[House Hearing, 107 Congress]
[From the U.S. Government Publishing Office]
H. Hrg. 107-3
H.R. 5005, THE HOMELAND SECURITY ACT OF 2002, DAY 3
=======================================================================
HEARING
before the
SELECT COMMITTEE ON HOMELAND SECURITY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTH CONGRESS
SECOND SESSION
on
H.R. 5005, THE HOMELAND SECURITY ACT OF 2002, DAY 3
----------
July 17, 2002
----------
Serial No. 107-3
----------
Printed for the use of the Select Committee on Homeland Security
H.R. 5005, THE HOMELAND SECURITY ACT OF 2002, DAY 3
=======================================================================
HEARING
before the
SELECT COMMITTEE ON
HOMELAND SECURITY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTH CONGRESS
SECOND SESSION
__________
JULY 17, 2002
__________
Serial No. 107-3
__________
Printed for the use of the Select Committee on Homeland Security
Available via the World Wide Web: http://www.access.gpo.gov/congress/
house
__________
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 2004
83-173 PDF
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SELECT COMMITTEE ON HOMELAND SECURITY
RICHARD K. ARMEY, Texas, Chairman
TOM DeLAY, Texas NANCY PELOSI, California
J. C. WATTS, Jr., Oklahoma MARTIN FROST, Texas
DEBORAH PRYCE, