[Congressional Bills 107th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5005 Engrossed Amendment Senate (EAS)]
In the Senate of the United States,
November 19, 2002.
Resolved, That the bill from the House of Representatives (H.R.
5005) entitled ``An Act to establish the Department of Homeland
Security, and for other purposes.'', do pass with the following
AMENDMENT:
Strike out all after the enacting clause and insert:
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 other any
element of the Federal Government with responsibility for
analyzing terrorist threat information, from receiving any
intelligence or other information relating to terrorism.
(2) Sharing of information.--The Secretary, in consultation
with the Director of Central Intelligence, shall work to ensure
that intelligence or other information relating to terrorism to
which the Department has access is appropriately shared with
the elements of the Federal Government referred to in paragraph
(1), as well as with State and local governments, as
appropriate.
Subtitle B--Critical Infrastructure Information
SEC. 211. SHORT TITLE.
This subtitle may be cited as the ``Critical Infrastructure
Information Act of 2002''.
SEC. 212. DEFINITIONS.
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 Safety Streets Act
of 1968 (42 U.S.C. 3722(c)) is amended--
(1) in paragraph (3) by inserting ``, including cost
effectiveness where practical,'' before ``of projects''; and
(2) by striking ``and'' after the semicolon at the end of
paragraph (8), striking the period at the end of paragraph (9)
and inserting ``; and'', and by adding at the end the
following:
``(10) research and development of tools and technologies
relating to prevention, detection, investigation, and
prosecution of crime; and
``(11) support research, development, testing, training,
and evaluation of tools and technology for Federal, State, and
local law enforcement agencies.''.
TITLE III--SCIENCE AND TECHNOLOGY IN SUPPORT OF HOMELAND SECURITY
SEC. 301. UNDER SECRETARY FOR SCIENCE AND TECHNOLOGY.
There shall be in the Department a Directorate of Science and
Technology headed by an Under Secretary for Science and Technology.
SEC. 302. RESPONSIBILITIES AND AUTHORITIES OF THE UNDER SECRETARY FOR
SCIENCE AND TECHNOLOGY.
The Secretary, acting through the Under Secretary for Science and
Technology, shall have the responsibility for--
(1) advising the Secretary regarding research and
development efforts and priorities in support of the
Department's missions;
(2) developing, in consultation with other appropriate
executive agencies, a national policy and strategic plan for,
identifying priorities, goals, objectives and policies for, and
coordinating the Federal Government's civilian efforts to
identify and develop countermeasures to chemical, biological,
radiological, nuclear, and other emerging terrorist threats,
including the development of comprehensive, research-based
definable goals for such efforts and development of annual
measurable objectives and specific targets to accomplish and
evaluate the goals for such efforts;
(3) supporting the Under Secretary for Information Analysis
and Infrastructure Protection, by assessing and testing
homeland security vulnerabilities and possible threats;
(4) conducting basic and applied research, development,
demonstration, testing, and evaluation activities that are
relevant to any or all elements of the Department, through both
intramural and extramural programs, except that such
responsibility does not extend to human health-related research
and development activities;
(5) establishing priorities for, directing, funding, and
conducting national research, development, test and evaluation,
and procurement of technology and systems for--
(A) preventing the importation of chemical,
biological, radiological, nuclear, and related weapons
and material; and
(B) detecting, preventing, protecting against, and
responding to terrorist attacks;
(6) establishing a system for transferring homeland
security developments or technologies to federal, state, local
government, and private sector entities;
(7) entering into work agreements, joint sponsorships,
contracts, or any other agreements with the Department of
Energy regarding the use of the national laboratories or sites
and support of the science and technology base at those
facilities;
(8) collaborating with the Secretary of Agriculture and the
Attorney General as provided in section 212 of the Agricultural
Bioterrorism Protection Act of 2002 (7 U.S.C. 8401), as amended
by section 1709(b);
(9) collaborating with the Secretary of Health and Human
Services and the Attorney General in determining any new
biological agents and toxins that shall be listed as ``select
agents'' in Appendix A of part 72 of title 42, Code of Federal
Regulations, pursuant to section 351A of the Public Health
Service Act (42 U.S.C. 262a);
(10) supporting United States leadership in science and
technology;
(11) establishing and administering the primary research
and development activities of the Department, including the
long-term research and development needs and capabilities for
all elements of the Department;
(12) coordinating and integrating all research,
development, demonstration, testing, and evaluation activities
of the Department;
(13) coordinating with other appropriate executive agencies
in developing and carrying out the science and technology
agenda of the Department to reduce duplication and identify
unmet needs; and
(14) developing and overseeing the administration of
guidelines for merit review of research and development
projects throughout the Department, and for the dissemination
of research conducted or sponsored by the Department.
SEC. 303. FUNCTIONS TRANSFERRED.
In accordance with title XV, there shall be transferred to the
Secretary the functions, personnel, assets, and liabilities of the
following entities:
(1) The following programs and activities of the Department
of Energy, including the functions of the Secretary of Energy
relating thereto (but not including programs and activities
relating to the strategic nuclear defense posture of the United
States):
(A) The chemical and biological national security
and supporting programs and activities of the
nonproliferation and verification research and
development program.
(B) The nuclear smuggling programs and activities
within the proliferation detection program of the
nonproliferation and verification research and
development program. The programs and activities
described in this subparagraph may be designated by the
President either for transfer to the Department or for
joint operation by the Secretary and the Secretary of
Energy.
(C) The nuclear assessment program and activities
of the assessment, detection, and cooperation program
of the international materials protection and
cooperation program.
(D) Such life sciences activities of the biological
and environmental research program related to microbial
pathogens as may be designated by the President for
transfer to the Department.
(E) The Environmental Measurements Laboratory.
(F) The advanced scientific computing research
program and activities at Lawrence Livermore National
Laboratory.
(2) The National Bio-Weapons Defense Analysis Center of the
Department of Defense, including the functions of the Secretary
of Defense related thereto.
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) HSARPA.--
(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) FACA Exemption.--Section 14 of the Federal Advisory Committee
Act shall not apply to the Advisory Committee.
(j) Termination.--The Department of Homeland Security Science and
Technology Advisory Committee shall terminate 3 years after the
effective date of this Act.
SEC. 312. HOMELAND SECURITY INSTITUTE.
(a) Establishment.--The Secretary shall establish a federally
funded research and development center to be known as the ``Homeland
Security Institute'' (in this section referred to as the
``Institute'').
(b) Administration.--The Institute shall be administered as a
separate entity by the Secretary.
(c) Duties.--The duties of the Institute shall be determined by the
Secretary, and may include the following:
(1) Systems analysis, risk analysis, and simulation and
modeling to determine the vulnerabilities of the Nation's
critical infrastructures and the effectiveness of the systems
deployed to reduce those vulnerabilities.
(2) Economic and policy analysis to assess the distributed
costs and benefits of alternative approaches to enhancing
security.
(3) Evaluation of the effectiveness of measures deployed to
enhance the security of institutions, facilities, and
infrastructure that may be terrorist targets.
(4) Identification of instances when common standards and
protocols could improve the interoperability and effective
utilization of tools developed for field operators and first
responders.
(5) Assistance for Federal agencies and departments in
establishing testbeds to evaluate the effectiveness of
technologies under development and to assess the
appropriateness of such technologies for deployment.
(6) Design of metrics and use of those metrics to evaluate
the effectiveness of homeland security programs throughout the
Federal Government, including all national laboratories.
(7) Design of and support for the conduct of homeland
security-related exercises and simulations.
(8) Creation of strategic technology development plans to
reduce vulnerabilities in the Nation's critical infrastructure
and key resources.
(d) Consultation on Institute Activities.--In carrying out the
duties described in subsection (c), the Institute shall consult widely
with representatives from private industry, institutions of higher
education, nonprofit institutions, other Government agencies, and
federally funded 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
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 12148 (44 Fed. Reg. 43239) and Executive Order
12656 (53 Fed. Reg. 47491).
(2) Revision of response plan.--Not later than 60 days
after the date of enactment of this Act, the Director of the
Federal Emergency Management Agency shall revise the Federal
Response Plan to reflect the establishment of and incorporate
the Department.
SEC. 508. USE OF NATIONAL PRIVATE SECTOR NETWORKS IN EMERGENCY
RESPONSE.
