.
(c) CONSULTATION- In carrying out subsection (a), the Secretary shall
consult with the Secretary of State, the Secretary of Labor, the Assistant
Secretary of the Bureau of Border Security of the Department, and the Director
of the Executive Office for Immigration Review to determine how to streamline
and improve the process for applying for and making adjudications described in
section 451(b) and related processes.
SEC. 460. REPORT ON RESPONDING TO FLUCTUATING NEEDS.
Not later than 30 days after the date of the enactment of this Act, the
Attorney General shall submit to Congress a report on changes in law,
including changes in authorizations of appropriations and in appropriations,
that are needed to permit the Immigration and Naturalization Service, and,
after the transfer of functions specified in this subtitle takes effect, the
Bureau of Citizenship and Immigration Services of the Department, to ensure a
prompt and timely response to emergent, unforeseen, or impending changes in
the number of applications for immigration benefits, and otherwise to ensure
the accommodation of changing immigration service needs.
SEC. 461. APPLICATION OF INTERNET-BASED TECHNOLOGIES.
(a) ESTABLISHMENT OF TRACKING SYSTEM- The Secretary, not later than 1 year
after the effective date of this Act, in consultation with the Technology
Advisory Committee established under subsection (c), shall establish an
Internet-based system, that will permit a person, employer, immigrant, or
nonimmigrant who has filings with the Secretary for any benefit under the
Immigration and Nationality Act (8 U.S.C. 1101 et seq.), access to online
information about the processing status of the filing involved.
(b) FEASIBILITY STUDY FOR ONLINE FILING AND IMPROVED PROCESSING-
(1) ONLINE FILING- The Secretary, in consultation with the Technology
Advisory Committee established under subsection (c), shall conduct a
feasibility study on the online filing of the filings described in
subsection (a). The study shall include a review of computerization and
technology of the Immigration and Naturalization Service relating to the
immigration services and processing of filings related to immigrant
services. The study shall also include an estimate of the timeframe and cost
and shall consider other factors in implementing such a filing system,
including the feasibility of fee payment online.
(2) REPORT- A report on the study under this subsection shall be
submitted to the Committees on the Judiciary of the House of Representatives
and the Senate not later than 1 year after the effective date of this
Act.
(c) TECHNOLOGY ADVISORY COMMITTEE-
(1) ESTABLISHMENT- The Secretary shall establish, not later than 60 days
after the effective date of this Act, an advisory committee (in this section
referred to as the `Technology Advisory Committee') to assist the Secretary
in--
(A) establishing the tracking system under subsection (a);
and
(B) conducting the study under subsection (b).
The Technology Advisory Committee shall be established after
consultation with the Committees on the Judiciary of the House of
Representatives and the Senate.
(2) COMPOSITION- The Technology Advisory Committee shall be composed of
representatives from high technology companies capable of establishing and
implementing the system in an expeditious manner, and representatives of
persons who may use the tracking system described in subsection (a) and the
online filing system described in subsection (b)(1).
SEC. 462. CHILDREN'S AFFAIRS.
(a) TRANSFER OF FUNCTIONS- There are transferred to the Director of the
Office of Refugee Resettlement of the Department of Health and Human Services
functions under the immigration laws of the United States with respect to the
care of unaccompanied alien children that were vested by statute in, or
performed by, the Commissioner of Immigration and Naturalization (or any
officer, employee, or component of the Immigration and Naturalization Service)
immediately before the effective date specified in subsection (d).
(1) IN GENERAL- Pursuant to the transfer made by subsection (a), the
Director of the Office of Refugee Resettlement shall be responsible
for--
(A) coordinating and implementing the care and placement of
unaccompanied alien children who are in Federal custody by reason of their
immigration status, including developing a plan to be submitted to
Congress on how to ensure that qualified and independent legal counsel is
timely appointed to represent the interests of each such child, consistent
with the law regarding appointment of counsel that is in effect on the
date of the enactment of this Act;
(B) ensuring that the interests of the child are considered in
decisions and actions relating to the care and custody of an unaccompanied
alien child;
(C) making placement determinations for all unaccompanied alien
children who are in Federal custody by reason of their immigration
status;
(D) implementing the placement determinations;
(E) implementing policies with respect to the care and placement of
unaccompanied alien children;
(F) identifying a sufficient number of qualified individuals,
entities, and facilities to house unaccompanied alien children;
(G) overseeing the infrastructure and personnel of facilities in which
unaccompanied alien children reside;
(H) reuniting unaccompanied alien children with a parent abroad in
appropriate cases;
(I) compiling, updating, and publishing at least annually a
state-by-state list of professionals or other entities qualified to
provide guardian and attorney representation services for unaccompanied
alien children;
(J) maintaining statistical information and other data on
unaccompanied alien children for whose care and placement the Director is
responsible, which shall include--
(i) biographical information, such as a child's name, gender, date
of birth, country of birth, and country of habitual
residence;
(ii) the date on which the child came into Federal custody by reason
of his or her immigration status;
(iii) information relating to the child's placement, removal, or
release from each facility in which the child has resided;
(iv) in any case in which the child is placed in detention or
released, an explanation relating to the detention or release;
and
(v) the disposition of any actions in which the child is the
subject;
(K) collecting and compiling statistical information from the
Department of Justice, the Department of Homeland Security, and the
Department of State on each department's actions relating to unaccompanied
alien children; and
(L) conducting investigations and inspections of facilities and other
entities in which unaccompanied alien children reside.
(2) COORDINATION WITH OTHER ENTITIES; NO RELEASE ON OWN RECOGNIZANCE- In
making determinations described in paragraph (1)(C), the Director of the
Office of Refugee Resettlement--
(A) shall consult with appropriate juvenile justice professionals, the
Director of the Bureau of Citizenship and Immigration Services, and the
Assistant Secretary of the Bureau of Border Security to ensure that such
determinations ensure that unaccompanied alien children described in such
subparagraph--
(i) are likely to appear for all hearings or proceedings in which
they are involved;
(ii) are protected from smugglers, traffickers, or others who might
seek to victimize or otherwise engage them in criminal, harmful, or
exploitive activity; and
(iii) are placed in a setting in which they not likely to pose a
danger to themselves or others; and
(B) shall not release such children upon their own
recognizance.
(3) DUTIES WITH RESPECT TO FOSTER CARE- In carrying out the duties
described in paragraph (1)(G), the Director of the Office of Refugee
Resettlement is encouraged to use the refugee children foster care system
established pursuant to section 412(d) of the Immigration and Nationality
Act (8 U.S.C. 1522(d)) for the placement of unaccompanied alien
children.
(c) RULE OF CONSTRUCTION- Nothing in this section may be construed to
transfer the responsibility for adjudicating benefit determinations under the
Immigration and Nationality Act (8 U.S.C. 1101 et seq.) from the authority of
any official of the Department of Justice, the Department of Homeland
Security, or the Department of State.
(d) EFFECTIVE DATE- Notwithstanding section 4, this section shall take
effect on the date on which the transfer of functions specified under section
441 takes effect.
(e) REFERENCES- With respect to any function transferred by this section,
any reference in any other Federal law, Executive order, rule, regulation, or
delegation of authority, or any document of or pertaining to a component of
government from which such function is transferred--
(1) to the head of such component is deemed to refer to the Director of
the Office of Refugee Resettlement; or
(2) to such component is deemed to refer to the Office of Refugee
Resettlement of the Department of Health and Human Services.
(f) OTHER TRANSITION ISSUES-
(1) EXERCISE OF AUTHORITIES- Except as otherwise provided by law, a
Federal official to whom a function is transferred by this section may, for
purposes of performing the function, exercise all authorities under any
other provision of law that were available with respect to the performance
of that function to the official responsible for the performance of the
function immediately before the effective date specified in subsection
(d).
(2) SAVINGS PROVISIONS- Subsections (a), (b), and (c) of section 1512
shall apply to a transfer of functions under this section in the same manner
as such provisions apply to a transfer of functions under this Act to the
Department of Homeland Security.
(3) TRANSFER AND ALLOCATION OF APPROPRIATIONS AND PERSONNEL- The
personnel of the Department of Justice employed in connection with the
functions transferred by this section, and the assets, liabilities,
contracts, property, records, and unexpended balance of appropriations,
authorizations, allocations, and other funds employed, held, used, arising
from, available to, or to be made available to, the Immigration and
Naturalization Service in connection with the functions transferred by this
section, subject to section 202 of the Budget and Accounting Procedures Act
of 1950, shall be transferred to the Director of the Office of Refugee
Resettlement for allocation to the appropriate component of the Department
of Health and Human Services. Unexpended funds transferred pursuant to this
paragraph shall be used only for the purposes for which the funds were
originally authorized and appropriated.
(g) DEFINITIONS- As used in this section--
(1) the term `placement' means the placement of an unaccompanied alien
child in either a detention facility or an alternative to such a facility;
and
(2) the term `unaccompanied alien child' means a child who--
(A) has no lawful immigration status in the United States;
(B) has not attained 18 years of age; and
(C) with respect to whom--
(i) there is no parent or legal guardian in the United States;
or
(ii) no parent or legal guardian in the United States is available
to provide care and physical custody.
Subtitle F--General Immigration Provisions
SEC. 471. ABOLISHMENT OF INS.
(a) IN GENERAL- The Immigration and Naturalization Service of the
Department of Justice is abolished.
(b) PROHIBITION- The authority provided by section 1502 may be used to
reorganize functions or organizational units within the Bureau of Border
Security or the Bureau of Citizenship and Immigration Services, but may not be
used to recombine the two bureaus into a single agency or otherwise to
combine, join, or consolidate functions or organizational units of the two
bureaus with each other.
SEC. 472. VOLUNTARY SEPARATION INCENTIVE PAYMENTS.
(a) DEFINITIONS- For purposes of this section--
(1) the term `employee' means an employee (as defined by section 2105 of
title 5, United States Code) who--
(A) has completed at least 3 years of current continuous service with
1 or more covered entities; and
(B) is serving under an appointment without time limitation;
but does not include any person under subparagraphs (A)-(G) of section
663(a)(2) of Public Law 104-208 (5 U.S.C. 5597 note);
(2) the term `covered entity' means--
(A) the Immigration and Naturalization Service;
(B) the Bureau of Border Security of the Department of Homeland
Security; and
(C) the Bureau of Citizenship and Immigration Services of the
Department of Homeland Security; and
(3) the term `transfer date' means the date on which the transfer of
functions specified under section 441 takes effect.
(b) STRATEGIC RESTRUCTURING PLAN- Before the Attorney General or the
Secretary obligates any resources for voluntary separation incentive payments
under this section, such official shall submit to the appropriate committees
of Congress a strategic restructuring plan, which shall include--
(1) an organizational chart depicting the covered entities after their
restructuring pursuant to this Act;
(2) a summary description of how the authority under this section will
be used to help carry out that restructuring; and
(3) the information specified in section 663(b)(2) of Public Law 104-208
(5 U.S.C. 5597 note).
As used in the preceding sentence, the `appropriate committees of
Congress' are the Committees on Appropriations, Government Reform, and the
Judiciary of the House of Representatives, and the Committees on
Appropriations, Governmental Affairs, and the Judiciary of the Senate.
(c) AUTHORITY- The Attorney General and the Secretary may, to the extent
necessary to help carry out their respective strategic restructuring plan
described in subsection (b), make voluntary separation incentive payments to
employees. Any such payment--
(1) shall be paid to the employee, in a lump sum, after the employee has
separated from service;
(2) shall be paid from appropriations or funds available for the payment
of basic pay of the employee;
(3) shall be equal to the lesser of--
(A) the amount the employee would be entitled to receive under section
5595(c) of title 5, United States Code; or
(B) an amount not to exceed $25,000, as determined by the Attorney
General or the Secretary;
(4) may not be made except in the case of any qualifying employee who
voluntarily separates (whether by retirement or resignation) before the end
of--
(A) the 3-month period beginning on the date on which such payment is
offered or made available to such employee; or
(B) the 3-year period beginning on the date of the enactment of this
Act,
(5) shall not be a basis for payment, and shall not be included in the
computation, of any other type of Government benefit; and
(6) shall not be taken into account in determining the amount of any
severance pay to which the employee may be entitled under section 5595 of
title 5, United States Code, based on any other separation.
(d) ADDITIONAL AGENCY CONTRIBUTIONS TO THE RETIREMENT FUND-
(1) IN GENERAL- In addition to any payments which it is otherwise
required to make, the Department of Justice and the Department of Homeland
Security shall, for each fiscal year with respect to which it makes any
voluntary separation incentive payments under this section, remit to the
Office of Personnel Management for deposit in the Treasury of the United
States to the credit of the Civil Service Retirement and Disability Fund the
amount required under paragraph (2).
(2) AMOUNT REQUIRED- The amount required under this paragraph shall, for
any fiscal year, be the amount under subparagraph (A) or (B), whichever is
greater.
(A) FIRST METHOD- The amount under this subparagraph shall, for any
fiscal year, be equal to the minimum amount necessary to offset the
additional costs to the retirement systems under title 5, United States
Code (payable out of the Civil Service Retirement and Disability Fund)
resulting from the voluntary separation of the employees described in
paragraph (3), as determined under regulations of the Office of Personnel
Management.
(B) SECOND METHOD- The amount under this subparagraph shall, for any
fiscal year, be equal to 45 percent of the sum total of the final basic
pay of the employees described in paragraph (3).
(3) COMPUTATIONS TO BE BASED ON SEPARATIONS OCCURRING IN THE FISCAL YEAR
INVOLVED- The employees described in this paragraph are those employees who
receive a voluntary separation incentive payment under this section based on
their separating from service during the fiscal year with respect to which
the payment under this subsection relates.
(4) FINAL BASIC PAY DEFINED- In this subsection, the term `final basic
pay' means, with respect to an employee, the total amount of basic pay which
would be payable for a year of service by such employee, computed using the
employee's final rate of basic pay, and, if last serving on other than a
full-time basis, with appropriate adjustment therefor.
(e) EFFECT OF SUBSEQUENT EMPLOYMENT WITH THE GOVERNMENT- An individual who
receives a voluntary separation incentive payment under this section and who,
within 5 years after the date of the separation on which the payment is based,
accepts any compensated employment with the Government or works for any agency
of the Government through a personal services contract, shall be required to
pay, prior to the individual's first day of employment, the entire amount of
the incentive payment. Such payment shall be made to the covered entity from
which the individual separated or, if made on or after the transfer date, to
the Deputy Secretary or the Under Secretary for Border and Transportation
Security (for transfer to the appropriate component of the Department of
Homeland Security, if necessary).
(f) EFFECT ON EMPLOYMENT LEVELS-
(1) INTENDED EFFECT- Voluntary separations under this section are not
intended to necessarily reduce the total number of full-time equivalent
positions in any covered entity.
(2) USE OF VOLUNTARY SEPARATIONS- A covered entity may redeploy or use
the full-time equivalent positions vacated by voluntary separations under
this section to make other positions available to more critical locations or
more critical occupations.
SEC. 473. AUTHORITY TO CONDUCT A DEMONSTRATION PROJECT RELATING TO
DISCIPLINARY ACTION.
(a) IN GENERAL- The Attorney General and the Secretary may each, during a
period ending not later than 5 years after the date of the enactment of this
Act, conduct a demonstration project for the purpose of determining whether
one or more changes in the policies or procedures relating to methods for
disciplining employees would result in improved personnel management.
(b) SCOPE- A demonstration project under this section--
(1) may not cover any employees apart from those employed in or under a
covered entity; and
(2) shall not be limited by any provision of chapter 43, 75, or 77 of
title 5, United States Code.
(c) PROCEDURES- Under the demonstration project--
(1) the use of alternative means of dispute resolution (as defined in
section 571 of title 5, United States Code) shall be encouraged, whenever
appropriate; and
(2) each covered entity under the jurisdiction of the official
conducting the project shall be required to provide for the expeditious,
fair, and independent review of any action to which section 4303 or
subchapter II of chapter 75 of such title 5 would otherwise apply (except an
action described in section 7512(5) of such title 5).
(d) ACTIONS INVOLVING DISCRIMINATION- Notwithstanding any other provision
of this section, if, in the case of any matter described in section
7702(a)(1)(B) of title 5, United States Code, there is no judicially
reviewable action under the demonstration project within 120 days after the
filing of an appeal or other formal request for review (referred to in
subsection (c)(2)), an employee shall be entitled to file a civil action to
the same extent and in the same manner as provided in section 7702(e)(1) of
such title 5 (in the matter following subparagraph (C) thereof).
(e) CERTAIN EMPLOYEES- Employees shall not be included within any project
under this section if such employees are--
(1) neither managers nor supervisors; and
(2) within a unit with respect to which a labor organization is accorded
exclusive recognition under chapter 71 of title 5, United States Code.
Notwithstanding the preceding sentence, an aggrieved employee within a
unit (referred to in paragraph (2)) may elect to participate in a complaint
procedure developed under the demonstration project in lieu of any negotiated
grievance procedure and any statutory procedure (as such term is used in
section 7121 of such title 5).
(f) REPORTS- The General Accounting Office shall prepare and submit to the
Committees on Government Reform and the Judiciary of the House of
Representatives and the Committees on Governmental Affairs and the Judiciary
of the Senate periodic reports on any demonstration project conducted under
this section, such reports to be submitted after the second and fourth years
of its operation. Upon request, the Attorney General or the Secretary shall
furnish such information as the General Accounting Office may require to carry
out this subsection.
(g) DEFINITION- In this section, the term `covered entity' has the meaning
given such term in section 472(a)(2).
SEC. 474. SENSE OF CONGRESS.
It is the sense of Congress that--
(1) the missions of the Bureau of Border Security and the Bureau of
Citizenship and Immigration Services are equally important and, accordingly,
they each should be adequately funded; and
(2) the functions transferred under this subtitle should not, after such
transfers take effect, operate at levels below those in effect prior to the
enactment of this Act.
SEC. 475. DIRECTOR OF SHARED SERVICES.
(a) IN GENERAL- Within the Office of Deputy Secretary, there shall be a
Director of Shared Services.
(b) FUNCTIONS- The Director of Shared Services shall be responsible for
the coordination of resources for the Bureau of Border Security and the Bureau
of Citizenship and Immigration Services, including--
(1) information resources management, including computer databases and
information technology;
(2) records and file management; and
SEC. 476. SEPARATION OF FUNDING.
(a) IN GENERAL- There shall be established separate accounts in the
Treasury of the United States for appropriated funds and other deposits
available for the Bureau of Citizenship and Immigration Services and the
Bureau of Border Security.
(b) SEPARATE BUDGETS- To ensure that the Bureau of Citizenship and
Immigration Services and the Bureau of Border Security are funded to the
extent necessary to fully carry out their respective functions, the Director
of the Office of Management and Budget shall separate the budget requests for
each such entity.
(c) FEES- Fees imposed for a particular service, application, or benefit
shall be deposited into the account established under subsection (a) that is
for the bureau with jurisdiction over the function to which the fee
relates.
(d) FEES NOT TRANSFERABLE- No fee may be transferred between the Bureau of
Citizenship and Immigration Services and the Bureau of Border Security for
purposes not authorized by section 286 of the Immigration and Nationality Act
(8 U.S.C. 1356).
SEC. 477. REPORTS AND IMPLEMENTATION PLANS.
(a) DIVISION OF FUNDS- The Secretary, not later than 120 days after the
effective date of this Act, shall submit to the Committees on Appropriations
and the Judiciary of the House of Representatives and of the Senate a report
on the proposed division and transfer of funds, including unexpended funds,
appropriations, and fees, between the Bureau of Citizenship and Immigration
Services and the Bureau of Border Security.
(b) DIVISION OF PERSONNEL- The Secretary, not later than 120 days after
the effective date of this Act, shall submit to the Committees on
Appropriations and the Judiciary of the House of Representatives and of the
Senate a report on the proposed division of personnel between the Bureau of
Citizenship and Immigration Services and the Bureau of Border Security.
(1) IN GENERAL- The Secretary, not later than 120 days after the
effective date of this Act, and every 6 months thereafter until the
termination of fiscal year 2005, shall submit to the Committees on
Appropriations and the Judiciary of the House of Representatives and of the
Senate an implementation plan to carry out this Act.
(2) CONTENTS- The implementation plan should include details concerning
the separation of the Bureau of Citizenship and Immigration Services and the
Bureau of Border Security, including the following:
(A) Organizational structure, including the field structure.
(C) Procedures for interaction among such bureaus.
(D) Fraud detection and investigation.
(E) The processing and handling of removal proceedings, including
expedited removal and applications for relief from removal.
(F) Recommendations for conforming amendments to the Immigration and
Nationality Act (8 U.S.C. 1101 et seq.).
(G) Establishment of a transition team.
(H) Methods to phase in the costs of separating the administrative
support systems of the Immigration and Naturalization Service in order to
provide for separate administrative support systems for the Bureau of
Citizenship and Immigration Services and the Bureau of Border
Security.
(d) COMPTROLLER GENERAL STUDIES AND REPORTS-
(1) STATUS REPORTS ON TRANSITION- Not later than 18 months after the
date on which the transfer of functions specified under section 441 takes
effect, and every 6 months thereafter, until full implementation of this
subtitle has been completed, the Comptroller General of the United States
shall submit to the Committees on Appropriations and on the Judiciary of the
House of Representatives and the Senate a report containing the
following:
(A) A determination of whether the transfers of functions made by
subtitles D and E have been completed, and if a transfer of functions has
not taken place, identifying the reasons why the transfer has not taken
place.
(B) If the transfers of functions made by subtitles D and E have been
completed, an identification of any issues that have arisen due to the
completed transfers.
(C) An identification of any issues that may arise due to any future
transfer of functions.
(2) REPORT ON MANAGEMENT- Not later than 4 years after the date on which
the transfer of functions specified under section 441 takes effect, the
Comptroller General of the United States shall submit to the Committees on
Appropriations and on the Judiciary of the House of Representatives and the
Senate a report, following a study, containing the following:
(A) Determinations of whether the transfer of functions from the
Immigration and Naturalization Service to the Bureau of Citizenship and
Immigration Services and the Bureau of Border Security have improved, with
respect to each function transferred, the following:
(ii) Management, including accountability and
communication.
(iii) Financial administration.
(iv) Recordkeeping, including information management and
technology.
(B) A statement of the reasons for the determinations under
subparagraph (A).
(C) Any recommendations for further improvements to the Bureau of
Citizenship and Immigration Services and the Bureau of Border
Security.
(3) REPORT ON FEES- Not later than 1 year after the date of the
enactment of this Act, the Comptroller General of the United States shall
submit to the Committees on the Judiciary of the House of Representatives
and of the Senate a report examining whether the Bureau of Citizenship and
Immigration Services is likely to derive sufficient funds from fees to carry
out its functions in the absence of appropriated funds.
SEC. 478. IMMIGRATION FUNCTIONS.
(1) IN GENERAL- One year after the date of the enactment of this Act,
and each year thereafter, the Secretary shall submit a report to the
President, to the Committees on the Judiciary and Government Reform of the
House of Representatives, and to the Committees on the Judiciary and
Government Affairs of the Senate, on the impact the transfers made by this
subtitle has had on immigration functions.
(2) MATTER INCLUDED- The report shall address the following with respect
to the period covered by the report:
(A) The aggregate number of all immigration applications and petitions
received, and processed, by the Department;
(B) Region-by-region statistics on the aggregate number of immigration
applications and petitions filed by an alien (or filed on behalf of an
alien) and denied, disaggregated by category of denial and application or
petition type.
(C) The quantity of backlogged immigration applications and petitions
that have been processed, the aggregate number awaiting processing, and a
detailed plan for eliminating the backlog.
(D) The average processing period for immigration applications and
petitions, disaggregated by application or petition type.
(E) The number and types of immigration-related grievances filed with
any official of the Department of Justice, and if those grievances were
resolved.
(F) Plans to address grievances and improve immigration
services.
(G) Whether immigration-related fees were used consistent with legal
requirements regarding such use.
(H) Whether immigration-related questions conveyed by customers to the
Department (whether conveyed in person, by telephone, or by means of the
Internet) were answered effectively and efficiently.
(b) SENSE OF CONGRESS REGARDING IMMIGRATION SERVICES- It is the sense of
Congress that--
(1) the quality and efficiency of immigration services rendered by the
Federal Government should be improved after the transfers made by this
subtitle take effect; and
(2) the Secretary should undertake efforts to guarantee that concerns
regarding the quality and efficiency of immigration services are addressed
after such effective date.
TITLE V--EMERGENCY PREPAREDNESS AND RESPONSE
SEC. 501. UNDER SECRETARY FOR EMERGENCY PREPAREDNESS AND RESPONSE.
There shall be in the Department a Directorate of Emergency Preparedness
and Response headed by an Under Secretary for Emergency Preparedness and
Response.
SEC. 502. RESPONSIBILITIES.
The Secretary, acting through the Under Secretary for Emergency
Preparedness and Response, shall include--
(1) helping to ensure the effectiveness of emergency response providers
to terrorist attacks, major disasters, and other emergencies;
(2) with respect to the Nuclear Incident Response Team (regardless of
whether it is operating as an organizational unit of the Department pursuant
to this title)--
(A) establishing standards and certifying when those standards have
been met;
(B) conducting joint and other exercises and training and evaluating
performance; and
(C) providing funds to the Department of Energy and the Environmental
Protection
Agency, as appropriate, for homeland security planning, exercises and
training, and equipment;
(3) providing the Federal Government's response to terrorist attacks and
major disasters, including--
(A) managing such response;
(B) directing the Domestic Emergency Support Team, the Strategic
National Stockpile, the National Disaster Medical System, and (when
operating as an organizational unit of the Department pursuant to this
title) the Nuclear Incident Response Team;
(C) overseeing the Metropolitan Medical Response System; and
(D) coordinating other Federal response resources in the event of a
terrorist attack or major disaster;
(4) aiding the recovery from terrorist attacks and major
disasters;
(5) building a comprehensive national incident management system with
Federal, State, and local government personnel, agencies, and authorities,
to respond to such attacks and disasters;
(6) consolidating existing Federal Government emergency response plans
into a single, coordinated national response plan; and
(7) developing comprehensive programs for developing interoperative
communications technology, and helping to ensure that emergency response
providers acquire such technology.
SEC. 503. FUNCTIONS TRANSFERRED.
In accordance with title XV, there shall be transferred to the Secretary
the functions, personnel, assets, and liabilities of the following
entities:
(1) The Federal Emergency Management Agency, including the functions of
the Director of the Federal Emergency Management Agency relating
thereto.
(2) The Integrated Hazard Information System of the National Oceanic and
Atmospheric Administration, which shall be renamed `FIRESAT'.
(3) The National Domestic Preparedness Office of the Federal Bureau of
Investigation, including the functions of the Attorney General relating
thereto.
(4) The Domestic Emergency Support Teams of the Department of Justice,
including the functions of the Attorney General relating thereto.
(5) The Office of Emergency Preparedness, the National Disaster Medical
System, and the Metropolitan Medical Response System of the Department of
Health and Human Services, including the functions of the Secretary of
Health and Human Services and the Assistant Secretary for Public Health
Emergency Preparedness relating thereto.
(6) The Strategic National Stockpile of the Department of Health and
Human Services, including the functions of the Secretary of Health and Human
Services relating thereto.
SEC. 504. NUCLEAR INCIDENT RESPONSE.
(a) IN GENERAL- At the direction of the Secretary (in connection with an
actual or threatened terrorist attack, major disaster, or other emergency in
the United States), the Nuclear Incident Response Team shall operate as an
organizational unit of the Department. While so operating, the Nuclear
Incident Response Team shall be subject to the direction, authority, and
control of the Secretary.
(b) RULE OF CONSTRUCTION- Nothing in this title shall be construed to
limit the ordinary responsibility of the Secretary of Energy and the
Administrator of the Environmental Protection Agency for organizing, training,
equipping, and utilizing their respective entities in the Nuclear Incident
Response Team, or (subject to the provisions of this title) from exercising
direction, authority, and control over them when they are not operating as a
unit of the Department.
SEC. 505. CONDUCT OF CERTAIN PUBLIC HEALTH-RELATED ACTIVITIES.
(a) IN GENERAL- With respect to all public health-related activities to
improve State, local, and hospital preparedness and response to chemical,
biological, radiological, and nuclear and other emerging terrorist threats
carried out by the Department of Health and Human Services (including the
Public Health Service), the Secretary of Health and Human Services shall set
priorities and preparedness goals and further develop a coordinated strategy
for such activities in collaboration with the Secretary.
(b) EVALUATION OF PROGRESS- In carrying out subsection (a), the Secretary
of Health and Human Services shall collaborate with the Secretary in
developing specific benchmarks and outcome measurements for evaluating
progress toward achieving the priorities and goals described in such
subsection.
SEC. 506. DEFINITION.
In this title, the term `Nuclear Incident Response Team' means a resource
that includes--
(1) those entities of the Department of Energy that perform nuclear or
radiological emergency support functions (including accident response,
search response, advisory, and technical operations functions), radiation
exposure functions at the medical assistance facility known as the Radiation
Emergency Assistance Center/Training Site (REAC/TS), radiological assistance
functions, and related functions; and
(2) those entities of the Environmental Protection Agency that perform
such support functions (including radiological emergency response functions)
and related functions.
SEC. 507. ROLE OF FEDERAL EMERGENCY MANAGEMENT AGENCY.
(a) IN GENERAL- The functions of the Federal Emergency Management Agency
include the following:
(1) All functions and authorities prescribed by the Robert T. Stafford
Disaster Relief and Emergency Assistance Act (42 U.S.C. 5121 et seq.).
(2) Carrying out its mission to reduce the loss of life and property and
protect the Nation from all hazards by leading and supporting the Nation in
a comprehensive, risk-based emergency management program--
(A) of mitigation, by taking sustained actions to reduce or eliminate
long-term risk to people and property from hazards and their
effects;
(B) of planning for building the emergency management profession to
prepare effectively for, mitigate against, respond to, and recover from
any hazard;
(C) of response, by conducting emergency operations to save lives and
property through positioning emergency equipment and supplies, through
evacuating potential victims, through providing food, water, shelter, and
medical care to those in need, and through restoring critical public
services;
(D) of recovery, by rebuilding communities so individuals, businesses,
and governments can function on their own, return to normal life, and
protect against future hazards; and
(E) of increased efficiencies, by coordinating efforts relating to
mitigation, planning, response, and recovery.
(b) FEDERAL RESPONSE PLAN-
(1) ROLE OF FEMA- Notwithstanding any other provision of this Act, the
Federal Emergency
Management Agency shall remain the lead agency for the Federal Response Plan
established under Executive Order 12148 (44 Fed. Reg. 43239) and Executive Order
12656 (53 Fed. Reg. 47491).
(2) REVISION OF RESPONSE PLAN- Not later than 60 days after the date of
enactment of this Act, the Director of the Federal Emergency Management
Agency shall revise the Federal Response Plan to reflect the establishment
of and incorporate the Department.
SEC. 508. USE OF NATIONAL PRIVATE SECTOR NETWORKS IN EMERGENCY
RESPONSE.
To the maximum extent practicable, the Secretary shall use national
private sector networks and infrastructure for emergency response to chemical,
biological, radiological, nuclear, or explosive disasters, and other major
disasters.
SEC. 509. USE OF COMMERCIALLY AVAILABLE TECHNOLOGY, GOODS, AND
SERVICES.
It is the sense of Congress that--
(1) the Secretary should, to the maximum extent possible, use
off-the-shelf commercially developed technologies to ensure that the
Department's information technology systems allow the Department to collect,
manage, share, analyze, and disseminate information securely over multiple
channels of communication; and
(2) in order to further the policy of the United States to avoid
competing commercially with the private sector, the Secretary should rely on
commercial sources to supply the goods and services needed by the
Department.
TITLE VI--TREATMENT OF CHARITABLE TRUSTS FOR MEMBERS OF THE ARMED FORCES
OF THE UNITED STATES AND OTHER GOVERNMENTAL ORGANIZATIONS
SEC. 601. TREATMENT OF CHARITABLE TRUSTS FOR MEMBERS OF THE ARMED FORCES OF
THE UNITED STATES AND OTHER GOVERNMENTAL ORGANIZATIONS.
(a) FINDINGS- Congress finds the following:
(1) Members of the Armed Forces of the United States defend the freedom
and security of our Nation.
(2) Members of the Armed Forces of the United States have lost their
lives while battling the evils of terrorism around the world.
(3) Personnel of the Central Intelligence Agency (CIA) charged with the
responsibility of covert observation of terrorists around the world are
often put in harm's way during their service to the United States.
(4) Personnel of the Central Intelligence Agency have also lost their
lives while battling the evils of terrorism around the world.
(5) Employees of the Federal Bureau of Investigation (FBI) and other
Federal agencies charged with domestic protection of the United States put
their lives at risk on a daily basis for the freedom and security of our
Nation.
(6) United States military personnel, CIA personnel, FBI personnel, and
other Federal agents in the service of the United States are patriots of the
highest order.
(7) CIA officer Johnny Micheal Spann became the first American to give
his life for his country in the War on Terrorism declared by President
George W. Bush following the terrorist attacks of September 11, 2001.
(8) Johnny Micheal Spann left behind a wife and children who are very
proud of the heroic actions of their patriot father.
(9) Surviving dependents of members of the Armed Forces of the United
States who lose their lives as a result of terrorist attacks or military
operations abroad receive a $6,000 death benefit, plus a small monthly
benefit.
(10) The current system of compensating spouses and children of American
patriots is inequitable and needs improvement.
(b) DESIGNATION OF JOHNNY MICHEAL SPANN PATRIOT TRUSTS- Any charitable
corporation, fund, foundation, or trust (or separate fund or account thereof)
which otherwise meets all applicable requirements under law with respect to
charitable entities and meets the requirements described in subsection (c)
shall be eligible to characterize itself as a `Johnny Micheal Spann Patriot
Trust'.
(c) REQUIREMENTS FOR THE DESIGNATION OF JOHNNY MICHEAL SPANN PATRIOT
TRUSTS- The requirements described in this subsection are as follows:
(1) Not taking into account funds or donations reasonably necessary to
establish a trust, at least 85 percent of all funds or donations (including
any earnings on the investment of such funds or donations) received or
collected by any Johnny Micheal Spann Patriot Trust must be distributed to
(or, if placed in a private foundation, held in trust for) surviving
spouses, children, or dependent parents, grandparents, or siblings of 1 or
more of the following:
(A) members of the Armed Forces of the United States;
(B) personnel, including contractors, of elements of the intelligence
community, as defined in section 3(4) of the National Security Act of
1947;
(C) employees of the Federal Bureau of Investigation; and
(D) officers, employees, or contract employees of the United States
Government,
whose deaths occur in the line of duty and arise out of terrorist
attacks, military operations, intelligence operations, or law enforcement
operations or accidents connected with activities occurring after September
11, 2001, and related to domestic or foreign efforts to curb international
terrorism, including the Authorization for Use of Military Force (Public Law
107-40; 115 Stat. 224).
(2) Other than funds or donations reasonably necessary to establish a
trust, not more than 15 percent of all funds or donations (or 15 percent of
annual earnings on funds invested in a private foundation) may be used for
administrative purposes.
(3) No part of the net earnings of any Johnny Micheal Spann Patriot
Trust may inure to the benefit of any individual based solely on the
position of such individual as a shareholder, an officer or employee of such
Trust.
(4) None of the activities of any Johnny Micheal Spann Patriot Trust
shall be conducted in a manner inconsistent with any law that prohibits
attempting to influence legislation.
(5) No Johnny Micheal Spann Patriot Trust may participate in or
intervene in any political campaign on behalf of (or in opposition to) any
candidate for public office, including by publication or distribution of
statements.
(6) Each Johnny Micheal Spann Patriot Trust shall comply with the
instructions and directions of the Director of Central Intelligence, the
Attorney General, or the Secretary of Defense relating to the protection of
intelligence sources and methods, sensitive law enforcement information, or
other sensitive national security information, including methods for
confidentially disbursing funds.
(7) Each Johnny Micheal Spann Patriot Trust that receives annual
contributions totaling more than $1,000,000 must be audited annually by an
independent certified public accounting firm. Such audits shall be filed
with the Internal Revenue Service, and shall be open to public inspection,
except that the conduct, filing, and availability of the audit shall be
consistent with the protection of intelligence sources and methods, of
sensitive law enforcement information, and of other sensitive national
security information.
(8) Each Johnny Micheal Spann Patriot Trust shall make distributions to
beneficiaries described in paragraph (1) at least once every calendar year,
beginning not later than 12 months after the formation of such Trust, and
all funds and donations received and earnings not placed in a private
foundation dedicated to such beneficiaries must be distributed within 36
months after the end of the fiscal year in which such funds, donations, and
earnings are received.
(9)(A) When determining the amount of a distribution to any beneficiary
described in paragraph (1), a Johnny Micheal Spann Patriot Trust should take
into account the amount of any collateral source compensation that the
beneficiary has received or is entitled to receive as a result of the death
of an individual described in paragraph (1).
(B) Collateral source compensation includes all compensation from
collateral sources, including life insurance, pension funds, death benefit
programs, and payments by Federal, State, or local governments related to
the death of an individual described in paragraph (1).
(d) TREATMENT OF JOHNNY MICHEAL SPANN PATRIOT TRUSTS- Each Johnny Micheal
Spann Patriot Trust shall refrain from conducting the activities described in
clauses (i) and (ii) of section 301(20)(A) of the Federal Election Campaign
Act of 1971 so that a general solicitation of funds by an individual described
in paragraph (1) of section 323(e) of such Act will be permissible if such
solicitation meets the requirements of paragraph (4)(A) of such section.
(e) NOTIFICATION OF TRUST BENEFICIARIES- Notwithstanding any other
provision of law, and in a manner consistent with the protection of
intelligence sources and methods and sensitive law enforcement information,
and other sensitive national security information, the Secretary of Defense,
the Director of the Federal Bureau of Investigation, or the Director of
Central Intelligence, or their designees, as applicable, may forward
information received from an executor, administrator, or other legal
representative of the estate of a decedent described in subparagraph (A), (B),
(C), or (D) of subsection (c)(1), to a Johnny Micheal Spann Patriot Trust on
how to contact individuals eligible for a distribution under subsection (c)(1)
for the purpose of providing assistance from such Trust; provided that,
neither forwarding nor failing to forward any information under this
subsection shall create any cause of action against any Federal department,
agency, officer, agent, or employee.
(f) REGULATIONS- Not later than 90 days after the date of enactment of
this Act, the Secretary of Defense, in coordination with the Attorney General,
the Director of the Federal Bureau of Investigation, and the Director of
Central Intelligence, shall prescribe regulations to carry out this
section.
TITLE VII--MANAGEMENT
SEC. 701. UNDER SECRETARY FOR MANAGEMENT.
(a) IN GENERAL- The Secretary, acting through the Under Secretary for
Management, shall be responsible for the management and administration of the
Department, including the following:
(1) The budget, appropriations, expenditures of funds, accounting, and
finance.
(3) Human resources and personnel.
(4) Information technology and communications systems.
(5) Facilities, property, equipment, and other material resources.
(6) Security for personnel, information technology and communications
systems, facilities, property, equipment, and other material
resources.
(7) Identification and tracking of performance measures relating to the
responsibilities of the Department.
(8) Grants and other assistance management programs.
(9) The transition and reorganization process, to ensure an efficient
and orderly transfer of functions and personnel to the Department, including
the development of a transition plan.
(10) The conduct of internal audits and management analyses of the
programs and activities of the Department.
(11) Any other management duties that the Secretary may designate.
(1) IN GENERAL- In addition to the responsibilities described in
subsection (a), the Under Secretary for Management shall be responsible for
the following:
(A) Maintenance of all immigration statistical information of the
Bureau of Border Security and the Bureau of Citizenship and Immigration
Services. Such statistical information shall include information and
statistics of the type contained in the publication entitled `Statistical
Yearbook of the Immigration and Naturalization Service' prepared by the
Immigration and Naturalization Service (as in effect immediately before
the date on which the transfer of functions specified under section 441
takes effect), including region-by-region statistics on the aggregate
number of applications and petitions filed by an alien (or filed on behalf
of an alien) and denied by such bureau, and the reasons for such denials,
disaggregated by category of denial and application or petition
type.
(B) Establishment of standards of reliability and validity for
immigration statistics collected by such bureaus.
(2) TRANSFER OF FUNCTIONS- In accordance with title XV, there shall be
transferred to the Under Secretary for Management all functions performed
immediately before such transfer occurs by the Statistics Branch of the
Office of Policy and Planning of the Immigration and Naturalization Service
with respect to the following programs:
(A) The Border Patrol program.
(B) The detention and removal program.
(C) The intelligence program.
(D) The investigations program.
(E) The inspections program.
(F) Adjudication of immigrant visa petitions.
(G) Adjudication of naturalization petitions.
(H) Adjudication of asylum and refugee applications.
(I) Adjudications performed at service centers.
(J) All other adjudications performed by the Immigration and
Naturalization Service.
SEC. 702. CHIEF FINANCIAL OFFICER.
The Chief Financial Officer shall report to the Secretary, or to another
official of the Department, as the Secretary may direct.
SEC. 703. CHIEF INFORMATION OFFICER.
The Chief Information Officer shall report to the Secretary, or to another
official of the Department, as the Secretary may direct.
SEC. 704. CHIEF HUMAN CAPITAL OFFICER.
The Chief Human Capital Officer shall report to the Secretary, or to
another official of the Department, as the Secretary may direct and shall
ensure that all employees of the Department are informed of their rights and
remedies under chapters 12 and 23 of title 5, United States Code, by--
(1) participating in the 2302(c) Certification Program of the Office of
Special Counsel;
(2) achieving certification from the Office of Special Counsel of the
Department's compliance with section 2302(c) of title 5, United States Code;
and
(3) informing Congress of such certification not later than 24 months
after the date of enactment of this Act.
SEC. 705. ESTABLISHMENT OF OFFICER FOR CIVIL RIGHTS AND CIVIL
LIBERTIES.
(a) IN GENERAL- The Secretary shall appoint in the Department an Officer
for Civil Rights and Civil Liberties, who shall--
(1) review and assess information alleging abuses of civil rights, civil
liberties, and racial and ethnic profiling by employees and officials of the
Department; and
(2) make public through the Internet, radio, television, or newspaper
advertisements information on the responsibilities and functions of, and how
to contact, the Officer.
(b) REPORT- The Secretary shall submit to the President of the Senate, the
Speaker of the House of Representatives, and the appropriate committees and
subcommittees of Congress on an annual basis a report on the implementation of
this section, including the use of funds appropriated to carry out this
section, and detailing any allegations of abuses described under subsection
(a)(1) and any actions taken by the Department in response to such
allegations.
SEC. 706. CONSOLIDATION AND CO-LOCATION OF OFFICES.
Not later than 1 year after the date of the enactment of this Act, the
Secretary shall develop and submit to Congress a plan for consolidating and
co-locating--
(1) any regional offices or field offices of agencies that are
transferred to the Department under this Act, if such officers are located
in the same municipality; and
(2) portions of regional and field offices of other Federal agencies, to
the extent such offices perform functions that are transferred to the
Secretary under this Act.
TITLE VIII--COORDINATION WITH NON-FEDERAL ENTITIES; INSPECTOR GENERAL;
UNITED STATES SECRET SERVICE; COAST GUARD; GENERAL PROVISIONS
Subtitle A--Coordination with Non-Federal Entities
SEC. 801. OFFICE FOR STATE AND LOCAL GOVERNMENT COORDINATION.
(a) ESTABLISHMENT- There is established within the Office of the Secretary
the Office for State and Local Government Coordination, to oversee and
coordinate departmental programs for and relationships with State and local
governments.
(b) RESPONSIBILITIES- The Office established under subsection (a)
shall--
(1) coordinate the activities of the Department relating to State and
local government;
(2) assess, and advocate for, the resources needed by State and local
government to implement the national strategy for combating terrorism;
(3) provide State and local government with regular information,
research, and technical support to assist local efforts at securing the
homeland; and
(4) develop a process for receiving meaningful input from State and
local government to assist the development of the national strategy for
combating terrorism and other homeland security activities.
Subtitle B--Inspector General
SEC. 811. AUTHORITY OF THE SECRETARY.
(a) IN GENERAL- Notwithstanding the last two sentences of section 3(a) of
the Inspector General Act of 1978, the Inspector General shall be under the
authority, direction, and control of the Secretary with respect to audits or
investigations, or the issuance of subpoenas, that require access to sensitive
information concerning--
(1) intelligence, counterintelligence, or counterterrorism
matters;
(2) ongoing criminal investigations or proceedings;
(3) undercover operations;
(4) the identity of confidential sources, including protected
witnesses;
(5) other matters the disclosure of which would, in the Secretary's
judgment, constitute a serious threat to the protection of any person or
property authorized protection by section 3056 of title 18, United States
Code, section 202 of title 3 of such Code, or any provision of the
Presidential Protection Assistance Act of 1976; or
(6) other matters the disclosure of which would, in the Secretary's
judgment, constitute a serious threat to national security.
(b) PROHIBITION OF CERTAIN INVESTIGATIONS- With respect to the information
described in subsection (a), the Secretary may prohibit the Inspector General
from carrying out or completing any audit or investigation, or from issuing
any subpoena, after such Inspector General has decided to initiate, carry out,
or complete such audit or investigation or to issue such subpoena, if the
Secretary determines that such prohibition is necessary to prevent the
disclosure of any information described in subsection (a), to preserve the
national security, or to prevent a significant impairment to the interests of
the United States.
(c) NOTIFICATION REQUIRED- If the Secretary exercises any power under
subsection (a) or (b), the Secretary shall notify the Inspector General of the
Department in writing stating the reasons for such exercise. Within 30 days
after receipt of any such notice, the Inspector General shall transmit a copy
of such notice and a written response thereto that includes--
(1) a statement as to whether the Inspector General agrees or disagrees
with such exercise; and
(2) the reasons for any disagreement, to the President of the Senate and
the Speaker of the House of Representatives and to appropriate committees
and subcommittees of Congress.
(d) ACCESS TO INFORMATION BY CONGRESS- The exercise of authority by the
Secretary described in subsection (b) should not be construed as limiting the
right of Congress or any committee of Congress to access any information it
seeks.
(e) OVERSIGHT RESPONSIBILITY- The Inspector General Act of 1978 (5 U.S.C.
App.) is amended by inserting after section 8I the following:
`SPECIAL PROVISIONS CONCERNING THE DEPARTMENT OF HOMELAND SECURITY
`SEC. 8J. Notwithstanding any other provision of law, in carrying out the
duties and responsibilities specified in this Act, the Inspector General of
the Department of Homeland Security shall have oversight responsibility for
the internal investigations performed by the Office of Internal Affairs of the
United States Customs Service and the Office of Inspections of the United
States Secret Service. The head of each such office shall promptly report to
the Inspector General the significant activities being carried out by such
office.'.
SEC. 812. LAW ENFORCEMENT POWERS OF INSPECTOR GENERAL AGENTS.
(a) IN GENERAL- Section 6 of the Inspector General Act of 1978 (5 U.S.C.
App.) is amended by adding at the end the following:
`(e)(1) In addition to the authority otherwise provided by this Act, each
Inspector General appointed under section 3, any Assistant Inspector General
for Investigations under such an Inspector General, and any special agent
supervised by such an Assistant Inspector General may be authorized by the
Attorney General to--
`(A) carry a firearm while engaged in official duties as authorized
under this Act or other statute, or as expressly authorized by the Attorney
General;
`(B) make an arrest without a warrant while engaged in official duties
as authorized under this Act or other statute, or as expressly authorized by
the Attorney General, for any offense against the United States committed in
the presence of such Inspector General, Assistant Inspector General, or
agent, or for any felony cognizable under the laws of the United States if
such Inspector General, Assistant Inspector General, or agent has reasonable
grounds to believe that the person to be arrested has committed or is
committing such felony; and
`(C) seek and execute warrants for arrest, search of a premises, or
seizure of evidence issued under the authority of the United States upon
probable cause to believe that a violation has been committed.
`(2) The Attorney General may authorize exercise of the powers under this
subsection only upon an initial determination that--
`(A) the affected Office of Inspector General is significantly hampered
in the performance of responsibilities established by this Act as a result
of the lack of such powers;
`(B) available assistance from other law enforcement agencies is
insufficient to meet the need for such powers; and
`(C) adequate internal safeguards and management procedures exist to
ensure proper exercise of such powers.
`(3) The Inspector General offices of the Department of Commerce,
Department of Education, Department of Energy, Department of Health and Human
Services, Department of Homeland Security, Department of Housing and Urban
Development, Department of the Interior, Department of Justice, Department of
Labor, Department of State, Department of Transportation, Department of the
Treasury, Department of Veterans Affairs, Agency for International
Development, Environmental Protection Agency, Federal Deposit Insurance
Corporation, Federal Emergency Management Agency, General Services
Administration, National Aeronautics and Space Administration, Nuclear
Regulatory Commission, Office of Personnel Management, Railroad Retirement
Board, Small Business Administration, Social Security Administration, and the
Tennessee Valley Authority are exempt from the requirement of paragraph (2) of
an initial determination of eligibility by the Attorney General.
`(4) The Attorney General shall promulgate, and revise as appropriate,
guidelines which shall govern the exercise of the law enforcement powers
established under paragraph (1).
`(5)(A) Powers authorized for an Office of Inspector General under
paragraph (1) may be rescinded or suspended upon a determination by the
Attorney General that any of the requirements under paragraph (2) is no longer
satisfied or that the exercise of authorized powers by that Office of
Inspector General has not complied with the guidelines promulgated by the
Attorney General under paragraph (4).
`(B) Powers authorized to be exercised by any individual under paragraph
(1) may be rescinded or suspended with respect to that individual upon a
determination by the Attorney General that such individual has not complied
with guidelines promulgated by the Attorney General under paragraph (4).
`(6) A determination by the Attorney General under paragraph (2) or (5)
shall not be reviewable in or by any court.
`(7) To ensure the proper exercise of the law enforcement powers
authorized by this subsection, the Offices of Inspector General described
under paragraph (3) shall, not later than 180 days after the date of enactment
of this subsection, collectively enter into a memorandum of understanding to
establish an external review process for ensuring that adequate internal
safeguards and management procedures continue to exist within each Office and
within any Office that later receives an authorization under paragraph (2).
The review process shall be established in consultation with the Attorney
General, who shall be provided with a copy of the memorandum of understanding
that establishes the review process. Under the review process, the exercise of
the law enforcement powers by each Office of Inspector General shall be
reviewed periodically by another Office of Inspector General or by a committee
of Inspectors General. The results of each review shall be communicated in
writing to the applicable Inspector General and to the Attorney General.
`(8) No provision of this subsection shall limit the exercise of law
enforcement powers established under any other statutory authority, including
United States Marshals Service special deputation.'.
(b) PROMULGATION OF INITIAL GUIDELINES-
(1) DEFINITION- In this subsection, the term `memoranda of
understanding' means the agreements between the Department of Justice and
the Inspector General offices described under section 6(e)(3) of the
Inspector General Act of 1978 (5 U.S.C. App) (as added by subsection (a) of
this section) that--
(A) are in effect on the date of enactment of this Act; and
(B) authorize such offices to exercise authority that is the same or
similar to the authority under section 6(e)(1) of such Act.
(2) IN GENERAL- Not later than 180 days after the date of enactment of
this Act, the Attorney General shall promulgate guidelines under section
6(e)(4) of the Inspector General Act of 1978 (5 U.S.C. App) (as added by
subsection (a) of this section) applicable to the Inspector General offices
described under section 6(e)(3) of that Act.
(3) MINIMUM REQUIREMENTS- The guidelines promulgated under this
subsection shall include, at a minimum, the operational and training
requirements in the memoranda of understanding.
(4) NO LAPSE OF AUTHORITY- The memoranda of understanding in effect on
the date of enactment of this Act shall remain in effect until the
guidelines promulgated under this subsection take effect.
(1) IN GENERAL- Subsection (a) shall take effect 180 days after the date
of enactment of this Act.
(2) INITIAL GUIDELINES- Subsection (b) shall take effect on the date of
enactment of this Act.
Subtitle C--United States Secret Service
SEC. 821. FUNCTIONS TRANSFERRED.
In accordance with title XV, there shall be transferred to the Secretary
the functions, personnel, assets, and obligations of the United States Secret
Service, which shall be maintained as a distinct entity within the Department,
including the functions of the Secretary of the Treasury relating thereto.
Subtitle D--Acquisitions
SEC. 831. RESEARCH AND DEVELOPMENT PROJECTS.
(a) AUTHORITY- During the 5-year period following the effective date of
this Act, the Secretary may carry out a pilot program under which the
Secretary may exercise the following authorities:
(1) IN GENERAL- When the Secretary carries out basic, applied, and
advanced research and development projects, including the expenditure of
funds for such projects, the Secretary may exercise the same authority
(subject to the same limitations and conditions) with respect to such
research and projects as the Secretary of Defense may exercise under section
2371 of title 10, United States Code (except for subsections (b) and (f)),
after making a determination that the use of a contract, grant, or
cooperative agreement for such project is not feasible or appropriate. The
annual report required under subsection (b) of this section, as applied to
the Secretary by this paragraph, shall be submitted to the President of the
Senate and the Speaker of the House of Representatives.
(2) PROTOTYPE PROJECTS- The Secretary may, under the authority of
paragraph (1), carry out prototype projects in accordance with the
requirements and conditions provided for carrying out prototype projects
under section 845 of the National Defense Authorization Act for Fiscal Year
1994 (Public Law 103-160). In applying the authorities of that section 845,
subsection (c) of that section shall apply with respect to prototype
projects under this paragraph, and the Secretary shall perform the functions
of the Secretary of Defense under subsection (d) thereof.
(b) REPORT- Not later than 2 years after the effective date of this Act,
and annually thereafter, the Comptroller General shall report to the Committee
on Government Reform of the House of Representatives and the Committee on
Governmental Affairs of the Senate on--
(1) whether use of the authorities described in subsection (a) attracts
nontraditional Government contractors and results in the acquisition of
needed technologies; and
(2) if such authorities were to be made permanent, whether additional
safeguards are needed with respect to the use of such authorities.
(c) PROCUREMENT OF TEMPORARY AND INTERMITTENT SERVICES- The Secretary
may--
(1) procure the temporary or intermittent services of experts or
consultants (or organizations thereof) in accordance with section 3109(b) of
title 5, United States Code; and
(2) whenever necessary due to an urgent homeland security need, procure
temporary (not to exceed 1 year) or intermittent personal services,
including the services of experts or consultants (or organizations thereof),
without regard to the pay limitations of such section 3109.
(d) DEFINITION OF NONTRADITIONAL GOVERNMENT CONTRACTOR- In this section,
the term `nontraditional Government contractor' has the same meaning as the
term `nontraditional defense contractor' as defined in section 845(e) of the
National Defense Authorization Act for Fiscal Year 1994 (Public Law 103-160;
10 U.S.C. 2371 note).
SEC. 832. PERSONAL SERVICES.
(1) may procure the temporary or intermittent services of experts or
consultants (or organizations thereof) in accordance with section 3109 of
title 5, United States Code; and
(2) may, whenever necessary due to an urgent homeland security need,
procure temporary (not to exceed 1 year) or intermittent personal services,
including the services of experts or consultants (or organizations thereof),
without regard to the pay limitations of such section 3109.
SEC. 833. SPECIAL STREAMLINED ACQUISITION AUTHORITY.
(1) IN GENERAL- The Secretary may use the authorities set forth in this
section with respect to any procurement made during the period beginning on
the effective date of this Act and ending September 30, 2007, if the
Secretary determines in writing that the mission of the Department (as
described in section 101) would be seriously impaired without the use of
such authorities.
(2) DELEGATION- The authority to make the determination described in
paragraph (1) may not be delegated by the Secretary to an officer of the
Department who is not appointed by the President with the advice and consent
of the Senate.
(3) NOTIFICATION- Not later than the date that is 7 days after the date
of any determination under paragraph (1), the Secretary shall submit to the
Committee on Government Reform of the House of Representatives and the
Committee on Governmental Affairs of the Senate--
(A) notification of such determination; and
(B) the justification for such determination.
(b) INCREASED MICRO-PURCHASE THRESHOLD FOR CERTAIN PROCUREMENTS-
(1) IN GENERAL- The Secretary may designate certain employees of the
Department to make procurements described in subsection (a) for which in the
administration of section 32 of the Office of Federal Procurement Policy Act
(41 U.S.C. 428) the amount specified in subsections (c), (d), and (f) of
such section 32 shall be deemed to be $7,500.
(2) NUMBER OF EMPLOYEES- The number of employees designated under
paragraph (1) shall be--
(A) fewer than the number of employees of the Department who are
authorized to make purchases without obtaining competitive quotations,
pursuant to section 32(c) of the Office of Federal Procurement Policy Act
(41 U.S.C. 428(c));
(B) sufficient to ensure the geographic dispersal of the availability
of the use of the procurement authority under such paragraph at locations
reasonably considered to be potential terrorist targets; and
(C) sufficiently limited to allow for the careful monitoring of
employees designated under such paragraph.
(3) REVIEW- Procurements made under the authority of this subsection
shall be subject to review by a designated supervisor on not less than a
monthly basis. The supervisor responsible for the review shall be
responsible for no more than 7 employees making procurements under this
subsection.
(c) SIMPLIFIED ACQUISITION PROCEDURES-
(1) IN GENERAL- With respect to a procurement described in subsection
(a), the Secretary may deem the simplified acquisition threshold referred to
in section 4(11) of the Office of Federal Procurement Policy Act (41 U.S.C.
403(11)) to be--
(A) in the case of a contract to be awarded and performed, or purchase
to be made, within the United States, $200,000; and
(B) in the case of a contract to be awarded and performed, or purchase
to be made, outside of the United States, $300,000.
(2) CONFORMING AMENDMENTS- Section 18(c)(1) of the Office of Federal
Procurement Policy Act is amended--
(A) by striking `or' at the end of subparagraph (F);
(B) by striking the period at the end of subparagraph (G) and
inserting `; or'; and
(C) by adding at the end the following:
`(H) the procurement is by the Secretary of Homeland Security pursuant
to the special procedures provided in section 833(c) of the Homeland
Security Act of 2002.'.
(d) APPLICATION OF CERTAIN COMMERCIAL ITEMS AUTHORITIES-
(1) IN GENERAL- With respect to a procurement described in subsection
(a), the Secretary may deem any item or service to be a commercial item for
the purpose of Federal procurement laws.
(2) LIMITATION- The $5,000,000 limitation provided in section 31(a)(2)
of the Office of Federal Procurement Policy Act (41 U.S.C. 427(a)(2)) and
section 303(g)(1)(B) of the Federal Property and Administrative Services Act
of 1949 (41 U.S.C. 253(g)(1)(B)) shall be deemed to be $7,500,000 for
purposes of property or services under the authority of this
subsection.
(3) CERTAIN AUTHORITY- Authority under a provision of law referred to in
paragraph (2) that expires under section 4202(e) of the Clinger-Cohen Act of
1996 (divisions D and E of Public Law 104-106; 10 U.S.C. 2304 note) shall,
notwithstanding such section, continue to apply for a procurement described
in subsection (a).
(e) REPORT- Not later than 180 days after the end of fiscal year 2005, the
Comptroller General shall submit to the Committee on Governmental Affairs of
the Senate and the Committee on Government Reform of the House of
Representatives a report on the use of the authorities provided in this
section. The report shall contain the following:
(1) An assessment of the extent to which property and services acquired
using authorities provided under this section contributed to the capacity of
the Federal workforce to facilitate the mission of the Department as
described in section 101.
(2) An assessment of the extent to which prices for property and
services acquired using authorities provided under this section reflected
the best value.
(3) The number of employees designated by each executive agency under
subsection (b)(1).
(4) An assessment of the extent to which the Department has implemented
subsections (b)(2) and (b)(3) to monitor the use of procurement authority by
employees designated under subsection (b)(1).
(5) Any recommendations of the Comptroller General for improving the
effectiveness of the implementation of the provisions of this section.
SEC. 834. UNSOLICITED PROPOSALS.
(a) REGULATIONS REQUIRED- Within 1 year of the date of enactment of this
Act, the Federal Acquisition Regulation shall be revised to include
regulations with regard to unsolicited proposals.
(b) CONTENT OF REGULATIONS- The regulations prescribed under subsection
(a) shall require that before initiating a comprehensive evaluation, an agency
contact point shall consider, among other factors, that the proposal--
(1) is not submitted in response to a previously published agency
requirement; and
(2) contains technical and cost information for evaluation and overall
scientific, technical or socioeconomic merit, or cost-related or
price-related factors.
SEC. 835. PROHIBITION ON CONTRACTS WITH CORPORATE EXPATRIATES.
(a) IN GENERAL- The Secretary may not enter into any contract with a
foreign incorporated entity which is treated as an inverted domestic
corporation under subsection (b).
(b) INVERTED DOMESTIC CORPORATION- For purposes of this section, a foreign
incorporated entity shall be treated as an inverted domestic corporation if,
pursuant to a plan (or a series of related transactions)--
(1) the entity completes after the date of enactment of this Act, the
direct or indirect acquisition of substantially all of the properties held
directly or indirectly by a domestic corporation or substantially all of the
properties constituting a trade or business of a domestic partnership;
(2) after the acquisition at least 80 percent of the stock (by vote or
value) of the entity is held--
(A) in the case of an acquisition with respect to a domestic
corporation, by former shareholders of the domestic corporation by reason
of holding stock in the domestic corporation; or
(B) in the case of an acquisition with respect to a domestic
partnership, by former partners of the domestic partnership by reason of
holding a capital or profits interest in the domestic partnership;
and
(3) the expanded affiliated group which after the acquisition includes
the entity does not have substantial business activities in the foreign
country in which or under the law of which the entity is created or
organized when compared to the total business activities of such expanded
affiliated group.
(c) DEFINITIONS AND SPECIAL RULES-
(1) RULES FOR APPLICATION OF SUBSECTION (b)- In applying subsection (b)
for purposes of subsection (a), the following rules shall apply:
(A) CERTAIN STOCK DISREGARDED- There shall not be taken into account
in determining ownership for purposes of subsection (b)(2)--
(i) stock held by members of the expanded affiliated group which
includes the foreign incorporated entity; or
(ii) stock of such entity which is sold in a public offering related
to the acquisition described in subsection (b)(1).
(B) PLAN DEEMED IN CERTAIN CASES- If a foreign incorporated entity
acquires directly or indirectly substantially all of the properties of a
domestic corporation or partnership during the 4-year period beginning on
the date which is after the date of enactment of this Act and which is 2
years before the ownership requirements of subsection (b)(2) are met, such
actions shall be treated as pursuant to a plan.
(C) CERTAIN TRANSFERS DISREGARDED- The transfer of properties or
liabilities (including by contribution or distribution) shall be
disregarded if such transfers are part of a plan a principal purpose of
which is to avoid the purposes of this section.
(D) SPECIAL RULE FOR RELATED PARTNERSHIPS- For purposes of applying
subsection (b) to the acquisition of a domestic partnership, except as
provided in regulations, all domestic partnerships which are under common
control (within the meaning of section 482 of the Internal Revenue Code of
1986) shall be treated as I partnership.
(E) TREATMENT OF CERTAIN RIGHTS- The Secretary shall prescribe such
regulations as may be necessary to--
(i) treat warrants, options, contracts to acquire stock, convertible
debt instruments, and other similar interests as stock; and
(ii) treat stock as not stock.
(2) EXPANDED AFFILIATED GROUP- The term `expanded affiliated group'
means an affiliated group as defined in section 1504(a) of the Internal
Revenue Code of 1986 (without regard to section 1504(b) of such Code),
except that section 1504 of such Code shall be applied by substituting `more
than 50 percent' for `at least 80 percent' each place it appears.
(3) FOREIGN INCORPORATED ENTITY- The term `foreign incorporated entity'
means any entity which is, or but for subsection (b) would be, treated as a
foreign corporation for purposes of the Internal Revenue Code of 1986.
(4) OTHER DEFINITIONS- The terms `person', `domestic', and `foreign'
have the meanings given such terms by paragraphs (1), (4), and (5) of
section 7701 (a) of the Internal Revenue Code of 1986, respectively.
(d) WAIVERS- The Secretary shall waive subsection (a) with respect to any
specific contract if the Secretary determines that the waiver is required in
the interest of homeland security, or to prevent the loss of any jobs in the
United States or prevent the Government from incurring any additional costs
that otherwise would not occur.
Subtitle E--Human Resources Management
SEC. 841. ESTABLISHMENT OF HUMAN RESOURCES MANAGEMENT SYSTEM.
(1) SENSE OF CONGRESS- It is the sense of Congress that--
(A) it is extremely important that employees of the Department be
allowed to participate in a meaningful way in the creation of any human
resources management system affecting them;
(B) such employees have the most direct knowledge of the demands of
their jobs and have a direct interest in ensuring that their human
resources management system is conducive to achieving optimal operational
efficiencies;
(C) the 21st century human resources management system envisioned for
the Department should be one that benefits from the input of its
employees; and
(D) this collaborative effort will help secure our homeland.
(2) IN GENERAL- Subpart I of part III of title 5, United States Code, is
amended by adding at the end the following:
`CHAPTER 97--DEPARTMENT OF HOMELAND SECURITY
`Sec.
`9701. Establishment of human resources management system.
`Sec. 9701. Establishment of human resources management system
`(a) IN GENERAL- Notwithstanding any other provision of this part, the
Secretary of Homeland Security may, in regulations prescribed jointly with the
Director of the Office of Personnel Management, establish, and from time to
time adjust, a human resources management system for some or all of the
organizational units of the Department of Homeland Security.
`(b) SYSTEM REQUIREMENTS- Any system established under subsection (a)
shall--
`(3) not waive, modify, or otherwise affect--
`(A) the public employment principles of merit and fitness set forth
in section 2301, including the principles of hiring based on merit, fair
treatment without regard to political affiliation or other nonmerit
considerations, equal pay for equal work, and protection of employees
against reprisal for whistleblowing;
`(B) any provision of section 2302, relating to prohibited personnel
practices;
`(C)(i) any provision of law referred to in section 2302(b)(1), (8),
and (9); or
`(ii) any provision of law implementing any provision of law referred
to in section 2302(b)(1), (8), and (9) by--
`(I) providing for equal employment opportunity through affirmative
action; or
`(II) providing any right or remedy available to any employee or
applicant for employment in the civil service;
`(D) any other provision of this part (as described in subsection
(c)); or
`(E) any rule or regulation prescribed under any provision of law
referred to in any of the preceding subparagraphs of this
paragraph;
`(4) ensure that employees may organize, bargain collectively, and
participate through labor organizations of their own choosing in decisions
which affect them, subject to any exclusion from coverage or limitation on
negotiability established by law; and
`(5) permit the use of a category rating system for evaluating
applicants for positions in the competitive service.
`(c) OTHER NONWAIVABLE PROVISIONS- The other provisions of this part as
referred to in subsection (b)(3)(D), are (to the extent not otherwise
specified in subparagraph (A), (B), (C), or (D) of subsection (b)(3))--
`(1) subparts A, B, E, G, and H of this part; and
`(2) chapters 41, 45, 47, 55, 57, 59, 72, 73, and 79, and this
chapter.
`(d) LIMITATIONS RELATING TO PAY- Nothing in this section shall constitute
authority--
`(1) to modify the pay of any employee who serves in--
`(A) an Executive Schedule position under subchapter II of chapter 53
of title 5, United States Code; or
`(B) a position for which the rate of basic pay is fixed in statute by
reference to a section or level under subchapter II of chapter 53 of such
title 5;
`(2) to fix pay for any employee or position at an annual rate greater
than the maximum amount of cash compensation allowable under section 5307 of
such title 5 in a year; or
`(3) to exempt any employee from the application of such section
5307.
`(e) PROVISIONS TO ENSURE COLLABORATION WITH EMPLOYEE REPRESENTATIVES-
`(1) IN GENERAL- In order to ensure that the authority of this section
is exercised in collaboration with, and in a manner that ensures the
participation of employee representatives in the planning,
development, and implementation of any human resources management system or
adjustments to such system under this section, the Secretary of Homeland
Security and the Director of the Office of Personnel Management shall provide
for the following:
`(A) NOTICE OF PROPOSAL- The Secretary and the Director shall, with
respect to any proposed system or adjustment--
`(i) provide to each employee representative representing any
employees who might be affected, a written description of the proposed
system or adjustment (including the reasons why it is considered
necessary);
`(ii) give each representative 30 calendar days (unless
extraordinary circumstances require earlier action) to review and make
recommendations with respect to the proposal; and
`(iii) give any recommendations received from any such
representatives under clause (ii) full and fair consideration in
deciding whether or how to proceed with the proposal.
`(B) PRE-IMPLEMENTATION CONGRESSIONAL NOTIFICATION, CONSULTATION, AND
MEDIATION- Following receipt of recommendations, if any, from employee
representatives with respect to a proposal described in subparagraph (A),
the Secretary and the Director shall accept such modifications to the
proposal in response to the recommendations as they determine advisable
and shall, with respect to any parts of the proposal as to which they have
not accepted the recommendations--
`(i) notify Congress of those parts of the proposal, together with
the recommendations of employee representatives;
`(ii) meet and confer for not less than 30 calendar days with any
representatives who have made recommendations, in order to attempt to
reach agreement on whether or how to proceed with those parts of the
proposal; and
`(iii) at the Secretary's option, or if requested by a majority of
the employee representatives who have made recommendations, use the
services of the Federal Mediation and Conciliation Service during such
meet and confer period to facilitate the process of attempting to reach
agreement.
