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Homeland Security Act
H.R. 5005
November, 2002
H.R. 5005
One Hundred Seventh Congress
of the
United States of America
AT THE SECOND SESSION
Begun and held at the City of Washington on Wednesday,
the twenty-third day of January, two thousand and two
An Act
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. 2. Definitions.
Sec. 3. Construction; severability.
Sec. 4. Effective date.
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. 211. Short title.
Sec. 212. Definitions.
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. 224. Net guard.
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. 415. Definition.
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. 428. Visa issuance.
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. 456. Transition.
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. 506. Definition.
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. 851. Definition.
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. 861. Short title.
Sec. 862. Administration.
Sec. 863. Litigation management.
Sec. 864. Risk management.
Sec. 865. Definitions.
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. 893. Report.
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. 902. Function.
Sec. 903. Membership.
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.
Sec. 1006. Construction.
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. 1121. Short title.
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.
Sec. 1204. Report.
TITLE XIII--FEDERAL WORKFORCE IMPROVEMENT
Subtitle A--Chief Human Capital Officers
Sec. 1301. Short title.
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. 1401. Short title.
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. 1501. Definitions.
Sec. 1502. Reorganization plan.
Sec. 1503. Review of congressional committee structures.
Subtitle B--Transitional Provisions
Sec. 1511. Transitional authorities.
Sec. 1512. Savings provisions.
Sec. 1513. Terminations.
Sec. 1514. National identification system not authorized.
Sec. 1515. Continuity of Inspector General oversight.
Sec. 1516. Incidental transfers.
Sec. 1517. Reference.
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. 1704. Coast Guard.
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 in
Alaska a Native village or Alaska Regional Native
Corporation; 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.
(b) MISSION-
(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.
(a) SECRETARY-
(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.
(12) To ensure that--
(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.
(e) STAFF-
(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.
(f) DETAIL OF PERSONNEL-
(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.
(a) IN GENERAL-
(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 any other 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.
In this subtitle:
(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.
(7) VOLUNTARY-
(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:
(1) The President.
(2) The Secretary of Homeland Security.
SEC. 214. PROTECTION OF VOLUNTARILY SHARED CRITICAL INFRASTRUCTURE
INFORMATION.
(a) PROTECTION-
(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.
(e) PROCEDURES-
(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 section
213, 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.'.
(h) PROVIDER ASSISTANCE-
(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;'.
(j) PROTECTING PRIVACY-
(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:
`(2) in any other case--
`(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.
(a) ESTABLISHMENT-
(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;
(B) protective apparel;
(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 Safe 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.
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.
(b) HOMELAND SECURITY ADVANCED RESEARCH PROJECTS AGENCY-
(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.
(c) FUND-
(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.
(b) EXTRAMURAL 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.
(c) INTRAMURAL PROGRAMS-
(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).
(d) NOTIFICATION-
(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.
(b) MEMBERSHIP-
(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).
(c) TERMS OF OFFICE-
(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.
(h) REPORTS-
(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) FEDERAL ADVISORY COMMITTEE ACT 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 research 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'
and inserting
`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).
(d) EFFECT OF TRANSFER-
(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).
(e) TRANSFER AGREEMENT-
(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--
(1) in section 501(a)--
(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 425 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:
`(2) DEADLINE-
`(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 this 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--
(1) the Department;
(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 section 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).
(6) TRAINING AND HIRING-
(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- In accordance with title
XV (relating to transition provisions), 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.
(d) LEGAL ADVISOR-
(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.
(e) BUDGET OFFICER-
(1) IN GENERAL- There shall be a Budget Officer for the Bureau of
Citizenship and Immigration Services.
(2) FUNCTIONS-
(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).
(c) ANNUAL REPORTS-
(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.
(e) PERSONNEL ACTIONS-
(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).
(b) FUNCTIONS-
(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 are 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- Upon completion of all transfers from the Immigration
and Naturalization Service as provided for by this Act, 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,
whichever occurs first;
(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
(3) forms management.
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.
(c) IMPLEMENTATION PLAN-
(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.
(B) Chain of command.
(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:
(i) Operations.
(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.
(a) ANNUAL REPORT-
(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 No. 12148 (44 Fed. Reg. 43239) and Executive
Order No. 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.
(2) Procurement.
(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.
(b) IMMIGRATION-
(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.
(c) EFFECTIVE DATES-
(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.
The Secretary--
(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.
(a) 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.
(a) AUTHORITY-
(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--
`(1) be flexible;
`(2) be contemporary;
`(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.
`(C) IMPLEMENTATION-
`(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'.
(b) EFFECT ON PERSONNEL-
(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.
(a) AUTHORITY-
(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.
(2) NONECONOMIC DAMAGES-
(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.
(a) IN GENERAL-
(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--
(i) is unlawful;
(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.
(4) LIABILITY INSURANCE-
(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.
(b) LIMITATIONS-
(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 1706(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.
(a) ESTABLISHMENT-
(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 (Public Law 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:
(A) Marine safety.
(B) Search and rescue.
(C) Aids to navigation.
(D) Living marine resources (fisheries law enforcement).
(E) Marine environmental protection.
(F) Ice operations.
(2) HOMELAND SECURITY MISSIONS- The term `homeland security
missions' means the following missions of the Coast Guard:
(A) Ports, waterways and coastal security.
(B) Drug interdiction.
(C) Migrant interdiction.
(D) Defense readiness.
(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.
(e) CHANGES TO 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.
(f) ANNUAL REVIEW-
(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
(2) in paragraph (3)--
(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';
(ii) in subclause (IV)--
(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:
(1) The President.
(2) The Vice President.
(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(d)(9) 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.
`(c) Each agency shall--
`(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:
`3531. Purposes.
`3532. Definitions.
`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-
`(1) IN GENERAL-
`(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);
(B) in paragraph (2)--
(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);
(B) in paragraph (2)--
(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';
(2) in subsection (a)--
(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:
`(g) ATTORNEY GENERAL-
`(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.
(a) ESTABLISHMENT-
(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:
`(i) Chapter 53.
`(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
(3) in subsection (b)--
(A) in paragraph (1)(B), by striking `or the Bureau' and
inserting `or either Bureau';
(B) in paragraph (2)--
(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 (Public Law 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--
`(1) a licensee;
`(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);';
(2) in paragraph (4)--
(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.'.
(i) EFFECTIVE DATE-
(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--
(1) in section 3304(a)--
(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-
(1) IN GENERAL-
(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
`(2) `employee'--
`(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
`(B) shall not include--
`(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
`(vi) any employee who--
`(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';
and
(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;
`(iv) specific periods;
`(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;
`(IV) specific periods;
`(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--
(1) in chapter 33--
(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;
(2) in chapter 35--
(A) in section 3592(a)--
(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
(C) in section 3594(b)--
(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';
(4) in chapter 83--
(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
(5) in chapter 84--
(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.
`(2) TRAINING-
`(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.
`(d) DEPUTIZATION-
`(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.
`(k) APPLICABILITY-
`(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; and
`(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).
(d) EFFECTIVE DATE-
(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--
(1) in subsection (a)--
(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, UNITED STATES CODE- 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, UNITED STATES CODE- (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, UNITED STATES CODE- 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, UNITED STATES CODE- 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
(2) in subsection (b)--
(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;
`(B) carry firearms;
`(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;
`(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; and
`(F) carry out such other activities for the promotion of
homeland security as the Secretary may prescribe.
`(c) REGULATIONS-
`(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.
`(d) DETAILS-
`(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.
Speaker of the House of Representatives.
Vice President of the United States and
President of the Senate.
END