[Congressional Bills 114th Congress]
[From the U.S. Government Publishing Office]
[S. 3448 Introduced in Senate (IS)]

<DOC>






114th CONGRESS
  2d Session
                                S. 3448

   To provide for the creation of the Missing Armed Forces Personnel 
Records Collection at the National Archives, to require the expeditious 
 public transmission to the Archivist and public disclosure of Missing 
        Armed Forces Personnel records, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           September 28, 2016

  Ms. Ayotte introduced the following bill; which was read twice and 
referred to the Committee on Homeland Security and Governmental Affairs

_______________________________________________________________________

                                 A BILL


 
   To provide for the creation of the Missing Armed Forces Personnel 
Records Collection at the National Archives, to require the expeditious 
 public transmission to the Archivist and public disclosure of Missing 
        Armed Forces Personnel records, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Bring Our Heroes Home Act of 2016''.

SEC. 2. FINDINGS, DECLARATIONS, AND PURPOSES.

    (a) Findings and Declarations.--Congress finds and declares the 
following:
            (1) A vast number of records relating to Missing Armed 
        Forces Personnel have not been identified, located, or 
        transferred to the National Archives for review and 
        declassification. Only in the rarest cases is there any 
        legitimate need for continued protection of records pertaining 
        to Missing Armed Forces Personnel who have been missing for 
        decades.
            (2) There has been insufficient priority placed on 
        identifying, locating, transferring, reviewing, or 
        declassifying records relating to Missing Armed Forces 
        Personnel.
            (3) Mandates for declassification set forth in multiple 
        Executive orders have been broadly written, loosely 
        interpreted, and often ignored by Federal Government officials 
        in possession and control of records related to Missing Armed 
        Forces Personnel.
            (4) No individual or entity has been tasked with oversight 
        of the identification, collection, review, and declassification 
        of records related to Missing Armed Forces Personnel.
            (5) The interest, desire, workforce, and funding of Federal 
        agencies to assemble, review, and declassify records relating 
        to Missing Armed Forces Personnel have been lacking.
            (6) All records of the Federal Government relating to 
        Missing Armed Forces Personnel should be preserved for 
        historical and governmental purposes.
            (7) All records of the Federal Government relating Missing 
        Armed Forces Personnel should carry a presumption of immediate 
        disclosure, and all such records should be disclosed under this 
        Act to enable the fullest possible accounting for Missing Armed 
        Forces Personnel.
            (8) Legislation is necessary to create an enforceable, 
        independent, and accountable process for the public disclosure 
        of records relating to Missing Armed Forces Personnel.
            (9) Legislation is necessary because section 552 of title 
        5, United States Code (commonly known as the Freedom of 
        Information Act), as implemented by the executive branch of the 
        Federal Government, has prevented the timely public disclosure 
        of records relating to Missing Armed Forces Personnel.
    (b) Purposes.--The purposes of this Act are--
            (1) to provide for the creation of the Missing Armed Forces 
        Personnel Records Collection at the National Archives; and
            (2) to require the expeditious public transmission to the 
        Archivist and public disclosure of Missing Armed Forces 
        Personnel records.

SEC. 3. DEFINITIONS.

    In this Act:
            (1) Archivist.--The term ``Archivist'' means Archivist of 
        the United States.
            (2) Collection.--The term ``Collection'' means the Missing 
        Armed Forces Personnel Records Collection established under 
        section 4(a).
            (3) Executive agency.--The term ``Executive agency''--
                    (A) means an agency, as defined in section 552(f) 
                of title 5, United States Code; and
                    (B) includes any Executive department, military 
                department, Government corporation, Government 
                controlled corporation, or other establishment in the 
                executive branch of the Federal Government, including 
                the Executive Office of the President, any branch of 
                the Armed Forces, and any independent regulatory 
                agency.
            (4) Executive branch missing armed forces personnel 
        record.--The term ``executive branch Missing Armed Forces 
        Personnel record'' means a Missing Armed Forces Personnel 
        record of an Executive agency, or information contained in such 
        a Missing Armed Forces Personnel record obtained or developed 
        solely within the executive branch of the Federal Government.
            (5) Government office.--The term ``Government office'' 
        means a department or agency within the executive branch of the 
        Federal Government, the Library of Congress, and the National 
        Archives.
            (6) Identification aid.--The term ``identification aid'' 
        means the standard form prepared under section 5(d)(1)(A).
            (7) Missing armed forces personnel.--The term ``Missing 
        Armed Forces Personnel'' means one or more ``missing persons'' 
        as defined in section 1513 of title 10, United States Code.
            (8) Missing armed forces personnel record.--The term 
        ``Missing Armed Forces Personnel record'' means a record that 
        relates, directly or indirectly, to the loss, fate, or status 
        of Missing Armed Forces Personnel that was created or made 
        available for use by, obtained by, or otherwise came into the 
        custody, possession, or control of--
                    (A) any Government office;
                    (B) any Presidential library; or
                    (C) any of the Armed Forces.
            (9) National archives.--The term ``National Archives''--
                    (A) means the National Archives and Records 
                Administration; and
                    (B) includes--
                            (i) any component of the National Archives 
                        and Records Administration; and
                            (ii) a Presidential archival depository 
                        established under section 2112 of title 44, 
                        United States Code.
            (10) Official investigation.--The term ``official 
        investigation'' means a review, briefing, or hearing relating 
        to Missing Armed Forces Personnel conducted by a Presidential 
        commission, committee of Congress, or agency, regardless of 
        whether it is conducted independently, at the request of any 
        Presidential commission or committee of Congress, or at the 
        request of any official of the Federal Government.
            (11) Originating body.--The term ``originating body'' means 
        the Government office that created a record or particular 
        information within a record.
            (12) Public interest.--The term ``public interest'' means 
        the compelling interest in the prompt public disclosure of 
        Missing Armed Forces Personnel records for historical and 
        governmental purposes and for the purpose of fully informing 
        the people of the United States, most importantly families of 
        Missing Armed Forces Personnel, about the fate of the Missing 
        Armed Forces Personnel and the process by which the Federal 
        Government has sought to account for them.
            (13) Record.--The term ``record'' includes a book, paper, 
        map, photograph, sound or video recording, machine readable 
        material, computerized, digitized, or electronic information, 
        regardless of the medium on which it is stored, and other 
        documentary material, regardless of its physical form or 
        characteristics.
            (14) Review board.--The term ``Review Board'' means the 
        Missing Armed Forces Personnel Records Review Board established 
        under section 7.
            (15) Third agency.--The term ``third agency'' means a 
        Government office that originated a Missing Armed Forces 
        Personnel record that is in the custody, possession, or control 
        of another Government office whose review and authorization is 
        required before a record can be designated for disclosure.

SEC. 4. MISSING ARMED FORCES PERSONNEL RECORDS COLLECTION AT THE 
              NATIONAL ARCHIVES.

    (a) Establishment of Collection.--Not later than 60 days after the 
date of enactment of this Act, the National Archives shall commence 
establishment of a collection of records to be known as the Missing 
Armed Forces Personnel Records Collection.
    (b) Regulations.--
            (1) In general.--Not later than 180 days after the date of 
        enactment of this Act, the Review Board shall promulgate rules 
        to establish guidelines and processes for the maintenance of 
        the Collection.
            (2) Requirements.--The rules required to be promulgated 
        under paragraph (1) shall include guidelines and processes 
        for--
                    (A) transmission of records for inclusion in the 
                Collection;
                    (B) disclosure of records contained in the 
                Collection;
                    (C) fees for copying of records contained in the 
                Collection; and
                    (D) availability and security of records contained 
                in the Collection.

SEC. 5. REVIEW, IDENTIFICATION, TRANSMISSION TO THE NATIONAL ARCHIVES, 
              AND PUBLIC DISCLOSURE OF MISSING ARMED FORCES PERSONNEL 
              RECORDS BY GOVERNMENT OFFICES.

    (a) In General.--
            (1) Preparation.--As soon as practicable after the date of 
        enactment of this Act, and sufficiently in advance of the 
        deadlines established under this Act, each Government office 
        shall--
                    (A) identify, locate, and organize any Missing 
                Armed Forces Personnel records in the custody, 
                possession, or control of the Government office; and
                    (B) prepare for transmission to the Archivist any 
                Missing Armed Forces Personnel records that have not 
                previously been transmitted to the Archivist by the 
                Government office.
            (2) Certification.--Each Government office shall submit to 
        the Archivist, under penalty of perjury, a certification 
        indicating--
                    (A) whether the Government office has conducted a 
                thorough search for all Missing Armed Forces Personnel 
                records in the custody, possession, or control of the 
                Government office; and
                    (B) whether any Missing Armed Forces Personnel 
                record has been withheld by the office, other than in 
                accordance with this Act.
            (3) Preservation.--No Missing Armed Forces Personnel record 
        shall be destroyed, altered, or mutilated in any way.
            (4) Effect of previous disclosure.--A Missing Armed Forces 
        Personnel record made available or disclosed to the public 
        before the date of enactment of this Act may not be withheld, 
        redacted, postponed for public disclosure, or reclassified.
            (5) Non-federal records.--Except for the exclusion of names 
        or identities in accordance with section 6, a Missing Armed 
        Forces Personnel record created by an individual or entity that 
        is not part of the Federal Government may not be withheld, 
        redacted, postponed for public disclosure, or reclassified.
            (6) Withheld records.--For any Missing Armed Forces 
        Personnel record that is withheld by a Government office from 
        the Archivist or the Review Board, the head of the Government 
        office shall submit an unclassified report to the Review Board 
        and each appropriate committee of the Senate and the House of 
        Representatives explaining the decision to withhold the record.
    (b) Custody of Missing Armed Forces Personnel Records Pending 
Review.--During the period during which a Missing Armed Forces 
Personnel record is being reviewed by a Government office and any 
review activity by the Review Board relating to the Missing Armed 
Forces Personnel record is pending, the Government office shall retain 
custody of the Missing Armed Forces Personnel record for purposes of 
preservation, security, and efficiency, unless--
            (1) the Review Board requires the physical transfer of the 
        Missing Armed Forces Personnel record for purposes of 
        conducting an independent and impartial review; or
            (2) transfer is necessary for an administrative hearing or 
        other Review Board function.
    (c) Review.--
            (1) In general.--Not later than 180 days after the date of 
        enactment of this Act, each Government office shall, in 
        accordance with the rules promulgated under paragraph (2)--
                    (A) identify, locate, review, and organize each 
                Missing Armed Forces Personnel record in the custody, 
                possession, or control of the Government office for 
                transmission to the Archivist and disclosure to the 
                public or, if needed, review by the Review Board; and
                    (B) identify and review for public disclosure each 
                Missing Armed Services Personnel record previously 
                transferred to the National Archives that remains 
                classified in whole or in part.
            (2) Requirement.--The Review Board shall promulgate rules 
        for the disclosure of relevant records by Government offices 
        under paragraph (1).
            (3) Presidential archival depositories.--The Director of 
        each Presidential archival depository established under section 
        2112 of title 44, United States Code, shall--
                    (A) have as a priority the expedited review for 
                public disclosure of Missing Armed Forces Personnel 
                records in the custody, possession, or control of the 
                depository; and
                    (B) make Missing Armed Forces Personnel records 
                available to the Review Board as required under this 
                Act.
            (4) National archives records.--Not later than 60 days 
        after the date of enactment of this Act, the Archivist shall--
                    (A) locate and identify all Missing Armed Forces 
                Personnel records in the custody, possession, or 
                control of the National Archives that remain 
                classified, in whole or in part;
                    (B) notify a Government office if the Archivist 
                locates and identifies a record of the Government 
                office under subparagraph (A); and
                    (C) make each Missing Armed Forces Personnel record 
                located and identified under subparagraph (A) available 
                for review by the originating body.
    (d) Identification Aids.--
            (1) Preparation.--
                    (A) In general.--Not later than 45 days after the 
                date of enactment of this Act, the Archivist, in 
                consultation with the appropriate Government offices, 
                shall prepare and make available to all Government 
                offices a standard form for collecting information 
                relating to each Missing Armed Forces Personnel record 
                subject to review under this Act.
                    (B) Compatibility.--The Archivist shall prepare and 
                make available identification aids in a manner that 
                results in a uniform and compatible system of 
                electronic records for use by Government offices.
            (2) Use.--Upon completion of an identification aid, a 
        Government office shall--
                    (A) attach a printed copy to the record to which 
                the identification aid relates;
                    (B) transmit to the Review Board a printed copy of 
                the identification aid; and
                    (C) attach a printed copy to each Missing Armed 
                Forces Personnel record described in the identification 
                aid when the Missing Armed Forces Personnel record is 
                transmitted to the Archivist.
            (3) Records already public.--A Missing Armed Forces 
        Personnel record that is in the custody, possession, or control 
        of the National Archives on the date of enactment of this Act, 
        and that has been publicly available in its entirety without 
        redaction--
                    (A) shall be made available in the Collection 
                without any additional review by the Review Board or 
                another Government office under this Act; and
                    (B) shall not be required to have an identification 
                aid, unless required by the Archivist.
    (e) Transmission to the National Archives.--Each Government office 
shall--
            (1) not later than 180 days after the date of enactment of 
        this Act, transmit to the Archivist, and make available to the 
        public, all Missing Armed Forces Personnel records in the 
        custody, possession or control of the Government office that 
        may be publicly disclosed under the standards under this Act, 
        including those that are publicly available on the date of 
        enactment of this Act, without any redaction, adjustment, or 
        withholding; and
            (2) transmit to the Archivist upon approval for 
        postponement by the Review Board or upon completion of other 
        action authorized by this Act, all Missing Armed Forces 
        Personnel records the public disclosure of which has been 
        postponed, in whole or in part, under the standards under this 
        Act, to become part of the protected Collection.
    (f) Custody of Postponed Missing Armed Services Personnel 
Records.--A Missing Armed Forces Personnel record the public disclosure 
of which has been postponed under the standards under this Act shall, 
pending transmission to the Archivist, be held for reasons of security 
and preservation by the originating body until such time as an 
information security program has been established at the National 
Archives.
    (g) Periodic Review of Postponed Missing Armed Services Personnel 
Records.--
            (1) In general.--All Missing Armed Forces Personnel 
        records, or information within a Missing Armed Forces Personnel 
        record, the public disclosure of which has been postponed under 
        the standards under this Act shall be reviewed periodically by 
        the originating body and by the Archivist consistent with the 
        recommendations of the Review Board under section 9(c)(3)(B).
            (2) Contents.--
                    (A) In general.--A periodic review of a Missing 
                Armed Forces Personnel record, or information within a 
                Missing Armed Forces Personnel record, by the 
                originating body shall address the public disclosure of 
                the Missing Armed Forces Personnel record under the 
                standards under this Act.
                    (B) Continued postponement.--If an originating body 
                conducting a periodic review of a Missing Armed Forces 
                Personnel record, or information within a Missing Armed 
                Forces Personnel record, the public disclosure of which 
                has been postponed under the standards under this Act 
                determines that continued postponement is required, the 
                originating body shall provide to the Archivist and 
                publish in the Federal Register an unclassified written 
                description of the reason for the continued 
                postponement.
                    (C) Scope.--The periodic review of postponed 
                Missing Armed Forces Personnel records, or information 
                within a Missing Armed Forces Personnel record, shall 
                serve the purpose stated in section 2(b)(2), to provide 
                expeditious public disclosure of Missing Armed Forces 
                Personnel records, to the fullest extent possible, 
                subject only to the grounds for postponement of 
                disclosure under section 6.
                    (D) Disclosure absent certification by president.--
                Not later than 5 years after the date of enactment of 
                this Act, all Missing Armed Forces Personnel records, 
                and information within a Missing Armed Forces Personnel 
                record, shall be publicly disclosed in full, and 
                available in the Collection, unless the President 
                submits to the Archivist a certification that--
                            (i) continued postponement is necessary 
                        because of an identifiable harm to the military 
                        defense, intelligence operations, or conduct of 
                        foreign relations; and
                            (ii) the identifiable harm is of such 
                        gravity that it outweighs the public interest 
                        in disclosure.
    (h) Fees for Copying.--An Executive agency--
            (1) shall charge a fee for copying Missing Armed Forces 
        Personnel records; and
            (2) may grant a waiver of such a fee in a manner in 
        accordance with the standards established by the head of the 
        Executive agency for purposes of section 552(a)(4) of title 5, 
        United States Code.