To the maximum extent practicable, the Secretary shall use national
private sector networks and infrastructure for emergency response to
chemical, biological, radiological, nuclear, or explosive disasters,
and other major disasters.
SEC. 509. USE OF COMMERCIALLY AVAILABLE TECHNOLOGY, GOODS, AND
SERVICES.
It is the sense of Congress that--
(1) the Secretary should, to the maximum extent possible,
use off-the-shelf commercially developed technologies to ensure
that the Department's information technology systems allow the
Department to collect, manage, share, analyze, and disseminate
information securely over multiple channels of communication;
and
(2) in order to further the policy of the United States to
avoid competing commercially with the private sector, the
Secretary should rely on commercial sources to supply the goods
and services needed by the Department.
TITLE VI--TREATMENT OF CHARITABLE TRUSTS FOR MEMBERS OF THE ARMED
FORCES OF THE UNITED STATES AND OTHER GOVERNMENTAL ORGANIZATIONS
SEC. 601. TREATMENT OF CHARITABLE TRUSTS FOR MEMBERS OF THE ARMED
FORCES OF THE UNITED STATES AND OTHER GOVERNMENTAL
ORGANIZATIONS.
(a) Findings.--Congress finds the following:
(1) Members of the Armed Forces of the United States defend
the freedom and security of our Nation.
(2) Members of the Armed Forces of the United States have
lost their lives while battling the evils of terrorism around
the world.
(3) Personnel of the Central Intelligence Agency (CIA)
charged with the responsibility of covert observation of
terrorists around the world are often put in harm's way during
their service to the United States.
(4) Personnel of the Central Intelligence Agency have also
lost their lives while battling the evils of terrorism around
the world.
(5) Employees of the Federal Bureau of Investigation (FBI)
and other Federal agencies charged with domestic protection of
the United States put their lives at risk on a daily basis for
the freedom and security of our Nation.
(6) United States military personnel, CIA personnel, FBI
personnel, and other Federal agents in the service of the
United States are patriots of the highest order.
(7) CIA officer Johnny Micheal Spann became the first
American to give his life for his country in the War on
Terrorism declared by President George W. Bush following the
terrorist attacks of September 11, 2001.
(8) Johnny Micheal Spann left behind a wife and children
who are very proud of the heroic actions of their patriot
father.
(9) Surviving dependents of members of the Armed Forces of
the United States who lose their lives as a result of terrorist
attacks or military operations abroad receive a $6,000 death
benefit, plus a small monthly benefit.
(10) The current system of compensating spouses and
children of American patriots is inequitable and needs
improvement.
(b) Designation of Johnny Micheal Spann Patriot Trusts.--Any
charitable corporation, fund, foundation, or trust (or separate fund or
account thereof) which otherwise meets all applicable requirements
under law with respect to charitable entities and meets the
requirements described in subsection (c) shall be eligible to
characterize itself as a ``Johnny Micheal Spann Patriot Trust''.
(c) Requirements for the Designation of Johnny Micheal Spann
Patriot Trusts.--The requirements described in this subsection are as
follows:
(1) Not taking into account funds or donations reasonably
necessary to establish a trust, at least 85 percent of all
funds or donations (including any earnings on the investment of
such funds or donations) received or collected by any Johnny
Micheal Spann Patriot Trust must be distributed to (or, if
placed in a private foundation, held in trust for) surviving
spouses, children, or dependent parents, grandparents, or
siblings of 1 or more of the following:
(A) members of the Armed Forces of the United
States;
(B) personnel, including contractors, of elements
of the intelligence community, as defined in section
3(4) of the National Security Act of 1947;
(C) employees of the Federal Bureau of
Investigation; and
(D) officers, employees, or contract employees of
the United States Government,
whose deaths occur in the line of duty and arise out of
terrorist attacks, military operations, intelligence
operations, or law enforcement operations or accidents
connected with activities occurring after September 11, 2001,
and related to domestic or foreign efforts to curb
international terrorism, including the Authorization for Use of
Military Force (Public Law 107-40; 115 Stat. 224).