`(i) Any part of the proposal as to which the representatives do not
make a recommendation, or as to which their recommendations are accepted
by the Secretary and the Director, may be implemented
immediately.
`(ii) With respect to any parts of the proposal as to which
recommendations have been made but not accepted by the Secretary and the
Director, at any time after 30 calendar days have elapsed since the
initiation of the congressional notification, consultation, and
mediation procedures set forth in subparagraph (B), if the Secretary
determines, in the Secretary's sole and unreviewable discretion, that
further consultation and mediation is unlikely to produce agreement, the
Secretary may implement any or all of such parts, including any
modifications made in response to the recommendations as the Secretary
determines advisable.
`(iii) The Secretary shall promptly notify Congress of the
implementation of any part of the proposal and shall furnish with such
notice an explanation of the proposal, any changes made to the proposal
as a result of recommendations from employee representatives, and of the
reasons why implementation is appropriate under this
subparagraph.
`(D) CONTINUING COLLABORATION- If a proposal described in subparagraph
(A) is implemented, the Secretary and the Director shall--
`(i) develop a method for each employee representative to
participate in any further planning or development which might become
necessary; and
`(ii) give each employee representative adequate access to
information to make that participation productive.
`(2) PROCEDURES- Any procedures necessary to carry out this subsection
shall be established by the Secretary and the Director jointly as internal
rules of departmental procedure which shall not be subject to review. Such
procedures shall include measures to ensure--
`(A) in the case of employees within a unit with respect to which a
labor organization is accorded exclusive recognition, representation by
individuals designated or from among individuals nominated by such
organization;
`(B) in the case of any employees who are not within such a unit,
representation by any appropriate organization which represents a
substantial percentage of those employees or, if none, in such other
manner as may be appropriate, consistent with the purposes of the
subsection;
`(C) the fair and expeditious handling of the consultation and
mediation process described in subparagraph (B) of paragraph (1),
including procedures by which, if the number of employee representatives
providing recommendations exceeds 5, such representatives select a
committee or other unified representative with which the Secretary and
Director may meet and confer; and
`(D) the selection of representatives in a manner consistent with the
relative number of employees represented by the organizations or other
representatives involved.
`(f) PROVISIONS RELATING TO APPELLATE PROCEDURES-
(1) SENSE OF CONGRESS- It is the sense of Congress that--
`(A) employees of the Department are entitled to fair treatment in any
appeals that they bring in decisions relating to their employment;
and
`(B) in prescribing regulations for any such appeals procedures, the
Secretary and the Director of the Office of Personnel
Management--
`(i) should ensure that employees of the Department are afforded the
protections of due process; and
`(ii) toward that end, should be required to consult with the Merit
Systems Protection Board before issuing any such
regulations.
`(2) REQUIREMENTS- Any regulations under this section which relate to
any matters within the purview of chapter 77--
`(A) shall be issued only after consultation with the Merit Systems
Protection Board;
`(B) shall ensure the availability of procedures which
shall--
`(i) be consistent with requirements of due process; and
`(ii) provide, to the maximum extent practicable, for the
expeditious handling of any matters involving the Department;
and
`(C) shall modify procedures under chapter 77 only insofar as such
modifications are designed to further the fair, efficient, and expeditious
resolution of matters involving the employees of the Department.
`(g) PROVISIONS RELATING TO LABOR-MANAGEMENT RELATIONS- Nothing in this
section shall be construed as conferring authority on the Secretary of
Homeland Security to modify any of the provisions of section 842 of the
Homeland Security Act of 2002.
`(h) SUNSET PROVISION- Effective 5 years after the conclusion of the
transition period defined under section 1501 of the Homeland Security Act of
2002, all authority to issue regulations under this section (including
regulations which would modify, supersede, or terminate any regulations
previously issued under this section) shall cease to be available.'.
(3) TECHNICAL AND CONFORMING AMENDMENT- The table of chapters for part
III of title 5, United States Code, is amended by adding at the end of the
following:
9701'.
(1) NONSEPARATION OR NONREDUCTION IN GRADE OR COMPENSATION OF FULL-TIME
PERSONNEL AND PART-TIME PERSONNEL HOLDING PERMANENT POSITIONS- Except as
otherwise provided in this Act, the transfer under this Act of full-time
personnel (except special Government employees) and part-time personnel
holding permanent positions shall not cause any such employee to be
separated or reduced in grade or compensation for 1 year after the date of
transfer to the Department.
(2) POSITIONS COMPENSATED IN ACCORDANCE WITH EXECUTIVE SCHEDULE- Any
person who, on the day preceding such person's date of transfer pursuant to
this Act, held a position compensated in accordance with the Executive
Schedule prescribed in chapter 53 of title 5, United States Code, and who,
without a break in service, is appointed in the Department to a position
having duties comparable to the duties performed immediately preceding such
appointment shall continue to be compensated in such new position at not
less than the rate provided for such position, for the duration of the
service of such person in such new position.
(3) COORDINATION RULE- Any exercise of authority under chapter 97 of
title 5, United States Code (as amended by subsection (a)), including under
any system established under such chapter, shall be in conformance with the
requirements of this subsection.
SEC. 842. LABOR-MANAGEMENT RELATIONS.
(a) LIMITATION ON EXCLUSIONARY AUTHORITY-
(1) IN GENERAL- No agency or subdivision of an agency which is
transferred to the Department pursuant to this Act shall be excluded from
the coverage of chapter 71 of title 5, United States Code, as a result of
any order issued under section 7103(b)(1) of such title 5 after June 18,
2002, unless--
(A) the mission and responsibilities of the agency (or subdivision)
materially change; and
(B) a majority of the employees within such agency (or subdivision)
have as their primary duty intelligence, counterintelligence, or
investigative work directly related to terrorism investigation.
(2) EXCLUSIONS ALLOWABLE- Nothing in paragraph (1) shall affect the
effectiveness of any order to the extent that such order excludes any
portion of an agency or subdivision of an agency as to which--
(A) recognition as an appropriate unit has never been conferred for
purposes of chapter 71 of such title 5; or
(B) any such recognition has been revoked or otherwise terminated as a
result of a determination under subsection (b)(1).
(b) PROVISIONS RELATING TO BARGAINING UNITS-
(1) LIMITATION RELATING TO APPROPRIATE UNITS- Each unit which is
recognized as an appropriate unit for purposes of chapter 71 of title 5,
United States Code, as of the day before the effective date of this Act (and
any subdivision of any such unit) shall, if such unit (or subdivision) is
transferred to the Department pursuant to this Act, continue to be so
recognized for such purposes, unless--
(A) the mission and responsibilities of such unit (or subdivision)
materially change; and
(B) a majority of the employees within such unit (or subdivision) have
as their primary duty intelligence, counterintelligence, or investigative
work directly related to terrorism investigation.
(2) LIMITATION RELATING TO POSITIONS OR EMPLOYEES- No position or
employee within a unit (or subdivision of a unit) as to which continued
recognition is given in accordance with paragraph (1) shall be excluded from
such unit (or subdivision), for purposes of chapter 71 of such title 5,
unless the primary job duty of such position or employee--
(A) materially changes; and
(B) consists of intelligence, counterintelligence, or investigative
work directly related to terrorism investigation.
In the case of any positions within a unit (or subdivision) which are
first established on or after the effective date of this Act and any
employees first appointed on or after such date, the preceding sentence
shall be applied disregarding subparagraph (A).
(c) WAIVER- If the President determines that the application of
subsections (a), (b), and (d) would have a substantial adverse impact on the
ability of the Department to protect homeland security, the President may
waive the application of such subsections 10 days after the President has
submitted to Congress a written explanation of the reasons for such
determination.
(d) COORDINATION RULE- No other provision of this Act or of any amendment
made by this Act may be construed or applied in a manner so as to limit,
supersede, or otherwise affect the provisions of this section, except to the
extent that it does so by specific reference to this section.
(e) RULE OF CONSTRUCTION- Nothing in section 9701(e) of title 5, United
States Code, shall be considered to apply with respect to any agency or
subdivision of any agency, which is excluded from the coverage of chapter 71
of title 5, United States Code, by virtue of an order issued in accordance
with section 7103(b) of such title and the preceding provisions of this
section (as applicable), or to any employees of any such agency or subdivision
or to any individual or entity representing any such employees or any
representatives thereof.
Subtitle F--Federal Emergency Procurement Flexibility
SEC. 851. DEFINITION.
In this subtitle, the term `executive agency' has the meaning given that
term under section 4(1) of the Office of Federal Procurement Policy Act (41
U.S.C. 403(1)).
SEC. 852. PROCUREMENTS FOR DEFENSE AGAINST OR RECOVERY FROM TERRORISM OR
NUCLEAR, BIOLOGICAL, CHEMICAL, OR RADIOLOGICAL ATTACK.
The authorities provided in this subtitle apply to any procurement of
property or services by or for an executive agency that, as determined by the
head of the executive agency, are to be used to facilitate defense against or
recovery from terrorism or nuclear, biological, chemical, or radiological
attack, but only if a solicitation of offers for the procurement is issued
during the 1-year period beginning on the date of the enactment of this
Act.
SEC. 853. INCREASED SIMPLIFIED ACQUISITION THRESHOLD FOR PROCUREMENTS IN
SUPPORT OF HUMANITARIAN OR PEACEKEEPING OPERATIONS OR CONTINGENCY
OPERATIONS.
(a) TEMPORARY THRESHOLD AMOUNTS- For a procurement referred to in section
852 that is carried out in support of a humanitarian or peacekeeping operation
or a contingency operation, the simplified acquisition threshold definitions
shall be applied as if the amount determined under the exception provided for
such an operation in those definitions were--
(1) in the case of a contract to be awarded and performed, or purchase
to be made, inside the United States, $200,000; or
(2) in the case of a contract to be awarded and performed, or purchase
to be made, outside the United States, $300,000.
(b) SIMPLIFIED ACQUISITION THRESHOLD DEFINITIONS- In this section, the
term `simplified acquisition threshold definitions' means the following:
(1) Section 4(11) of the Office of Federal Procurement Policy Act (41
U.S.C. 403(11)).
(2) Section 309(d) of the Federal Property and Administrative Services
Act of 1949 (41 U.S.C. 259(d)).
(3) Section 2302(7) of title 10, United States Code.
(c) SMALL BUSINESS RESERVE- For a procurement carried out pursuant to
subsection (a), section 15(j) of the Small Business Act (15 U.S.C. 644(j))
shall be applied as if the maximum anticipated value identified therein is
equal to the amounts referred to in subsection (a).
SEC. 854. INCREASED MICRO-PURCHASE THRESHOLD FOR CERTAIN PROCUREMENTS.
In the administration of section 32 of the Office of Federal Procurement
Policy Act (41 U.S.C. 428) with respect to a procurement referred to in
section 852, the amount specified in subsections (c), (d), and (f) of such
section 32 shall be deemed to be $7,500.
SEC. 855. APPLICATION OF CERTAIN COMMERCIAL ITEMS AUTHORITIES TO CERTAIN
PROCUREMENTS.
(1) IN GENERAL- The head of an executive agency may apply the provisions
of law listed in paragraph (2) to a procurement referred to in section 852
without regard to whether the property or services are commercial
items.
(2) COMMERCIAL ITEM LAWS- The provisions of law referred to in paragraph
(1) are as follows:
(A) Sections 31 and 34 of the Office of Federal Procurement Policy Act
(41 U.S.C. 427, 430).
(B) Section 2304(g) of title 10, United States Code.
(C) Section 303(g) of the Federal Property and Administrative Services
Act of 1949 (41 U.S.C. 253(g)).
(b) INAPPLICABILITY OF LIMITATION ON USE OF SIMPLIFIED ACQUISITION
PROCEDURES-
(1) IN GENERAL- The $5,000,000 limitation provided in section 31(a)(2)
of the Office of Federal Procurement Policy Act (41 U.S.C. 427(a)(2)),
section 2304(g)(1)(B) of title 10, United States Code, and section
303(g)(1)(B) of the Federal Property and Administrative Services Act of 1949
(41 U.S.C. 253(g)(1)(B)) shall not apply to purchases of property or
services to which any of the provisions of law referred to in subsection (a)
are applied under the authority of this section.
(2) OMB GUIDANCE- The Director of the Office of Management and Budget
shall issue guidance and procedures for the use of simplified acquisition
procedures for a purchase of property or services in excess of $5,000,000
under the authority of this section.
(c) CONTINUATION OF AUTHORITY FOR SIMPLIFIED PURCHASE PROCEDURES-
Authority under a provision of law referred to in subsection (a)(2) that
expires under section 4202(e) of the Clinger-Cohen Act of 1996 (divisions D
and E of Public Law 104-106; 10 U.S.C. 2304 note) shall, notwithstanding such
section, continue to apply for use by the head of an executive agency as
provided in subsections (a) and (b).
SEC. 856. USE OF STREAMLINED PROCEDURES.
(a) REQUIRED USE- The head of an executive agency shall, when appropriate,
use streamlined acquisition authorities and procedures authorized by law for a
procurement referred to in section 852, including authorities and procedures
that are provided under the following provisions of law:
(1) FEDERAL PROPERTY AND ADMINISTRATIVE SERVICES ACT OF 1949- In title
III of the Federal Property and Administrative Services Act of 1949:
(A) Paragraphs (1), (2), (6), and (7) of subsection (c) of section 303
(41 U.S.C. 253), relating to use of procedures other than competitive
procedures under certain circumstances (subject to subsection (e) of such
section).
(B) Section 303J (41 U.S.C. 253j), relating to orders under task and
delivery order contracts.
(2) TITLE 10, UNITED STATES CODE- In chapter 137 of title 10, United
States Code:
(A) Paragraphs (1), (2), (6), and (7) of subsection (c) of section
2304, relating to use of procedures other than competitive procedures
under certain circumstances (subject to subsection (e) of such
section).
(B) Section 2304c, relating to orders under task and delivery order
contracts.
(3) OFFICE OF FEDERAL PROCUREMENT POLICY ACT- Paragraphs (1)(B), (1)(D),
and (2) of section 18(c) of the Office of Federal Procurement Policy Act (41
U.S.C. 416(c)), relating to inapplicability of a requirement for procurement
notice.
(b) WAIVER OF CERTAIN SMALL BUSINESS THRESHOLD REQUIREMENTS- Subclause
(II) of section 8(a)(1)(D)(i) of the Small Business Act (15 U.S.C.
637(a)(1)(D)(i)) and clause (ii) of section 31(b)(2)(A) of such Act (15 U.S.C.
657a(b)(2)(A)) shall not apply in the use of streamlined acquisition
authorities and procedures referred to in paragraphs (1)(A) and (2)(A) of
subsection (a) for a procurement referred to in section 852.
SEC. 857. REVIEW AND REPORT BY COMPTROLLER GENERAL.
(a) REQUIREMENTS- Not later than March 31, 2004, the Comptroller General
shall--
(1) complete a review of the extent to which procurements of property
and services have been made in accordance with this subtitle; and
(2) submit a report on the results of the review to the Committee on
Governmental Affairs of the Senate and the Committee on Government Reform of
the House of Representatives.
(b) CONTENT OF REPORT- The report under subsection (a)(2) shall include
the following matters:
(1) ASSESSMENT- The Comptroller General's assessment of--
(A) the extent to which property and services procured in accordance
with this title have contributed to the capacity of the workforce of
Federal Government employees within each executive agency to carry out the
mission of the executive agency; and
(B) the extent to which Federal Government employees have been trained
on the use of technology.
(2) RECOMMENDATIONS- Any recommendations of the Comptroller General
resulting from the assessment described in paragraph (1).
(c) CONSULTATION- In preparing for the review under subsection (a)(1), the
Comptroller shall consult with the Committee on Governmental Affairs of the
Senate and the Committee on Government Reform of the House of Representatives
on the specific issues and topics to be reviewed. The extent of coverage
needed in areas such as technology integration, employee training, and human
capital management, as well as the data requirements of the study, shall be
included as part of the consultation.
SEC. 858. IDENTIFICATION OF NEW ENTRANTS INTO THE FEDERAL MARKETPLACE.
The head of each executive agency shall conduct market research on an
ongoing basis to identify effectively the capabilities, including the
capabilities of small businesses and new entrants into Federal contracting,
that are available in the marketplace for meeting the requirements of the
executive agency in furtherance of defense against or recovery from terrorism
or nuclear, biological, chemical, or radiological attack. The head of the
executive agency shall, to the maximum extent practicable, take advantage of
commercially available market research methods, including use of commercial
databases, to carry out the research.
Subtitle G--Support Anti-terrorism by Fostering Effective Technologies
Act of 2002
SEC. 861. SHORT TITLE.
This subtitle may be cited as the `Support Anti-terrorism by Fostering
Effective Technologies Act of 2002' or the `SAFETY Act'.
SEC. 862. ADMINISTRATION.
(a) IN GENERAL- The Secretary shall be responsible for the administration
of this subtitle.
(b) DESIGNATION OF QUALIFIED ANTI-TERRORISM TECHNOLOGIES- The Secretary
may designate anti-terrorism technologies that qualify for protection under
the system of risk management set forth in this subtitle in accordance with
criteria that shall include, but not be limited to, the following:
(1) Prior United States government use or demonstrated substantial
utility and effectiveness.
(2) Availability of the technology for immediate deployment in public
and private settings.
(3) Existence of extraordinarily large or extraordinarily unquantifiable
potential third party liability risk exposure to the Seller or other
provider of such anti-terrorism technology.
(4) Substantial likelihood that such anti-terrorism technology will not
be deployed unless protections under the system of risk management provided
under this subtitle are extended.
(5) Magnitude of risk exposure to the public if such anti-terrorism
technology is not deployed.
(6) Evaluation of all scientific studies that can be feasibly conducted
in order to assess the capability of the technology to substantially reduce
risks of harm.
(7) Anti-terrorism technology that would be effective in facilitating
the defense against acts of terrorism, including technologies that prevent,
defeat or respond to such acts.
(c) REGULATIONS- The Secretary may issue such regulations, after notice
and comment in accordance with section 553 of title 5, United States, Code, as
may be necessary to carry out this subtitle.
SEC. 863. LITIGATION MANAGEMENT.
(a) FEDERAL CAUSE OF ACTION-
(1) IN GENERAL- There shall exist a Federal cause of action for claims
arising out of, relating to, or resulting from an act of terrorism when
qualified anti-terrorism technologies have been deployed in defense against
or response or recovery from such act and
such claims result or may result in loss to the Seller. The substantive law
for decision in any such action shall be derived from the law, including choice
of law principles, of the State in which such acts of terrorism occurred, unless
such law is inconsistent with or preempted by Federal law. Such Federal cause of
action shall be brought only for claims for injuries that are proximately caused
by sellers that provide qualified anti-terrorism technology to Federal and
non-Federal government customers.
(2) JURISDICTION- Such appropriate district court of the United States
shall have original and exclusive jurisdiction over all actions for any
claim for loss of property, personal injury, or death arising out of,
relating to, or resulting from an act of terrorism when qualified
anti-terrorism technologies have been deployed in defense against or
response or recovery from such act and such claims result or may result in
loss to the Seller.
(b) SPECIAL RULES- In an action brought under this section for damages the
following provisions apply:
(1) PUNITIVE DAMAGES- No punitive damages intended to punish or deter,
exemplary damages, or other damages not intended to compensate a plaintiff
for actual losses may be awarded, nor shall any party be liable for interest
prior to the judgment.
(A) IN GENERAL- Noneconomic damages may be awarded against a defendant
only in an amount directly proportional to the percentage of
responsibility of such defendant for the harm to the plaintiff, and no
plaintiff may recover noneconomic damages unless the plaintiff suffered
physical harm.
(B) DEFINITION- For purposes of subparagraph (A), the term
`noneconomic damages' means damages for losses for physical and emotional
pain, suffering, inconvenience, physical impairment, mental anguish,
disfigurement, loss of enjoyment of life, loss of society and
companionship, loss of consortium, hedonic damages, injury to reputation,
and any other nonpecuniary losses.
(c) COLLATERAL SOURCES- Any recovery by a plaintiff in an action under
this section shall be reduced by the amount of collateral source compensation,
if any, that the plaintiff has received or is entitled to receive as a result
of such acts of terrorism that result or may result in loss to the Seller.
(d) GOVERNMENT CONTRACTOR DEFENSE-
(1) IN GENERAL- Should a product liability or other lawsuit be filed for
claims arising out of, relating to, or resulting from an act of terrorism
when qualified anti-terrorism technologies approved by the Secretary, as
provided in paragraphs (2) and (3) of this subsection, have been deployed in
defense against or response or recovery from such act and such claims result
or may result in loss to the Seller, there shall be a rebuttable presumption
that the government contractor defense applies in such lawsuit. This
presumption shall only be overcome by evidence showing that the Seller acted
fraudulently or with willful misconduct in submitting information to the
Secretary during the course of the Secretary's consideration of such
technology under this subsection. This presumption of the government
contractor defense shall apply regardless of whether the claim against the
Seller arises from a sale of the product to Federal Government or
non-Federal Government customers.
(2) EXCLUSIVE RESPONSIBILITY- The Secretary will be exclusively
responsible for the review and approval of anti-terrorism technology for
purposes of establishing a government contractor defense in any product
liability lawsuit for claims arising out of, relating to, or resulting from
an act of terrorism when qualified anti-terrorism technologies approved by
the Secretary, as provided in this paragraph and paragraph (3), have been
deployed in defense against or response or recovery from such act and such
claims result or may result in loss to the Seller. Upon the Seller's
submission to the Secretary for approval of anti-terrorism technology, the
Secretary will conduct a comprehensive review of the design of such
technology and determine whether it will perform as intended, conforms to
the Seller's specifications, and is safe for use as intended. The Seller
will conduct safety and hazard analyses on such technology and will supply
the Secretary with all such information.
(3) CERTIFICATE- For anti-terrorism technology reviewed and approved by
the Secretary, the Secretary will issue a certificate of conformance to the
Seller and place the anti-terrorism technology on an Approved Product List
for Homeland Security.
(e) EXCLUSION- Nothing in this section shall in any way limit the ability
of any person to seek any form of recovery from any person, government, or
other entity that--
(1) attempts to commit, knowingly participates in, aids and abets, or
commits any act of terrorism, or any criminal act related to or resulting
from such act of terrorism; or
(2) participates in a conspiracy to commit any such act of terrorism or
any such criminal act.
SEC. 864. RISK MANAGEMENT.
(1) LIABILITY INSURANCE REQUIRED- Any person or entity that sells or
otherwise provides a qualified anti-terrorism technology to Federal and
non-Federal government customers (`Seller') shall obtain liability insurance
of such types and in such amounts as shall be required in accordance with
this section and certified by the Secretary to satisfy otherwise compensable
third-party claims arising out of, relating to, or resulting from an act of
terrorism when qualified anti-terrorism technologies have been deployed in
defense against or response or recovery from such act.
(2) MAXIMUM AMOUNT- For the total claims related to 1 such act of
terrorism, the Seller is not required to obtain liability insurance of more
than the maximum amount of liability insurance reasonably available from
private sources on the world market at prices and terms that will not
unreasonably distort the sales price of Seller's anti-terrorism
technologies.
(3) SCOPE OF COVERAGE- Liability insurance obtained pursuant to this
subsection shall, in addition to the Seller, protect the following, to the
extent of their potential liability for involvement in the manufacture,
qualification, sale, use, or operation of qualified anti-terrorism
technologies deployed in defense against or response or recovery from an act
of terrorism:
(A) contractors, subcontractors, suppliers, vendors and customers of
the Seller.
(B) contractors, subcontractors, suppliers, and vendors of the
customer.
(4) THIRD PARTY CLAIMS- Such liability insurance under this section
shall provide coverage against third party claims arising out of, relating
to, or resulting from the sale or use of anti-terrorism technologies.
(b) RECIPROCAL WAIVER OF CLAIMS- The Seller shall enter into a reciprocal
waiver of claims with its contractors, subcontractors, suppliers, vendors and
customers, and contractors and subcontractors of the customers, involved in
the manufacture, sale, use or operation of qualified anti-terrorism
technologies, under which each party to the waiver agrees to be responsible
for losses, including business interruption losses, that it sustains, or for
losses sustained by its own employees resulting from an activity resulting
from an act of terrorism when qualified anti-terrorism technologies have been
deployed in defense against or response or recovery from such act.
(c) EXTENT OF LIABILITY- Notwithstanding any other provision of law,
liability for all claims against a Seller arising out of, relating to, or
resulting from an act of terrorism when qualified anti-terrorism technologies
have been deployed in defense against or response or recovery from such act
and such claims result or may result in loss to the Seller, whether for
compensatory or punitive damages or for contribution or indemnity, shall not
be in an amount greater than the limits of liability insurance coverage
required to be maintained by the Seller under this section.
SEC. 865. DEFINITIONS.
For purposes of this subtitle, the following definitions apply:
(1) QUALIFIED ANTI-TERRORISM TECHNOLOGY- For purposes of this subtitle,
the term `qualified anti-terrorism technology' means any product, equipment,
service (including support services), device, or technology (including
information technology) designed, developed, modified, or procured for the
specific purpose of preventing, detecting, identifying, or deterring acts of
terrorism or limiting the harm such acts might otherwise cause, that is
designated as such by the Secretary.
(2) ACT OF TERRORISM- (A) The term `act of terrorism' means any act that
the Secretary determines meets the requirements under subparagraph (B), as
such requirements are further defined and specified by the Secretary.
(B) REQUIREMENTS- An act meets the requirements of this subparagraph if
the act--
(ii) causes harm to a person, property, or entity, in the United
States, or in the case of a domestic United States air carrier or a United
States-flag vessel (or a vessel based principally in the United States on
which United States income tax is paid and whose insurance coverage is
subject to regulation in the United States), in or outside the United
States; and
(iii) uses or attempts to use instrumentalities, weapons or other
methods designed or intended to cause mass destruction, injury or other
loss to citizens or institutions of the United States.
(3) INSURANCE CARRIER- The term `insurance carrier' means any
corporation, association, society, order, firm, company, mutual,
partnership,
individual aggregation of individuals, or any other legal entity that
provides commercial property and casualty insurance. Such term includes any
affiliates of a commercial insurance carrier.
(A) IN GENERAL- The term `liability insurance' means insurance for
legal liabilities incurred by the insured resulting from--
(i) loss of or damage to property of others;
(ii) ensuing loss of income or extra expense incurred because of
loss of or damage to property of others;
(iii) bodily injury (including) to persons other than the insured or
its employees; or
(iv) loss resulting from debt or default of another.
(5) LOSS- The term `loss' means death, bodily injury, or loss of or
damage to property, including business interruption loss.
(6) NON-FEDERAL GOVERNMENT CUSTOMERS- The term `non-Federal Government
customers' means any customer of a Seller that is not an agency or
instrumentality of the United States Government with authority under Public
Law 85-804 to provide for indemnification under certain circumstances for
third-party claims against its contractors, including but not limited to
State and local authorities and commercial entities.
Subtitle H--Miscellaneous Provisions
SEC. 871. ADVISORY COMMITTEES.
(a) IN GENERAL- The Secretary may establish, appoint members of, and use
the services of, advisory committees, as the Secretary may deem necessary. An
advisory committee established under this section may be exempted by the
Secretary from Public Law 92-463, but the Secretary shall publish notice in
the Federal Register announcing the establishment of such a committee and
identifying its purpose and membership. Notwithstanding the preceding
sentence, members of an advisory committee that is exempted by the Secretary
under the preceding sentence who are special Government employees (as that
term is defined in section 202 of title 18, United States Code) shall be
eligible for certifications under subsection (b)(3) of section 208 of title
18, United States Code, for official actions taken as a member of such
advisory committee.
(b) TERMINATION- Any advisory committee established by the Secretary shall
terminate 2 years after the date of its establishment, unless the Secretary
makes a written determination to extend the advisory committee to a specified
date, which shall not be more than 2 years after the date on which such
determination is made. The Secretary may make any number of subsequent
extensions consistent with this subsection.
SEC. 872. REORGANIZATION.
(a) REORGANIZATION- The Secretary may allocate or reallocate functions
among the officers of the Department, and may establish, consolidate, alter,
or discontinue organizational units within the Department, but only--
(1) pursuant to section 1502(b); or
(2) after the expiration of 60 days after providing notice of such
action to the appropriate congressional committees, which shall include an
explanation of the rationale for the action.
(1) IN GENERAL- Authority under subsection (a)(1) does not extend to the
abolition of any agency, entity, organizational unit, program, or function
established or required to be maintained by this Act.
(2) ABOLITIONS- Authority under subsection (a)(2) does not extend to the
abolition of any agency, entity, organizational unit, program, or function
established or required to be maintained by statute.
SEC. 873. USE OF APPROPRIATED FUNDS.
(a) DISPOSAL OF PROPERTY-
(1) STRICT COMPLIANCE- If specifically authorized to dispose of real
property in this or any other Act, the Secretary shall exercise this
authority in strict compliance with section 204 of the Federal Property and
Administrative Services Act of 1949 (40 U.S.C. 485).
(2) DEPOSIT OF PROCEEDS- The Secretary shall deposit the proceeds of any
exercise of property disposal authority into the miscellaneous receipts of
the Treasury in accordance with section 3302(b) of title 31, United States
Code.
(b) GIFTS- Gifts or donations of services or property of or for the
Department may not be accepted, used, or disposed of unless specifically
permitted in advance in an appropriations Act and only under the conditions
and for the purposes specified in such appropriations Act.
(c) BUDGET REQUEST- Under section 1105 of title 31, United States Code,
the President shall submit to Congress a detailed budget request for the
Department for fiscal year 2004, and for each subsequent fiscal year.
SEC. 874. FUTURE YEAR HOMELAND SECURITY PROGRAM.
(a) IN GENERAL- Each budget request submitted to Congress for the
Department under section 1105 of title 31, United States Code, shall, at or
about the same time, be accompanied by a Future Years Homeland Security
Program.
(b) CONTENTS- The Future Years Homeland Security Program under subsection
(a) shall be structured, and include the same type of information and level of
detail, as the Future Years Defense Program submitted to Congress by the
Department of Defense under section 221 of title 10, United States Code.
(c) EFFECTIVE DATE- This section shall take effect with respect to the
preparation and submission of the fiscal year 2005 budget request for the
Department and for any subsequent fiscal year, except that the first Future
Years Homeland Security Program shall be submitted not later than 90 days
after the Department's fiscal year 2005 budget request is submitted to
Congress.
SEC. 875. MISCELLANEOUS AUTHORITIES.
(a) SEAL- The Department shall have a seal, whose design is subject to the
approval of the President.
(b) PARTICIPATION OF MEMBERS OF THE ARMED FORCES- With respect to the
Department, the Secretary shall have the same authorities that the Secretary
of Transportation has with respect to the Department of Transportation under
section 324 of title 49, United States Code.
(c) REDELEGATION OF FUNCTIONS- Unless otherwise provided in the delegation
or by law, any function delegated under this Act may be redelegated to any
subordinate.
SEC. 876. MILITARY ACTIVITIES.
Nothing in this Act shall confer upon the Secretary any authority to
engage in warfighting, the military defense of the United States, or other
military activities, nor shall anything in this Act limit the existing
authority of the Department of Defense or the Armed Forces to engage in
warfighting, the military defense of the United States, or other military
activities.
SEC. 877. REGULATORY AUTHORITY AND PREEMPTION.
(a) REGULATORY AUTHORITY- Except as otherwise provided in sections 306(c),
862(c), and 1806(b), this Act vests no new regulatory authority in the
Secretary or any other Federal official, and transfers to the Secretary or
another Federal official only such regulatory authority as exists on the date
of enactment of this Act within any agency, program, or function transferred
to the Department pursuant to this Act, or that on such date of enactment is
exercised by another official of the executive branch with respect to such
agency, program, or function.
Any such transferred authority may not be exercised by an official from whom
it is transferred upon transfer of such agency, program, or function to the
Secretary or another Federal official pursuant to this Act. This Act may not be
construed as altering or diminishing the regulatory authority of any other
executive agency, except to the extent that this Act transfers such authority
from the agency.
(b) PREEMPTION OF STATE OR LOCAL LAW- Except as otherwise provided in this
Act, this Act preempts no State or local law, except that any authority to
preempt State or local law vested in any Federal agency or official
transferred to the Department pursuant to this Act shall be transferred to the
Department effective on the date of the transfer to the Department of that
Federal agency or official.
SEC. 878. COUNTERNARCOTICS OFFICER.
The Secretary shall appoint a senior official in the Department to assume
primary responsibility for coordinating policy and operations within the
Department and between the Department and other Federal departments and
agencies with respect to interdicting the entry of illegal drugs into the
United States, and tracking and severing connections between illegal drug
trafficking and terrorism. Such official shall--
(1) ensure the adequacy of resources within the Department for illicit
drug interdiction; and
(2) serve as the United States Interdiction Coordinator for the Director
of National Drug Control Policy.
SEC. 879. OFFICE OF INTERNATIONAL AFFAIRS.
(a) ESTABLISHMENT- There is established within the Office of the Secretary
an Office of International Affairs. The Office shall be headed by a Director,
who shall be a senior official appointed by the Secretary.
(b) DUTIES OF THE DIRECTOR- The Director shall have the following
duties:
(1) To promote information and education exchange with nations friendly
to the United States in order to promote sharing of best practices and
technologies relating to homeland security. Such exchange shall include the
following:
(A) Exchange of information on research and development on homeland
security technologies.
(B) Joint training exercises of first responders.
(C) Exchange of expertise on terrorism prevention, response, and
crisis management.
(2) To identify areas for homeland security information and training
exchange where the United States has a demonstrated weakness and another
friendly nation or nations have a demonstrated expertise.
(3) To plan and undertake international conferences, exchange programs,
and training activities.
(4) To manage international activities within the Department in
coordination with other Federal officials with responsibility for
counter-terrorism matters.
SEC. 880. PROHIBITION OF THE TERRORISM INFORMATION AND PREVENTION
SYSTEM.
Any and all activities of the Federal Government to implement the proposed
component program of the Citizen Corps known as Operation TIPS (Terrorism
Information and Prevention System) are hereby prohibited.
SEC. 881. REVIEW OF PAY AND BENEFIT PLANS.
Notwithstanding any other provision of this Act, the Secretary shall, in
consultation with the Director of the Office of Personnel Management, review
the pay and benefit plans of each agency whose functions are transferred under
this Act to the Department and, within 90 days after the date of enactment,
submit a plan to the President of the Senate and the Speaker of the House of
Representatives and the appropriate committees and subcommittees of Congress,
for ensuring, to the maximum extent practicable, the elimination of
disparities in pay and benefits throughout the Department, especially among
law enforcement personnel, that are inconsistent with merit system principles
set forth in section 2301 of title 5, United States Code.
SEC. 882. OFFICE FOR NATIONAL CAPITAL REGION COORDINATION.
(1) IN GENERAL- There is established within the Office of the Secretary
the Office of National Capital Region Coordination, to oversee and
coordinate Federal programs for and relationships with State, local, and
regional authorities in the National Capital Region, as defined under
section 2674(f)(2) of title 10, United States Code.
(2) DIRECTOR- The Office established under paragraph (1) shall be headed
by a Director, who shall be appointed by the Secretary.
(3) COOPERATION- The Secretary shall cooperate with the Mayor of the
District of Columbia, the Governors of Maryland and Virginia, and other
State, local, and regional officers in the National Capital Region to
integrate the District of Columbia, Maryland, and Virginia into the
planning, coordination, and execution of the activities of the Federal
Government for the enhancement of domestic preparedness against the
consequences of terrorist attacks.
(b) RESPONSIBILITIES- The Office established under subsection (a)(1)
shall--
(1) coordinate the activities of the Department relating to the National
Capital Region, including cooperation with the Office for State and Local
Government Coordination;
(2) assess, and advocate for, the resources needed by State, local, and
regional authorities in the National Capital Region to implement efforts to
secure the homeland;
(3) provide State, local, and regional authorities in the National
Capital Region with regular information, research, and technical support to
assist the efforts of State, local, and regional authorities in the National
Capital Region in securing the homeland;
(4) develop a process for receiving meaningful input from State, local,
and regional authorities and the private sector in the National Capital
Region to assist in the development of the homeland security plans and
activities of the Federal Government;
(5) coordinate with Federal agencies in the National Capital Region on
terrorism preparedness, to ensure adequate planning, information sharing,
training, and execution of the Federal role in domestic preparedness
activities;
(6) coordinate with Federal, State, local, and regional agencies, and
the private sector in the National Capital Region on terrorism preparedness
to ensure adequate planning, information sharing, training, and execution of
domestic preparedness activities among these agencies and entities;
and
(7) serve as a liaison between the Federal Government and State, local,
and regional authorities, and private sector entities in the National
Capital Region to facilitate access to Federal grants and other
programs.
(c) ANNUAL REPORT- The Office established under subsection (a) shall
submit an annual report to Congress that includes--
(1) the identification of the resources required to fully implement
homeland security efforts in the National Capital Region;
(2) an assessment of the progress made by the National Capital Region in
implementing homeland security efforts; and
(3) recommendations to Congress regarding the additional resources
needed to fully implement homeland security efforts in the National Capital
Region.
(d) LIMITATION- Nothing contained in this section shall be construed as
limiting the power of State and local governments.
SEC. 883. REQUIREMENT TO COMPLY WITH LAWS PROTECTING EQUAL EMPLOYMENT
OPPORTUNITY AND PROVIDING WHISTLEBLOWER PROTECTIONS.
Nothing in this Act shall be construed as exempting the Department from
requirements applicable with respect to executive agencies--
(1) to provide equal employment protection for employees of the
Department (including pursuant to the provisions in section 2302(b)(1) of
title 5, United States Code, and the Notification and Federal Employee
Antidiscrimination and Retaliation Act of 2002 (Pub. L. 107-174)); or
(2) to provide whistleblower protections for employees of the Department
(including pursuant to the provisions in section 2302(b)(8) and (9) of such
title and the Notification and Federal Employee Antidiscrimination and
Retaliation Act of 2002).
SEC. 884. FEDERAL LAW ENFORCEMENT TRAINING CENTER.
(a) IN GENERAL- The transfer of an authority or an agency under this Act
to the Department of Homeland Security does not affect training agreements
already entered into with the Federal Law Enforcement Training Center with
respect to the training of personnel to carry out that authority or the duties
of that transferred agency.
(b) CONTINUITY OF OPERATIONS- All activities of the Federal Law
Enforcement Training Center transferred to the Department of Homeland Security
under this Act shall continue to be carried out at the locations such
activities were carried out before such transfer.
SEC. 885. JOINT INTERAGENCY TASK FORCE.
(a) ESTABLISHMENT- The Secretary may establish and operate a permanent
Joint Interagency Homeland Security Task Force composed of representatives
from military and civilian agencies of the United States Government for the
purposes of anticipating terrorist threats against the United States and
taking appropriate actions to prevent harm to the United States.
(b) STRUCTURE- It is the sense of Congress that the Secretary should model
the Joint Interagency Homeland Security Task Force on the approach taken by
the Joint Interagency Task Forces for drug interdiction at Key West, Florida
and Alameda, California, to the maximum extent feasible and appropriate.
SEC. 886. SENSE OF CONGRESS REAFFIRMING THE CONTINUED IMPORTANCE AND
APPLICABILITY OF THE POSSE COMITATUS ACT.
(a) FINDINGS- Congress finds the following:
(1) Section 1385 of title 18, United States Code (commonly known as the
`Posse Comitatus Act'), prohibits the use of the Armed Forces as a posse
comitatus to execute the laws except in cases and under circumstances
expressly authorized by the Constitution or Act of Congress.
(2) Enacted in 1878, the Posse Comitatus Act was expressly intended to
prevent United States Marshals, on their own initiative, from calling on the
Army for assistance in enforcing Federal law.
(3) The Posse Comitatus Act has served the Nation well in limiting the
use of the Armed Forces to enforce the law.
(4) Nevertheless, by its express terms, the Posse Comitatus Act is not a
complete barrier to the use of the Armed Forces for a range of domestic
purposes, including law enforcement functions, when the use of the Armed
Forces is authorized by Act of Congress or the President determines that the
use of the Armed Forces is required to fulfill the President's obligations
under the Constitution to respond promptly in time of war, insurrection, or
other serious emergency.
(5) Existing laws, including chapter 15 of title 10, United States Code
(commonly known as the `Insurrection Act'), and the Robert T. Stafford
Disaster Relief and Emergency Assistance Act (42 U.S.C. 5121 et seq.), grant
the President broad powers that may be invoked in the event of domestic
emergencies, including an attack against the Nation using weapons of mass
destruction, and these laws specifically authorize the President to use the
Armed Forces to help restore public order.
(b) SENSE OF CONGRESS- Congress reaffirms the continued importance of
section 1385 of title 18, United States Code, and it is the sense of Congress
that nothing in this Act should be construed to alter the applicability of
such section to any use of the Armed Forces as a posse comitatus to execute
the laws.
SEC. 887. COORDINATION WITH THE DEPARTMENT OF HEALTH AND HUMAN SERVICES
UNDER THE PUBLIC HEALTH SERVICE ACT.
(a) IN GENERAL- The annual Federal response plan developed by the
Department shall be consistent with section 319 of the Public Health Service
Act (42 U.S.C. 247d).
(b) DISCLOSURES AMONG RELEVANT AGENCIES-
(1) IN GENERAL- Full disclosure among relevant agencies shall be made in
accordance with this subsection.
(2) PUBLIC HEALTH EMERGENCY- During the period in which the Secretary of
Health and Human Services has declared the existence of a public health
emergency under section 319(a) of the Public Health Service Act (42 U.S.C.
247d(a)), the Secretary of Health and Human Services shall keep relevant
agencies, including the Department of Homeland Security, the Department of
Justice, and the Federal Bureau of Investigation, fully and currently
informed.
(3) POTENTIAL PUBLIC HEALTH EMERGENCY- In cases involving, or
potentially involving, a public health emergency, but in which no
determination of an emergency by the Secretary of Health and Human Services
under section 319(a) of the Public Health Service Act (42 U.S.C. 247d(a)),
has been made, all relevant agencies, including the Department of Homeland
Security, the Department of Justice, and the Federal Bureau of
Investigation, shall keep the Secretary of Health and Human Services and the
Director of the Centers for Disease Control and Prevention fully and
currently informed.
SEC. 888. PRESERVING COAST GUARD MISSION PERFORMANCE.
(a) DEFINITIONS- In this section:
(1) NON-HOMELAND SECURITY MISSIONS- The term `non-homeland security
missions' means the following missions of the Coast Guard:
(D) Living marine resources (fisheries law enforcement).
(E) Marine environmental protection.
(2) HOMELAND SECURITY MISSIONS- The term `homeland security missions'
means the following missions of the Coast Guard:
(A) Ports, waterways and coastal security.
(C) Migrant interdiction.
(E) Other law enforcement.
(b) TRANSFER- There are transferred to the Department the authorities,
functions, personnel, and assets of the Coast Guard, which shall be maintained
as a distinct entity within the Department, including the authorities and
functions of the Secretary of Transportation relating thereto.
(c) MAINTENANCE OF STATUS OF FUNCTIONS AND ASSETS- Notwithstanding any
other provision of this Act, the authorities, functions, and capabilities of
the Coast Guard to perform its missions shall be maintained intact and without
significant reduction after the transfer of the Coast Guard to the Department,
except as specified in subsequent Acts.
(d) CERTAIN TRANSFERS PROHIBITED- No mission, function, or asset
(including for purposes of this subsection any ship, aircraft, or helicopter)
of the Coast Guard may be diverted to the principal and continuing use of any
other organization, unit, or entity of the Department, except for details or
assignments that do not reduce the Coast Guard's capability to perform its
missions.
(1) PROHIBITION- The Secretary may not substantially or significantly
reduce the missions of the Coast Guard or the Coast Guard's capability to
perform those missions, except as specified in subsequent Acts.
(2) WAIVER- The Secretary may waive the restrictions under paragraph (1)
for a period of not to exceed 90 days upon a declaration and certification
by the Secretary to Congress that a clear, compelling, and immediate need
exists for such a waiver. A certification under this paragraph shall include
a detailed justification for the declaration and certification, including
the reasons and specific information that demonstrate that the Nation and
the Coast Guard cannot respond effectively if the restrictions under
paragraph (1) are not waived.
(1) IN GENERAL- The Inspector General of the Department shall conduct an
annual review that shall assess thoroughly the performance by the Coast
Guard of all missions of the Coast Guard (including non-homeland security
missions and homeland security missions) with a particular emphasis on
examining the non-homeland security missions.
(2) REPORT- The report under this paragraph shall be submitted
to--
(A) the Committee on Governmental Affairs of the Senate;
(B) the Committee on Government Reform of the House of
Representatives;
(C) the Committees on Appropriations of the Senate and the House of
Representatives;
(D) the Committee on Commerce, Science, and Transportation of the
Senate; and
(E) the Committee on Transportation and Infrastructure of the House of
Representatives.
(g) DIRECT REPORTING TO SECRETARY- Upon the transfer of the Coast Guard to
the Department, the Commandant shall report directly to the Secretary without
being required to report through any other official of the Department.
(h) OPERATION AS A SERVICE IN THE NAVY- None of the conditions and
restrictions in this section shall apply when the Coast Guard operates as a
service in the Navy under section 3 of title 14, United States Code.
(i) REPORT ON ACCELERATING THE INTEGRATED DEEPWATER SYSTEM- Not later than
90 days after the date of enactment of this Act, the Secretary, in
consultation with the Commandant of the Coast Guard, shall submit a report to
the Committee on Commerce, Science, and Transportation of the Senate, the
Committee on Transportation and Infrastructure of the House of
Representatives, and the Committees on Appropriations of the Senate and the
House of Representatives that--
(1) analyzes the feasibility of accelerating the rate of procurement in
the Coast Guard's Integrated Deepwater System from 20 years to 10
years;
(2) includes an estimate of additional resources required;
(3) describes the resulting increased capabilities;
(4) outlines any increases in the Coast Guard's homeland security
readiness;
(5) describes any increases in operational efficiencies; and
(6) provides a revised asset phase-in time line.
SEC. 889. HOMELAND SECURITY FUNDING ANALYSIS IN PRESIDENT'S BUDGET.
(a) IN GENERAL- Section 1105(a) of title 31, United States Code, is
amended by adding at the end the following:
`(33)(A)(i) a detailed, separate analysis, by budget function, by
agency, and by initiative area (as determined by the administration) for the
prior fiscal year, the current fiscal year, the fiscal years for which the
budget is submitted, and the ensuing fiscal year identifying the amounts of
gross and net appropriations or obligational authority and outlays that
contribute to homeland security, with separate displays for mandatory and
discretionary amounts, including--
`(I) summaries of the total amount of such appropriations or new
obligational authority and outlays requested for homeland
security;
`(II) an estimate of the current service levels of homeland security
spending;
`(III) the most recent risk assessment and summary of homeland
security needs in each initiative area (as determined by the
administration); and
`(IV) an estimate of user fees collected by the Federal Government on
behalf of homeland security activities;
`(ii) with respect to subclauses (I) through (IV) of clause (i), amounts
shall be provided by account for each program, project and activity;
and
`(iii) an estimate of expenditures for homeland security activities by
State and local governments and the private sector for the prior fiscal year
and the current fiscal year.
`(B) In this paragraph, consistent with the Office of Management and
Budget's June 2002 `Annual Report to Congress on Combatting Terrorism', the
term `homeland security' refers to those activities that detect, deter,
protect against, and respond to terrorist attacks occurring within the
United States and its territories.
`(C) In implementing this paragraph, including determining what Federal
activities or accounts constitute homeland security for purposes of
budgetary classification, the Office of Management and Budget is directed to
consult periodically, but at least annually, with the House and Senate
Budget Committees, the House and Senate Appropriations Committees, and the
Congressional Budget Office.'.
(b) REPEAL OF DUPLICATIVE REPORTS- The following sections are repealed:
(1) Section 1051 of Public Law 105-85.
(2) Section 1403 of Public Law 105-261.
(c) EFFECTIVE DATE- This section and the amendment made by this section
shall apply beginning with respect to the fiscal year 2005 budget
submission.
SEC. 890. AIR TRANSPORTATION SAFETY AND SYSTEM STABILIZATION ACT.
The Air Transportation Safety and System Stabilization Act (49 U.S.C.
40101 note) is amended--
(1) in section 408 by striking the last sentence of subsection (c);
and
(2) in section 402 by striking paragraph (1) and inserting the
following:
`(1) AIR CARRIER- The term `air carrier' means a citizen of the United
States undertaking by any means, directly or indirectly, to provide air
transportation and includes employees and agents (including persons engaged
in the business of providing air transportation security and their
affiliates) of such citizen. For purposes of the preceding sentence, the
term `agent', as applied to persons engaged in the business of providing air
transportation security, shall only include persons that have contracted
directly with the Federal Aviation Administration on or after and commenced
services no later than February 17, 2002, to provide such security, and had
not been or are not debarred for any period within 6 months from that
date.'.
Subtitle I--Information Sharing
SEC. 891. SHORT TITLE; FINDINGS; AND SENSE OF CONGRESS.
(a) SHORT TITLE- This subtitle may be cited as the `Homeland Security
Information Sharing Act'.
(b) FINDINGS- Congress finds the following:
(1) The Federal Government is required by the Constitution to provide
for the common defense, which includes terrorist attack.
(2) The Federal Government relies on State and local personnel to
protect against terrorist attack.
(3) The Federal Government collects, creates, manages, and protects
classified and sensitive but unclassified information to enhance homeland
security.
(4) Some homeland security information is needed by the State and local
personnel to prevent and prepare for terrorist attack.
(5) The needs of State and local personnel to have access to relevant
homeland security information to combat terrorism must be reconciled with
the need to preserve the protected status of such information and to protect
the sources and methods used to acquire such information.
(6) Granting security clearances to certain State and local personnel is
one way to facilitate the sharing of information regarding specific
terrorist threats among Federal, State, and local levels of
government.
(7) Methods exist to declassify, redact, or otherwise adapt classified
information so it may be shared with State and local personnel without the
need for granting additional security clearances.
(8) State and local personnel have capabilities and opportunities to
gather information on suspicious activities and terrorist threats not
possessed by Federal agencies.
(9) The Federal Government and State and local governments and agencies
in other jurisdictions may benefit from such information.
(10) Federal, State, and local governments and intelligence, law
enforcement, and other emergency preparation and response agencies must act
in partnership to maximize the benefits of information gathering and
analysis to prevent and respond to terrorist attacks.
(11) Information systems, including the National Law Enforcement
Telecommunications System and the Terrorist Threat Warning System, have been
established for rapid sharing of classified and sensitive but unclassified
information among Federal, State, and local entities.
(12) Increased efforts to share homeland security information should
avoid duplicating existing information systems.
(c) SENSE OF CONGRESS- It is the sense of Congress that Federal, State,
and local entities should share homeland security information to the maximum
extent practicable, with special emphasis on hard-to-reach urban and rural
communities.
SEC. 892. FACILITATING HOMELAND SECURITY INFORMATION SHARING
PROCEDURES.
(a) PROCEDURES FOR DETERMINING EXTENT OF SHARING OF HOMELAND SECURITY
INFORMATION-
(1) The President shall prescribe and implement procedures under which
relevant Federal agencies--
(A) share relevant and appropriate homeland security information with
other Federal agencies, including the Department, and appropriate State
and local personnel;
(B) identify and safeguard homeland security information that is
sensitive but unclassified; and
(C) to the extent such information is in classified form, determine
whether, how, and to what extent to remove classified information, as
appropriate, and with which such personnel it may be shared after such
information is removed.
(2) The President shall ensure that such procedures apply to all
agencies of the Federal Government.
(3) Such procedures shall not change the substantive requirements for
the classification and safeguarding of classified information.
(4) Such procedures shall not change the requirements and authorities to
protect sources and methods.
(b) PROCEDURES FOR SHARING OF HOMELAND SECURITY INFORMATION-
(1) Under procedures prescribed by the President, all appropriate
agencies, including the intelligence community, shall, through information
sharing systems, share homeland security information with Federal agencies
and appropriate State and local personnel to the extent such information may
be shared, as determined in accordance with subsection (a), together with
assessments of the credibility of such information.
(2) Each information sharing system through which information is shared
under paragraph (1) shall--
(A) have the capability to transmit unclassified or classified
information, though the procedures and recipients for each capability may
differ;
(B) have the capability to restrict delivery of information to
specified subgroups by geographic location, type of organization, position
of a recipient within an organization, or a recipient's need to know such
information;
(C) be configured to allow the efficient and effective sharing of
information; and
(D) be accessible to appropriate State and local personnel.
(3) The procedures prescribed under paragraph (1) shall establish
conditions on the use of information shared under paragraph (1)--
(A) to limit the redissemination of such information to ensure that
such information is not used for an unauthorized purpose;
(B) to ensure the security and confidentiality of such
information;
(C) to protect the constitutional and statutory rights of any
individuals who are subjects of such information; and
(D) to provide data integrity through the timely removal and
destruction of obsolete or erroneous names and information.
(4) The procedures prescribed under paragraph (1) shall ensure, to the
greatest extent practicable, that the information sharing system through
which information is shared under such paragraph include existing
information sharing systems, including, but not limited to, the National Law
Enforcement Telecommunications System, the Regional Information Sharing
System, and the Terrorist Threat Warning System of the Federal Bureau of
Investigation.
(5) Each appropriate Federal agency, as determined by the President,
shall have access to each information sharing system through which
information is shared under paragraph (1), and shall therefore have access
to all information, as appropriate, shared under such paragraph.
(6) The procedures prescribed under paragraph (1) shall ensure that
appropriate State and local personnel are authorized to use such information
sharing systems--
(A) to access information shared with such personnel; and
(B) to share, with others who have access to such information sharing
systems, the homeland security information of their own jurisdictions,
which shall be marked appropriately as pertaining to potential terrorist
activity.
(7) Under procedures prescribed jointly by the Director of Central
Intelligence and the Attorney General, each appropriate Federal agency, as
determined by the President, shall review and assess the information shared
under paragraph (6) and integrate such information with existing
intelligence.
(c) SHARING OF CLASSIFIED INFORMATION AND SENSITIVE BUT UNCLASSIFIED
INFORMATION WITH STATE AND LOCAL PERSONNEL-
(1) The President shall prescribe procedures under which Federal
agencies may, to the extent the President considers necessary, share with
appropriate State and local personnel homeland security information that
remains classified or otherwise protected after the determinations
prescribed under the procedures set forth in subsection (a).
(2) It is the sense of Congress that such procedures may include 1 or
more of the following means:
(A) Carrying out security clearance investigations with respect to
appropriate State and local personnel.
(B) With respect to information that is sensitive but unclassified,
entering into nondisclosure agreements with appropriate State and local
personnel.
(C) Increased use of information-sharing partnerships that include
appropriate State and local personnel, such as the Joint Terrorism Task
Forces of the Federal Bureau of Investigation, the Anti-Terrorism Task
Forces of the Department of Justice, and regional Terrorism Early Warning
Groups.
(d) RESPONSIBLE OFFICIALS- For each affected Federal agency, the head of
such agency shall designate an official to administer this Act with respect to
such agency.
(e) FEDERAL CONTROL OF INFORMATION- Under procedures prescribed under this
section, information obtained by a State or local government from a Federal
agency under this section shall remain under the control of the Federal
agency, and a State or local law authorizing or requiring such a government to
disclose information shall not apply to such information.
(f) DEFINITIONS- As used in this section:
(1) The term `homeland security information' means any information
possessed by a Federal, State, or local agency that--
(A) relates to the threat of terrorist activity;
(B) relates to the ability to prevent, interdict, or disrupt terrorist
activity;
(C) would improve the identification or investigation of a suspected
terrorist or terrorist organization; or
(D) would improve the response to a terrorist act.
(2) The term `intelligence community' has the meaning given such term in
section 3(4) of the National Security Act of 1947 (50 U.S.C. 401a(4)).
(3) The term `State and local personnel' means any of the following
persons involved in prevention, preparation, or response for terrorist
attack:
(A) State Governors, mayors, and other locally elected
officials.
(B) State and local law enforcement personnel and
firefighters.
(C) Public health and medical professionals.
(D) Regional, State, and local emergency management agency personnel,
including State adjutant generals.
(E) Other appropriate emergency response agency personnel.
(F) Employees of private-sector entities that affect critical
infrastructure, cyber, economic, or public health security, as designated
by the Federal government in procedures developed pursuant to this
section.
(4) The term `State' includes the District of Columbia and any
commonwealth, territory, or possession of the United States.
(g) CONSTRUCTION- Nothing in this Act shall be construed as authorizing
any department, bureau, agency, officer, or employee of the Federal Government
to request, receive, or transmit to any other Government entity or personnel,
or transmit to any State or local entity or personnel otherwise authorized by
this Act to receive homeland security information, any information collected
by the Federal Government solely for statistical purposes in violation of any
other provision of law relating to the confidentiality of such information.
SEC. 893. REPORT.
(a) REPORT REQUIRED- Not later than 12 months after the date of the
enactment of this Act, the President shall submit to the congressional
committees specified in subsection (b) a report on the implementation of
section 892. The report shall include any recommendations for additional
measures or appropriation requests, beyond the requirements of section 892, to
increase the effectiveness of sharing of information between and among
Federal, State, and local entities.
(b) SPECIFIED CONGRESSIONAL COMMITTEES- The congressional committees
referred to in subsection (a) are the following committees:
(1) The Permanent Select Committee on Intelligence and the Committee on
the Judiciary of the House of Representatives.
(2) The Select Committee on Intelligence and the Committee on the
Judiciary of the Senate.
SEC. 894. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated such sums as may be necessary to
carry out section 892.
SEC. 895. AUTHORITY TO SHARE GRAND JURY INFORMATION.
Rule 6(e) of the Federal Rules of Criminal Procedure is amended--
(1) in paragraph (2), by inserting `, or of guidelines jointly issued by
the Attorney General and Director of Central Intelligence pursuant to Rule
6,' after `Rule 6'; and
(A) in subparagraph (A)(ii), by inserting `or of a foreign government'
after `(including personnel of a state or subdivision of a
state';
(B) in subparagraph (C)(i)--
(i) in subclause (I), by inserting before the semicolon the
following: `or, upon a request by an attorney for the government, when
sought by a foreign court or prosecutor for use in an official criminal
investigation';
(I) by inserting `or foreign' after `may disclose a violation of
State';
(II) by inserting `or of a foreign government' after `to an
appropriate official of a State or subdivision of a State';
and
(III) by striking `or' at the end;
(iii) by striking the period at the end of subclause (V) and
inserting `; or'; and
(iv) by adding at the end the following:
`(VI) when matters involve a threat of actual or potential attack or
other grave hostile acts of a foreign power or an agent of a foreign
power, domestic or international sabotage, domestic or international
terrorism, or clandestine intelligence gathering activities by an
intelligence service or network of a foreign power or by an agent of a
foreign power, within the United States or elsewhere, to any appropriate
federal, state, local, or foreign government official for the purpose of
preventing or responding to such a threat.'; and
(C) in subparagraph (C)(iii)--
(i) by striking `Federal';
(ii) by inserting `or clause (i)(VI)' after `clause (i)(V)';
and
(iii) by adding at the end the following: `Any state, local, or
foreign official who receives information pursuant to clause (i)(VI)
shall use that information only consistent with such guidelines as the
Attorney General and Director of Central Intelligence shall jointly
issue.'.
SEC. 896. AUTHORITY TO SHARE ELECTRONIC, WIRE, AND ORAL INTERCEPTION
INFORMATION.
Section 2517 of title 18, United States Code, is amended by adding at the
end the following:
`(7) Any investigative or law enforcement officer, or other Federal
official in carrying out official duties as such Federal official, who by any
means authorized by this chapter, has obtained knowledge of the contents of
any wire, oral, or electronic communication, or evidence derived therefrom,
may disclose such contents or derivative evidence to a foreign investigative
or law enforcement officer to the extent that such disclosure is appropriate
to the proper performance of the official duties of the officer making or
receiving the disclosure, and foreign investigative or law enforcement
officers may use or disclose such contents or derivative evidence to the
extent such use or disclosure is appropriate to the proper performance of
their official duties.
`(8) Any investigative or law enforcement officer, or other Federal
official in carrying out official duties as such Federal official, who by any
means authorized by this chapter, has obtained knowledge of the contents of
any wire, oral, or electronic communication, or evidence derived therefrom,
may disclose such contents or derivative evidence to any appropriate Federal,
State, local, or foreign government official to the extent that such contents
or derivative evidence reveals a threat of actual or potential attack or other
grave hostile acts of a foreign power or an agent of a foreign power, domestic
or international sabotage, domestic or international terrorism, or clandestine
intelligence gathering activities by an intelligence service or network of a
foreign power or by an agent of a foreign power, within the United States or
elsewhere, for the purpose of preventing or responding to such a threat. Any
official who receives information pursuant to this provision may use that
information only as necessary in the conduct of that person's official duties
subject to any limitations on the unauthorized disclosure of such information,
and any State, local, or foreign official who receives information pursuant to
this provision may use that information only consistent with such guidelines
as the Attorney General and Director of Central Intelligence shall jointly
issue.'.
SEC. 897. FOREIGN INTELLIGENCE INFORMATION.
(a) DISSEMINATION AUTHORIZED- Section 203(d)(1) of the Uniting and
Strengthening America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism (USA PATRIOT ACT) Act of 2001 (Public Law 107-56; 50 U.S.C.
403-5d) is amended by adding at the end the following: `Consistent with the
responsibility of the Director of Central Intelligence to protect intelligence
sources and methods, and the responsibility of the Attorney General to protect
sensitive law enforcement information, it shall be lawful for information
revealing a threat of actual or potential attack or other grave hostile acts
of a foreign power or an agent of a foreign power, domestic or international
sabotage, domestic or international terrorism, or clandestine intelligence
gathering activities by an intelligence service or network of a foreign power
or by an agent of a foreign power, within the United States or elsewhere,
obtained as part of a criminal investigation to be disclosed to any
appropriate Federal, State, local, or foreign government official for the
purpose of preventing or responding to such a threat. Any official who
receives information pursuant to this provision may use that information only
as necessary in the conduct of that person's official duties subject to any
limitations on the unauthorized disclosure of such information, and any State,
local, or foreign official who receives information pursuant to this provision
may use that information only consistent with such guidelines as the Attorney
General and Director of Central Intelligence shall jointly issue.'.
(b) CONFORMING AMENDMENTS- Section 203(c) of that Act is amended--
(1) by striking `section 2517(6)' and inserting `paragraphs (6) and (8)
of section 2517 of title 18, United States Code,'; and
(2) by inserting `and (VI)' after `Rule 6(e)(3)(C)(i)(V)'.
SEC. 898. INFORMATION ACQUIRED FROM AN ELECTRONIC SURVEILLANCE.
Section 106(k)(1) of the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1806) is amended by inserting after `law enforcement officers' the
following: `or law enforcement personnel of a State or political
subdivision
of a State (including the chief executive officer of that State or political
subdivision who has the authority to appoint or direct the chief law enforcement
officer of that State or political subdivision)'.
SEC. 899. INFORMATION ACQUIRED FROM A PHYSICAL SEARCH.
Section 305(k)(1) of the Foreign Intelligence Surveillance Act of 1978 (50
U.S.C. 1825) is amended by inserting after `law enforcement officers' the
following: `or law enforcement personnel of a State or political subdivision
of a State (including the chief executive officer of that State or political
subdivision who has the authority to appoint or direct the chief law
enforcement officer of that State or political subdivision)'.
TITLE IX--NATIONAL HOMELAND SECURITY COUNCIL
SEC. 901. NATIONAL HOMELAND SECURITY COUNCIL.
There is established within the Executive Office of the President a
council to be known as the `Homeland Security Council' (in this title referred
to as the `Council').
SEC. 902. FUNCTION.
The function of the Council shall be to advise the President on homeland
security matters.
SEC. 903. MEMBERSHIP.
The members of the Council shall be the following:
(3) The Secretary of Homeland Security.
(4) The Attorney General.
(5) The Secretary of Defense.
(6) Such other individuals as may be designated by the President.
SEC. 904. OTHER FUNCTIONS AND ACTIVITIES.
For the purpose of more effectively coordinating the policies and
functions of the United States Government relating to homeland security, the
Council shall--
(1) assess the objectives, commitments, and risks of the United States
in the interest of homeland security and to make resulting recommendations
to the President;
(2) oversee and review homeland security policies of the Federal
Government and to make resulting recommendations to the President; and
(3) perform such other functions as the President may direct.
SEC. 905. STAFF COMPOSITION.
The Council shall have a staff, the head of which shall be a civilian
Executive Secretary, who shall be appointed by the President. The President is
authorized to fix the pay of the Executive Secretary at a rate not to exceed
the rate of pay payable to the Executive Secretary of the National Security
Council.
SEC. 906. RELATION TO THE NATIONAL SECURITY COUNCIL.
The President may convene joint meetings of the Homeland Security Council
and the National Security Council with participation by members of either
Council or as the President may otherwise direct.
TITLE X--INFORMATION SECURITY
SEC. 1001. INFORMATION SECURITY.
(a) SHORT TITLE- This title may be cited as the `Federal Information
Security Management Act of 2002'.
(b) INFORMATION SECURITY-
(1) IN GENERAL- Subchapter II of chapter 35 of title 44, United States
Code, is amended to read as follows:
`SUBCHAPTER II--INFORMATION SECURITY
`Sec. 3531. Purposes
`The purposes of this subchapter are to--
`(1) provide a comprehensive framework for ensuring the effectiveness of
information security controls over information resources that support
Federal operations and assets;
`(2) recognize the highly networked nature of the current Federal
computing environment and provide effective governmentwide management and
oversight of the related information security risks, including coordination
of information security efforts throughout the civilian, national security,
and law enforcement communities;
`(3) provide for development and maintenance of minimum controls
required to protect Federal information and information systems;
`(4) provide a mechanism for improved oversight of Federal agency
information security programs;
`(5) acknowledge that commercially developed information security
products offer advanced, dynamic, robust, and effective information security
solutions, reflecting market solutions for the protection of critical
information infrastructures important to the national defense and economic
security of the nation that are designed, built, and operated by the private
sector; and
`(6) recognize that the selection of specific technical hardware and
software information security solutions should be left to individual
agencies from among commercially developed products.'.
`Sec. 3532. Definitions
`(a) IN GENERAL- Except as provided under subsection (b), the definitions
under section 3502 shall apply to this subchapter.
`(b) ADDITIONAL DEFINITIONS- As used in this subchapter--
`(1) the term `information security' means protecting information and
information systems from unauthorized access, use, disclosure, disruption,
modification, or destruction in order to provide--
`(A) integrity, which means guarding against improper information
modification or destruction, and includes ensuring information
nonrepudiation and authenticity;
`(B) confidentiality, which means preserving authorized restrictions
on access and disclosure, including means for protecting personal privacy
and proprietary information;
`(C) availability, which means ensuring timely and reliable access to
and use of information; and
`(D) authentication, which means utilizing digital credentials to
assure the identity of users and validate their access;
`(2) the term `national security system' means any information system
(including any telecommunications system) used or operated by an agency or
by a contractor of an agency, or other organization on behalf of an agency,
the function, operation, or use of which--
`(A) involves intelligence activities;
`(B) involves cryptologic activities related to national
security;
`(C) involves command and control of military forces;
`(D) involves equipment that is an integral part of a weapon or
weapons system; or
`(E) is critical to the direct fulfillment of military or intelligence
missions provided that this definition does not apply to a system that is
used for routine administrative and business applications (including
payroll, finance, logistics, and personnel management
applications);
`(3) the term `information technology' has the meaning given that term
in section 11101 of title 40; and
`(4) the term `information system' means any equipment or interconnected
system or subsystems of equipment that is used in the automatic acquisition,
storage, manipulation, management, movement, control, display, switching,
interchange, transmission, or reception of data or information, and
includes--
`(A) computers and computer networks;
`(B) ancillary equipment;
`(C) software, firmware, and related procedures;
`(D) services, including support services; and
`(E) related resources.'.
`Sec. 3533. Authority and functions of the Director
`(a) The Director shall oversee agency information security policies and
practices, by--
`(1) promulgating information security standards under section 11331 of
title 40;
`(2) overseeing the implementation of policies, principles, standards,
and guidelines on information security;
`(3) requiring agencies, consistent with the standards promulgated under
such section 11331 and the requirements of this subchapter, to identify and
provide information security protections commensurate with the risk and
magnitude of the harm resulting from the unauthorized access, use,
disclosure, disruption, modification, or destruction of--
`(A) information collected or maintained by or on behalf of an agency;
or
`(B) information systems used or operated by an agency or by a
contractor of an agency or other organization on behalf of an
agency;
`(4) coordinating the development of standards and guidelines under
section 20 of the National Institute of Standards and Technology Act (15
U.S.C. 278g-3) with agencies and offices operating or exercising control of
national security systems (including the National Security Agency) to
assure, to the maximum extent feasible, that such standards and guidelines
are complementary with standards and guidelines developed for national
security systems;
`(5) overseeing agency compliance with the requirements of this
subchapter, including through any authorized action under section
11303(b)(5) of title 40, to enforce accountability for compliance with such
requirements;
`(6) reviewing at least annually, and approving or disapproving, agency
information security programs required under section 3534(b);
`(7) coordinating information security policies and procedures with
related information resources management policies and procedures; and
`(8) reporting to Congress no later than March 1 of each year on agency
compliance with the requirements of this subchapter, including--
`(A) a summary of the findings of evaluations required by section
3535;
`(B) significant deficiencies in agency information security
practices;
`(C) planned remedial action to address such deficiencies;
and
`(D) a summary of, and the views of the Director on, the report
prepared by the National Institute of Standards and Technology under
section 20(e)(7) of the National Institute of Standards and Technology Act
(15 U.S.C. 278g-3).
`(b) Except for the authorities described in paragraphs (4) and (7) of
subsection (a), the authorities of the Director under this section shall not
apply to national security systems.
`Sec. 3534. Federal agency responsibilities
`(a) The head of each agency shall--
`(1) be responsible for--
`(A) providing information security protections commensurate with the
risk and magnitude of the harm resulting from unauthorized access, use,
disclosure, disruption, modification, or destruction of--
`(i) information collected or maintained by or on behalf of the
agency; and
`(ii) information systems used or operated by an agency or by a
contractor of an agency or other organization on behalf of an
agency;
`(B) complying with the requirements of this subchapter and related
policies, procedures, standards, and guidelines, including--
`(i) information security standards promulgated by the Director
under section 11331 of title 40; and
`(ii) information security standards and guidelines for national
security systems issued in accordance with law and as directed by the
President; and
`(C) ensuring that information security management processes are
integrated with agency strategic and operational planning
processes;
`(2) ensure that senior agency officials provide information security
for the information and information systems that support the operations and
assets under their control, including through--
`(A) assessing the risk and magnitude of the harm that could result
from the unauthorized access, use, disclosure, disruption, modification,
or destruction of such information or information systems;
`(B) determining the levels of information security appropriate to
protect such information and information systems in accordance with
standards promulgated under section 11331 of title 40 for information
security classifications and related requirements;
`(C) implementing policies and procedures to cost-effectively reduce
risks to an acceptable level; and
`(D) periodically testing and evaluating information security controls
and techniques to ensure that they are effectively implemented;
`(3) delegate to the agency Chief Information Officer established under
section 3506 (or comparable official in an agency not covered by such
section) the authority to ensure compliance with the requirements imposed on
the agency under this subchapter, including--
`(A) designating a senior agency information security officer who
shall--
`(i) carry out the Chief Information Officer's responsibilities
under this section;
`(ii) possess professional qualifications, including training and
experience, required to administer the functions described under this
section;
`(iii) have information security duties as that official's primary
duty; and
`(iv) head an office with the mission and resources to assist in
ensuring agency compliance with this section;
`(B) developing and maintaining an agencywide information security
program as required by subsection (b);
`(C) developing and maintaining information security policies,
procedures, and control techniques to address all applicable requirements,
including those issued under section 3533 of this title, and section 11331
of title 40;
`(D) training and overseeing personnel with significant
responsibilities for information security with respect to such
responsibilities; and
`(E) assisting senior agency officials concerning their
responsibilities under paragraph (2);
`(4) ensure that the agency has trained personnel sufficient to assist
the agency in complying with the requirements of this subchapter and related
policies, procedures, standards, and guidelines; and
`(5) ensure that the agency Chief Information Officer, in coordination
with other senior agency officials, reports annually to the agency head on
the effectiveness of the agency information security program, including
progress of remedial actions.
`(b) Each agency shall develop, document, and implement an agencywide
information security program, approved by the Director under section
3533(a)(5), to provide information security for the information and
information systems that support the operations and assets of the agency,
including those provided or managed by another agency, contractor, or other
source, that includes--
`(1) periodic assessments of the risk and magnitude of the harm that
could result from the unauthorized access, use, disclosure, disruption,
modification, or destruction of information and information systems that
support the operations and assets of the agency;
`(2) policies and procedures that--
`(A) are based on the risk assessments required by paragraph
(1);
`(B) cost-effectively reduce information security risks to an
acceptable level;
`(C) ensure that information security is addressed throughout the life
cycle of each agency information system; and
`(D) ensure compliance with--
`(i) the requirements of this subchapter;
`(ii) policies and procedures as may be prescribed by the Director,
and information security standards promulgated under section 11331 of
title 40;
`(iii) minimally acceptable system configuration requirements, as
determined by the agency; and
`(iv) any other applicable requirements, including standards and
guidelines for national security systems issued in accordance with law
and as directed by the President;
`(3) subordinate plans for providing adequate information security for
networks, facilities, and systems or groups of information systems, as
appropriate;
`(4) security awareness training to inform personnel, including
contractors and other users of information systems that support the
operations and assets of the agency, of--
`(A) information security risks associated with their activities;
and
`(B) their responsibilities in complying with agency policies and
procedures designed to reduce these risks;
`(5) periodic testing and evaluation of the effectiveness of information
security policies, procedures, and practices, to be performed with a
frequency depending on risk, but no less than annually, of which such
testing--
`(A) shall include testing of management, operational, and technical
controls of every information system identified in the inventory required
under section 3505(c); and
`(B) may include testing relied on in a evaluation under section
3535;
`(6) a process for planning, implementing, evaluating, and documenting
remedial action to address any deficiencies in the information security
policies, procedures, and practices of the agency;
`(7) procedures for detecting, reporting, and responding to security
incidents, including--
`(A) mitigating risks associated with such incidents before
substantial damage is done; and
`(B) notifying and consulting with, as appropriate--
`(i) law enforcement agencies and relevant Offices of Inspector
General;
`(ii) an office designated by the President for any incident
involving a national security system; and
`(iii) any other agency or office, in accordance with law or as
directed by the President; and
`(8) plans and procedures to ensure continuity of operations for
information systems that support the operations and assets of the
agency.
`(1) report annually to the Director, the Committees on Government
Reform and Science of the House of Representatives, the Committees on
Governmental Affairs and Commerce, Science, and Transportation of the
Senate, the appropriate authorization and appropriations committees of
Congress, and the Comptroller General on the adequacy and effectiveness of
information security policies, procedures, and practices, and compliance
with the requirements of this subchapter, including compliance with each
requirement of subsection (b);
`(2) address the adequacy and effectiveness of information security
policies, procedures, and practices in plans and reports relating to--
`(A) annual agency budgets;
`(B) information resources management under subchapter 1 of this
chapter;
`(C) information technology management under subtitle III of title
40;
`(D) program performance under sections 1105 and 1115 through 1119 of
title 31, and sections 2801 and 2805 of title 39;
`(E) financial management under chapter 9 of title 31, and the Chief
Financial Officers Act of 1990 (31 U.S.C. 501 note; Public Law 101-576)
(and the amendments made by that Act);
`(F) financial management systems under the Federal Financial
Management Improvement Act (31 U.S.C. 3512 note); and
`(G) internal accounting and administrative controls under section
3512 of title 31, United States Code, (known as the `Federal Managers
Financial Integrity Act'); and
`(3) report any significant deficiency in a policy, procedure, or
practice identified under paragraph (1) or (2)--
`(A) as a material weakness in reporting under section 3512 of title
31; and
`(B) if relating to financial management systems, as an instance of a
lack of substantial compliance under the Federal Financial Management
Improvement Act (31 U.S.C. 3512 note).
`(d)(1) In addition to the requirements of subsection (c), each agency, in
consultation with the Director, shall include as part of the performance plan
required under section 1115 of title 31 a description of--
`(A) the time periods, and
`(B) the resources, including budget, staffing, and training,
that are necessary to implement the program required under subsection
(b).
`(2) The description under paragraph (1) shall be based on the risk
assessments required under subsection (b)(2)(1).
`(e) Each agency shall provide the public with timely notice and
opportunities for comment on proposed information security policies and
procedures to the extent that such policies and procedures affect
communication with the public.
`Sec. 3535. Annual independent evaluation
`(a)(1) Each year each agency shall have performed an independent
evaluation of the information security program and practices of that agency to
determine the effectiveness of such program and practices.
`(2) Each evaluation by an agency under this section shall include--
`(A) testing of the effectiveness of information security policies,
procedures, and practices of a representative subset of the agency's
information systems;
`(B) an assessment (made on the basis of the results of the testing) of
compliance with--
`(i) the requirements of this subchapter; and
`(ii) related information security policies, procedures, standards,
and guidelines; and
`(C) separate presentations, as appropriate, regarding information
security relating to national security systems.
`(b) Subject to subsection (c)--
`(1) for each agency with an Inspector General appointed under the
Inspector General Act of 1978, the annual evaluation required by this
section shall be performed by the Inspector General or by an independent
external auditor, as determined by the Inspector General of the agency;
and
`(2) for each agency to which paragraph (1) does not apply, the head of
the agency shall engage an independent external auditor to perform the
evaluation.
`(c) For each agency operating or exercising control of a national
security system, that portion of the evaluation required by this section
directly relating to a national security system shall be performed--
`(1) only by an entity designated by the agency head; and
`(2) in such a manner as to ensure appropriate protection for
information associated with any information security vulnerability in such
system commensurate with the risk and in accordance with all applicable
laws.
`(d) The evaluation required by this section--
`(1) shall be performed in accordance with generally accepted government
auditing standards; and
`(2) may be based in whole or in part on an audit, evaluation, or report
relating to programs or practices of the applicable agency.
`(e) Each year, not later than such date established by the Director, the
head of each agency shall submit to the Director the results of the evaluation
required under this section.
`(f) Agencies and evaluators shall take appropriate steps to ensure the
protection of information which, if disclosed, may adversely affect
information security. Such protections shall be commensurate with the risk and
comply with all applicable laws and regulations.
`(g)(1) The Director shall summarize the results of the evaluations
conducted under this section in the report to Congress required under section
3533(a)(8).
`(2) The Director's report to Congress under this subsection shall
summarize information regarding information security relating to national
security systems in such a manner as to ensure appropriate protection for
information associated with any information security vulnerability in such
system commensurate with the risk and in accordance with all applicable
laws.
`(3) Evaluations and any other descriptions of information systems under
the authority and control of the Director of Central Intelligence or of
National Foreign Intelligence Programs systems under the authority and control
of the Secretary of Defense shall be made available to Congress only through
the appropriate oversight committees of Congress, in accordance with
applicable laws.
`(h) The Comptroller General shall periodically evaluate and report to
Congress on--
`(1) the adequacy and effectiveness of agency information security
policies and practices; and
`(2) implementation of the requirements of this subchapter.
`Sec. 3536. National security systems
`The head of each agency operating or exercising control of a national
security system shall be responsible for ensuring that the agency--
`(1) provides information security protections commensurate with the
risk and magnitude of the harm resulting from the unauthorized access, use,
disclosure, disruption, modification, or destruction of the information
contained in such system;
`(2) implements information security policies and practices as required
by standards and guidelines for national security systems, issued in
accordance with law and as directed by the President; and
`(3) complies with the requirements of this subchapter.
`Sec. 3537. Authorization of appropriations
`There are authorized to be appropriated to carry out the provisions of
this subchapter such sums as may be necessary for each of fiscal years 2003
through 2007.
`Sec. 3538. Effect on existing law
`Nothing in this subchapter, section 11331 of title 40, or section 20 of
the National Standards and Technology Act (15 U.S.C. 278g-3) may be construed
as affecting the authority of the President, the Office of Management and
Budget or the Director thereof, the National Institute of Standards and
Technology, or the head of any agency, with respect to the authorized use or
disclosure of information, including with regard to the protection of personal
privacy under section 552a of title 5, the disclosure of information under
section 552 of title 5, the management and disposition of records under
chapters 29, 31, or 33 of title 44, the management of information resources
under subchapter I of chapter 35 of this title, or the disclosure of
information to Congress or the Comptroller General of the United States.'.
(2) CLERICAL AMENDMENT- The items in the table of sections at the
beginning of such chapter 35 under the heading `SUBCHAPTER II' are amended
to read as follows:
`3533. Authority and functions of the Director.
`3534. Federal agency responsibilities.
`3535. Annual independent evaluation.
`3536. National security systems.
`3537. Authorization of appropriations.
`3538. Effect on existing law.'.
(c) INFORMATION SECURITY RESPONSIBILITIES OF CERTAIN AGENCIES-
(1) NATIONAL SECURITY RESPONSIBILITIES- (A) Nothing in this Act
(including any amendment made by this Act) shall supersede any authority of
the Secretary of Defense, the Director of Central Intelligence, or other
agency head, as authorized by law and as directed by the President, with
regard to the operation, control, or management of national security
systems, as defined by section 3532(3) of title 44, United States
Code.
(B) Section 2224 of title 10, United States Code, is amended--
(i) in subsection 2224(b), by striking `(b) OBJECTIVES AND MINIMUM
REQUIREMENTS- (1)' and inserting `(b) OBJECTIVES OF THE PROGRAM-
';
(ii) in subsection 2224(b), by striking `(2) the program shall at a
minimum meet the requirements of section 3534 and 3535 of title 44, United
States Code.'; and
(iii) in subsection 2224(c), by inserting `, including through
compliance with subtitle II of chapter 35 of title 44' after
`infrastructure'.
(2) ATOMIC ENERGY ACT OF 1954- Nothing in this Act shall supersede any
requirement made by or under the Atomic Energy Act of 1954 (42 U.S.C. 2011
et seq.). Restricted Data or Formerly Restricted Data shall be handled,
protected, classified, downgraded, and declassified in conformity with the
Atomic Energy Act of 1954 (42 U.S.C. 2011 et seq.).
SEC. 1002. MANAGEMENT OF INFORMATION TECHNOLOGY.
(a) IN GENERAL- Section 11331 of title 40, United States Code, is amended
to read as follows:
`Sec. 11331. Responsibilities for Federal information systems standards
`(a) DEFINITION- In this section, the term `information security' has the
meaning given that term in section 3532(b)(1) of title 44.
`(b) REQUIREMENT TO PRESCRIBE STANDARDS-
`(A) REQUIREMENT- Except as provided under paragraph (2), the Director
of the Office of Management and Budget shall, on the basis of proposed
standards developed by the National Institute of Standards and Technology
pursuant to paragraphs (2) and (3) of section 20(a) of the National
Institute of Standards and Technology Act (15 U.S.C. 278g-3(a)) and in
consultation with the Secretary of Homeland Security, promulgate
information security standards pertaining to Federal information
systems.
`(B) REQUIRED STANDARDS- Standards promulgated under subparagraph (A)
shall include--
`(i) standards that provide minimum information security
requirements as determined under section 20(b) of the National Institute
of Standards and Technology Act (15 U.S.C. 278g-3(b)); and
`(ii) such standards that are otherwise necessary to improve the
efficiency of operation or security of Federal information
systems.
`(C) REQUIRED STANDARDS BINDING- Information security standards
described under subparagraph (B) shall be compulsory and binding.
`(2) STANDARDS AND GUIDELINES FOR NATIONAL SECURITY SYSTEMS- Standards
and guidelines for national security systems, as defined under section
3532(3) of title 44, shall be developed, promulgated, enforced, and overseen
as otherwise authorized by law and as directed by the President.
`(c) APPLICATION OF MORE STRINGENT STANDARDS- The head of an agency may
employ standards for the cost-effective information security for all
operations and assets within or under the supervision of that agency that are
more stringent than the standards promulgated by the Director under this
section, if such standards--
`(1) contain, at a minimum, the provisions of those applicable standards
made compulsory and binding by the Director; and
`(2) are otherwise consistent with policies and guidelines issued under
section 3533 of title 44.
`(d) REQUIREMENTS REGARDING DECISIONS BY DIRECTOR-
`(1) DEADLINE- The decision regarding the promulgation of any standard
by the Director under subsection (b) shall occur not later than 6 months
after the submission of the proposed standard to the Director by the
National Institute of Standards and Technology, as provided under section 20
of the National Institute of Standards and Technology Act (15 U.S.C.
278g-3).
`(2) NOTICE AND COMMENT- A decision by the Director to significantly
modify, or not promulgate, a proposed standard submitted to the Director by
the National Institute of Standards and Technology, as provided under
section 20 of the National Institute of Standards and Technology Act (15
U.S.C. 278g-3), shall be made after the public is given an opportunity to
comment on the Director's proposed decision.'.
(b) CLERICAL AMENDMENT- The table of sections at the beginning of chapter
113 of title 40, United States Code, is amended by striking the item relating
to section 11331 and inserting the following:
`11331. Responsibilities for Federal information systems
standards.'.
SEC. 1003. NATIONAL INSTITUTE OF STANDARDS AND TECHNOLOGY.
Section 20 of the National Institute of Standards and Technology Act (15
U.S.C. 278g-3), is amended by striking the text and inserting the
following:
`(a) The Institute shall--
`(1) have the mission of developing standards, guidelines, and
associated methods and techniques for information systems;
`(2) develop standards and guidelines, including minimum requirements,
for information systems used or operated by an agency or by a contractor of
an agency or other organization on behalf of an agency, other than national
security systems (as defined in section 3532(b)(2) of title 44, United
States Code);
`(3) develop standards and guidelines, including minimum requirements,
for providing adequate information security for all agency operations and
assets, but such standards and guidelines shall not apply to national
security systems; and
`(4) carry out the responsibilities described in paragraph (3) through
the Computer Security Division.
`(b) The standards and guidelines required by subsection (a) shall
include, at a minimum--
`(1)(A) standards to be used by all agencies to categorize all
information and information systems collected or maintained by or on behalf
of each agency based on the objectives of providing appropriate levels of
information security according to a range of risk levels;
`(B) guidelines recommending the types of information and information
systems to be included in each such category; and
`(C) minimum information security requirements for information and
information systems in each such category;
`(2) a definition of and guidelines concerning detection and handling of
information security incidents; and
`(3) guidelines developed in coordination with the National Security
Agency for identifying an information system as a national security system
consistent with applicable requirements for national security systems,
issued in accordance with law and as directed by the President.
`(c) In developing standards and guidelines required by subsections (a)
and (b), the Institute shall--
`(1) consult with other agencies and offices (including, but not limited
to, the Director of the Office of Management and Budget, the Departments of
Defense and Energy, the National Security Agency, the General Accounting
Office, and the Secretary of Homeland Security) to assure--
`(A) use of appropriate information security policies, procedures, and
techniques, in order to improve information security and avoid unnecessary
and costly duplication of effort; and
`(B) that such standards and guidelines are complementary with
standards and guidelines employed for the protection of national security
systems and information contained in such systems;
`(2) provide the public with an opportunity to comment on proposed
standards and guidelines;
`(3) submit to the Director of the Office of Management and Budget for
promulgation under section 11331 of title 40, United States Code--
`(A) standards, as required under subsection (b)(1)(A), no later than
12 months after the date of the enactment of this section; and
`(B) minimum information security requirements for each category, as
required under subsection (b)(1)(C), no later than 36 months after the
date of the enactment of this section;
`(4) issue guidelines as required under subsection (b)(1)(B), no later
than 18 months after the date of the enactment of this Act;
`(5) ensure that such standards and guidelines do not require specific
technological solutions or products, including any specific hardware or
software security solutions;
`(6) ensure that such standards and guidelines provide for sufficient
flexibility to permit alternative solutions to provide equivalent levels of
protection for identified information security risks; and
`(7) use flexible, performance-based standards and guidelines that, to
the greatest extent possible, permit the use of off-the-shelf commercially
developed information security products.
`(d) The Institute shall--
`(1) submit standards developed pursuant to subsection (a), along with
recommendations as to the extent to which these should be made compulsory
and binding, to the Director of the Office of Management and Budget for
promulgation under section 11331 of title 40, United States Code;
`(2) provide assistance to agencies regarding--
`(A) compliance with the standards and guidelines developed under
subsection (a);
`(B) detecting and handling information security incidents;
and
`(C) information security policies, procedures, and
practices;
`(3) conduct research, as needed, to determine the nature and extent of
information security vulnerabilities and techniques for providing
cost-effective information security;
`(4) develop and periodically revise performance indicators and measures
for agency information security policies and practices;
`(5) evaluate private sector information security policies and practices
and commercially available information technologies to assess potential
application by agencies to strengthen information security;
`(6) evaluate security policies and practices developed for national
security systems to assess potential application by agencies to strengthen
information security;
`(7) periodically assess the effectiveness of standards and guidelines
developed under this section and undertake revisions as appropriate;
`(8) solicit and consider the recommendations of the Information
Security and Privacy Advisory Board, established by section 21, regarding
standards and guidelines developed under subsection (a) and submit such
recommendations to the Director of the Office of Management and Budget with
such standards submitted to the Director; and
`(9) prepare an annual public report on activities undertaken in the
previous year, and planned for the coming year, to carry out
responsibilities under this section.
`(e) As used in this section--
`(1) the term `agency' has the same meaning as provided in section
3502(1) of title 44, United States Code;
`(2) the term `information security' has the same meaning as provided in
section 3532(1) of such title;
`(3) the term `information system' has the same meaning as provided in
section 3502(8) of such title;
`(4) the term `information technology' has the same meaning as provided
in section 11101 of title 40, United States Code; and
`(5) the term `national security system' has the same meaning as
provided in section 3532(b)(2) of such title.'.
SEC. 1004. INFORMATION SECURITY AND PRIVACY ADVISORY BOARD.
Section 21 of the National Institute of Standards and Technology Act (15
U.S.C. 278g-4), is amended--
(1) in subsection (a), by striking `Computer System Security and Privacy
Advisory Board' and inserting `Information Security and Privacy Advisory
Board';
(2) in subsection (a)(1), by striking `computer or telecommunications'
and inserting `information technology';
(3) in subsection (a)(2)--
(A) by striking `computer or telecommunications technology' and
inserting `information technology'; and
(B) by striking `computer or telecommunications equipment' and
inserting `information technology';
(4) in subsection (a)(3)--
(A) by striking `computer systems' and inserting `information system';
and
(B) by striking `computer systems security' and inserting `information
security';
(5) in subsection (b)(1) by striking `computer systems security' and
inserting `information security';
(6) in subsection (b) by striking paragraph (2) and inserting the
following:
`(2) to advise the Institute and the Director of the Office of
Management and Budget on information security and privacy issues pertaining
to Federal Government information systems, including through review of
proposed standards and guidelines developed under section 20; and';
(7) in subsection (b)(3) by inserting `annually' after `report';
(8) by inserting after subsection (e) the following new
subsection:
`(f) The Board shall hold meetings at such locations and at such time and
place as determined by a majority of the Board.';
(9) by redesignating subsections (f) and (g) as subsections (g) and (h),
respectively; and
(10) by striking subsection (h), as redesignated by paragraph (9), and
inserting the following:
`(h) As used in this section, the terms `information system' and
`information technology' have the meanings given in section 20.'.
SEC. 1005. TECHNICAL AND CONFORMING AMENDMENTS.
(a) FEDERAL COMPUTER SYSTEM SECURITY TRAINING AND PLAN-
(1) REPEAL- Section 11332 of title 40, United States Code, is
repealed.
(2) CLERICAL AMENDMENT- The table of sections at the beginning of
chapter 113 of title 40, United States Code, as amended by striking the item
relating to section 11332.
(b) FLOYD D. SPENCE NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR
2001- The Floyd D. Spence National Defense Authorization Act for Fiscal Year
2001 (Public Law 106-398) is amended by striking subtitle G of title X (44
U.S.C. 3531 note).
(c) PAPERWORK REDUCTION ACT- (1) Section 3504(g) of title 44, United
States Code, is amended--
(A) by adding `and' at the end of paragraph (1);
(i) by striking `sections 11331 and 11332(b) and (c) of title 40' and
inserting `section 11331 of title 40 and subchapter II of this title';
and
(ii) by striking the semicolon and inserting a period; and
(C) by striking paragraph (3).
(2) Section 3505 of such title is amended by adding at the end the
following:
`(c) INVENTORY OF INFORMATION SYSTEMS- (1) The head of each agency shall
develop and maintain an inventory of the information systems (including
national security systems) operated by or under the control of such agency;
`(2) The identification of information systems in an inventory under this
subsection shall include an identification of the interfaces between each such
system and all other systems or networks, including those not operated by or
under the control of the agency;
`(3) Such inventory shall be--
`(A) updated at least annually;
`(B) made available to the Comptroller General; and
`(C) used to support information resources management, including--
`(i) preparation and maintenance of the inventory of information
resources under section 3506(b)(4);
`(ii) information technology planning, budgeting, acquisition, and
management under section 3506(h), subtitle III of title 40, and related
laws and guidance;
`(iii) monitoring, testing, and evaluation of information security
controls under subchapter II;
`(iv) preparation of the index of major information systems required
under section 552(g) of title 5, United States Code; and
`(v) preparation of information system inventories required for
records management under chapters 21, 29, 31, and 33.
`(4) The Director shall issue guidance for and oversee the implementation
of the requirements of this subsection.'.
(3) Section 3506(g) of such title is amended--
(A) by adding `and' at the end of paragraph (1);
(i) by striking `section 11332 of title 40' and inserting `subchapter
II of this chapter'; and
(ii) by striking `; and' and inserting a period; and
(C) by striking paragraph (3).
SEC. 1006. CONSTRUCTION.
Nothing in this Act, or the amendments made by this Act, affects the
authority of the National Institute of Standards and Technology or the
Department of Commerce relating to the development and promulgation of
standards or guidelines under paragraphs (1) and (2) of section 20(a) of the
National Institute of Standards and Technology Act (15 U.S.C. 278g-3(a)).
TITLE XI--DEPARTMENT OF JUSTICE DIVISIONS
Subtitle A--Executive Office for Immigration Review
SEC. 1101. LEGAL STATUS OF EOIR.
(a) EXISTENCE OF EOIR- There is in the Department of Justice the Executive
Office for Immigration Review, which shall be subject to the direction and
regulation of the Attorney General under section 103(g) of the Immigration and
Nationality Act, as added by section 1102.
SEC. 1102. AUTHORITIES OF THE ATTORNEY GENERAL.
Section 103 of the Immigration and Nationality Act (8 U.S.C. 1103) as
amended by this Act, is further amended by--
(1) amending the heading to read as follows:
`POWERS AND DUTIES OF THE SECRETARY, THE UNDER SECRETARY, AND THE ATTORNEY
GENERAL';
(A) by inserting `Attorney General,' after `President,'; and
(B) by redesignating paragraphs (8), (9), (8) (as added by section 372
of Public Law 104-208), and (9) (as added by section 372 of Public Law
104-208) as paragraphs (8), (9), (10), and (11), respectively;
and
(3) by adding at the end the following new subsection:
`(1) IN GENERAL- The Attorney General shall have such authorities and
functions under this Act and all other laws relating to the immigration and
naturalization of aliens as were exercised by the Executive Office for
Immigration Review, or by the Attorney General with respect to the Executive
Office for Immigration Review, on the day before the effective date of the
Immigration Reform, Accountability and Security Enhancement Act of
2002.
`(2) POWERS- The Attorney General shall establish such regulations,
prescribe such forms of bond, reports, entries, and other papers, issue such
instructions, review such administrative determinations in immigration
proceedings, delegate such authority, and perform such other acts as the
Attorney General determines to be necessary for carrying out this
section.'.
SEC. 1103. STATUTORY CONSTRUCTION.
Nothing in this Act, any amendment made by this Act, or in section 103 of
the Immigration and Nationality Act, as amended by section 1102, shall be
construed to limit judicial deference to regulations, adjudications,
interpretations, orders, decisions, judgments, or any other actions of the
Secretary of Homeland Security or the Attorney General.
Subtitle B--Transfer of the Bureau of Alcohol, Tobacco and Firearms to
the Department of Justice
SEC. 1111. BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES.
(1) IN GENERAL- There is established within the Department of Justice
under the general authority of the Attorney General the Bureau of Alcohol,
Tobacco, Firearms, and Explosives (in this section referred to as the
`Bureau').
(2) DIRECTOR- There shall be at the head of the Bureau a Director,
Bureau of Alcohol, Tobacco, Firearms, and Explosives (in this subtitle
referred to as the `Director'). The Director shall be appointed by the
Attorney General and shall perform such functions as the Attorney General
shall direct. The
Director shall receive compensation at the rate prescribed by law under
section 5314 of title V, United States Code, for positions at level III of the
Executive Schedule.
(3) COORDINATION- The Attorney General, acting through the Director and
such other officials of the Department of Justice as the Attorney General
may designate, shall provide for the coordination of all firearms,
explosives, tobacco enforcement, and arson enforcement functions vested in
the Attorney General so as to assure maximum cooperation between and among
any officer, employee, or agency of the Department of Justice involved in
the performance of these and related functions.
(4) PERFORMANCE OF TRANSFERRED FUNCTIONS- The Attorney General may make
such provisions as the Attorney General determines appropriate to authorize
the performance by any officer, employee, or agency of the Department of
Justice of any function transferred to the Attorney General under this
section.
(b) RESPONSIBILITIES- Subject to the direction of the Attorney General,
the Bureau shall be responsible for investigating--
(1) criminal and regulatory violations of the Federal firearms,
explosives, arson, alcohol, and tobacco smuggling laws;
(2) the functions transferred by subsection (c); and
(3) any other function related to the investigation of violent crime or
domestic terrorism that is delegated to the Bureau by the Attorney
General.
(c) TRANSFER OF AUTHORITIES, FUNCTIONS, PERSONNEL, AND ASSETS TO THE
DEPARTMENT OF JUSTICE-
(1) IN GENERAL- Subject to paragraph (2), but notwithstanding any other
provision of law, there are transferred to the Department of Justice the
authorities, functions, personnel, and assets of the Bureau of Alcohol,
Tobacco and Firearms, which shall be maintained as a distinct entity within
the Department of Justice, including the related functions of the Secretary
of the Treasury.
(2) ADMINISTRATION AND REVENUE COLLECTION FUNCTIONS- There shall be
retained within the Department of the Treasury the authorities, functions,
personnel, and assets of the Bureau of Alcohol, Tobacco and Firearms
relating to the administration and enforcement of chapters 51 and 52 of the
Internal Revenue Code of 1986, sections 4181 and 4182 of the Internal
Revenue Code of 1986, and title 27, United States Code.
(3) BUILDING PROSPECTUS- Prospectus PDC-98W10, giving the General
Services Administration the authority for site acquisition, design, and
construction of a new headquarters building for the Bureau of Alcohol,
Tobacco and Firearms, is transferred, and deemed to apply, to the Bureau of
Alcohol, Tobacco, Firearms, and Explosives established in the Department of
Justice under subsection (a).
(d) TAX AND TRADE BUREAU-
(1) ESTABLISHMENT- There is established within the Department of the
Treasury the Tax and Trade Bureau.
(2) ADMINISTRATOR- The Tax and Trade Bureau shall be headed by an
Administrator, who shall perform such duties as assigned by the Under
Secretary for Enforcement of the Department of the Treasury. The
Administrator shall occupy a career-reserved position within the Senior
Executive Service.
(3) RESPONSIBILITIES- The authorities, functions, personnel, and assets
of the Bureau of Alcohol, Tobacco and Firearms that are not transferred to
the Department of Justice under this section shall be retained and
administered by the Tax and Trade Bureau.
SEC. 1112. TECHNICAL AND CONFORMING AMENDMENTS.
(a) The Inspector General Act of 1978 (5 U.S.C. App.) is amended--
(1) in section 8D(b)(1) by striking `Bureau of Alcohol, Tobacco and
Firearms' and inserting `Tax and Trade Bureau'; and
(2) in section 9(a)(1)(L)(i), by striking `Bureau of Alcohol, Tobacco,
and Firearms' and inserting `Tax and Trade Bureau'.
(b) Section 1109(c)(2)(A)(i) of the Consolidated Omnibus Budget
Reconciliation Act of 1985 (7 U.S.C. 1445-3(c)(2)(A)(i)) is amended by
striking `(on ATF Form 3068) by manufacturers of tobacco products to the
Bureau of Alcohol, Tobacco and Firearms' and inserting `by manufacturers of
tobacco products to the Tax and Trade Bureau'.
(c) Section 2(4)(J) of the Enhanced Border Security and Visa Entry Reform
Act of 2002 (Public Law 107-173; 8 U.S.C.A. 1701(4)(J)) is amended by striking
`Bureau of Alcohol, Tobacco, and Firearms' and inserting `Bureau of Alcohol,
Tobacco, Firearms, and Explosives, Department of Justice'.
(d) Section 3(1)(E) of the Firefighters' Safety Study Act (15 U.S.C.
2223b(1)(E)) is amended by striking `the Bureau of Alcohol, Tobacco, and
Firearms,' and inserting `the Bureau of Alcohol, Tobacco, Firearms, and
Explosives, Department of Justice,'.
(e) Chapter 40 of title 18, United States Code, is amended--
(1) by striking section 841(k) and inserting the following:
`(k) `Attorney General' means the Attorney General of the United
States.';
(2) in section 846(a), by striking `the Attorney General and the Federal
Bureau of Investigation, together with the Secretary' and inserting `the
Federal Bureau of Investigation, together with the Bureau of Alcohol, Tobacco,
Firearms, and Explosives'; and
(3) by striking `Secretary' each place it appears and inserting
`Attorney General'.
(f) Chapter 44 of title 18, United States Code, is amended--
(1) in section 921(a)(4)(B), by striking `Secretary' and inserting
`Attorney General';
(2) in section 921(a)(4), by striking `Secretary of the Treasury' and
inserting `Attorney General';
(3) in section 921(a), by striking paragraph (18) and inserting the
following:
`(18) The term `Attorney General' means the Attorney General of the
United States';
(4) in section 922(p)(5)(A), by striking `after consultation with the
Secretary' and inserting `after consultation with the Attorney
General';
(5) in section 923(l), by striking `Secretary of the Treasury'
and inserting `Attorney General'; and
(6) by striking `Secretary' each place it appears, except before `of the
Army' in section 921(a)(4) and before `of Defense' in section 922(p)(5)(A),
and inserting the term `Attorney General'.
(g) Section 1261(a) of title 18, United States Code, is amended to read as
follows:
`(a) The Attorney General--
`(1) shall enforce the provisions of this chapter; and
`(2) has the authority to issue regulations to carry out the provisions
of this chapter.'.
(h) Section 1952(c) of title 18, United States Code, is amended by
striking `Secretary of the Treasury' and inserting `Attorney General'.
(i) Chapter 114 of title 18, United States Code, is amended--
(1) by striking section 2341(5), and inserting the following:
`(5) the term `Attorney General' means the Attorney General of the
United States'; and
(2) by striking `Secretary' each place it appears and inserting
`Attorney General'.
(j) Section 6103(i)(8)(A)(i) of the Internal Revenue Code of 1986
(relating to confidentiality and disclosure of returns and return information)
is amended by striking `or the Bureau of Alcohol, Tobacco and Firearms' and
inserting `, the Bureau of Alcohol, Tobacco, Firearms, and Explosives,
Department of Justice, or the Tax and Trade Bureau, Department of the
Treasury,'.
(k) Section 7801(a) of the Internal Revenue Code of 1986 (relating to the
authority of the Department of the Treasury) is amended--
(1) by striking `SECRETARY- Except' and inserting `SECRETARY-
`(1) IN GENERAL- Except'; and
(2) by adding at the end the following:
`(2) ADMINISTRATION AND ENFORCEMENT OF CERTAIN PROVISIONS BY ATTORNEY
GENERAL-
`(A) IN GENERAL- The administration and enforcement of the following
provisions of this title shall be performed by or under the supervision of
the Attorney General; and the term `Secretary' or `Secretary of the
Treasury' shall, when applied to those provisions, mean the Attorney
General; and the term `internal revenue officer' shall, when applied to
those provisions, mean any officer of the Bureau of Alcohol, Tobacco,
Firearms, and Explosives so designated by the Attorney General:
`(ii) Chapters 61 through 80, to the extent such chapters relate to
the enforcement and administration of the provisions referred to in
clause (i).
`(B) USE OF EXISTING RULINGS AND INTERPRETATIONS- Nothing in this Act
alters or repeals the rulings and interpretations of the Bureau of
Alcohol, Tobacco, and Firearms in effect on the effective date of the
Homeland Security Act of 2002, which concern the provisions of this title
referred to in subparagraph (A). The Attorney General shall consult with
the Secretary to achieve uniformity and consistency in administering
provisions under chapter 53 of title 26, United States Code.'.
(l) Section 2006(2) of title 28, United States Code, is amended by
inserting `, the Director, Bureau of Alcohol, Tobacco, Firearms, and
Explosives, Department of Justice,' after `the Secretary of the Treasury'.
(m) Section 713 of title 31, United States Code, is amended--
(1) by striking the section heading and inserting the following:
`Sec. 713. Audit of Internal Revenue Service, Tax and Trade Bureau, and
Bureau of Alcohol, Tobacco, Firearms, and Explosives';
(2) in subsection (a), by striking `Bureau of Alcohol, Tobacco, and
Firearms,' and inserting `Tax and Trade Bureau, Department of the Treasury,
and the Bureau of Alcohol, Tobacco, Firearms, and Explosives, Department of
Justice'; and
(A) in paragraph (1)(B), by striking `or the Bureau' and inserting `or
either Bureau';
(i) by striking `or the Bureau' and inserting `or either Bureau';
and
(ii) by striking `and the Director of the Bureau' and inserting `the
Tax and Trade Bureau, Department of the Treasury, and the Director of
the Bureau of Alcohol, Tobacco, Firearms, and Explosives, Department of
Justice'; and
(C) in paragraph (3), by striking `or the Bureau' and inserting `or
either Bureau'.
(n) Section 9703 of title 31, United States Code, is amended--
(1) in subsection (a)(2)(B)--
(A) in clause (iii)(III), by inserting `and' after the
semicolon;
(B) in clause (iv), by striking `; and' and inserting a period;
and
(C) by striking clause (v);
(2) by striking subsection (o);
(3) by redesignating existing subsection (p) as subsection (o);
and
(4) in subsection (o)(1), as redesignated by paragraph (3), by striking
`Bureau of Alcohol, Tobacco and Firearms' and inserting `Tax and Trade
Bureau'.
(o) Section 609N(2)(L) of the Justice Assistance Act of 1984 (42 U.S.C.
10502(2)(L)) is amended by striking `Bureau of Alcohol, Tobacco, and Firearms'
and inserting `Bureau of Alcohol, Tobacco, Firearms, and Explosives,
Department of Justice'.
(p) Section 32401(a) of the Violent Crime Control and Law Enforcement Act
of 1994 (42 U.S.C. 13921(a)) is amended--
(1) by striking `Secretary of the Treasury' each place it appears and
inserting `Attorney General'; and
(2) in subparagraph (3)(B), by striking `Bureau of Alcohol, Tobacco and
Firearms' and inserting `Bureau of Alcohol, Tobacco, Firearms, and
Explosives, Department of Justice'.
(q) Section 80303 of title 49, United States Code, is amended--
(1) by inserting `or, when the violation of this chapter involves
contraband described in paragraph (2) or (5) of section 80302(a), the
Attorney General' after `section 80304 of this title.'; and
(2) by inserting `, the Attorney General,' after `by the
Secretary'.
(r) Section 80304 of title 49, United States Code, is amended--
(1) in subsection (a), by striking `(b) and (c)' and inserting `(b),
(c), and (d)';
(2) by redesignating subsection (d) as subsection (e); and
(3) by inserting after subsection (c), the following:
`(d) ATTORNEY GENERAL- The Attorney General, or officers, employees, or
agents of the Bureau of Alcohol, Tobacco, Firearms, and Explosives, Department
of Justice designated by the Attorney General, shall carry out the laws
referred to in section 80306(b) of this title to the extent that the violation
of this chapter involves contraband described in section 80302 (a)(2) or
(a)(5).'.
(s) Section 103 of the Gun Control Act of 1968 (Public Law 90-618; 82
Stat. 1226) is amended by striking `Secretary of the Treasury' and inserting
`Attorney General'.
SEC. 1113. POWERS OF AGENTS OF THE BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND
EXPLOSIVES.
Chapter 203 of title 18, United States Code, is amended by adding the
following:
`Sec. 3051. Powers of Special Agents of Bureau of Alcohol, Tobacco,
Firearms, and Explosives
`(a) Special agents of the Bureau of Alcohol, Tobacco, Firearms, and
Explosives, as well as any other investigator or officer charged by the
Attorney General with the duty of enforcing any of the criminal, seizure,
or
forfeiture provisions of the laws of the United States, may carry firearms,
serve warrants and subpoenas issued under the authority of the United States and
make arrests without warrant for any offense against the United States committed
in their presence, or for any felony cognizable under the laws of the United
States if they have reasonable grounds to believe that the person to be arrested
has committed or is committing such felony.
`(b) Any special agent of the Bureau of Alcohol, Tobacco, Firearms, and
Explosives may, in respect to the performance of his or her duties, make
seizures of property subject to forfeiture to the United States.
`(c)(1) Except as provided in paragraphs (2) and (3), and except to the
extent that such provisions conflict with the provisions of section 983 of
title 18, United States Code, insofar as section 983 applies, the provisions
of the Customs laws relating to--
`(A) the seizure, summary and judicial forfeiture, and condemnation of
property;
`(B) the disposition of such property;
`(C) the remission or mitigation of such forfeiture; and
`(D) the compromise of claims,
shall apply to seizures and forfeitures incurred, or alleged to have been
incurred, under any applicable provision of law enforced or administered by
the Bureau of Alcohol, Tobacco, Firearms, and Explosives.
`(2) For purposes of paragraph (1), duties that are imposed upon a customs
officer or any other person with respect to the seizure and forfeiture of
property under the customs laws of the United States shall be performed with
respect to seizures and forfeitures of property under this section by such
officers, agents, or any other person as may be authorized or designated for
that purpose by the Attorney General.
`(3) Notwithstanding any other provision of law, the disposition of
firearms forfeited by reason of a violation of any law of the United States
shall be governed by the provisions of section 5872(b) of the Internal Revenue
Code of 1986.'.
SEC. 1114. EXPLOSIVES TRAINING AND RESEARCH FACILITY.
(a) ESTABLISHMENT- There is established within the Bureau an Explosives
Training and Research Facility at Fort AP Hill, Fredericksburg, Virginia.
(b) PURPOSE- The facility established under subsection (a) shall be
utilized to train Federal, State, and local law enforcement officers to--
(1) investigate bombings and explosions;
(2) properly handle, utilize, and dispose of explosive materials and
devices;
(3) train canines on explosive detection; and
(4) conduct research on explosives.
(c) AUTHORIZATION OF APPROPRIATIONS-
(1) IN GENERAL- There are authorized to be appropriated such sums as may
be necessary to establish and maintain the facility established under
subsection (a).
(2) AVAILABILITY OF FUNDS- Any amounts appropriated pursuant to
paragraph (1) shall remain available until expended.
SEC. 1115. PERSONNEL MANAGEMENT DEMONSTRATION PROJECT.
Notwithstanding any other provision of law, the Personnel Management
Demonstration Project established under section 102 of title I of Division C
of the Omnibus Consolidated and Emergency Supplemental Appropriations Act for
Fiscal Year 1999 (Pub. L. 105-277; 122 Stat. 2681-585) shall be transferred to
the Attorney General of the United States for continued use by the Bureau of
Alcohol, Tobacco, Firearms, and Explosives, Department of Justice, and the
Secretary of the Treasury for continued use by the Tax and Trade Bureau.
Subtitle C--Explosives
SEC. 1121. SHORT TITLE.
This subtitle may be referred to as the `Safe Explosives Act'.
SEC. 1122. PERMITS FOR PURCHASERS OF EXPLOSIVES.
(a) DEFINITIONS- Section 841 of title 18, United States Code, is
amended--
(1) by striking subsection (j) and inserting the following:
`(j) `Permittee' means any user of explosives for a lawful purpose, who
has obtained either a user permit or a limited permit under the provisions
of this chapter.'; and
(2) by adding at the end the following:
`(r) `Alien' means any person who is not a citizen or national of the
United States.
`(s) `Responsible person' means an individual who has the power to
direct the management and policies of the applicant pertaining to explosive
materials.'.
(b) PERMITS FOR PURCHASE OF EXPLOSIVES- Section 842 of title 18, United
States Code, is amended--
(1) in subsection (a)(2), by striking `and' at the end;
(2) by striking subsection (a)(3) and inserting the following:
`(3) other than a licensee or permittee knowingly--
`(A) to transport, ship, cause to be transported, or receive any
explosive materials; or
`(B) to distribute explosive materials to any person other than a
licensee or permittee; or
`(4) who is a holder of a limited permit--
`(A) to transport, ship, cause to be transported, or receive in
interstate or foreign commerce any explosive materials; or
`(B) to receive explosive materials from a licensee or permittee,
whose premises are located outside the State of residence of the limited
permit holder, or on more than 6 separate occasions, during the period of
the permit, to receive explosive materials from 1 or more licensees or
permittees whose premises are located within the State of residence of the
limited permit holder.'; and
(3) by striking subsection (b) and inserting the following:
`(b) It shall be unlawful for any licensee or permittee to knowingly
distribute any explosive materials to any person other than--
`(2) a holder of a user permit; or
`(3) a holder of a limited permit who is a resident of the State where
distribution is made and in which the premises of the transferor are
located.'.
(c) LICENSES AND USER PERMITS- Section 843(a) of title 18, United States
Code, is amended--
(1) in the first sentence--
(A) by inserting `or limited permit' after `user permit'; and
(B) by inserting before the period at the end the following: `,
including the names of and appropriate identifying information regarding
all employees who will be authorized by the applicant to possess explosive
materials, as well as fingerprints and a photograph of each responsible
person';
(2) in the second sentence, by striking `$200 for each' and inserting
`$50 for a limited permit and $200 for any other'; and
(3) by striking the third sentence and inserting `Each license or user
permit shall be valid for not
longer than 3 years from the date of issuance and each limited permit shall
be valid for not longer than 1 year from the date of issuance. Each license or
permit shall be renewable upon the same conditions and subject to the same
restrictions as the original license or permit, and upon payment of a renewal
fee not to exceed one-half of the original fee.'.
(d) CRITERIA FOR APPROVING LICENSES AND PERMITS- Section 843(b) of title
18, United States Code, is amended--
(1) by striking paragraph (1) and inserting the following:
`(1) the applicant (or, if the applicant is a corporation, partnership, or
association, each responsible person with respect to the applicant) is not a
person described in section 842(i);';
(A) by inserting `(A) the Secretary verifies by inspection or, if the
application is for an original limited permit or the first or second
renewal of such a permit, by such other means as the Secretary determines
appropriate, that' before `the applicant'; and
(B) by adding at the end the following:
`(B) subparagraph (A) shall not apply to an applicant for the renewal
of a limited permit if the Secretary has verified, by inspection within
the preceding 3 years, the matters described in subparagraph (A) with
respect to the applicant; and';
(3) in paragraph (5), by striking the period at the end and inserting a
semicolon; and
(4) by adding at the end the following:
`(6) none of the employees of the applicant who will be authorized by
the applicant to possess explosive materials is any person described in
section 842(i); and
`(7) in the case of a limited permit, the applicant has certified in
writing that the applicant will not receive explosive materials on more than
6 separate occasions during the 12-month period for which the limited permit
is valid.'.
(e) APPLICATION APPROVAL- Section 843(c) of title 18, United States Code,
is amended by striking `forty-five days' and inserting `90 days for licenses
and permits,'.
(f) INSPECTION AUTHORITY- Section 843(f) of title 18, United States Code,
is amended--
(1) in the first sentence--
(A) by striking `permittees' and inserting `holders of user permits';
and
(B) by inserting `licensees and permittees' before `shall
submit';
(2) in the second sentence, by striking `permittee' the first time it
appears and inserting `holder of a user permit'; and
(3) by adding at the end the following: `The Secretary may inspect the
places of storage for explosive materials of an applicant for a limited
permit or, at the time of renewal of such permit, a holder of a limited
permit, only as provided in subsection (b)(4).
(g) POSTING OF PERMITS- Section 843(g) of title 18, United States Code, is
amended by inserting `user' before `permits'.
(h) BACKGROUND CHECKS; CLEARANCES- Section 843 of title 18, United States
Code, is amended by adding at the end the following:
`(h)(1) If the Secretary receives, from an employer, the name and other
identifying information of a responsible person or an employee who will be
authorized by the employer to possess explosive materials in the course of
employment with the employer, the Secretary shall determine whether the
responsible person or employee is one of the persons described in any
paragraph of section 842(i). In making the determination, the Secretary may
take into account a letter or document issued under paragraph (2).
`(2)(A) If the Secretary determines that the responsible person or the
employee is not one of the persons described in any paragraph of section
842(i), the Secretary shall notify the employer in writing or electronically
of the determination and issue, to the responsible person or employee, a
letter of clearance, which confirms the determination.
`(B) If the Secretary determines that the responsible person or employee
is one of the persons described in any paragraph of section 842(i), the
Secretary shall notify the employer in writing or electronically of the
determination and issue to the responsible person or the employee, as the case
may be, a document that--
`(i) confirms the determination;
`(ii) explains the grounds for the determination;
`(iii) provides information on how the disability may be relieved;
and
`(iv) explains how the determination may be appealed.'.
(1) IN GENERAL- The amendments made by this section shall take effect
180 days after the date of enactment of this Act.
(2) EXCEPTION- Notwithstanding any provision of this Act, a license or
permit issued under section 843 of title 18, United States Code, before the
date of enactment of this Act, shall remain valid until that license or
permit is revoked under section 843(d) or expires, or until a timely
application for renewal is acted upon.
SEC. 1123. PERSONS PROHIBITED FROM RECEIVING OR POSSESSING EXPLOSIVE
MATERIALS.
(a) DISTRIBUTION OF EXPLOSIVES- Section 842(d) of title 18, United States
Code, is amended--
(1) in paragraph (5), by striking `or' at the end;
(2) in paragraph (6), by striking the period at the end and inserting
`or who has been committed to a mental institution;'; and
(3) by adding at the end the following:
`(7) is an alien, other than an alien who--
`(A) is lawfully admitted for permanent residence (as defined in
section 101 (a)(20) of the Immigration and Nationality Act); or
`(B) is in lawful nonimmigrant status, is a refugee admitted under
section 207 of the Immigration and Nationality Act (8 U.S.C. 1157), or is
in asylum status under section 208 of the Immigration and Nationality Act
(8 U.S.C. 1158), and--
`(i) is a foreign law enforcement officer of a friendly foreign
government, as determined by the Secretary in consultation with the
Secretary of State, entering the United States on official law
enforcement business, and the shipping, transporting, possession, or
receipt of explosive materials is in furtherance of this official law
enforcement business;
`(ii) is a person having the power to direct or cause the direction
of the management and policies of a corporation, partnership, or
association licensed pursuant to section 843(a), and the shipping,
transporting, possession, or receipt of explosive materials is in
furtherance of such power;
`(iii) is a member of a North Atlantic Treaty Organization (NATO) or
other
friendly foreign military force, as determined by the Secretary in
consultation with the Secretary of Defense, (whether or not admitted in a
nonimmigrant status) who is present in the United States under military orders
for training or other military purpose authorized by the United States, and the
shipping, transporting, possession, or receipt of explosive materials is in
furtherance of the military purpose; or
`(iv) is lawfully present in the United States in cooperation with
the Director of Central Intelligence, and the shipment, transportation,
receipt, or possession of the explosive materials is in furtherance of
such cooperation;
`(8) has been discharged from the armed forces under dishonorable
conditions;
`(9) having been a citizen of the United States, has renounced the
citizenship of that person.'.
(b) POSSESSION OF EXPLOSIVE MATERIALS- Section 842(i) of title 18, United
States Code, is amended--
(1) in paragraph (3), by striking `or' at the end; and
(2) by inserting after paragraph (4) the following:
`(5) who is an alien, other than an alien who--
`(A) is lawfully admitted for permanent residence (as that term is
defined in section 101(a)(20) of the Immigration and Nationality Act);
or
`(B) is in lawful nonimmigrant status, is a refugee admitted under
section 207 of the Immigration and Nationality Act (8 U.S.C. 1157), or is
in asylum status under section 208 of the Immigration and Nationality Act
(8 U.S.C. 1158), and--
`(i) is a foreign law enforcement officer of a friendly foreign
government, as determined by the Secretary in consultation with the
Secretary of State, entering the United States on official law
enforcement business, and the shipping, transporting, possession, or
receipt of explosive materials is in furtherance of this official law
enforcement business;
`(ii) is a person having the power to direct or cause the direction
of the management and policies of a corporation, partnership, or
association licensed pursuant to section 843(a), and the shipping,
transporting, possession, or receipt of explosive materials is in
furtherance of such power;
`(iii) is a member of a North Atlantic Treaty Organization (NATO) or
other friendly foreign military force, as determined by the Secretary in
consultation with the Secretary of Defense, (whether or not admitted in
a nonimmigrant status) who is present in the United States under
military orders for training or other military purpose authorized by the
United States, and the shipping, transporting, possession, or receipt of
explosive materials is in furtherance of the military purpose;
or
`(iv) is lawfully present in the United States in cooperation with
the Director of Central Intelligence, and the shipment, transportation,
receipt, or possession of the explosive materials is in furtherance of
such cooperation;
`(6) who has been discharged from the armed forces under dishonorable
conditions;
`(7) who, having been a citizen of the United States, has renounced the
citizenship of that person'; and
(3) by inserting `or affecting' before `interstate' each place that term
appears.
SEC. 1124. REQUIREMENT TO PROVIDE SAMPLES OF EXPLOSIVE MATERIALS AND
AMMONIUM NITRATE.
Section 843 of title 18, United States Code, as amended by this Act, is
amended by adding at the end the following:
`(i) FURNISHING OF SAMPLES-
`(1) IN GENERAL- Licensed manufacturers and licensed importers and
persons who manufacture or import explosive materials or ammonium nitrate
shall, when required by letter issued by the Secretary, furnish--
`(A) samples of such explosive materials or ammonium nitrate;
`(B) information on chemical composition of those products;
and
`(C) any other information that the Secretary determines is relevant
to the identification of the explosive materials or to identification of
the ammonium nitrate.
`(2) REIMBURSEMENT- The Secretary shall, by regulation, authorize
reimbursement of the fair market value of samples furnished pursuant to this
subsection, as well as the reasonable costs of shipment.'.
SEC. 1125. DESTRUCTION OF PROPERTY OF INSTITUTIONS RECEIVING FEDERAL
FINANCIAL ASSISTANCE.
Section 844(f)(1) of title 18, United States Code, is amended by inserting
before the word `shall' the following: `or any institution or organization
receiving Federal financial assistance,'.
SEC. 1126. RELIEF FROM DISABILITIES.
Section 845(b) of title 18, United States Code, is amended to read as
follows:
`(b)(1) A person who is prohibited from shipping, transporting, receiving,
or possessing any explosive under section 842(i) may apply to the Secretary
for relief from such prohibition.
`(2) The Secretary may grant the relief requested under paragraph (1) if
the Secretary determines that the circumstances regarding the applicability of
section 842(i), and the applicant's record and reputation, are such that the
applicant will not be likely to act in a manner dangerous to public safety and
that the granting of such relief is not contrary to the public interest.
`(3) A licensee or permittee who applies for relief, under this
subsection, from the disabilities incurred under this chapter as a result of
an indictment for or conviction of a crime punishable by imprisonment for a
term exceeding 1 year shall not be barred by such disability from further
operations under the license or permit pending final action on an application
for relief filed pursuant to this section.'.
SEC. 1127. THEFT REPORTING REQUIREMENT.
Section 844 of title 18, United States Code, is amended by adding at the
end the following:
`(p) THEFT REPORTING REQUIREMENT-
`(1) IN GENERAL- A holder of a license or permit who knows that
explosive materials have been stolen from that licensee or permittee, shall
report the theft to the Secretary not later than 24 hours after the
discovery of the theft.
`(2) PENALTY- A holder of a license or permit who does not report a
theft in accordance with paragraph (1), shall be fined not more than
$10,000, imprisoned not more than 5 years, or both.'.
SEC. 1128. AUTHORIZATION OF APPROPRIATIONS.
There is authorized to be appropriated such sums as necessary to carry out
this subtitle and the amendments made by this subtitle.
TITLE XII--AIRLINE WAR RISK INSURANCE LEGISLATION
SEC. 1201. AIR CARRIER LIABILITY FOR THIRD PARTY CLAIMS ARISING OUT OF ACTS
OF TERRORISM.
Section 44303 of title 49, United States Code, is amended--
(1) by inserting `(a) IN GENERAL- ' before `The Secretary of
Transportation';
(2) by moving the text of paragraph (2) of section 201(b) of the Air
Transportation Safety and System Stabilization Act (115 Stat. 235) to the
end and redesignating such paragraph as subsection (b);
(3) in subsection (b) (as so redesignated)--
(A) by striking the subsection heading and inserting `AIR CARRIER
LIABILITY FOR THIRD PARTY CLAIMS ARISING OUT OF ACTS OF TERRORISM-
';
(B) in the first sentence by striking `the 180-day period following
the date of enactment of this Act, the Secretary of Transportation' and
inserting `the period beginning on September 22, 2001, and ending on
December 31, 2003, the Secretary'; and
(C) in the last sentence by striking `this paragraph' and inserting
`this subsection'.
SEC. 1202. EXTENSION OF INSURANCE POLICIES.
Section 44302 of title 49, United States Code, is amended by adding at the
end the following:
`(f) EXTENSION OF POLICIES-
`(1) IN GENERAL- The Secretary shall extend through August 31, 2003, and
may extend through December 31, 2003, the termination date of any insurance
policy that the Department of Transportation issued to an air carrier under
subsection (a) and that is in effect on the date of enactment of this
subsection on no less favorable terms to the air carrier than existed on
June 19, 2002; except that the Secretary shall amend the insurance policy,
subject to such terms and conditions as the Secretary may prescribe, to add
coverage for losses or injuries to aircraft hulls, passengers, and crew at
the limits carried by air carriers for such losses and injuries as of such
date of enactment and at an additional premium comparable to the premium
charged for third-party casualty coverage under such policy.
`(2) SPECIAL RULES- Notwithstanding paragraph (1)--
`(A) in no event shall the total premium paid by the air carrier for
the policy, as amended, be more than twice the premium that the air
carrier was paying to the Department of Transportation for its third party
policy as of June 19, 2002; and
`(B) the coverage in such policy shall begin with the first dollar of
any covered loss that is incurred.'.
SEC. 1203. CORRECTION OF REFERENCE.
Effective November 19, 2001, section 147 of the Aviation and
Transportation Security Act (Public Law 107-71) is amended by striking `(b)'
and inserting `(c)'.
SEC. 1204. REPORT.
Not later than 90 days after the date of enactment of this Act, the
Secretary shall transmit to the Committee on Commerce, Science, and
Transportation of the Senate and the Committee on Transportation and
Infrastructure of the House of Representatives a report that--
(A) evaluates the availability and cost of commercial war risk
insurance for air carriers and other aviation entities for passengers and
third parties;
(B) analyzes the economic effect upon air carriers and other aviation
entities of available commercial war risk insurance; and
(C) describes the manner in which the Department could provide an
alternative means of providing aviation war risk reinsurance covering
passengers, crew, and third parties through use of a risk-retention group
or by other means.
TITLE XIII--FEDERAL WORKFORCE IMPROVEMENT
Subtitle A--Chief Human Capital Officers
SEC. 1301. SHORT TITLE.
This title may be cited as the `Chief Human Capital Officers Act of
2002'.
SEC. 1302. AGENCY CHIEF HUMAN CAPITAL OFFICERS.
(a) IN GENERAL- Part II of title 5, United States Code, is amended by
inserting after chapter 13 the following:
`CHAPTER 14--AGENCY CHIEF HUMAN CAPITAL OFFICERS
`Sec.
`1401. Establishment of agency Chief Human Capital Officers.
`1402. Authority and functions of agency Chief Human Capital
Officers.
`Sec. 1401. Establishment of agency Chief Human Capital Officers
`The head of each agency referred to under paragraphs (1) and (2) of
section 901(b) of title 31 shall appoint or designate a Chief Human Capital
Officer, who shall--
`(1) advise and assist the head of the agency and other agency officials
in carrying out the agency's responsibilities for selecting, developing,
training, and managing a high-quality, productive workforce in accordance
with merit system principles;
`(2) implement the rules and regulations of the President and the Office
of Personnel Management and the laws governing the civil service within the
agency; and
`(3) carry out such functions as the primary duty of the Chief Human
Capital Officer.
`Sec. 1402. Authority and functions of agency Chief Human Capital
Officers
`(a) The functions of each Chief Human Capital Officer shall include--
`(1) setting the workforce development strategy of the agency;
`(2) assessing workforce characteristics and future needs based on the
agency's mission and strategic plan;
`(3) aligning the agency's human resources policies and programs with
organization mission, strategic goals, and performance outcomes;
`(4) developing and advocating a culture of continuous learning to
attract and retain employees with superior abilities;
`(5) identifying best practices and benchmarking studies, and
`(6) applying methods for measuring intellectual capital and identifying
links of that capital to organizational performance and growth.
`(b) In addition to the authority otherwise provided by this section, each
agency Chief Human Capital Officer--
`(1) shall have access to all records, reports, audits, reviews,
documents, papers, recommendations, or other material that--
`(A) are the property of the agency or are available to the agency;
and
`(B) relate to programs and operations with respect to which that
agency Chief Human Capital Officer has responsibilities under this
chapter; and
`(2) may request such information or assistance as may be necessary for
carrying out the duties
and responsibilities provided by this chapter from any Federal, State, or
local governmental entity.'.
(b) TECHNICAL AND CONFORMING AMENDMENT- The table of chapters for chapters
for part II of title 5, United States Code, is amended by inserting after the
item relating to chapter 13 the following:
1401'.
SEC. 1303. CHIEF HUMAN CAPITAL OFFICERS COUNCIL.
(a) ESTABLISHMENT- There is established a Chief Human Capital Officers
Council, consisting of--
(1) the Director of the Office of Personnel Management, who shall act as
chairperson of the Council;
(2) the Deputy Director for Management of the Office of Management and
Budget, who shall act as vice chairperson of the Council; and
(3) the Chief Human Capital Officers of Executive departments and any
other members who are designated by the Director of the Office of Personnel
Management.
(b) FUNCTIONS- The Chief Human Capital Officers Council shall meet
periodically to advise and coordinate the activities of the agencies of its
members on such matters as modernization of human resources systems, improved
quality of human resources information, and legislation affecting human
resources operations and organizations.
(c) EMPLOYEE LABOR ORGANIZATIONS AT MEETINGS- The Chief Human Capital
Officers Council shall ensure that representatives of Federal employee labor
organizations are present at a minimum of 1 meeting of the Council each year.
Such representatives shall not be members of the Council.
(d) ANNUAL REPORT- Each year the Chief Human Capital Officers Council
shall submit a report to Congress on the activities of the Council.
SEC. 1304. STRATEGIC HUMAN CAPITAL MANAGEMENT.
Section 1103 of title 5, United States Code, is amended by adding at the
end the following:
`(c)(1) The Office of Personnel Management shall design a set of systems,
including appropriate metrics, for assessing the management of human capital
by Federal agencies.
`(2) The systems referred to under paragraph (1) shall be defined in
regulations of the Office of Personnel Management and include standards
for--
`(A)(i) aligning human capital strategies of agencies with the missions,
goals, and organizational objectives of those agencies; and
`(ii) integrating those strategies into the budget and strategic plans
of those agencies;
`(B) closing skill gaps in mission critical occupations;
`(C) ensuring continuity of effective leadership through implementation
of recruitment, development, and succession plans;
`(D) sustaining a culture that cultivates and develops a high performing
workforce;
`(E) developing and implementing a knowledge management strategy
supported by appropriate investment in training and technology; and
`(F) holding managers and human resources officers accountable for
efficient and effective human resources management in support of agency
missions in accordance with merit system principles.'.
SEC. 1305. EFFECTIVE DATE.
This subtitle shall take effect 180 days after the date of enactment of
this Act.
Subtitle B--Reforms Relating to Federal Human Capital
Management
SEC. 1311. INCLUSION OF AGENCY HUMAN CAPITAL STRATEGIC PLANNING IN
PERFORMANCE PLANS AND PROGRAMS PERFORMANCE REPORTS.
(a) PERFORMANCE PLANS- Section 1115 of title 31, United States Code, is
amended--
(1) in subsection (a), by striking paragraph (3) and inserting the
following:
`(3) provide a description of how the performance goals and objectives
are to be achieved, including the operation processes, training, skills and
technology, and the human, capital, information, and other resources and
strategies required to meet those performance goals and objectives.';
(2) by redesignating subsection (f) as subsection (g); and
(3) by inserting after subsection (e) the following:
`(f) With respect to each agency with a Chief Human Capital Officer, the
Chief Human Capital Officer shall prepare that portion of the annual
performance plan described under subsection (a)(3).'.
(b) PROGRAM PERFORMANCE REPORTS- Section 1116(d) of title 31, United
States Code, is amended--
(1) in paragraph (4), by striking `and' after the semicolon;
(2) by redesignating paragraph (5) as paragraph (6); and
(3) by inserting after paragraph (4) the following:
`(5) include a review of the performance goals and evaluation of the
performance plan relative to the agency's strategic human capital
management; and'.
SEC. 1312. REFORM OF THE COMPETITIVE SERVICE HIRING PROCESS.
(a) IN GENERAL- Chapter 33 of title 5, United States Code, is amended--
(A) in paragraph (1), by striking `and' after the semicolon;
(B) in paragraph (2), by striking the period and inserting `; and';
and
(C) by adding at the end of the following:
`(3) authority for agencies to appoint, without regard to the provision
of sections 3309 through 3318, candidates directly to positions for
which--
`(A) public notice has been given; and
`(B) the Office of Personnel Management has determined that there
exists a severe shortage of candidates or there is a critical hiring
need.
The Office shall prescribe, by regulation, criteria for identifying such
positions and may delegate authority to make determinations under such
criteria.'; and
(2) by inserting after section 3318 the following:
`Sec. 3319. Alternative ranking and selection procedures
`(a) The Office, in exercising its authority under section 3304, or an
agency to which the Office has delegated examining authority under section
1104(a)(2), may establish category rating systems for evaluating applicants
for positions in the competitive service, under 2 or more quality categories
based on merit consistent with regulations prescribed by the Office of
Personnel Management, rather than assigned individual numerical ratings.
`(b) Within each quality category established under subsection (a),
preference-eligibles shall be listed ahead of individuals who are not
preference eligibles. For other than scientific and professional positions at
GS-9 of the General Schedule (equivalent or higher), qualified
preference-eligibles who have a compensable service-connected
disability of 10 percent or more shall be listed in the highest quality
category.
`(c)(1) An appointing official may select any applicant in the highest
quality category or, if fewer than 3 candidates have been assigned to the
highest quality category, in a merged category consisting of the highest and
the second highest quality categories.
`(2) Notwithstanding paragraph (1), the appointing official may not pass
over a preference-eligible in the same category from which selection is made,
unless the requirements of section 3317(b) or 3318(b), as applicable, are
satisfied.
`(d) Each agency that establishes a category rating system under this
section shall submit in each of the 3 years following that establishment, a
report to Congress on that system including information on--
`(1) the number of employees hired under that system;
`(2) the impact that system has had on the hiring of veterans and
minorities, including those who are American Indian or Alaska Natives,
Asian, Black or African American, and native Hawaiian or other Pacific
Islanders; and
`(3) the way in which managers were trained in the administration of
that system.
`(e) The Office of Personnel Management may prescribe such regulations as
it considers necessary to carry out the provisions of this section.'.
(b) TECHNICAL AND CONFORMING AMENDMENT- The table of sections for chapter
33 of title 5, United States Code, is amended by striking the item relating to
section 3319 and inserting the following:
`3319. Alternative ranking and selection procedures.'.
SEC. 1313. PERMANENT EXTENSION, REVISION, AND EXPANSION OF AUTHORITIES FOR
USE OF VOLUNTARY SEPARATION INCENTIVE PAY AND VOLUNTARY EARLY RETIREMENT.
(a) VOLUNTARY SEPARATION INCENTIVE PAYMENTS-
(A) AMENDMENT TO TITLE 5, UNITED STATES CODE- Chapter 35 of title 5,
United States Code, is amended by inserting after subchapter I the
following:
`SUBCHAPTER II--VOLUNTARY SEPARATION INCENTIVE PAYMENTS
`Sec. 3521. Definitions
`In this subchapter, the term--
`(1) `agency' means an Executive agency as defined under section 105;
and
`(A) means an employee as defined under section 2105 employed by an
agency and an individual employed by a county committee established under
section 8(b)(5) of the Soil Conservation and Domestic Allotment Act (16
U.S.C. 590h(b)(5)) who--
`(i) is serving under an appointment without time limitation;
and
`(ii) has been currently employed for a continuous period of at
least 3 years; and
`(i) a reemployed annuitant under subchapter III of chapter 83 or 84
or another retirement system for employees of the
Government;
`(ii) an employee having a disability on the basis of which such
employee is or would be eligible for disability retirement under
subchapter III of chapter 83 or 84 or another retirement system for
employees of the Government.
`(iii) an employee who is in receipt of a decision notice of
involuntary separation for misconduct or unacceptable
performance;
`(iv) an employee who has previously received any voluntary
separation incentive payment from the Federal Government under this
subchapter or any other authority;
`(v) an employee covered by statutory reemployment rights who is on
transfer employment with another organization; or
`(I) during the 36-month period preceding the date of separation
of that employee, performed service for which a student loan repayment
benefit was or is to be paid under section 5379;
`(II) during the 24-month period preceding the date of separation
of that employee, performed service for which a recruitment or
relocation bonus was or is to be paid under section 5753;
or
`(III) during the 12-month period preceding the date of separation
of that employee, performed service for which a retention bonus was or
is to be paid under section 5754.
`Sec. 3522. Agency plans; approval
`(a) Before obligating any resources for voluntary separation incentive
payments, the head of each agency shall submit to the Office of Personnel
Management a plan outlining the intended use of such incentive payments and a
proposed organizational chart for the agency once such incentive payments have
been completed.
`(b) The plan of an agency under subsection (a) shall include--
`(1) the specific positions and functions to be reduced or
eliminated;
`(2) a description of which categories of employees will be offered
incentives;
`(3) the time period during which incentives may be paid;
`(4) the number and amounts of voluntary separation incentive payments
to be offered; and
`(5) a description of how the agency will operate without the eliminated
positions and functions.