SEC. 6. GROUNDS FOR POSTPONEMENT OF PUBLIC DISCLOSURE OF RECORDS.

    Disclosure to the public of a Missing Armed Forces Personnel record 
or particular information in a Missing Armed Forces Personnel record 
may be postponed subject to the limitations under this Act if there is 
clear and convincing evidence that--
            (1) the threat to the military defense, intelligence 
        operations, or conduct of foreign relations of the United 
        States posed by the public disclosure of the Missing Armed 
        Forces Personnel record or information is of such gravity that 
        it outweighs the public interest, and such public disclosure 
        would reveal--
                    (A) an intelligence agent whose identity requires 
                continued protection;
                    (B) an intelligence source or method--
                            (i) which is in use, or reasonably expected 
                        to be used, by the Federal Government;
                            (ii) which has not been officially 
                        disclosed; and
                            (iii) the disclosure of which would 
                        interfere with the conduct of intelligence 
                        activities; or
                    (C) any other matter relating to the current 
                military defense, intelligence operations, or conduct 
                of foreign relations of the United States, the 
                disclosure of which would demonstrably impair the 
                national security of the United States;
            (2) the public disclosure of the Missing Armed Forces 
        Personnel record would reveal the name or identity of a living 
        person who provided confidential information to the United 
        States and would pose a substantial risk of harm to that 
        person; or
            (3) the public disclosure of the Missing Armed Forces 
        Personnel record could reasonably be expected to constitute an 
        unwarranted invasion of personal privacy, and that invasion of 
        privacy is so substantial that it outweighs the public 
        interest.

SEC. 7. ESTABLISHMENT AND POWERS OF THE MISSING ARMED FORCES PERSONNEL 
              RECORDS REVIEW BOARD.

    (a) Establishment.--There is established as an independent 
establishment in the executive branch a board to be known as the 
Missing Armed Forces Personnel Records Review Board.
    (b) Membership.--
            (1) Appointments.--The President shall appoint, by and with 
        the advice and consent of the Senate, 5 individuals to serve as 
        a member of the Review Board to ensure and facilitate the 
        review, transmission to the Archivist, and public disclosure of 
        Missing Armed Forces Personnel records.
            (2) Qualifications.--The President shall appoint 
        individuals to serve as members of the Review Board--
                    (A) without regard to political affiliation;
                    (B) who are citizens of the United States of 
                integrity and impartiality;
                    (C) who have high national professional reputation 
                in their fields who are capable of exercising the 
                independent and objective judgment necessary to the 
                fulfillment of their role in ensuring and facilitating 
                the identification, location, review, transmission to 
                the Archivist, and public disclosure of Missing Armed 
                Forces Personnel records;
                    (D) who possess an appreciation of the value of 
                Missing Armed Forces Personnel records to scholars, the 
                Federal Government, and the public, particularly 
                families of Missing Armed Forces Personnel;
                    (E) not less than one professional historian; and
                    (F) not less than one attorney.
            (3) Deadlines.--
                    (A) In general.--Not later than 30 days after the 
                date of enactment of this Act, the President shall 
                submit nominations for all members of the Review Board.
                    (B) Confirmation rejected.--If the Senate votes not 
                to confirm a nomination to serve as a member of the 
                Review Board, not later than 90 days after the date of 
                the vote the President shall submit the nomination of 
                an additional individual to serve as a member of the 
                Review Board.
            (4) Consultation.--The President shall make nominations to 
        the Review Board after considering individuals recommended by 
        the American Historical Association, the Organization of 
        American Historians, the Society of American Archivists, the 
        American Bar Association, veterans' organizations, and 
        organizations representing families of Missing Armed Forces 
        Personnel.
    (c) Security Clearances.--The appropriate departments, agencies, 
and elements of the executive branch of the Federal Government shall 
cooperate to ensure that an application by an individual nominated to 
be a member of the Review Board, seeking security clearances necessary 
to carry out the duties of the Review Board, is expeditiously reviewed 
and granted or denied.
    (d) Confirmation.--
            (1) Hearings.--Not later 30 days on which the Senate is in 
        session after the date on which not less than 3 individuals 
        have been nominated to serve as members of the Review Board, 
        the Committee on Homeland Security and Governmental Affairs of 
        the Senate shall hold confirmation hearings on the nominations.
            (2) Committee vote.--Not later than 14 days on which the 
        Senate is in session after the date on which the Committee on 
        Homeland Security and Governmental Affairs holds a confirmation 
        hearing on the nomination of an individual to serve as a member 
        of the Review Board, the committee shall vote on the nomination 
        and report the results to the full Senate immediately.
            (3) Senate vote.--Not later than 14 days on which the 
        Senate is in session after the date on which the Committee on 
        Homeland Security and Governmental Affairs reports the results 
        of a vote on a nomination of an individual to serve as a member 
        of the Review Board, the Senate shall vote on the confirmation 
        of the nominee.
    (e) Vacancy.--Not later than 60 days after the date on which a 
vacancy on the Review Board occurs, the vacancy shall be filled in the 
same manner as specified for original appointment.
    (f) Chairperson.--The members of the Review Board shall elect a 
member as Chairperson at the initial meeting of the Review Board.
    (g) Removal of Review Board Member.--
            (1) In general.--A member of the Review Board shall not be 
        removed from office, other than--
                    (A) by impeachment by Congress; or
                    (B) by the action of the President for 
                inefficiency, neglect of duty, malfeasance in office, 
                physical disability, mental incapacity, or any other 
                condition that substantially impairs the performance of 
                the member's duties.
            (2) Judicial review.--
                    (A) In general.--A member of the Review Board 
                removed from office may obtain judicial review of the 
                removal in a civil action commenced in the United 
                States District Court for the District of Columbia.
                    (B) Relief.--The member may be reinstated or 
                granted other appropriate relief by order of the court.
    (h) Compensation of Members.--
            (1) Basic pay.--A member of the Review Board shall be 
        compensated at a rate equal to the daily equivalent of the 
        annual rate of basic pay prescribed for level IV of the 
        Executive Schedule under section 5315 of title 5, United States 
        Code, for each day (including travel time) during which the 
        member is engaged in the performance of the duties of the 
        Review Board.
            (2) Travel expenses.--A member of the Review Board shall be 
        allowed reasonable travel expenses, including per diem in lieu 
        of subsistence, at rates for employees of agencies under 
        subchapter I of chapter 57 of title 5, United States Code, 
        while away from the member's home or regular place of business 
        in the performance of services for the Review Board.
    (i) Duties of the Review Board.--
            (1) In general.--The Review Board shall consider and render 
        a decision on a determination by a Government office to seek to 
        postpone the disclosure of a Missing Armed Forces Personnel 
        record, in whole or in part.
            (2) Records.--In carrying out paragraph (1), the Review 
        Board shall consider and render a decision regarding--
                    (A) whether a record constitutes a Missing Armed 
                Forces Personnel record; and
                    (B) whether a Missing Armed Forces Personnel 
                record, or particular information in a Missing Armed 
                Forces Personnel record, qualifies for postponement of 
                disclosure under this Act.
    (j) Powers.--The Review Board shall have the authority to act in a 
manner prescribed under this Act, including authority to--
            (1) direct Government offices to create identification aids 
        and organize Missing Armed Forces Personnel records;
            (2) direct Government offices to transmit to the Archivist 
        Missing Armed Forces Personnel records as required under this 
        Act, including segregable portions of Missing Armed Forces 
        Personnel records and substitutes and summaries of Missing 
        Armed Forces Personnel records that can be publicly disclosed 
        to the fullest extent;
            (3) obtain access to Missing Armed Forces Personnel records 
        that have been identified and organized by a Government office;
            (4) direct a Government office to make available to the 
        Review Board, and if necessary investigate the facts 
        surrounding, additional information, records, or testimony from 
        individuals, which the Review Board has reason to believe is 
        required to fulfill its functions and responsibilities under 
        this Act;
            (5) hold such hearings, sit and act at such times and 
        places, take such testimony, receive such evidence, and 
        administer such oaths as the Review Board considers advisable 
        to carry out its responsibilities under this Act;
            (6) hold individuals in contempt for failure to comply with 
        directives and mandates issued by the Review Board under this 
        Act, which shall not include the authority to imprison or fine 
        any individual;
            (7) require any Government office to account in writing for 
        the destruction of any records relating to the loss, fate, or 
        status of Missing Armed Forces Personnel; and
            (8) receive information from the public regarding the 
        identification and public disclosure of Missing Armed Forces 
        Personnel records.
    (k) Witness Immunity.--The Review Board shall be considered to be 
an agency of the United States for purposes of section 6001 of title 
18, United States Code.
    (l) Oversight.--
            (1) In general.--The Committee on Homeland Security and 
        Governmental Affairs of the Senate and the Committee on 
        Oversight and Government Reform of the House of Representatives 
        shall have--
                    (A) continuing oversight jurisdiction with respect 
                to the official conduct of the Review Board and the 
                disposition of postponed records after termination of 
                the Review Board; and
                    (B) upon request, access to any records held or 
                created by the Review Board.
            (2) Duty of review board.--The Review Board shall have the 
        duty to cooperate with the exercise of oversight jurisdiction 
        under paragraph (1).
    (m) Support Services.--The Administrator of the General Services 
Administration shall provide administrative services for the Review 
Board on a reimbursable basis.
    (n) Interpretive Regulations.--The Review Board may issue 
interpretive regulations.
    (o) Termination and Winding Up.--
            (1) In general.--Two years after the date of enactment of 
        this Act, the Review Board shall, by majority vote, determine 
        whether all Government offices have complied with the 
        obligations, mandates, and directives under this Act.
            (2) Termination date.--The Review Board shall terminate on 
        the date that is 4 years after the date of enactment of this 
        Act.
            (3) Report.--Before the termination of the Review Board 
        under paragraph (2), the Review Board shall submit to Congress 
        reports, including a complete and accurate accounting of 
        expenditures during its existence, and shall complete all other 
        reporting requirements under this Act.
            (4) Records.--Upon termination of the Review Board, the 
        Review Board shall transfer all records of the Review Board to 
        the Archivist for inclusion in the Collection, and no record of 
        the Review Board shall be destroyed.

SEC. 8. MISSING ARMED FORCES PERSONNEL RECORDS REVIEW BOARD PERSONNEL.

    (a) Executive Director.--
            (1) In general.--Not later than 45 days after the initial 
        meeting of the Review Board, the Review Board shall appoint an 
        individual to the position of Executive Director.
            (2) Qualifications.--The individual appointed as Executive 
        Director of the Review Board--
                    (A) shall be a citizen of the United States of 
                integrity and impartiality;
                    (B) shall be appointed without regard to political 
                affiliation; and
                    (C) shall not have any conflict of interest with 
                the mission of the Review Board.
            (3) Security clearance.--
                    (A) Limit on appointment.--The Review Board shall 
                not appoint an individual as Executive Director until 
                after the date on which the individual qualifies for 
                the necessary security clearance.
                    (B) Expedited provision.--The appropriate 
                departments, agencies, and elements of the executive 
                branch of the Federal Government shall cooperate to 
                ensure that an application by an individual nominated 
                to be Executive Director, seeking security clearances 
                necessary to carry out the duties of the Executive 
                Director, is expeditiously reviewed and granted or 
                denied.
            (4) Duties.--The Executive Director shall--
                    (A) serve as principal liaison to Government 
                offices;
                    (B) be responsible for the administration and 
                coordination of the review of records by the Review 
                Board;
                    (C) be responsible for the administration of all 
                official activities conducted by the Review Board; and
                    (D) not have the authority to decide or determine 
                whether any record should be disclosed to the public or 
                postponed for disclosure.
            (5) Removal.--The Executive Director may be removed by a 
        majority vote of the Review Board.
    (b) Staff.--
            (1) In general.--The Review Board may, in accordance with 
        the civil service laws, but without regard to civil service law 
        and regulation for competitive service as defined in subchapter 
        1, chapter 33 of title 5, United States Code, appoint and 
        terminate additional employees as are necessary to enable the 
        Review Board and the Executive Director to perform their duties 
        under this Act.
            (2) Qualifications.--An individual appointed to a position 
        as an employee of the Review Board--
                    (A) shall be a citizen of the United States of 
                integrity and impartiality; and
                    (B) shall not have had any previous involvement 
                with any official investigation or inquiry relating to 
                the loss, fate, or status of Missing Armed Forces 
                Personnel.
            (3) Security clearance.--
                    (A) Limit on appointment.--The Review Board shall 
                not appoint an individual as an employee of the Review 
                Board until after the date on which the individual 
                qualifies for the necessary security clearance.
                    (B) Expedited provision.--The appropriate 
                departments, agencies, and elements of the executive 
                branch of the Federal Government shall cooperate to 
                ensure that an application by an individual who is a 
                candidate for a position with the Review Board, seeking 
                security clearances necessary to carry out the duties 
                of the position, is expeditiously reviewed and granted 
                or denied.
    (c) Compensation.--The Review Board shall fix the compensation of 
the Executive Director and other employees of the Review Board without 
regard to chapter 51 and subchapter III of chapter 53 of title 5, 
United States Code, relating to classification of positions and General 
Schedule pay rates, except that the rate of pay for the Executive 
Director and other employees may not exceed the rate payable for level 
V of the Executive Schedule under section 5316 of title 5, United 
States Code.
    (d) Advisory Committees.--
            (1) In general.--The Review Board may create one or more 
        advisory committees to assist in fulfilling the 
        responsibilities of the Review Board under this Act.
            (2) Applicability of faca.--Any advisory committee created 
        by the Review Board shall be subject to the Federal Advisory 
        Committee Act (5 U.S.C. App.).

SEC. 9. REVIEW OF RECORDS BY THE MISSING ARMED FORCES PERSONNEL RECORDS 
              REVIEW BOARD.

    (a) Custody of Records Reviewed by Review Board.--Pending the 
outcome of the review activity of the Review Board, a Government office 
shall retain a Missing Armed Forces Personnel record in the custody, 
possession or control of the Government office for purposes of 
preservation, security, and efficiency, unless--
            (1) the Review Board requires the physical transfer of 
        records for reasons of conducting an independent and impartial 
        review; or
            (2) such transfer is necessary for an administrative 
        hearing or other official function of the Review Board.
    (b) Startup Requirements.--The Review Board shall--
            (1) not later than 90 days after the date on which all 
        members are appointed, publish a schedule for review of all 
        Missing Armed Forces Personnel records in the Federal Register; 
        and
            (2) not later than 180 days after the date of enactment of 
        this Act, begin reviewing of Missing Armed Forces Personnel 
        records under this Act.
    (c) Determination of the Review Board.--
            (1) In general.--The Review Board shall direct that all 
        records that relate, directly or indirectly, to the loss, fate, 
        or status of Missing Armed Forces Personnel be transmitted to 
        the Archivist and disclosed to the public in the Collection in 
        the absence of clear and convincing evidence that--
                    (A) the record is not a Missing Armed Forces 
                Personnel record; or
                    (B) the Missing Armed Forces Personnel record, or 
                particular information within the Missing Armed Forces 
                Personnel record, qualifies for postponement of public 
                disclosure under this Act.
            (2) Postponement.--In approving postponement of public 
        disclosure of a Missing Armed Forces Personnel record, or 
        information within a Missing Armed Forces Personnel record, the 
        Review Board shall seek to--
                    (A) provide for the disclosure of segregable parts, 
                substitutes, or summaries of the Missing Armed Forces 
                Personnel record; and
                    (B) determine, in consultation with the originating 
                body and consistent with the standards for postponement 
                under this Act, which of the following alternative 
                forms of disclosure shall be made by the originating 
                body:
                            (i) Any reasonably segregable particular 
                        information in a Missing Armed Forces Personnel 
                        record.
                            (ii) A substitute record for that 
                        information which is postponed.
                            (iii) A summary of a Missing Armed Forces 
                        Personnel record.
            (3) Reporting.--With respect to a Missing Armed Forces 
        Personnel record, or information within a Missing Armed Forces 
        Personnel record, the public disclosure of which is postponed 
        under this Act, or for which only substitutions or summaries 
        have been disclosed to the public, the Review Board shall 
        create and transmit to the Archivist a report containing--
                    (A) a description of actions by the Review Board, 
                the originating body, or any Government office 
                (including a justification of any such action to 
                postpone disclosure of any record or part of any 
                record) and of any official proceedings conducted by 
                the Review Board; and
                    (B) a statement, based on a review of the 
                proceedings and in conformity with the decisions 
                reflected therein, designating a recommended specified 
                time at which, or a specified occurrence following 
                which, the material may be appropriately disclosed to 
                the public under this Act, which the Review Board shall 
                disclose to the public with notice thereof, reasonably 
                calculated to make interested members of the public 
                aware of the existence of the statement.
            (4) Actions after determination.--
                    (A) In general.--Not later than 14 days after the 
                date of a determination by the Review Board that a 
                Missing Armed Forces Personnel record shall be publicly 
                disclosed in the Collection or postponed for disclosure 
                and held in the protected Collection, the Review Board 
                shall notify the head of the originating body of the 
                determination and publish a copy of the determination 
                in the Federal Register.
                    (B) Oversight notice.--Simultaneous with notice 
                under subparagraph (A), the Review Board shall provide 
                notice of a determination concerning the public 
                disclosure or postponement of disclosure of a Missing 
                Armed Forces Personnel record, or information contained 
                within a Missing Armed Forces Personnel record, which 
                shall include a written unclassified justification for 
                public disclosure or postponement of disclosure, 
                including an explanation of the application of any 
                standards in section 6 to the President, the Committee 
                on Homeland Security and Governmental Affairs of the 
                Senate, and the Committee on Oversight and Government 
                Reform of the House of Representatives
            (5) Referral after termination.--A Missing Armed Forces 
        Personnel record that is identified, located, or otherwise 
        discovered after the date on which the Review Board terminates 
        shall be referred to the Committee on Armed Services of the 
        Senate and the Committee on Armed Services of the House of 
        Representatives for review, ongoing oversight and, as 
        warranted, referral for possible enforcement action relating to 
        a violation of this Act.
    (d) Notice to Public.--Every 30 days, beginning on the date that is 
60 days after the date on which the Review Board first approves the 
postponement of disclosure of a Missing Armed Forces Personnel record, 
the Review Board shall publish in the Federal Register a notice that 
summarizes the postponements approved by the Review Board, including a 
description of the subject, originating body, length or other physical 
description, and each ground for postponement that is relied upon.
    (e) Reports by the Review Board.--
            (1) In general.--Not later than 1 year after the date of 
        enactment of this Act, and every year thereafter until the 
        Review Board terminates, the Review Board shall submit a report 
        regarding the activities of the Review Board to--
                    (A) the Committee on Oversight and Government 
                Reform of the House of Representatives;
                    (B) the Committee on Homeland Security and 
                Governmental Affairs of the Senate;
                    (C) the President;
                    (D) the Archivist; and
                    (E) the head of any Government office the records 
                of which have been the subject of Review Board 
                activity.
            (2) Contents.--Each report under paragraph (1) shall 
        include the following information:
                    (A) A financial report of the expenses for all 
                official activities and requirements of the Review 
                Board and its employees.
                    (B) The progress made on review, transmission to 
                the Archivist, and public disclosure of Missing Armed 
                Forces Personnel records.
                    (C) The estimated time and volume of Missing Armed 
                Forces Personnel records involved in the completion of 
                the duties of the Review Board under this Act.
                    (D) Any special problems, including requests and 
                the level of cooperation of Government offices, with 
                regard to the ability of the Review Board to carry out 
                its duties under this Act.
                    (E) A record of review activities, including a 
                record of postponement decisions by the Review Board or 
                other related actions authorized under this Act, and a 
                record of the volume of records reviewed and postponed.
                    (F) Suggestions and requests to Congress for 
                additional legislative authority needs.
                    (G) An appendix containing copies of reports 
                relating to postponed records submitted to the 
                Archivist under subsection (c)(3) since the end of the 
                period covered by the most recent report under 
                paragraph (1).
            (3) Termination notice.--Not later than 90 days before the 
        Review Board expects to complete the work of the Review Board 
        under this Act, the Review Board shall provide written notice 
        to Congress of the intent of the Review Board to terminate 
        operations at a specified date.