(2) Other than funds or donations reasonably necessary to
establish a trust, not more than 15 percent of all funds or
donations (or 15 percent of annual earnings on funds invested
in a private foundation) may be used for administrative
purposes.
(3) No part of the net earnings of any Johnny Micheal Spann
Patriot Trust may inure to the benefit of any individual based
solely on the position of such individual as a shareholder, an
officer or employee of such Trust.
(4) None of the activities of any Johnny Micheal Spann
Patriot Trust shall be conducted in a manner inconsistent with
any law that prohibits attempting to influence legislation.
(5) No Johnny Micheal Spann Patriot Trust may participate
in or intervene in any political campaign on behalf of (or in
opposition to) any candidate for public office, including by
publication or distribution of statements.
(6) Each Johnny Micheal Spann Patriot Trust shall comply
with the instructions and directions of the Director of Central
Intelligence, the Attorney General, or the Secretary of Defense
relating to the protection of intelligence sources and methods,
sensitive law enforcement information, or other sensitive
national security information, including methods for
confidentially disbursing funds.
(7) Each Johnny Micheal Spann Patriot Trust that receives
annual contributions totaling more than $1,000,000 must be
audited annually by an independent certified public accounting
firm. Such audits shall be filed with the Internal Revenue
Service, and shall be open to public inspection, except that
the conduct, filing, and availability of the audit shall be
consistent with the protection of intelligence sources and
methods, of sensitive law enforcement information, and of other
sensitive national security information.
(8) Each Johnny Micheal Spann Patriot Trust shall make
distributions to beneficiaries described in paragraph (1) at
least once every calendar year, beginning not later than 12
months after the formation of such Trust, and all funds and
donations received and earnings not placed in a private
foundation dedicated to such beneficiaries must be distributed
within 36 months after the end of the fiscal year in which such
funds, donations, and earnings are received.
(9)(A) When determining the amount of a distribution to any
beneficiary described in paragraph (1), a Johnny Micheal Spann
Patriot Trust should take into account the amount of any
collateral source compensation that the beneficiary has
received or is entitled to receive as a result of the death of
an individual described in paragraph (1).
(B) Collateral source compensation includes all
compensation from collateral sources, including life insurance,
pension funds, death benefit programs, and payments by Federal,
State, or local governments related to the death of an
individual described in paragraph (1).
(d) Treatment of Johnny Micheal Spann Patriot Trusts.--Each Johnny
Micheal Spann Patriot Trust shall refrain from conducting the
activities described in clauses (i) and (ii) of section 301(20)(A) of
the Federal Election Campaign Act of 1971 so that a general
solicitation of funds by an individual described in paragraph (1) of
section 323(e) of such Act will be permissible if such solicitation
meets the requirements of paragraph (4)(A) of such section.
(e) Notification of Trust Beneficiaries.--Notwithstanding any other
provision of law, and in a manner consistent with the protection of
intelligence sources and methods and sensitive law enforcement
information, and other sensitive national security information, the
Secretary of Defense, the Director of the Federal Bureau of
Investigation, or the Director of Central Intelligence, or their
designees, as applicable, may forward information received from an
executor, administrator, or other legal representative of the estate of
a decedent described in subparagraph (A), (B), (C), or (D) of
subsection (c)(1), to a Johnny Micheal Spann Patriot Trust on how to
contact individuals eligible for a distribution under subsection (c)(1)
for the purpose of providing assistance from such Trust; provided that,
neither forwarding nor failing to forward any information under this
subsection shall create any cause of action against any Federal
department, agency, officer, agent, or employee.
(f) Regulations.--Not later than 90 days after the date of
enactment of this Act, the Secretary of Defense, in coordination with
the Attorney General, the Director of the Federal Bureau of
Investigation, and the Director of Central Intelligence, shall
prescribe regulations to carry out this section.
TITLE VII--MANAGEMENT
SEC. 701. UNDER SECRETARY FOR MANAGEMENT.
(a) In General.--The Secretary, acting through the Under Secretary
for Management, shall be responsible for the management and
administration of the Department, including the following:
(1) The budget, appropriations, expenditures of funds,
accounting, and finance.
(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:
``97. Department of Homeland Security....................... 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 (Pub. L. 107-174)); or
(2) to provide whistleblower protections for employees of
the Department (including pursuant to the provisions in section
2302(b)(8) and (9) of such title and the Notification and
Federal Employee Antidiscrimination and Retaliation Act of
2002).
SEC. 884. FEDERAL LAW ENFORCEMENT TRAINING CENTER.
(a) In General.--The transfer of an authority or an agency under
this Act to the Department of Homeland Security does not affect
training agreements already entered into with the Federal Law
Enforcement Training Center with respect to the training of personnel
to carry out that authority or the duties of that transferred agency.
(b) Continuity of Operations.--All activities of the Federal Law
Enforcement Training Center transferred to the Department of Homeland
Security under this Act shall continue to be carried out at the
locations such activities were carried out before such transfer.
SEC. 885. JOINT INTERAGENCY TASK FORCE.
(a) Establishment.--The Secretary may establish and operate a
permanent Joint Interagency Homeland Security Task Force composed of
representatives from military and civilian agencies of the United
States Government for the purposes of anticipating terrorist threats
against the United States and taking appropriate actions to prevent
harm to the United States.
(b) Structure.--It is the sense of Congress that the Secretary
should model the Joint Interagency Homeland Security Task Force on the
approach taken by the Joint Interagency Task Forces for drug
interdiction at Key West, Florida and Alameda, California, to the
maximum extent feasible and appropriate.
SEC. 886. SENSE OF CONGRESS REAFFIRMING THE CONTINUED IMPORTANCE AND
APPLICABILITY OF THE POSSE COMITATUS ACT.
(a) Findings.--Congress finds the following:
(1) Section 1385 of title 18, United States Code (commonly
known as the ``Posse Comitatus Act''), prohibits the use of the
Armed Forces as a posse comitatus to execute the laws except in
cases and under circumstances expressly authorized by the
Constitution or Act of Congress.
(2) Enacted in 1878, the Posse Comitatus Act was expressly
intended to prevent United States Marshals, on their own
initiative, from calling on the Army for assistance in
enforcing Federal law.
(3) The Posse Comitatus Act has served the Nation well in
limiting the use of the Armed Forces to enforce the law.
(4) Nevertheless, by its express terms, the Posse Comitatus
Act is not a complete barrier to the use of the Armed Forces
for a range of domestic purposes, including law enforcement
functions, when the use of the Armed Forces is authorized by
Act of Congress or the President determines that the use of the
Armed Forces is required to fulfill the President's obligations
under the Constitution to respond promptly in time of war,
insurrection, or other serious emergency.
(5) Existing laws, including chapter 15 of title 10, United
States Code (commonly known as the ``Insurrection Act''), and
the Robert T. Stafford Disaster Relief and Emergency Assistance
Act (42 U.S.C. 5121 et seq.), grant the President broad powers
that may be invoked in the event of domestic emergencies,
including an attack against the Nation using weapons of mass
destruction, and these laws specifically authorize the
President to use the Armed Forces to help restore public order.
(b) Sense of Congress.--Congress reaffirms the continued importance
of section 1385 of title 18, United States Code, and it is the sense of
Congress that nothing in this Act should be construed to alter the
applicability of such section to any use of the Armed Forces as a posse
comitatus to execute the laws.
SEC. 887. COORDINATION WITH THE DEPARTMENT OF HEALTH AND HUMAN SERVICES
UNDER THE PUBLIC HEALTH SERVICE ACT.
(a) In General.--The annual Federal response plan developed by the
Department shall be consistent with section 319 of the Public Health
Service Act (42 U.S.C. 247d).
(b) Disclosures Among Relevant Agencies.--
(1) In general.--Full disclosure among relevant agencies
shall be made in accordance with this subsection.
(2) Public health emergency.--During the period in which
the Secretary of Health and Human Services has declared the
existence of a public health emergency under section 319(a) of
the Public Health Service Act (42 U.S.C. 247d(a)), the
Secretary of Health and Human Services shall keep relevant
agencies, including the Department of Homeland Security, the
Department of Justice, and the Federal Bureau of Investigation,
fully and currently informed.
(3) Potential public health emergency.--In cases involving,
or potentially involving, a public health emergency, but in
which no determination of an emergency by the Secretary of
Health and Human Services under section 319(a) of the Public
Health Service Act (42 U.S.C. 247d(a)), has been made, all
relevant agencies, including the Department of Homeland
Security, the Department of Justice, and the Federal Bureau of
Investigation, shall keep the Secretary of Health and Human
Services and the Director of the Centers for Disease Control
and Prevention fully and currently informed.
SEC. 888. PRESERVING COAST GUARD MISSION PERFORMANCE.
(a) Definitions.--In this section:
(1) Non-homeland security missions.--The term ``non-
homeland security missions'' means the following missions of
the Coast Guard:
(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 (Pub. L. 105-277; 122 Stat.
2681-585) shall be transferred to the Attorney General of the United
States for continued use by the Bureau of Alcohol, Tobacco, Firearms,
and Explosives, Department of Justice, and the Secretary of the
Treasury for continued use by the Tax and Trade Bureau.
Subtitle C--Explosives
SEC. 1121. SHORT TITLE.
This subtitle may be referred to as the ``Safe Explosives Act''.
SEC. 1122. PERMITS FOR PURCHASERS OF EXPLOSIVES.
(a) Definitions.--Section 841 of title 18, United States Code, is
amended--
(1) by striking subsection (j) and inserting the following:
``(j) `Permittee' means any user of explosives for a lawful
purpose, who has obtained either a user permit or a limited
permit under the provisions of this chapter.''; and
(2) by adding at the end the following:
``(r) `Alien' means any person who is not a citizen or
national of the United States.
``(s) `Responsible person' means an individual who has the
power to direct the management and policies of the applicant
pertaining to explosive materials.''.
(b) Permits for Purchase of Explosives.--Section 842 of title 18,
United States Code, is amended--
(1) in subsection (a)(2), by striking ``and'' at the end;
(2) by striking subsection (a)(3) and inserting the
following:
``(3) other than a licensee or permittee knowingly--
``(A) to transport, ship, cause to be transported,
or receive any explosive materials; or
``(B) to distribute explosive materials to any
person other than a licensee or permittee; or
``(4) who is a holder of a limited permit--
``(A) to transport, ship, cause to be transported,
or receive in interstate or foreign commerce any
explosive materials; or
``(B) to receive explosive materials from a
licensee or permittee, whose premises are located
outside the State of residence of the limited permit
holder, or on more than 6 separate occasions, during
the period of the permit, to receive explosive
materials from 1 or more licensees or permittees whose
premises are located within the State of residence of
the limited permit holder.''; and
(3) by striking subsection (b) and inserting the following:
``(b) It shall be unlawful for any licensee or permittee to
knowingly distribute any explosive materials to any person other than--
``(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:
``14. Agency Chief Human Capital Officers................... 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;
``(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, U.S.C.--Title 14, United States Code, is amended in
sections 1, 3, 53, 95, 145, 516, 666, 669, 673, 673a (as redesignated
by subsection (e)(1)), 674, 687, and 688 by striking ``of
Transportation'' each place it appears and inserting ``of Homeland
Security''.
(b) Title 10, U.S.C.--(1) Title 10, United States Code, is amended
in sections 101(9), 130b(a), 130b(c)(4), 130c(h)(1), 379, 513(d),
575(b)(2), 580(e)(6), 580a(e), 651(a), 671(c)(2), 708(a), 716(a), 717,
806(d)(2), 815(e), 888, 946(c)(1), 973(d), 978(d), 983(b)(1), 985(a),
1033(b)(1), 1033(d), 1034, 1037(c), 1044d(f), 1058(c), 1059(a),
1059(k)(1), 1073(a), 1074(c)(1), 1089(g)(2), 1090, 1091(a), 1124, 1143,
1143a(h), 1144, 1145(e), 1148, 1149, 1150(c), 1152(a), 1152(d)(1),
1153, 1175, 1212(a), 1408(h)(2), 1408(h)(8), 1463(a)(2), 1482a(b),
1510, 1552(a)(1), 1565(f), 1588(f)(4), 1589, 2002(a), 2302(1),
2306b(b), 2323(j)(2), 2376(2), 2396(b)(1), 2410a(a), 2572(a), 2575(a),
2578, 2601(b)(4), 2634(e), 2635(a), 2734(g), 2734a, 2775, 2830(b)(2),
2835, 2836, 4745(a), 5013a(a), 7361(b), 10143(b)(2), 10146(a),
10147(a), 10149(b), 10150, 10202(b), 10203(d), 10205(b), 10301(b),
12103(b), 12103(d), 12304, 12311(c), 12522(c), 12527(a)(2), 12731(b),
12731a(e), 16131(a), 16136(a), 16301(g), and 18501 by striking ``of
Transportation'' each place it appears and inserting ``of Homeland
Security''.
(2) Section 801(1) of such title is amended by striking ``the
General Counsel of the Department of Transportation'' and inserting
``an official designated to serve as Judge Advocate General of the
Coast Guard by the Secretary of Homeland Security''.
(3) Section 983(d)(2)(B) of such title is amended by striking
``Department of Transportation'' and inserting ``Department of Homeland
Security''.
(4) Section 2665(b) of such title is amended by striking
``Department of Transportation'' and inserting ``Department in which
the Coast Guard is operating''.
(5) Section 7045 of such title is amended--
(A) in subsections (a)(1) and (b), by striking
``Secretaries of the Army, Air Force, and Transportation'' both
places it appears and inserting ``Secretary of the Army, the
Secretary of the Air Force, and the Secretary of Homeland
Security''; and
(B) in subsection (b), by striking ``Department of
Transportation'' and inserting ``Department of Homeland
Security''.
(6) Section 7361(b) of such title is amended in the subsection
heading by striking ``Transportation'' and inserting ``Homeland
Security''.
(7) Section 12522(c) of such title is amended in the subsection
heading by striking ``Transportation'' and inserting ``Homeland
Security''.
(c) Title 37, U.S.C.--Title 37, United States Code, is amended in
sections 101(5), 204(i)(4), 301a(a)(3), 306(d), 307(c), 308(a)(1),
308(d)(2), 308(f), 308b(e), 308c(c), 308d(a), 308e(f), 308g(g),
308h(f), 308i(e), 309(d), 316(d), 323(b), 323(g)(1), 325(i), 402(d),
402a(g)(1), 403(f)(3), 403(l)(1), 403b(i)(5), 406(b)(1), 417(a),
417(b), 418(a), 703, 1001(c), 1006(f), 1007(a), and 1011(d) by striking
``of Transportation'' each place it appears and inserting ``of Homeland
Security''.
(d) Title 38, U.S.C.--Title 38, United States Code, is amended in
sections 101(25)(d), 1560(a), 3002(5), 3011(a)(1)(A)(ii)(I),
3011(a)(1)(A)(ii)(II), 3011(a)(1)(B)(ii)(III),
3011(a)(1)(C)(iii)(II)(cc), 3012(b)(1)(A)(v), 3012(b)(1)(B)(ii)(V),
3018(b)(3)(B)(iv), 3018A(a)(3), 3018B(a)(1)(C), 3018B(a)(2)(C),
3018C(a)(5), 3020(m), 3035(b)(2), 3035(c), 3035(d), 3035(e), 3680A(g),
and 6105(c) by striking ``of Transportation'' each place it appears and
inserting ``of Homeland Security''.
(e) Other Defense-Related Laws.--(1) Section 363 of Public Law 104-
193 (110 Stat. 2247) is amended--
(A) in subsection (a)(1) (10 U.S.C. 113 note), by striking
``of Transportation'' and inserting ``of Homeland Security'';
and
(B) in subsection (b)(1) (10 U.S.C. 704 note), by striking
``of Transportation'' and inserting ``of Homeland Security''.
(2) Section 721(1) of Public Law 104-201 (10 U.S.C. 1073 note) is
amended by striking ``of Transportation'' and inserting ``of Homeland
Security''.
(3) Section 4463(a) of Public Law 102-484 (10 U.S.C. 1143a note) is
amended by striking ``after consultation with the Secretary of
Transportation''.
(4) Section 4466(h) of Public Law 102-484 (10 U.S.C. 1143 note) is
amended by striking ``of Transportation'' and inserting ``of Homeland
Security''.
(5) Section 542(d) of Public Law 103-337 (10 U.S.C. 1293 note) is
amended by striking ``of Transportation'' and inserting ``of Homeland
Security''.
(6) Section 740 of Public Law 106-181 (10 U.S.C. 2576 note) is
amended in subsections (b)(2), (c), and (d)(1) by striking ``of
Transportation'' each place it appears and inserting ``of Homeland
Security''.
(7) Section 1407(b)(2) of the Defense Dependents' Education Act of
1978 (20 U.S.C. 926(b)) is amended by striking ``of Transportation''
both places it appears and inserting ``of Homeland Security''.
(8) Section 2301(5)(D) of the Elementary and Secondary Education
Act of 1965 (20 U.S.C. 6671(5)(D)) is amended by striking ``of
Transportation'' and inserting ``of Homeland Security''.
(9) Section 2307(a) of the Elementary and Secondary Education Act
of 1965 (20 U.S.C. 6677(a)) is amended by striking ``of
Transportation'' and inserting ``of Homeland Security''.
(10) Section 1034(a) of Public Law 105-85 (21 U.S.C. 1505a(a)) is
amended by striking ``of Transportation'' and inserting ``of Homeland
Security''.
(11) The Military Selective Service Act is amended--
(A) in section 4(a) (50 U.S.C. App. 454(a)), by striking
``of Transportation'' in the fourth paragraph and inserting
``of Homeland Security'';
(B) in section 4(b) (50 U.S.C. App. 454(b)), by striking
``of Transportation'' both places it appears and inserting ``of
Homeland Security'';
(C) in section 6(d)(1) (50 U.S.C. App. 456(d)(1)), by
striking ``of Transportation'' both places it appears and
inserting ``of Homeland Security'';
(D) in section 9(c) (50 U.S.C. App. 459(c)), by striking
``Secretaries of Army, Navy, Air Force, or Transportation'' and
inserting ``Secretary of a military department, and the
Secretary of Homeland Security with respect to the Coast
Guard,''; and
(E) in section 15(e) (50 U.S.C. App. 465(e)), by striking
``of Transportation'' both places it appears and inserting ``of
Homeland Security''.
(f) Technical Correction.--(1) Title 14, United States Code, is
amended by redesignating section 673 (as added by section 309 of Public
Law 104-324) as section 673a.
(2) The table of sections at the beginning of chapter 17 of such
title is amended by redesignating the item relating to such section as
section 673a.
(g) Effective Date.--The amendments made by this section (other
than subsection (f)) shall take effect on the date of transfer of the
Coast Guard to the Department.
SEC. 1705. STRATEGIC NATIONAL STOCKPILE AND SMALLPOX VACCINE
DEVELOPMENT.
(a) In General.--Section 121 of the Public Health Security and
Bioterrorism Preparedness and Response Act of 2002 (Public Law 107-188;
42 U.S.C. 300hh-12) is amended--
(1) in subsection (a)(1)--
(A) by striking ``Secretary of Health and Human
Services'' and inserting ``Secretary of Homeland
Security'';
(B) by inserting ``the Secretary of Health and
Human Services and'' between ``in coordination with''
and ``the Secretary of Veterans Affairs''; and
(C) by inserting ``of Health and Human Services''
after ``as are determined by the Secretary''; and
(2) in subsections (a)(2) and (b), by inserting ``of Health
and Human Services'' after ``Secretary'' each place it appears.
(b) Effective Date.--The amendments made by this section shall take
effect on the date of transfer of the Strategic National Stockpile of
the Department of Health and Human Services to the Department.
SEC. 1706. TRANSFER OF CERTAIN SECURITY AND LAW ENFORCEMENT FUNCTIONS
AND AUTHORITIES.
(a) Amendment to Title 40.--Section 581 of title 40, United States
Code, is amended--
(1) by striking subsection (a); and
(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; and
``(E) conduct investigations, on and off the
property in question, of offenses that may have been
committed against property owned or occupied by the
Federal Government or persons on the property.
``(F) carry out such other activities for the
promotion of homeland security as the Secretary may
prescribe.
``(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.
Attest:
Secretary.
107th CONGRESS
2d Session
H. R. 5005
_______________________________________________________________________
AMENDMENT