`(c) The Director of the Office of Personnel Management shall review each
agency's plan an may make any appropriate modifications in the plan, in
consultation with the Director of the Office of Management and Budget. A plan
under this section may not be implemented without the approval of the
Directive of the Office of Personnel Management.
`Sec. 3523. Authority to provide voluntary separation incentive
payments
`(a) A voluntary separation incentive payment under this subchapter may be
paid to an employee only as provided in the plan of an agency established
under section 3522.
`(b) A voluntary incentive payment--
`(1) shall be offered to agency employees on the basis of--
`(A) 1 or more organizational units;
`(B) 1 or more occupational series or levels;
`(C) 1 or more geographical locations;
`(D) skills, knowledge, or other factors related to a
position;
`(E) specific periods of time during which eligible employees may
elect a voluntary incentive payment; or
`(F) any appropriate combination of such factors;
`(2) shall be paid in a lump sum after the employee's separation;
`(3) shall be equal to the lesser of--
`(A) an amount equal to the amount the employee would be entitled to
receive under section 5595(c) if the employee were entitled to payment
under such section (without adjustment for any previous payment made);
or
`(B) an amount determined by the agency head, not to exceed
$25,000;
`(4) may be made only in the case of an employee who voluntarily
separates (whether by retirement or resignation) under this
subchapter;
`(5) shall not be a basis for payment, and shall not be included in the
computation, of any other type of Government benefit;
`(6) shall not be taken into account in determining the amount of any
severance pay to which the employee may be entitled under section 5595,
based on another other separation; and
`(7) shall be paid from appropriations or funds available for the
payment of the basic pay of the employee.
`Sec. 3524. Effect of subsequent employment with the Government
`(a) The term `employment'--
`(1) in subsection (b) includes employment under a personal services
contract (or other direct contract) with the United States Government (other
than an entity in the legislative branch); and
`(2) in subsection (c) does not include employment under such a
contract.
`(b) An individual who has received a voluntary separation incentive
payment under this subchapter and accepts any employment for compensation with
the Government of the United States with 5 years after the date of the
separation on which the payment is based shall be required to pay, before the
individual's first day of employment, the entire amount of the incentive
payment to the agency that paid the incentive payment.
`(c)(1) If the employment under this section is with an agency, other than
the General Accounting Office, the United States Postal Service, or the Postal
Rate Commission, the Director of the Office of Personnel Management may, at
the request of the head of the agency, may waive the repayment if--
`(A) the individual involved possesses unique abilities and is the only
qualified applicant available for the position; or
`(B) in case of an emergency involving a direct threat to life or
property, the individual--
`(i) has skills directly related to resolving the emergency;
and
`(ii) will serve on a temporary basis only so long as that
individual's services are made necessary by the emergency.
`(2) If the employment under this section is with an entity in the
legislative branch, the head of the entity or the appointing official may
waive the repayment if the individual involved possesses unique abilities and
is the only qualified applicant available for the position.
`(3) If the employment under this section is with the judicial branch, the
Director of the Administrative Office of the United States Courts may waive
the repayment if the individual involved possesses unique abilities and is the
only qualified applicant available for the position.
`Sec. 3525. Regulations
`The Office of Personnel Management may prescribe regulations to carry out
this subchapter.'.
(B) TECHNICAL AND CONFORMING AMENDMENTS- Chapter 35 of title 5, United
States Code, is amended--
(i) by striking the chapter heading and inserting the
following:
`CHAPTER 35--RETENTION PREFERENCE, VOLUNTARY SEPARATION INCENTIVE
PAYMENTS, RESTORATION, AND REEMPLOYMENT';
(ii) in the table of sections by inserting after the item relating
to section 3504 the following:
`SUBCHAPTER II--VOLUNTARY SEPARATION INCENTIVE PAYMENTS
`3521. Definitions.
`3522. Agency plans; approval.
`3523. Authority to provide voluntary separation incentive payments.
`3524. Effect of subsequent employment with the Government.
`3525. Regulations.'.
(2) ADMINISTRATIVE OFFICE OF THE UNITED STATES COURTS- The Director of
the Administrative Office of the United States Courts may, by regulation,
establish a program substantially similar to the program established under
paragraph (1) for individuals serving in the judicial branch.
(3) CONTINUATION OF OTHER AUTHORITY- Any agency exercising any voluntary
separation incentive authority in effect on the effective date of this
subsection may continue to offer voluntary separation incentives consistent
with that authority until that authority expires.
(4) EFFECTIVE DATE- This subsection shall take effect 60 days after the
date of enactment of this Act.
(b) FEDERAL EMPLOYEE VOLUNTARY EARLY RETIREMENT-
(1) CIVIL SERVICE RETIREMENT SYSTEM- Section 8336(d)(2) of title 5,
United States Code, is amended to read as follows:
`(2)(A) has been employed continuously, by the agency in which the
employee is serving, for at least the 31-day period ending on the date on
which such agency requests the determination referred to in subparagraph
(D);
`(B) is serving under an appointment that is not time limited;
`(C) has not been duly notified that such employee is to be
involuntarily separated for misconduct or unacceptable performance;
`(D) is separated from the service voluntarily during a period in which,
as determined by the office of Personnel Management (upon request of the
agency) under regulations prescribed by the Office--
`(i) such agency (or, if applicable, the component in which the
employee is serving) is undergoing substantial delayering, substantial
reorganization, substantial reductions in force, substantial transfer of
function, or other substantial workforce restructuring (or
shaping);
`(ii) a significant percentage of employees servicing in such agency
(or component) are likely to be separated or subject to an immediate
reduction in the rate of basic pay (without regard to subchapter VI of
chapter 53, or comparable provisions); or
`(iii) identified as being in positions which are becoming surplus or
excess to the agency's future ability to carry out its mission
effectively; and
`(E) as determined by the agency under regulations prescribed by the
Office, is within the scope of the offer of voluntary early retirement,
which may be made on the basis of--
`(i) 1 or more organizational units;
`(ii) 1 or more occupational series or levels;
`(iii) 1 or more geographical locations;
`(v) skills, knowledge, or other factors related to a position;
or
`(vi) any appropriate combination of such factors;'.
(2) FEDERAL EMPLOYEES' RETIREMENT SYSTEM- Section 8414(b)(1) of title 5,
United States Code, is amended by striking subparagraph (B) and inserting
the following:
`(B)(i) has been employed continuously, by the agency in which the
employee is serving, for at least the 31-day period ending on the date on
which such agency requests the determination referred to in clause
(iv);
`(ii) is serving under an appointment that is not time
limited;
`(iii) has not been duly notified that such employee is to be
involuntarily separated for misconduct or unacceptable
performance;
`(iv) is separate from the service voluntarily during a period in
which, as determined by the Office of Personnel Management (upon request
of the agency) under regulations prescribed by the Office--
`(I) such agency (or, if applicable, the component in which the
employee is serving) is undergoing substantial delayering, substantial
reorganization, substantial reductions in force, substantial transfer of
function, or other substantial workforce restructuring (or
shaping);
`(II) a significant percentage of employees serving in such agency
(or component) are likely to be separated or subject to an immediate
reduction in the rate of basic pay (without regard to subchapter VI of
chapter 53, or comparable provisions); or
`(III) identified as being in positions which are becoming surplus
or excess to the agency's future ability to carry out its mission
effectively; and
`(v) as determined by the agency under regulations prescribed by the
Office, is within the scope of the offer of voluntary early retirement,
which may be made on the basis of--
`(I) 1 or more organizational units;
`(II) 1 or more occupational series or levels;
`(III) 1 or more geographical locations;
`(V) skills, knowledge, or other factors related to a position;
or
`(VI) any appropriate combination of such factors.'.
(3) GENERAL ACCOUNTING OFFICE AUTHORITY- The amendments made by this
subsection shall not be construed to affect the authority under section 1 of
Public Law 106-303 (5 U.S.C. 8336 note; 114 State. 1063).
(4) TECHNICAL AND CONFORMING AMENDMENTS- Section 7001 of the 1998
Supplemental Appropriations and Rescissions Act (Public Law 105-174; 112
Stat. 91) is repealed.
(5) REGULATIONS- The Office of Personnel Management may prescribe
regulations to carry out this subsection.
(c) SENSE OF CONGRESS- It is the sense of Congress that the implementation
of this section is intended to reshape the Federal workforce and not downsize
the Federal workforce.
SEC. 1314. STUDENT VOLUNTEER TRANSIT SUBSIDY.
(a) IN GENERAL- Section 7905(a)(1) of title 5, United States Code, is
amended by striking `and a member of a uniformed service' and inserting `, a
member of a uniformed service, and a student who provides voluntary services
under section 3111'.
(b) TECHNICAL AND CONFORMING AMENDMENT- Section 3111(c)(1) of title 5,
United States Code, is amended by striking `chapter 81 of this title' and
inserting `section 7905 (relating to commuting by means other than
single-occupancy motor vehicles), chapter 81'.
Subtitle C--Reforms Relating to the Senior Executive
Service
SEC. 1321. REPEAL OF RECERTIFICATION REQUIREMENTS OF SENIOR EXECUTIVES.
(a) IN GENERAL- Title 5, United States Code, is amended--
(A) in section 3393(g) by striking `3393a';
(B) by repealing section 3393a; and
(C) in the table of sections by striking the item relating to section
3393a;
(i) in paragraph (1), by inserting `or' at the end;
(ii) in paragraph (2), by striking `or' at the end;
(iii) by striking paragraph (3); and
(iv) by striking the last sentence;
(B) in section 3593(a), by striking paragraph (2) and inserting the
following:
`(2) the appointee left the Senior Executive Service for reasons other
than misconduct, neglect of duty, malfeasance, or less than fully successful
executive performance as determined under subchapter II of chapter 43.';
and
(i) in paragraph (1), by inserting `or' at the end;
(ii) in paragraph (2), by striking `or' at the end; and
(iii) by striking paragraph (3);
(3) in section 7701(c)(1)(A), by striking `or removal from the Senior
Executive Service for failure to be recertified under section 3393a';
(A) in section 8336(h)(1), by striking `for failure to be recertified
as a senior executive under section 3393a or'; and
(B) in section 8339(h), in the first sentence, by striking `, except
that such reduction shall not apply in the case of an employee retiring
under section 8336(h) for failure to be recertified as a senior
executive'; and
(A) in section 8414(a)(1), by striking `for failure to be recertified
as a senior executive under section 3393a or'; and
(B) in section 8421(a)(2), by striking `, except that an individual
entitled to an annuity under section 8414(a) for failure to be recertified
as a senior executive shall be entitled to an annuity supplement without
regard to such applicable retirement age'.
(b) SAVINGS PROVISION- Notwithstanding the amendments made by subsection
(a)(2)(A), an appeal under the final sentence of section 3592(a) of title 5,
United States Code, that is pending on the day before the effective date of
this section--
(1) shall not abate by reason of the enactment of the amendments made by
subsection (a)(2)(A); and
(2) shall continue as if such amendments had not been enacted.
(c) APPLICATION- The amendment made by subsection (a)(2)(B) shall not
apply with respect to an individual who, before the effective date of this
section, leaves
the Senior Executive Service for failure to be recertified as a senior
executive under section 3393a of title 5, United States Code.
SEC. 1322. ADJUSTMENT OF LIMITATION ON TOTAL ANNUAL COMPENSATION.
(a) IN GENERAL- Section 5307 of title 5, United States Code, is amended by
adding at the end the following:
`(d)(1) Notwithstanding any other provision of this section, subsection
(a)(1) shall be applied by substituting `the total annual compensation payable
to the Vice President under section 104 of title 3' for `the annual rate of
basic pay payable for level I of the Executive Schedule' in the case of any
employee who--
`(A) is paid under section 5376 or 5383 of this title or section 332(f),
603, or 604 of title 28; and
`(B) holds a position in or under an agency which is described in
paragraph (2).
`(2) An agency described in this paragraph is any agency which, for
purposes of the calendar year involved, has been certified under this
subsection as having a performance appraisal system which (as designed and
applied) makes meaningful distinctions based on relative performance.
`(3)(A) The Office of Personnel Management and the Office of Management
and Budget jointly shall promulgate such regulations as may be necessary to
carry out this subsection, including the criteria and procedures in accordance
with which any determinations under this subsection shall be made.
`(B) An agency's certification under this subsection shall be for a period
of 2 calendar years, except that such certification may be terminated at any
time, for purposes of either or both of those years, upon a finding that the
actions of such agency have not remained in conformance with applicable
requirements.
`(C) Any certification or decertification under this subsection shall be
made by the Office of Personnel Management, with the concurrence of the Office
of Management and Budget.
`(4) Notwithstanding any provision of paragraph (3), any regulations,
certifications, or other measures necessary to carry out this subsection with
respect to employees within the judicial branch shall be the responsibility of
the Director of the Administrative Office of the United States Courts.
However, the regulations under this paragraph shall be consistent with those
promulgated under paragraph (3).'.
(b) CONFORMING AMENDMENTS- (1) Section 5307(a) of title 5, United States
Code, is amended by inserting `or as otherwise provided under subsection (d),'
after `under law,'.
(2) Section 5307(c) of such title is amended by striking `this section,'
and inserting `this section (subject to subsection (d)),'.
Subtitle D--Academic Training
SEC. 1331. ACADEMIC TRAINING.
(a) ACADEMIC DEGREE TRAINING- Section 4107 of title 5, United States Code,
is amended to read as follows:
`Sec. 4107. Academic degree training
`(a) Subject to subsection (b), an agency may select and assign an
employee to academic degree training and may pay or reimburse the costs of
academic degree training from appropriated or other available funds if such
training--
`(1) contributes significantly to--
`(A) meeting an identified agency training need;
`(B) resolving an identified agency staffing problem; or
`(C) accomplishing goals in the strategic plan of the agency;
`(2) is part of a planned, systemic, and coordinated agency employee
development program linked to accomplishing the strategic goals of the
agency; and
`(3) is accredited and is provided by a college or university that is
accredited by a nationally recognized body.
`(b) In exercising authority under subsection (a), an agency shall--
`(1) consistent with the merit system principles set forth in paragraphs
(2) and (7) of section 2301(b), take into consideration the need to--
`(A) maintain a balanced workforce in which women, members of racial
and ethnic minority groups, and persons with disabilities are
appropriately represented in Government service; and
`(B) provide employees effective education and training to improve
organizational and individual performance;
`(2) assure that the training is not for the sole purpose of providing
an employee an opportunity to obtain an academic degree or qualify for
appointment to a particular position for which the academic degree is a
basic requirement;
`(3) assure that no authority under this subsection is exercised on
behalf of any employee occupying or seeking to qualify for--
`(A) a noncareer appointment in the senior Executive Service;
or
`(B) appointment to any position that is excepted from the competitive
service because of its confidential policy-determining, policy-making or
policy-advocating character; and
`(4) to the greatest extent practicable, facilitate the use of online
degree training.'.
(b) TECHNICAL AND CONFORMING AMENDMENT- The table of sections for chapter
41 of title 5, United States Code, is amended by striking the item relating to
section 4107 and inserting the following:
`4107. Academic degree training.'.
SEC. 1332. MODIFICATIONS TO NATIONAL SECURITY EDUCATION PROGRAM.
(a) FINDINGS AND POLICIES-
(1) FINDINGS- Congress finds that--
(A) the United States Government actively encourages and financially
supports the training, education, and development of many United States
citizens;
(B) as a condition of some of those supports, many of those citizens
have an obligation to seek either compensated or uncompensated employment
in the Federal sector; and
(C) it is in the United States national interest to maximize the
return to the Nation of funds invested in the development of such citizens
by seeking to employ them in the Federal sector.
(2) POLICY- It shall be the policy of the United States Government
to--
(A) establish procedures for ensuring that United States citizens who
have incurred service obligations as the result of receiving financial
support for education and training from the United States Government and
have applied for Federal positions are considered in all recruitment and
hiring initiatives of Federal departments, bureaus, agencies, and offices;
and
(B) advertise and open all Federal positions to United States citizens
who have incurred service obligations with the United States Government as
the result of receiving financial support for education and training from
the United States Government.
(b) FULFILLMENT OF SERVICE REQUIREMENT IF NATIONAL SECURITY POSITIONS ARE
UNAVAILABLE- Section 802(b)(2) of the David L. Boren National Security
Education Act of 1991 (50 U.S.C. 1902) is amended--
(1) in subparagraph (A), by striking clause (ii) and inserting the
following:
`(ii) if the recipient demonstrates to the Secretary (in accordance
with such regulations) that no national security position in an agency
or office of the Federal Government having national security
responsibilities is available, work in other offices or agencies of the
Federal Government or in the field of higher education in a discipline
relating to the foreign country, foreign language, area study, or
international field of study for which the scholarship was awarded, for
a period specified by the Secretary, which period shall be determined in
accordance with clause (i); or'; and
(2) in subparagraph (B), by striking clause (ii) and inserting the
following:
`(ii) if the recipient demonstrates to the Secretary (in accordance
with such regulations) that no national security position is available
upon the completion of the degree, work in other offices or agencies of
the Federal Government or in the field of higher education in a
discipline relating to foreign country, foreign language, area study, or
international field of study for which the fellowship was awarded, for a
period specified by the Secretary, which period shall be determined in
accordance with clause (i); and'.
TITLE XIV--ARMING PILOTS AGAINST TERRORISM
SEC. 1401. SHORT TITLE.
This title may be cited as the `Arming Pilots Against Terrorism Act'.
SEC. 1402. FEDERAL FLIGHT DECK OFFICER PROGRAM.
(a) IN GENERAL- Subchapter I of chapter 449 of title 49, United States
Code, is amended by adding at the end the following:
`Sec. 44921. Federal flight deck officer program
`(a) ESTABLISHMENT- The Under Secretary of Transportation for Security
shall establish a program to deputize volunteer pilots of air carriers
providing passenger air transportation or intrastate passenger air
transportation as Federal law enforcement officers to defend the flight decks
of aircraft of such air carriers against acts of criminal violence or air
piracy. Such officers shall be known as `Federal flight deck officers'.
`(b) PROCEDURAL REQUIREMENTS-
`(1) IN GENERAL- Not later than 3 months after the date of enactment of
this section, the Under Secretary shall establish procedural requirements to
carry out the program under this section.
`(2) COMMENCEMENT OF PROGRAM- Beginning 3 months after the date of
enactment of this section, the Under Secretary shall begin the process of
training and deputizing pilots who are qualified to be Federal flight deck
officers as Federal flight deck officers under the program.
`(3) ISSUES TO BE ADDRESSED- The procedural requirements established
under paragraph (1) shall address the following issues:
`(A) The type of firearm to be used by a Federal flight deck
officer.
`(B) The type of ammunition to be used by a Federal flight deck
officer.
`(C) The standards and training needed to qualify and requalify as a
Federal flight deck officer.
`(D) The placement of the firearm of a Federal flight deck officer on
board the aircraft to ensure both its security and its ease of retrieval
in an emergency.
`(E) An analysis of the risk of catastrophic failure of an aircraft as
a result of the discharge (including an accidental discharge) of a firearm
to be used in the program into the avionics, electrical systems, or other
sensitive areas of the aircraft.
`(F) The division of responsibility between pilots in the event of an
act of criminal violence or air piracy if only 1 pilot is a Federal flight
deck officer and if both pilots are Federal flight deck officers.
`(G) Procedures for ensuring that the firearm of a Federal flight deck
officer does not leave the cockpit if there is a disturbance in the
passenger cabin of the aircraft or if the pilot leaves the cockpit for
personal reasons.
`(H) Interaction between a Federal flight deck officer and a Federal
air marshal on board the aircraft.
`(I) The process for selection of pilots to participate in the program
based on their
fitness to participate in the program, including whether an additional
background check should be required beyond that required by section 44936(a)(1).
`(J) Storage and transportation of firearms between flights, including
international flights, to ensure the security of the firearms, focusing
particularly on whether such security would be enhanced by requiring
storage of the firearm at the airport when the pilot leaves the airport to
remain overnight away from the pilot's base airport.
`(K) Methods for ensuring that security personnel will be able to
identify whether a pilot is authorized to carry a firearm under the
program.
`(L) Methods for ensuring that pilots (including Federal flight deck
officers) will be able to identify whether a passenger is a law
enforcement officer who is authorized to carry a firearm aboard the
aircraft.
`(M) Any other issues that the Under Secretary considers
necessary.
`(N) The Under Secretary's decisions regarding the methods for
implementing each of the foregoing procedural requirements shall be
subject to review only for abuse of discretion.
`(4) PREFERENCE- In selecting pilots to participate in the program, the
Under Secretary shall give preference to pilots who are former military or
law enforcement personnel.
`(5) CLASSIFIED INFORMATION- Notwithstanding section 552 of title 5 but
subject to section 40119 of this title, information developed under
paragraph (3)(E) shall not be disclosed.
`(6) NOTICE TO CONGRESS- The Under Secretary shall provide notice to the
Committee on Transportation and Infrastructure of the House of
Representatives and the Committee on Commerce, Science, and Transportation
of the Senate after completing the analysis required by paragraph
(3)(E).
`(7) MINIMIZATION OF RISK- If the Under Secretary determines as a result
of the analysis under paragraph (3)(E) that there is a significant risk of
the catastrophic failure of an aircraft as a result of the discharge of a
firearm, the Under Secretary shall take such actions as may be necessary to
minimize that risk.
`(c) TRAINING, SUPERVISION, AND EQUIPMENT-
`(1) IN GENERAL- The Under Secretary shall only be obligated to provide
the training, supervision, and equipment necessary for a pilot to be a
Federal flight deck officer under this section at no expense to the pilot or
the air carrier employing the pilot.
`(A) IN GENERAL- The Under Secretary shall base the requirements for
the training of Federal flight deck officers under subsection (b) on the
training standards applicable to Federal air marshals; except that the
Under Secretary shall take into account the differing roles and
responsibilities of Federal flight deck officers and Federal air
marshals.
`(B) ELEMENTS- The training of a Federal flight deck officer shall
include, at a minimum, the following elements:
`(i) Training to ensure that the officer achieves the level of
proficiency with a firearm required under subparagraph
(C)(i).
`(ii) Training to ensure that the officer maintains exclusive
control over the officer's firearm at all times, including training in
defensive maneuvers.
`(iii) Training to assist the officer in determining when it is
appropriate to use the officer's firearm and when it is appropriate to
use less than lethal force.
`(C) TRAINING IN USE OF FIREARMS-
`(i) STANDARD- In order to be deputized as a Federal flight deck
officer, a pilot must achieve a level of proficiency with a firearm that
is required by the Under Secretary. Such level shall be comparable to
the level of proficiency required of Federal air marshals.
`(ii) CONDUCT OF TRAINING- The training of a Federal flight deck
officer in the use of a firearm may be conducted by the Under Secretary
or by a firearms training facility approved by the Under
Secretary.
`(iii) REQUALIFICATION- The Under Secretary shall require a Federal
flight deck officer to requalify to carry a firearm under the program.
Such requalification shall occur at an interval required by the Under
Secretary.
`(1) IN GENERAL- The Under Secretary may deputize, as a Federal flight
deck officer under this section, a pilot who submits to the Under Secretary
a request to be such an officer and whom the Under Secretary determines is
qualified to be such an officer.
`(2) QUALIFICATION- A pilot is qualified to be a Federal flight deck
officer under this section if--
`(A) the pilot is employed by an air carrier;
`(B) the Under Secretary determines (in the Under Secretary's
discretion) that the pilot meets the standards established by the Under
Secretary for being such an officer; and
`(C) the Under Secretary determines that the pilot has completed the
training required by the Under Secretary.
`(3) DEPUTIZATION BY OTHER FEDERAL AGENCIES- The Under Secretary may
request another Federal agency to deputize, as Federal flight deck officers
under this section, those pilots that the Under Secretary determines are
qualified to be such officers.
`(4) REVOCATION- The Under Secretary may, (in the Under Secretary's
discretion) revoke the deputization of a pilot as a Federal flight deck
officer if the Under Secretary finds that the pilot is no longer qualified
to be such an officer.
`(e) COMPENSATION- Pilots participating in the program under this section
shall not be eligible for compensation from the Federal Government for
services provided as a Federal flight deck officer. The Federal Government and
air carriers shall not be obligated to compensate a pilot for participating in
the program or for the pilot's training or qualification and requalification
to carry firearms under the program.
`(f) AUTHORITY TO CARRY FIREARMS-
`(1) IN GENERAL- The Under Secretary shall authorize a Federal flight
deck officer to carry a firearm while engaged in providing air
transportation or intrastate air transportation. Notwithstanding subsection
(c)(1), the officer may purchase a firearm and carry that firearm aboard an
aircraft of which the officer is the pilot in accordance with this section
if the firearm is of a type that may be used under the program.
`(2) PREEMPTION- Notwithstanding any other provision of Federal or State
law, a Federal flight deck officer, whenever necessary to participate in the
program, may carry a firearm in any State and from 1 State to another
State.
`(3) CARRYING FIREARMS OUTSIDE UNITED STATES- In consultation with the
Secretary of State, the Under Secretary may take such action as may be
necessary to ensure that a Federal flight deck officer may carry a firearm
in a foreign country whenever necessary to participate in the program.
`(g) AUTHORITY TO USE FORCE- Notwithstanding section 44903(d), the Under
Secretary shall prescribe the standards and circumstances under which a
Federal flight deck officer may use, while the program under this section is
in effect, force (including lethal force) against an individual in the defense
of the flight deck of an aircraft in air transportation or intrastate air
transportation.
`(h) LIMITATION ON LIABILITY-
`(1) LIABILITY OF AIR CARRIERS- An air carrier shall not be liable for
damages in any action brought in a Federal or State court arising out of a
Federal flight deck officer's use of or failure to use a firearm.
`(2) LIABILITY OF FEDERAL FLIGHT DECK OFFICERS- A Federal flight deck
officer shall not be liable for damages in any action brought in a Federal
or State court arising out of the acts or omissions of the officer in
defending the flight deck of an aircraft against acts of criminal violence
or air piracy unless the officer is guilty of gross negligence or willful
misconduct.
`(3) LIABILITY OF FEDERAL GOVERNMENT- For purposes of an action against
the United States with respect to an act or omission of a Federal flight
deck officer in defending the flight deck of an aircraft, the officer shall
be treated as an employee of the Federal Government under chapter 171 of
title 28, relating to tort claims procedure.
`(i) PROCEDURES FOLLOWING ACCIDENTAL DISCHARGES- If an accidental
discharge of a firearm under the pilot program results in the injury or death
of a passenger or crew member on an aircraft, the Under Secretary--
`(1) shall revoke the deputization of the Federal flight deck officer
responsible for that firearm if the Under Secretary determines that the
discharge was attributable to the negligence of the officer; and
`(2) if the Under Secretary determines that a shortcoming in standards,
training, or procedures was responsible for the accidental discharge, the
Under Secretary may temporarily suspend the program until the shortcoming is
corrected.
`(j) LIMITATION ON AUTHORITY OF AIR CARRIERS- No air carrier shall
prohibit or threaten any retaliatory action against a pilot employed by the
air carrier from becoming a Federal flight deck officer under this section. No
air carrier shall--
`(1) prohibit a Federal flight deck officer from piloting an aircraft
operated by the air carrier, or
`(2) terminate the employment of a Federal flight deck officer, solely
on the basis of his or her volunteering for or participating in the program
under this section.
`(1) EXEMPTION- This section shall not apply to air carriers operating
under part 135 of title 14, Code of Federal Regulations, and to pilots
employed by such carriers to the extent that such carriers and pilots are
covered by section 135.119 of such title or any successor to such
section.
`(2) PILOT DEFINED- The term `pilot' means an individual who has final
authority and responsibility for the operation and safety of the flight or,
if more than 1 pilot is required for the operation of the aircraft or by the
regulations under which the flight is being conducted, the individual
designated as second in command.'.
(b) CONFORMING AMENDMENTS-
(1) CHAPTER ANALYSIS- The analysis for such chapter is amended by
inserting after the item relating to section 44920 the following:
`44921. Federal flight deck officer program.'.
(2) FLIGHT DECK SECURITY- Section 128 of the Aviation and Transportation
Security Act (Public Law 107-71) is repealed.
(c) FEDERAL AIR MARSHAL PROGRAM-
(1) SENSE OF CONGRESS- It is the sense of Congress that the Federal air
marshal program is critical to aviation security.
(2) LIMITATION ON STATUTORY CONSTRUCTION- Nothing in this Act, including
any amendment made by this Act, shall be construed as preventing the Under
Secretary of Transportation for Security from implementing and training
Federal air marshals.
SEC. 1403. CREW TRAINING.
(a) IN GENERAL- Section 44918(e) of title 49, United States Code, is
amended--
(1) by striking `The Administrator' and inserting the following:
`(1) IN GENERAL- The Under Secretary';
(2) by adding at the end the following:
`(2) ADDITIONAL REQUIREMENTS- In updating the training guidance, the
Under Secretary, in consultation with the Administrator, shall issue a rule
to--
`(A) require both classroom and effective hands-on situational
training in the following elements of self defense:
`(i) recognizing suspicious activities and determining the
seriousness of an occurrence;
`(ii) deterring a passenger who might present a problem;
`(iii) crew communication and coordination;
`(iv) the proper commands to give to passengers and
attackers;
`(v) methods to subdue and restrain an attacker;
`(vi) use of available items aboard the aircraft for
self-defense;
`(vii) appropriate and effective responses to defend oneself,
including the use of force against an attacker;
`(viii) use of protective devices assigned to crew members (to the
extent such devices are approved by the Administrator or Under
Secretary);
`(ix) the psychology of terrorists to cope with their behavior and
passenger responses to that behavior;
`(x) how to respond to aircraft maneuvers that may be authorized to
defend against an act of criminal violence or air piracy;
`(B) require training in the proper conduct of a cabin search,
including the duty time required to conduct the search;
`(C) establish the required number of hours of training and the
qualifications for the training instructors;
`(D) establish the intervals, number of hours, and elements of
recurrent training;
`(E) ensure that air carriers provide the initial training required by
this paragraph
within 24 months of the date of enactment of this subparagraph; and
`(F) ensure that no person is required to participate in any hands-on
training activity that that person believes will have an adverse impact on
his or her health or safety.
`(3) RESPONSIBILITY OF UNDER SECRETARY-
`(A) CONSULTATION- In developing the rule under paragraph (2), the
Under Secretary shall consult with law enforcement personnel and security
experts who have expertise in self-defense training, terrorism experts,
and representatives of air carriers, the provider of self-defense training
for Federal air marshals, flight attendants, labor organizations
representing flight attendants, and educational institutions offering law
enforcement training programs.
`(B) DESIGNATION OF OFFICIAL- The Under Secretary shall designate an
official in the Transportation Security Administration to be responsible
for overseeing the implementation of the training program under this
subsection.
`(C) NECESSARY RESOURCES AND KNOWLEDGE- The Under Secretary shall
ensure that employees of the Administration responsible for monitoring the
training program have the necessary resources and knowledge.';
and
(3) by aligning the remainder of the text of paragraph (1) (as
designated by paragraph (1) of this section) with paragraphs (2) and (3) (as
added by paragraph (2) of this section).
(b) ENHANCE SECURITY MEASURES- Section 109(a) of the Aviation and
Transportation Security Act (49 U.S.C. 114 note; 115 Stat. 613-614) is amended
by adding at the end the following:
`(9) Require that air carriers provide flight attendants with a
discreet, hands-free, wireless method of communicating with the
pilots.'.
(c) BENEFITS AND RISKS OF PROVIDING FLIGHT ATTENDANTS WITH NONLETHAL
WEAPONS-
(1) STUDY- The Under Secretary of Transportation for Security shall
conduct a study to evaluate the benefits and risks of providing flight
attendants with nonlethal weapons to aide in combating air piracy and
criminal violence on commercial airlines.
(2) REPORT- Not later than 6 months after the date of enactment of this
Act, the Under Secretary shall transmit to Congress a report on the results
of the study.
SEC. 1404. COMMERCIAL AIRLINE SECURITY STUDY.
(a) STUDY- The Secretary of Transportation shall conduct a study of the
following:
(1) The number of armed Federal law enforcement officers (other than
Federal air marshals), who travel on commercial airliners annually and the
frequency of their travel.
(2) The cost and resources necessary to provide such officers with
supplemental training in aircraft anti-terrorism training that is comparable
to the training that Federal air marshals are provided.
(3) The cost of establishing a program at a Federal law enforcement
training center for the purpose of providing new Federal law enforcement
recruits with standardized training comparable to the training that Federal
air marshals are provided.
(4) The feasibility of implementing a certification program designed for
the purpose of ensuring Federal law enforcement officers have completed the
training described in paragraph (2) and track their travel over a 6-month
period.
(5) The feasibility of staggering the flights of such officers to ensure
the maximum amount of flights have a certified trained Federal officer on
board.
(b) REPORT- Not later than 6 months after the date of enactment of this
Act, the Secretary shall transmit to Congress a report on the results of the
study. The report may be submitted in classified and redacted form.
SEC. 1405. AUTHORITY TO ARM FLIGHT DECK CREW WITH LESS-THAN-LETHAL
WEAPONS.
(a) IN GENERAL- Section 44903(i) of title 49, United States Code (as
redesignated by section 6 of this Act) is amended by adding at the end the
following:
`(3) REQUEST OF AIR CARRIERS TO USE LESS-THAN-LETHAL WEAPONS- If, after
the date of enactment of this paragraph, the Under Secretary receives a
request from an air carrier for authorization to allow pilots of the air
carrier to carry less-than-lethal weapons, the Under Secretary shall respond
to that request within 90 days.'.
(b) CONFORMING AMENDMENTS- Such section is further amended--
(1) in paragraph (1) by striking `Secretary' the first and third places
it appears and inserting `Under Secretary'; and
(2) in paragraph (2) by striking `Secretary' each place it appears and
inserting `Under Secretary'.
SEC. 1406. TECHNICAL AMENDMENTS.
Section 44903 of title 49, United States Code, is amended--
(1) by redesignating subsection (i) (relating to short-term assessment
and deployment of emerging security technologies and procedures) as
subsection (j);
(2) by redesignating the second subsection (h) (relating to authority to
arm flight deck crew with less-than-lethal weapons) as subsection (i);
and
(3) by redesignating the third subsection (h) (relating to limitation on
liability for acts to thwart criminal violence for aircraft piracy) as
subsection (k).
TITLE XV--TRANSITION
Subtitle A--Reorganization Plan
SEC. 1501. DEFINITIONS.
For purposes of this title:
(1) The term `agency' includes any entity, organizational unit, program,
or function.
(2) The term `transition period' means the 12-month period beginning on
the effective date of this Act.
SEC. 1502. REORGANIZATION PLAN.
(a) SUBMISSION OF PLAN- Not later than 60 days after the date of the
enactment of this Act, the President shall transmit to the appropriate
congressional committees a reorganization plan regarding the following:
(1) The transfer of agencies, personnel, assets, and obligations to the
Department pursuant to this Act.