SEC. 10. DISCLOSURE OF OTHER MATERIALS AND ADDITIONAL STUDY.

    (a) Materials Under Seal of Court.--
            (1) In general.--The Review Board may request the Attorney 
        General to petition any court of the United States or of a 
        foreign country to release any information relevant to the 
        loss, fate, or status of Missing Armed Forces Personnel that is 
        held under seal of the court.
            (2) Grand jury information.--
                    (A) In general.--The Review Board may request the 
                Attorney General to petition any court of the United 
                States to release any information relevant to loss, 
                fate, or status of Missing Armed Forces Personnel that 
                is held under the injunction of secrecy of a grand 
                jury.
                    (B) Treatment.--A request for disclosure of Missing 
                Armed Forces Personnel materials under this Act shall 
                be deemed to constitute a showing of particularized 
                need under rule 6 of the Federal Rules of Criminal 
                Procedure.
    (b) Sense of Congress.--It is the sense of Congress that--
            (1) the Attorney General should assist the Review Board in 
        good faith to unseal any records that the Review Board 
        determines to be relevant and held under seal by a court or 
        under the injunction of secrecy of a grand jury;
            (2) the Secretary of State should--
                    (A) contact the governments of the Russian 
                Federation, the People's Republic of China, and the 
                Democratic People's Republic of Korea to seek the 
                disclosure of all records in their respective custody, 
                possession, or control relevant to the loss, fate, or 
                status of Missing Armed Forces Personnel; and
                    (B) contact any other foreign government that may 
                hold information relevant to the loss, fate, or status 
                of Missing Armed Forces Personnel, and seek disclosure 
                of such information; and
            (3) all agencies should cooperate in full with the Review 
        Board to seek the disclosure of all information relevant to the 
        loss, fate, or status of Missing Armed Forces Personnel 
        consistent with the public interest.

SEC. 11. RULES OF CONSTRUCTION.

    (a) Precedence Over Other Law.--When this Act requires transmission 
of a record to the Archivist or public disclosure, it shall take 
precedence over any other law (except section 6103 of the Internal 
Revenue Code of 1986), judicial decision construing such law, or common 
law doctrine that would otherwise prohibit such transmission or 
disclosure, with the exception of deeds governing access to or transfer 
or release of gifts and donations of records to the United States 
Government.
    (b) Freedom of Information Act.--Nothing in this Act shall be 
construed to eliminate or limit any right to file requests with any 
Executive agency or seek judicial review of the decisions under section 
552 of title 5, United States Code.
    (c) Judicial Review.--Nothing in this Act shall be construed to 
preclude judicial review under chapter 7 of title 5, United States 
Code, of final actions taken or required to be taken under this Act.
    (d) Existing Authority.--Nothing in this Act revokes or limits the 
existing authority of the President, any Executive agency, the Senate, 
or the House of Representatives, or any other entity of the Government 
to publicly disclose records in its custody, possession, or control.
    (e) Rules of the Senate and House of Representatives.--To the 
extent that any provision of this Act establishes a procedure to be 
followed in the Senate or the House of Representatives, such provision 
is adopted--
            (1) as an exercise of the rulemaking power of the Senate 
        and House of Representatives, respectively, and is deemed to be 
        part of the rules of each House, respectively, but applicable 
        only with respect to the procedure to be followed in that 
        House, and it supersedes other rules only to the extent that it 
        is inconsistent with such rules; and
            (2) with full recognition of the constitutional right of 
        either House to change the rules (so far as they relate to the 
        procedure of that House) at any time, in the same manner, and 
        to the same extent as in the case of any other rule of that 
        House.

SEC. 12. TERMINATION OF EFFECT OF ACT.

    (a) Provisions Pertaining to the Review Board.--The provisions of 
this Act that pertain to the appointment and operation of the Review 
Board shall cease to be effective when the Review Board and the terms 
of its members have terminated under section 7(o).
    (b) Other Provisions.--The remaining provisions of this Act shall 
continue in effect until such time as the Archivist certifies to the 
President and Congress that all Missing Armed Forces Personnel records 
have been made available to the public in accordance with this Act.

SEC. 13. AUTHORIZATION OF APPROPRIATIONS.

    (a) In General.--There are authorized to be appropriated such sums 
as are necessary to carry out this Act, to remain available until 
expended.
    (b) Interim Funding.--Until such time as funds are appropriated 
pursuant to subsection (a), the President may use such sums as are 
available for discretionary use to carry out this Act.

SEC. 14. SEVERABILITY.

    If any provision of this Act, or the application thereof to any 
person or circumstance, is held invalid, the remainder of this Act and 
the application of that provision to other persons not similarly 
situated or to other circumstances shall not be affected by the 
invalidation.
                                 <all>