II 111th CONGRESS 1st Session S. 1361 IN THE SENATE OF THE UNITED STATES June 25, 2009 Mr. Leahy (for himself and Mr. Bond) introduced the following bill; which was read twice and referred to the Committee on Armed Services A BILL To amend title 10, United States Code, to enhance the national defense through empowerment of the National Guard, enhancement of the functions of the National Guard Bureau, and improvement of Federal-State military coordination in domestic emergency response, and for other purposes.

1.

Short title

This Act may be cited as the National Guard Empowerment and State-National Defense Integration Act of 2009.

2.

Expanded authority of the Chief of the National Guard Bureau

(a)

Membership on Joint Chiefs of Staff

(1)

In general

Section 151(a) of title 10, United States Code, is amended by adding at the end the following new paragraph: (7)The Chief of the National Guard Bureau. . (2)

Conforming amendment

Section 10502 of such title is amended— (A)by redesignating subsections (d) and (e) as subsections (e) and (f), respectively; and (B)by inserting after subsection (c) the following new subsection (d): (d)

Member of Joint Chiefs of Staff

The Chief of the National Guard Bureau shall perform the duties prescribed for him or her as a member of the Joint Chiefs of Staff under section 151 of this title. . (b)

Annual report to congress on validated requirements

Section 10504 of title 10, United States Code, is amended by adding at the end the following new subsection: (c)

Annual report on validated requirements

Not later than December 31 each year, the Chief of the National Guard Bureau shall submit to Congress a report on the following: (1)The requirements validated under section 10503a(b)(1) of this title during the preceding fiscal year. (2)The requirements referred to in paragraph (1) for which funding is to be requested in the next budget for a fiscal year under section 10544 of this title. (3)The requirements referred to in paragraph (1) for which funding will not be requested in the next budget for a fiscal year under section 10544 of this title. .

3.

Expanded functions of the National Guard Bureau

(a)

Military assistance for civil authorities

Chapter 1011 of title 10, United States Code, is amended by inserting after section 10503 the following new section:

10503a.

Functions of National Guard Bureau: military assistance to civil authorities

(a)

Identification of additional necessary assistance

The Chief of the National Guard Bureau shall— (1)identify gaps between Federal and State military capabilities to prepare for and respond to emergencies; and (2)make recommendations to the Secretary of Defense on programs and activities of the National Guard for military assistance to civil authorities to address such gaps. (b)

Scope of responsibilities

In meeting the requirements of subsection (a), the Chief of the National Guard Bureau shall, in coordination with the adjutants general of the States, have responsibilities as follows: (1)To validate the requirements of the several States and territories with respect to military assistance to civil authorities. (2)To develop doctrine and training requirements relating to the provision of military assistance to civil authorities. (3)To acquire equipment, materiel, and other supplies and services for the provision of military assistance to civil authorities. (4)To assist the Secretary of Defense in preparing the budget required under section 10544 of this title. (5)To administer amounts provided the National Guard for the provision of military assistance to civil authorities. (6)To carry out any other responsibility relating to the provision of military assistance to civil authorities as the Secretary of Defense shall specify. (c)

Assistance

The Chairman of the Joint Chiefs of Staff shall assist the Chief of the National Guard Bureau in carrying out activities under this section. (d)

Consultation

(1)The Chief of the National Guard Bureau shall carry out activities under this section through and utilizing an integrated planning process established by the Chief of the National Guard Bureau for purposes of this subsection. The planning process may be known as the National Guard Bureau Strategic Integrated Planning Process. (2)(A)Under the integrated planning process established under paragraph (1)— (i)the planning committee described in subparagraph (B) shall develop and submit to the planning directorate described in subparagraph (C) plans and proposals on such matters under the planning process as the Chief of the National Guard Bureau shall designate for purposes of this subsection; and (ii)the planning directorate shall review and make recommendations to the Chief of the National Guard Bureau on the plans and proposals submitted to the planning directorate under clause (i). (B)The planning committee described in this subparagraph is a planning committee (to be known as the State Strategic Integrated Planning Committee) composed of the adjutant general of each of the several States, the Commonwealth of Puerto Rico, Guam, the Virgin Islands, and the District of Columbia. (C)The planning directorate described in this subparagraph is a planning directorate (to be known as the Federal Strategic Integrated Planning Directorate) composed of the following (as designated by the Secretary of Defense for purposes of this subsection): (i)A major general of the Army National Guard. (ii)A major general of the Air National Guard. (iii)A major general of the regular Army. (iv)A major general of the regular Air Force. (v)A major general (other than a major general under clauses (iii) and (iv)) of the United States Northern Command. (vi)The Vice Chief of the National Guard Bureau. (vii)Seven adjutants general from the planning committee under paragraph (B).

. (b)

Budgeting for training and equipment and military construction for military assistance to civil authorities and other domestic missions

Chapter 1013 of such title is amended by adding at the end the following new section:

10544.

National Guard training and equipment and military construction: budget for military assistance to civil authorities and for other domestic operations

(a)

In general

The budget justification documents materials submitted to Congress in support of the budget of the President for a fiscal year (as submitted with the budget of the President under section 1105(a) of title 31) shall specify separate amounts for the National Guard for purposes of military assistance to civil authorities and for other domestic operations during such fiscal year as follows: (1)Amounts for training and equipment, including critical dual-use equipment. (2)Amounts for military construction, including critical dual-use capital construction. (b)

Scope of funding

The amounts specified under subsection (a) for a fiscal year shall be sufficient for purposes as follows: (1)The development and implementation of doctrine and training requirements applicable to the assistance and operations described in subsection (a) for such fiscal year. (2)The acquisition of equipment, materiel, and other supplies and services necessary for the provision of such assistance and such operations in such fiscal year.

. (c)

Clerical amendments

(1)The table of sections at the beginning of chapter 1011 of such title is amended by inserting after the item relating to section 10503 the following new item: 10503a. Functions of National Guard Bureau: military assistance to civil authorities. . (2)The table of sections at the beginning of chapter 1013 of such title is amended by adding at the end the following new item: 10544. National Guard training and equipment and military construction: budget for military assistance to civil authorities and for other domestic operations. .

4.

Reestablishment of position of Vice Chief of the National Guard Bureau

(a)

Reestablishment of position

(1)

In general

Chapter 1011 of title 10, United States Code, is amended— (A)by redesignating section 10505 as section 10505a; and (B)by inserting after section 10504 the following new section 10505:

10505.

Vice Chief of the National Guard Bureau

(a)

Appointment

(1)There is a Vice Chief of the National Guard Bureau, selected by the Secretary of Defense from officers of the Army National Guard of the United States or the Air National Guard of the United States who— (A)are recommended for such appointment by their respective Governors or, in the case of the District of Columbia, the commanding general of the District of Columbia National Guard; (B)have had at least 10 years of federally recognized service in an active status in the National Guard; and (C)are in a grade above the grade of colonel. (2)The Chief and Vice Chief of the National Guard Bureau may not both be members of the Army or of the Air Force. (3)(A)Except as provided in subparagraph (B), an officer appointed as Vice Chief of the National Guard Bureau serves for a term of four years, but may be removed from office at any time for cause. (B)The term of the Vice Chief of the National Guard Bureau shall end within a reasonable time (as determined by the Secretary of Defense) following the appointment of a Chief of the National Guard Bureau who is a member of the same armed force as the Vice Chief. (b)

Duties

The Vice Chief of the National Guard Bureau performs such duties as may be prescribed by the Chief of the National Guard Bureau. (c)

Grade

The Vice Chief of the National Guard Bureau shall be appointed to serve in the grade of lieutenant general. (d)

Functions as acting chief

When there is a vacancy in the office of the Chief of the National Guard Bureau or in the absence or disability of the Chief, the Vice Chief of the National Guard Bureau acts as Chief and performs the duties of the Chief until a successor is appointed or the absence of disability ceases.

. (2)

Clerical amendment

The table of sections at the beginning of chapter 1011 of such title is amended by striking the item relating to section 10505 and inserting the following new items: 10505. Vice Chief of the National Guard Bureau. 10505a. Director of the Joint Staff of the National Guard Bureau. . (b)

Conforming amendment

Section 10506(a)(1) of such title is amended by striking and the Director of the Joint Staff of the National Guard Bureau and inserting , the Vice Chief of the National Guard Bureau, and the Director of the Joint Staff of the National Guard Bureau.

5.

State control of Federal military forces engaged in activities within the States and possessions

(a)

In general

Part I of subtitle A of title 10, United States Code, is amended by inserting after chapter 15 the following new chapter: 16

Control of the Armed Forces in Activities Within the States and Possessions

Sec. 341. Tactical control of the armed forces engaged in activities within the States and possessions: emergency response activities.

341.

Tactical control of the armed forces engaged in activities within the States and possessions: emergency response activities

(a)

In general

The Secretary of Defense shall prescribe in regulations policies and procedures to assure that tactical control of the armed forces on active duty within a State or possession is vested in the governor of the State or possession, as the case may be, when such forces are engaged in a domestic operation, including emergency response, within such State or possession. (b)

Discharge through Joint Force Headquarters

The policies and procedures required under subsection (a) shall provide for the discharge of tactical control by the governor of a State or possession as described in that subsection through the Joint Force Headquarters of the National Guard in the State or possession, as the case may be, acting through the officer of the National Guard in command of the Headquarters. (c)

Possessions defined

Notwithstanding any provision of section 101(a) of this title, in this section, the term possessions means the Commonwealth of Puerto Rico, Guam, and the Virgin Islands.

. (b)

Clerical amendments

The tables of chapters at the beginning of title 10, United States Code, and at the beginning of part I of subtitle A of such title, are each amended by inserting after the item relating to chapter 15 the following new item: 16. Control of the Armed Forces in Activities Within the States and Possessions341 .

6.

Fiscal year 2010 funding for the National Guard for certain domestic activities

(a)

Continuity of operations, continuity of government, and consequence management

(1)

Authorization of appropriations

There is hereby authorized to be appropriated for fiscal year 2010 for the Department of Defense amounts as follows: (A)For National Guard Personnel, Army, $11,000,000. (B)For National Guard Personnel, Air Force, $3,500,000. (C)For Operation and Maintenance, Army National Guard, $11,000,000. (2)

Availability

The amounts authorized to be appropriated by paragraph (1) shall be available to the Army National Guard and the Air National Guard, as applicable, for costs of personnel in training and operations with respect to continuity of operations, continuity of government, and consequence management in connection with response to terrorist and other attacks on the United States homeland and natural and man-made catastrophes in the United States. (b)

Domestic operations

(1)

Authorization of appropriations

There is hereby authorized to be appropriated for fiscal year 2010 for the Department of Defense, $300,000,000 for Operation and Maintenance, Defense-wide. (2)

Availability

The amount authorized to be appropriated by paragraph (1) shall be available for the Army National Guard and the Air National Guard for emergency preparedness and response activities of the National Guard while in State status under title 32, United States Code. (3)

Transfer

Amounts under the amount authorized to be appropriated by paragraph (1) shall be available for transfer to accounts for National Guard Personnel, Army, and National Guard Personnel, Air Force, for purposes of the pay and allowances of members of the National Guard in conducting activities described in paragraph (2). (c)

Joint Operations Coordination Centers

(1)

Authorization of appropriations

There is hereby authorized to be appropriated for fiscal year 2010 for the Department of Defense amounts as follows: (A)For National Guard Personnel, Army, $28,000,000. (B)For National Guard Personnel, Air Force, $7,000,000. (2)

Availability

The amounts authorized to be appropriated by paragraph (1) shall be available to the Army National Guard and the Air National Guard, as applicable, for costs of personnel in continuously staffing a Joint Operations Coordination Center (JOCC) in the Joint Forces Headquarters of the National Guard in each State and Territory for command and control and activation of forces in response to terrorist and other attacks on the United States homeland and natural and man-made catastrophes in the United States. (d)

Supplement not supplant

The amounts authorized to be appropriated by subsections (a), (b), and (c) for the purposes set forth in such subsections are in addition to any other amounts authorized to be appropriated for fiscal year 2010 for the Department of Defense for such purposes.

7.

Enhancement of authorities relating to the United States Northern Command and other combatant commands

(a)

Commands responsible for support to civil authorities in the United States

The United States Northern Command and the United States Pacific Command shall be the combatant commands of the Armed Forces that are principally responsible for the support of civil authorities in the United States by the Armed Forces. (b)

Discharge of responsibility

In discharging the responsibility set forth in subsection (a), the Commander of the United States Northern Command and the Commander of the United States Pacific Command shall each— (1)in consultation with and acting through the Chief of the National Guard Bureau and the Joint Force Headquarters of the National Guard of the State or States concerned, assist the States in the employment of the National Guard under State control, including National Guard operations conducted in State active duty or under title 32, United States Code; and (2)facilitate the deployment of the Armed Forces on active duty under title 10, United States Code, as necessary to augment and support the National Guard in its support of civil authorities when National Guard operations are conducted under State control, whether in State active duty or under title 32, United States Code. (c)

Memorandum of understanding

(1)

Memorandum required

Not later than 180 days after the date of the enactment of this Act, the Commander of the United States Northern Command, the Commander of the United States Pacific Command, and the Chief of the National Guard Bureau shall, with the approval of the Secretary of Defense, jointly enter into a memorandum of understanding setting forth the operational relationships, and individual roles and responsibilities, during responses to domestic emergencies among the United States Northern Command, the United States Pacific Command, and the National Guard Bureau. (2)

Modification

The Commander of the United States Northern Command, the Commander of the United States Pacific Command, and the Chief of the National Guard Bureau may from time to time modify the memorandum of understanding under this subsection to address changes in circumstances and for such other purposes as the Commander of the United States Northern Command, the Commander of the United States Pacific Command, and the Chief of the National Guard Bureau jointly consider appropriate. Each such modification shall be subject to the approval of the Secretary of Defense. (d)

Authority To modify assignment of command responsibility

Nothing in this section shall be construed as altering or limiting the power of the President or the Secretary of Defense to modify the Unified Command Plan in order to assign all or part of the responsibility described in subsection (a) to a combatant command other than the United States Northern Command or the United States Pacific Command. (e)

Regulations

The Secretary of Defense shall prescribe regulations for purposes of aiding the expeditious implementation of the authorities and responsibilities in this section.

8.

Requirements relating to National Guard officers in certain command positions

(a)

Commander of Army North Command

The officer serving in the position of Commander, Army North Command, shall be an officer in the Army National Guard of the United States. (b)

Commander of Air Force North Command

The officer serving in the position of Commander, Air Force North Command, shall be an officer in the Air National Guard of the United States. (c)

Sense of Congress

It is the sense of Congress that, in assigning officers to the command positions specified in subsections (a) and (b), the President should afford a preference in assigning officers in the Army National Guard of the United States or Air National Guard of the United States, as applicable, who have served as the adjutant general of a State.