(2) Any consolidation, reorganization, or streamlining of agencies
transferred to the Department pursuant to this Act.
(b) PLAN ELEMENTS- The plan transmitted under subsection (a) shall
contain, consistent with this Act, such elements as the President deems
appropriate, including the following:
(1) Identification of any functions of agencies transferred to the
Department pursuant to this Act that will not be transferred to the
Department under the plan.
(2) Specification of the steps to be taken by the Secretary to organize
the Department, including the delegation or assignment of functions
transferred to the Department among officers of the Department in order to
permit the Department to carry out the functions transferred under the
plan.
(3) Specification of the funds available to each agency that will be
transferred to the Department as a result of transfers under the plan.
(4) Specification of the proposed allocations within the Department of
unexpended funds transferred in connection with transfers under the
plan.
(5) Specification of any proposed disposition of property, facilities,
contracts, records, and other assets and obligations of agencies transferred
under the plan.
(6) Specification of the proposed allocations within the Department of
the functions of the agencies and subdivisions that are not related directly
to securing the homeland.
(c) MODIFICATION OF PLAN- The President may, on the basis of consultations
with the appropriate congressional committees, modify or revise any part of
the plan until that part of the plan becomes effective in accordance with
subsection (d).
(1) IN GENERAL- The reorganization plan described in this section,
including any modifications or revisions of the plan under subsection (d),
shall become effective for an agency on the earlier of--
(A) the date specified in the plan (or the plan as modified pursuant
to subsection (d)), except that such date may not be earlier than 90 days
after the date the President has transmitted the reorganization plan to
the appropriate congressional committees pursuant to subsection (a);
or
(B) the end of the transition period.
(2) STATUTORY CONSTRUCTION- Nothing in this subsection may be construed
to require the transfer of functions, personnel, records, balances of
appropriations, or other assets of an agency on a single date.
(3) SUPERSEDES EXISTING LAW- Paragraph (1) shall apply notwithstanding
section 905(b) of title 5, United States Code.
SEC. 1503. REVIEW OF CONGRESSIONAL COMMITTEE STRUCTURES.
It is the sense of Congress that each House of Congress should review its
committee structure in light of the reorganization of responsibilities within
the executive branch by the establishment of the Department.
Subtitle B--Transitional Provisions
SEC. 1511. TRANSITIONAL AUTHORITIES.
(a) PROVISION OF ASSISTANCE BY OFFICIALS- Until the transfer of an agency
to the Department, any official having authority over or functions relating to
the agency immediately before the effective date of this Act shall provide to
the Secretary such assistance, including the use of personnel and assets, as
the Secretary may request in preparing for the transfer and integration of the
agency into the Department.
(b) SERVICES AND PERSONNEL- During the transition period, upon the request
of the Secretary, the head of any executive agency may, on a reimbursable
basis, provide services or detail personnel to assist with the transition.
(c) ACTING OFFICIALS- (1) During the transition period, pending the advice
and consent of the Senate to the appointment of an officer required by this
Act to be appointed by and with such advice and consent, the President may
designate any officer whose appointment was required to be made by and with
such advice and consent and who was such an officer immediately before the
effective date of this Act (and who continues in office) or immediately before
such designation, to act in such office until the same is filled as provided
in this Act. While so acting, such officers shall receive compensation at the
higher of--
(A) the rates provided by this Act for the respective offices in which
they act; or
(B) the rates provided for the offices held at the time of
designation.
(2) Nothing in this Act shall be understood to require the advice and
consent of the Senate to the appointment by the President to a position in the
Department of any officer whose agency is transferred to the Department
pursuant to this Act and whose duties following such transfer are germane to
those performed before such transfer.
(d) TRANSFER OF PERSONNEL, ASSETS, OBLIGATIONS, AND FUNCTIONS- Upon the
transfer of an agency to the Department--
(1) the personnel, assets, and obligations held by or available in
connection with the agency shall be transferred to the Secretary for
appropriate allocation, subject to the approval of the Director of the
Office of Management and Budget and in accordance with the provisions of
section 1531(a)(2) of title 31, United States Code; and
(2) the Secretary shall have all functions relating to the agency that
any other official could by law exercise in relation to the agency
immediately before such transfer, and shall have in addition all functions
vested in the Secretary by this Act or other law.
(e) PROHIBITION ON USE OF TRANSPORTATION TRUST FUNDS-
(1) IN GENERAL- Notwithstanding any other provision of this Act, no
funds derived from the Highway Trust Fund, Airport and Airway Trust Fund,
Inland Waterway Trust Fund, or Harbor Maintenance Trust Fund, may be
transferred to, made available to, or obligated by the Secretary or any
other official in the Department.
(2) LIMITATION- This subsection shall not apply to security-related
funds provided to the Federal Aviation Administration for fiscal years
preceding fiscal year 2003 for (A) operations, (B) facilities and equipment,
or (C) research, engineering, and development.
SEC. 1512. SAVINGS PROVISIONS.
(a) COMPLETED ADMINISTRATIVE ACTIONS- (1) Completed administrative actions
of an agency shall not be affected by the enactment of this Act or the
transfer of such agency to the Department, but shall continue in effect
according to their terms until amended, modified, superseded, terminated, set
aside, or revoked in accordance with law by an officer of the United States or
a court of competent jurisdiction, or by operation of law.
(2) For purposes of paragraph (1), the term `completed administrative
action' includes orders, determinations, rules, regulations, personnel
actions, permits, agreements, grants, contracts, certificates, licenses,
registrations, and privileges.
(b) PENDING PROCEEDINGS- Subject to the authority of the Secretary under
this Act--
(1) pending proceedings in an agency, including notices of proposed
rulemaking, and applications for licenses, permits, certificates, grants,
and financial assistance, shall continue notwithstanding the enactment of
this Act or the transfer of the agency to the Department, unless
discontinued or modified under the same terms and conditions and to the same
extent that such discontinuance could have occurred if such enactment or
transfer had not occurred; and
(2) orders issued in such proceedings, and appeals therefrom, and
payments made pursuant to such orders, shall issue in the same manner and on
the same terms as if this Act had not been enacted or the agency had not
been transferred, and any such orders shall continue in effect until
amended, modified, superseded, terminated, set aside, or revoked by an
officer of the United States or a court of competent jurisdiction, or by
operation of law.
(c) PENDING CIVIL ACTIONS- Subject to the authority of the Secretary under
this Act, pending civil actions shall continue notwithstanding the enactment
of this Act
or the transfer of an agency to the Department, and in such civil actions,
proceedings shall be had, appeals taken, and judgments rendered and enforced in
the same manner and with the same effect as if such enactment or transfer had
not occurred.
(d) REFERENCES- References relating to an agency that is transferred to
the Department in statutes, Executive orders, rules, regulations, directives,
or delegations of authority that precede such transfer or the effective date
of this Act shall be deemed to refer, as appropriate, to the Department, to
its officers, employees, or agents, or to its corresponding organizational
units or functions. Statutory reporting requirements that applied in relation
to such an agency immediately before the effective date of this Act shall
continue to apply following such transfer if they refer to the agency by
name.
(e) EMPLOYMENT PROVISIONS- (1) Notwithstanding the generality of the
foregoing (including subsections (a) and (d)), in and for the Department the
Secretary may, in regulations prescribed jointly with the Director of the
Office of Personnel Management, adopt the rules, procedures, terms, and
conditions, established by statute, rule, or regulation before the effective
date of this Act, relating to employment in any agency transferred to the
Department pursuant to this Act; and
(2) except as otherwise provided in this Act, or under authority granted
by this Act, the transfer pursuant to this Act of personnel shall not alter
the terms and conditions of employment, including compensation, of any
employee so transferred.
(f) STATUTORY REPORTING REQUIREMENTS- Any statutory reporting requirement
that applied to an agency, transferred to the Department under this Act,
immediately before the effective date of this Act shall continue to apply
following that transfer if the statutory requirement refers to the agency by
name.
SEC. 1513. TERMINATIONS.
Except as otherwise provided in this Act, whenever all the functions
vested by law in any agency have been transferred pursuant to this Act, each
position and office the incumbent of which was authorized to receive
compensation at the rates prescribed for an office or position at level II,
III, IV, or V, of the Executive Schedule, shall terminate.
SEC. 1514. NATIONAL IDENTIFICATION SYSTEM NOT AUTHORIZED.
Nothing in this Act shall be construed to authorize the development of a
national identification system or card.
SEC. 1515. CONTINUITY OF INSPECTOR GENERAL OVERSIGHT.
Notwithstanding the transfer of an agency to the Department pursuant to
this Act, the Inspector General that exercised oversight of such agency prior
to such transfer shall continue to exercise oversight of such agency during
the period of time, if any, between the transfer of such agency to the
Department pursuant to this Act and the appointment of the Inspector General
of the Department of Homeland Security in accordance with section 103(b).
SEC. 1516. INCIDENTAL TRANSFERS.
The Director of the Office of Management and Budget, in consultation with
the Secretary, is authorized and directed to make such additional incidental
dispositions of personnel, assets, and liabilities held, used, arising from,
available, or to be made available, in connection with the functions
transferred by this Act, as the Director may determine necessary to accomplish
the purposes of this Act.
SEC. 1517. REFERENCE.
With respect to any function transferred by or under this Act (including
under a reorganization plan that becomes effective under section 1502) and
exercised on or after the effective date of this Act, reference in any other
Federal law to any department, commission, or agency or any officer or office
the functions of which are so transferred shall be deemed to refer to the
Secretary, other official, or component of the Department to which such
function is so transferred.
TITLE XVI--CORRECTIONS TO EXISTING LAW RELATING TO AIRLINE
TRANSPORTATION SECURITY
SEC. 1601. RETENTION OF SECURITY SENSITIVE INFORMATION AUTHORITY AT
DEPARTMENT OF TRANSPORTATION.
(a) Section 40119 of title 49, United States Code, is amended--
(A) by inserting `and the Administrator of the Federal Aviation
Administration each' after `for Security'; and
(B) by striking `criminal violence and aircraft piracy' and inserting
`criminal violence, aircraft piracy, and terrorism and to ensure
security'; and
(2) in subsection (b)(1)--
(A) by striking `, the Under Secretary' and inserting `and the
establishment of a Department of Homeland Security, the Secretary of
Transportation';
(B) by striking `carrying out' and all that follows through `if the
Under Secretary' and inserting `ensuring security under this title if the
Secretary of Transportation'; and
(C) in subparagraph (C) by striking `the safety of passengers in
transportation' and inserting `transportation safety'.
(b) Section 114 of title 49, United States Code, is amended by adding at
the end the following:
`(s) NONDISCLOSURE OF SECURITY ACTIVITIES-
`(1) IN GENERAL- Notwithstanding section 552 of title 5, the Under
Secretary shall prescribe regulations prohibiting the disclosure of
information obtained or developed in carrying out security under authority
of the Aviation and Transportation Security Act (Public Law 107-71) or under
chapter 449 of this title if the Under Secretary decides that 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 the security of transportation.
`(2) AVAILABILITY OF INFORMATION TO CONGRESS- Paragraph (1) does not
authorize information to be withheld from a committee of Congress authorized
to have the information.
`(3) LIMITATION ON TRANSFERABILITY OF DUTIES- Except as otherwise
provided by law, the Under Secretary may not transfer a duty or power under
this subsection to another department, agency, or instrumentality of the
United States.'.
SEC. 1602. INCREASE IN CIVIL PENALTIES.
Section 46301(a) of title 49, United States Code, is amended by adding at
the end the following:
`(8) AVIATION SECURITY VIOLATIONS- Notwithstanding paragraphs (1) and
(2) of this subsection, the maximum civil penalty for violating chapter 449
or another requirement under this title administered by the Under Secretary
of Transportation for Security shall be $10,000; except that the maximum
civil penalty shall be $25,000 in the case of a person operating an aircraft
for the transportation of passengers or property for compensation (except an
individual serving as an airman).'.
SEC. 1603. ALLOWING UNITED STATES CITIZENS AND UNITED STATES NATIONALS AS
SCREENERS.
Section 44935(e)(2)(A)(ii) of title 49, United States Code, is amended by
striking `citizen of the United States' and inserting `citizen of the United
States or a national of the United States, as defined in section 1101(a)(22)
of the Immigration and Nationality Act (8 U.S.C. 1101(a)(22))'.
TITLE XVII--CONFORMING AND TECHNICAL AMENDMENTS
SEC. 1701. INSPECTOR GENERAL ACT OF 1978.
Section 11 of the Inspector General Act of 1978 (Public Law 95-452) is
amended--
(1) by inserting `Homeland Security,' after `Transportation,' each place
it appears; and
(2) by striking `; and' each place it appears in paragraph (1) and
inserting `;';
SEC. 1702. EXECUTIVE SCHEDULE.
(a) IN GENERAL- Title 5, United States Code, is amended--
(1) in section 5312, by inserting `Secretary of Homeland Security.' as a
new item after `Affairs.';
(2) in section 5313, by inserting `Deputy Secretary of Homeland
Security.' as a new item after `Affairs.';
(3) in section 5314, by inserting `Under Secretaries, Department of
Homeland Security.', `Director of the Bureau of Citizenship and Immigration
Services.' as new items after `Affairs.' the third place it appears;
(4) in section 5315, by inserting `Assistant Secretaries, Department of
Homeland Security.', `General Counsel, Department of Homeland Security.',
`Officer for Civil Rights and Civil Liberties, Department of Homeland
Security.', `Chief Financial Officer, Department of Homeland Security.',
`Chief Information Officer, Department of Homeland Security.', and
`Inspector General, Department of Homeland Security.' as new items after
`Affairs.' the first place it appears; and
(5) in section 5315, by striking `Commissioner of Immigration and
Naturalization, Department of Justice.'.
(b) SPECIAL EFFECTIVE DATE- Notwithstanding section 4, the amendment made
by subsection (a)(5) shall take effect on the date on which the transfer of
functions specified under section 441 takes effect.
SEC. 1703. UNITED STATES SECRET SERVICE.
(a) IN GENERAL- (1) The United States Code is amended in section 202 of
title 3, and in section 3056 of title 18, by striking `of the Treasury', each
place it appears and inserting `of Homeland Security'.
(2) Section 208 of title 3, United States Code, is amended by striking `of
Treasury' each place it appears and inserting `of Homeland Security'.
(b) EFFECTIVE DATE- The amendments made by this section shall take effect
on the date of transfer of the United States Secret Service to the
Department.
SEC. 1704. COAST GUARD.
(a) TITLE 14, U.S.C- Title 14, United States Code, is amended in sections
1, 3, 53, 95, 145, 516, 666, 669, 673, 673a (as redesignated by subsection
(e)(1)), 674, 687, and 688 by striking `of Transportation' each place it
appears and inserting `of Homeland Security'.
(b) TITLE 10, U.S.C- (1) Title 10, United States Code, is amended in
sections 101(9), 130b(a), 130b(c)(4), 130c(h)(1), 379, 513(d), 575(b)(2),
580(e)(6), 580a(e), 651(a), 671(c)(2), 708(a), 716(a), 717, 806(d)(2), 815(e),
888, 946(c)(1), 973(d), 978(d), 983(b)(1), 985(a), 1033(b)(1), 1033(d), 1034,
1037(c), 1044d(f), 1058(c), 1059(a), 1059(k)(1), 1073(a), 1074(c)(1),
1089(g)(2), 1090, 1091(a), 1124, 1143, 1143a(h), 1144, 1145(e), 1148, 1149,
1150(c), 1152(a), 1152(d)(1), 1153, 1175, 1212(a), 1408(h)(2), 1408(h)(8),
1463(a)(2), 1482a(b), 1510, 1552(a)(1), 1565(f), 1588(f)(4), 1589, 2002(a),
2302(1), 2306b(b), 2323(j)(2), 2376(2), 2396(b)(1), 2410a(a), 2572(a),
2575(a), 2578, 2601(b)(4), 2634(e), 2635(a), 2734(g), 2734a, 2775, 2830(b)(2),
2835, 2836, 4745(a), 5013a(a), 7361(b), 10143(b)(2), 10146(a), 10147(a),
10149(b), 10150, 10202(b), 10203(d), 10205(b), 10301(b), 12103(b), 12103(d),
12304, 12311(c), 12522(c), 12527(a)(2), 12731(b), 12731a(e), 16131(a),
16136(a), 16301(g), and 18501 by striking `of Transportation' each place it
appears and inserting `of Homeland Security'.
(2) Section 801(1) of such title is amended by striking `the General
Counsel of the Department of Transportation' and inserting `an official
designated to serve as Judge Advocate General of the Coast Guard by the
Secretary of Homeland Security'.
(3) Section 983(d)(2)(B) of such title is amended by striking `Department
of Transportation' and inserting `Department of Homeland Security'.
(4) Section 2665(b) of such title is amended by striking `Department of
Transportation' and inserting `Department in which the Coast Guard is
operating'.
(5) Section 7045 of such title is amended--
(A) in subsections (a)(1) and (b), by striking `Secretaries of the Army,
Air Force, and Transportation' both places it appears and inserting
`Secretary of the Army, the Secretary of the Air Force, and the Secretary of
Homeland Security'; and
(B) in subsection (b), by striking `Department of Transportation' and
inserting `Department of Homeland Security'.
(6) Section 7361(b) of such title is amended in the subsection heading by
striking `TRANSPORTATION' and inserting `HOMELAND SECURITY'.
(7) Section 12522(c) of such title is amended in the subsection heading by
striking `TRANSPORTATION' and inserting `HOMELAND SECURITY'.
(c) TITLE 37, U.S.C- Title 37, United States Code, is amended in sections
101(5), 204(i)(4), 301a(a)(3), 306(d), 307(c), 308(a)(1), 308(d)(2), 308(f),
308b(e), 308c(c), 308d(a), 308e(f), 308g(g), 308h(f), 308i(e), 309(d), 316(d),
323(b), 323(g)(1), 325(i), 402(d), 402a(g)(1), 403(f)(3), 403(l)(1),
403b(i)(5), 406(b)(1), 417(a), 417(b), 418(a), 703, 1001(c), 1006(f), 1007(a),
and 1011(d) by striking `of Transportation' each place it appears and
inserting `of Homeland Security'.
(d) TITLE 38, U.S.C- Title 38, United States Code, is amended in sections
101(25)(d), 1560(a), 3002(5), 3011(a)(1)(A)(ii)(I), 3011(a)(1)(A)(ii)(II),
3011(a)(1)(B)(ii)(III), 3011(a)(1)(C)(iii)(II)(cc), 3012(b)(1)(A)(v),
3012(b)(1)(B)(ii)(V), 3018(b)(3)(B)(iv), 3018A(a)(3), 3018B(a)(1)(C),
3018B(a)(2)(C), 3018C(a)(5), 3020(m), 3035(b)(2), 3035(c), 3035(d), 3035(e),
3680A(g), and 6105(c) by striking `of Transportation' each place it appears
and inserting `of Homeland Security'.
(e) OTHER DEFENSE-RELATED LAWS- (1) Section 363 of Public Law 104-193 (110
Stat. 2247) is amended--
(A) in subsection (a)(1) (10 U.S.C. 113 note), by striking `of
Transportation' and inserting `of Homeland Security'; and
(B) in subsection (b)(1) (10 U.S.C. 704 note), by striking `of
Transportation' and inserting `of Homeland Security'.
(2) Section 721(1) of Public Law 104-201 (10 U.S.C. 1073 note) is amended
by striking `of Transportation' and inserting `of Homeland Security'.
(3) Section 4463(a) of Public Law 102-484 (10 U.S.C. 1143a note) is
amended by striking `after consultation with the Secretary of
Transportation'.
(4) Section 4466(h) of Public Law 102-484 (10 U.S.C. 1143 note) is amended
by striking `of Transportation' and inserting `of Homeland Security'.
(5) Section 542(d) of Public Law 103-337 (10 U.S.C. 1293 note) is amended
by striking `of Transportation' and inserting `of Homeland Security'.
(6) Section 740 of Public Law 106-181 (10 U.S.C. 2576 note) is amended in
subsections (b)(2), (c), and (d)(1) by striking `of Transportation' each place
it appears and inserting `of Homeland Security'.
(7) Section 1407(b)(2) of the Defense Dependents' Education Act of 1978
(20 U.S.C. 926(b)) is amended by striking `of Transportation' both places it
appears and inserting `of Homeland Security'.
(8) Section 2301(5)(D) of the Elementary and Secondary Education Act of
1965 (20 U.S.C. 6671(5)(D)) is amended by striking `of Transportation' and
inserting `of Homeland Security'.
(9) Section 2307(a) of the Elementary and Secondary Education Act of 1965
(20 U.S.C. 6677(a)) is amended by striking `of Transportation' and inserting
`of Homeland Security'.
(10) Section 1034(a) of Public Law 105-85 (21 U.S.C. 1505a(a)) is amended
by striking `of Transportation' and inserting `of Homeland Security'.
(11) The Military Selective Service Act is amended--
(A) in section 4(a) (50 U.S.C. App. 454(a)), by striking `of
Transportation' in the fourth paragraph and inserting `of Homeland
Security';
(B) in section 4(b) (50 U.S.C. App. 454(b)), by striking `of
Transportation' both places it appears and inserting `of Homeland
Security';
(C) in section 6(d)(1) (50 U.S.C. App. 456(d)(1)), by striking `of
Transportation' both places it appears and inserting `of Homeland
Security';
(D) in section 9(c) (50 U.S.C. App. 459(c)), by striking `Secretaries of
Army, Navy, Air Force, or Transportation' and inserting `Secretary of a
military department, and the Secretary of Homeland Security with respect to
the Coast Guard,'; and
(E) in section 15(e) (50 U.S.C. App. 465(e)), by striking `of
Transportation' both places it appears and inserting `of Homeland
Security'.
(f) TECHNICAL CORRECTION- (1) Title 14, United States Code, is amended by
redesignating section 673 (as added by section 309 of Public Law 104-324) as
section 673a.
(2) The table of sections at the beginning of chapter 17 of such title is
amended by redesignating the item relating to such section as section 673a.
(g) EFFECTIVE DATE- The amendments made by this section (other than
subsection (f)) shall take effect on the date of transfer of the Coast Guard
to the Department.
SEC. 1705. STRATEGIC NATIONAL STOCKPILE AND SMALLPOX VACCINE
DEVELOPMENT.
(a) IN GENERAL- Section 121 of the Public Health Security and Bioterrorism
Preparedness and Response Act of 2002 (Public Law 107-188; 42 U.S.C. 300hh-12)
is amended--
(1) in subsection (a)(1)--
(A) by striking `Secretary of Health and Human Services' and inserting
`Secretary of Homeland Security';
(B) by inserting `the Secretary of Health and Human Services and'
between `in coordination with' and `the Secretary of Veterans Affairs';
and
(C) by inserting `of Health and Human Services' after `as are
determined by the Secretary'; and
(2) in subsections (a)(2) and (b), by inserting `of Health and Human
Services' after `Secretary' each place it appears.
(b) EFFECTIVE DATE- The amendments made by this section shall take effect
on the date of transfer of the Strategic National Stockpile of the Department
of Health and Human Services to the Department.
SEC. 1706. TRANSFER OF CERTAIN SECURITY AND LAW ENFORCEMENT FUNCTIONS AND
AUTHORITIES.
(a) AMENDMENT TO TITLE 40- Section 581 of title 40, United States Code, is
amended--
(1) by striking subsection (a); and
(A) by inserting `and' after the semicolon at the end of paragraph
(1);
(B) by striking `; and' at the end of paragraph (2) and inserting a
period; and
(C) by striking paragraph (3).
(b) LAW ENFORCEMENT AUTHORITY-
(1) IN GENERAL- Section 1315 of title 40, United States Code, is amended
to read as follows:
`Sec. 1315. Law enforcement authority of Secretary of Homeland Security for
protection of public property
`(a) IN GENERAL- To the extent provided for by transfers made pursuant to
the Homeland Security Act of 2002, the Secretary of Homeland Security (in this
section referred to as the `Secretary') shall protect the buildings, grounds,
and property that are owned, occupied, or secured by the Federal Government
(including any agency, instrumentality, or wholly owned or mixed-ownership
corporation thereof) and the persons on the property.
`(b) OFFICERS AND AGENTS-
`(1) DESIGNATION- The Secretary may designate employees of the
Department of Homeland Security, including employees transferred to the
Department from the Office of the Federal Protective Service of the General
Services Administration pursuant to the Homeland Security Act of 2002, as
officers and agents for duty in connection with the protection of property
owned or occupied by the Federal Government and persons on the property,
including duty in areas outside the property to the extent necessary to
protect the property and persons on the property.
`(2) POWERS- While engaged in the performance of official duties, an
officer or agent designated under this subsection may--
`(A) enforce Federal laws and regulations for the protection of
persons and property;
`(C) make arrests without a warrant for any offense against the United
States committed in the presence of the officer or agent or for any felony
cognizable under the laws of the United States if the officer or agent has
reasonable grounds to believe that the person to be arrested has committed
or is committing a felony;
`(D) serve warrants and subpoenas issued under the authority of the
United States; and
`(E) conduct investigations, on and off the property in question, of
offenses that may have been committed against property owned or occupied
by the Federal Government or persons on the property.
`(F) carry out such other activities for the promotion of homeland
security as the Secretary may prescribe.
`(1) IN GENERAL- The Secretary, in consultation with the Administrator
of General Services, may prescribe regulations necessary for the protection
and administration of property owned or occupied by the Federal Government
and persons on the property. The regulations may include reasonable
penalties, within the limits prescribed in paragraph (2), for violations of
the regulations. The regulations
shall be posted and remain posted in a conspicuous place on the property.
`(2) PENALTIES- A person violating a regulation prescribed under this
subsection shall be fined under title 18, United States Code, imprisoned for
not more than 30 days, or both.
`(1) REQUESTS OF AGENCIES- On the request of the head of a Federal
agency having charge or control of property owned or occupied by the Federal
Government, the Secretary may detail officers and agents designated under
this section for the protection of the property and persons on the
property.
`(2) APPLICABILITY OF REGULATIONS- The Secretary may--
`(A) extend to property referred to in paragraph (1) the applicability
of regulations prescribed under this section and enforce the regulations
as provided in this section; or
`(B) utilize the authority and regulations of the requesting agency if
agreed to in writing by the agencies.
`(3) FACILITIES AND SERVICES OF OTHER AGENCIES- When the Secretary
determines it to be economical and in the public interest, the Secretary may
utilize the facilities and services of Federal, State, and local law
enforcement agencies, with the consent of the agencies.
`(e) AUTHORITY OUTSIDE FEDERAL PROPERTY- For the protection of property
owned or occupied by the Federal Government and persons on the property, the
Secretary may enter into agreements with Federal agencies and with State and
local governments to obtain authority for officers and agents designated under
this section to enforce Federal laws and State and local laws concurrently
with other Federal law enforcement officers and with State and local law
enforcement officers.
`(f) SECRETARY AND ATTORNEY GENERAL APPROVAL- The powers granted to
officers and agents designated under this section shall be exercised in
accordance with guidelines approved by the Secretary and the Attorney
General.
`(g) LIMITATION ON STATUTORY CONSTRUCTION- Nothing in this section shall
be construed to--
`(1) preclude or limit the authority of any Federal law enforcement
agency; or
`(2) restrict the authority of the Administrator of General Services to
promulgate regulations affecting property under the Administrator's custody
and control.'.
(2) DELEGATION OF AUTHORITY- The Secretary may delegate authority for
the protection of specific buildings to another Federal agency where, in the
Secretary's discretion, the Secretary determines it necessary for the
protection of that building.
(3) CLERICAL AMENDMENT- The table of sections at the beginning of
chapter 13 of title 40, United States Code, is amended by striking the item
relating to section 1315 and inserting the following:
`1315. Law enforcement authority of Secretary of Homeland Security for
protection of public property.'.
SEC. 1707. TRANSPORTATION SECURITY REGULATIONS.
Title 49, United States Code, is amended--
(1) in section 114(l)(2)(B), by inserting `for a period not to exceed 90
days' after `effective'; and
(2) in section 114(l)(2)(B), by inserting `ratified or' after
`unless'.
SEC. 1708. NATIONAL BIO-WEAPONS DEFENSE ANALYSIS CENTER.
There is established in the Department of Defense a National Bio-Weapons
Defense Analysis Center, whose mission is to develop countermeasures to
potential attacks by terrorists using weapons of mass destruction.
SEC. 1709. COLLABORATION WITH THE SECRETARY OF HOMELAND SECURITY.
(a) DEPARTMENT OF HEALTH AND HUMAN SERVICES- The second sentence of
section 351A(e)(1) of the Public Health Service Act (42 U.S.C. 262A(e)(1)) is
amended by striking `consultation with' and inserting `collaboration with the
Secretary of Homeland Security and'.
(b) DEPARTMENT OF AGRICULTURE- The second sentence of section 212(e)(1) of
the Agricultural Bioterrorism Protection Act of 2002 (7 U.S.C. 8401) is
amended by striking `consultation with' and inserting `collaboration with the
Secretary of Homeland Security and'.
SEC. 1710. RAILROAD SAFETY TO INCLUDE RAILROAD SECURITY.
(a) INVESTIGATION AND SURVEILLANCE ACTIVITIES- Section 20105 of title 49,
United States Code, is amended--
(1) by striking `Secretary of Transportation' in the first sentence of
subsection (a) and inserting `Secretary concerned';
(2) by striking `Secretary' each place it appears (except the first
sentence of subsection (a)) and inserting `Secretary concerned';
(3) by striking `Secretary's duties under chapters 203-213 of this
title' in subsection (d) and inserting `duties under chapters 203-213 of
this title (in the case of the Secretary of Transportation) and duties under
section 114 of this title (in the case of the Secretary of Homeland
Security)';
(4) by striking `chapter.' in subsection (f) and inserting `chapter (in
the case of the Secretary of Transportation) and duties under section 114 of
this title (in the case of the Secretary of Homeland Security).'; and
(5) by adding at the end the following new subsection:
`(g) DEFINITIONS- In this section--
`(1) the term `safety' includes security; and
`(2) the term `Secretary concerned' means--
`(A) the Secretary of Transportation, with respect to railroad safety
matters concerning such Secretary under laws administered by that
Secretary; and
`(B) the Secretary of Homeland Security, with respect to railroad
safety matters concerning such Secretary under laws administered by that
Secretary.'.
(b) REGULATIONS AND ORDERS- Section 20103(a) of such title is amended by
inserting after `1970.' the following: `When prescribing a security regulation
or issuing a security order that affects the safety of railroad operations,
the Secretary of Homeland Security shall consult with the Secretary.'.
(c) NATIONAL UNIFORMITY OF REGULATION- Section 20106 of such title is
amended--
(1) by inserting `and laws, regulations, and orders related to railroad
security' after `safety' in the first sentence;
(2) by inserting `or security' after `safety' each place it appears
after the first sentence; and
(3) by striking `Transportation' in the second sentence and inserting
`Transportation (with respect to railroad safety matters), or the Secretary
of Homeland Security (with respect to railroad security matters),'.
SEC. 1711. HAZMAT SAFETY TO INCLUDE HAZMAT SECURITY.
(a) GENERAL REGULATORY AUTHORITY- Section 5103 of title 49, United States
Code, is amended--
(1) by striking `transportation' the first place it appears in
subsection (b)(1) and inserting `transportation, including security,';
(2) by striking `aspects' in subsection (b)(1)(B) and inserting
`aspects, including security,'; and
(3) by adding at the end the following:
`(C) CONSULTATION- When prescribing a security regulation or issuing a
security order that affects the safety of the transportation of hazardous
material, the Secretary of Homeland Security shall consult with the
Secretary.'.
(b) PREEMPTION- Section 5125 of that title is amended--
(1) by striking `chapter or a regulation prescribed under this chapter'
in subsection (a)(1) and inserting `chapter, a regulation prescribed under
this chapter, or a hazardous materials transportation security regulation or
directive issued by the Secretary of Homeland Security';
(2) by striking `chapter or a regulation prescribed under this chapter.'
in subsection (a)(2) and inserting `chapter, a regulation prescribed under
this chapter, or a hazardous materials transportation security regulation or
directive issued by the Secretary of Homeland Security.'; and
(3) by striking `chapter or a regulation prescribed under this chapter,'
in subsection (b)(1) and inserting `chapter, a regulation prescribed under
this chapter, or a hazardous materials transportation security regulation or
directive issued by the Secretary of Homeland Security,'.
SEC. 1712. OFFICE OF SCIENCE AND TECHNOLOGY POLICY.
The National Science and Technology Policy, Organization, and Priorities
Act of 1976 is amended--
(1) in section 204(b)(1) (42 U.S.C. 6613(b)(1)), by inserting `homeland
security,' after `national security,'; and
(2) in section 208(a)(1) (42 U.S.C. 6617(a)(1)), by inserting `the
Office of Homeland Security,' after `National Security Council,'.
SEC. 1713. NATIONAL OCEANOGRAPHIC PARTNERSHIP PROGRAM.
Section 7902(b) of title 10, United States Code, is amended by adding at
the end the following new paragraphs:
`(13) The Under Secretary for Science and Technology of the Department
of Homeland Security.
`(14) Other Federal officials the Council considers appropriate.'.
SEC. 1714. CLARIFICATION OF DEFINITION OF MANUFACTURER.
Section 2133(3) of the Public Health Service Act (42 U.S.C. 300aa-33(3))
is amended--
(1) in the first sentence, by striking `under its label any vaccine set
forth in the Vaccine Injury Table' and inserting `any vaccine set forth in
the Vaccine Injury table, including any component or ingredient of any such
vaccine'; and
(2) in the second sentence, by inserting `including any component or
ingredient of any such vaccine' before the period.
SEC. 1715. CLARIFICATION OF DEFINITION OF VACCINE-RELATED INJURY OR
DEATH.
Section 2133(5) of the Public Health Service Act (42 U.S.C. 300aa-33(5))
is amended by adding at the end the following: `For purposes of the preceding
sentence, an adulterant or contaminant shall not include any component or
ingredient listed in a vaccine's product license application or product
label.'.
SEC. 1716. CLARIFICATION OF DEFINITION OF VACCINE.
Section 2133 of the Public Health Service Act (42 U.S.C. 300aa-33) is
amended by adding at the end the following:
`(7) The term `vaccine' means any preparation or suspension, including
but not limited to a preparation or suspension containing an attenuated or
inactive microorganism or subunit thereof or toxin, developed or
administered to produce or enhance the body's immune response to a disease
or diseases and includes all components and ingredients listed in the
vaccines's product license application and product label.'.
SEC. 1717. EFFECTIVE DATE.
The amendments made by sections 1714, 1715, and 1716 shall apply to all
actions or proceedings pending on or after the date of enactment of this Act,
unless a court of competent jurisdiction has entered judgment (regardless of
whether the time for appeal has expired) in such action or proceeding
disposing of the entire action or proceeding.
END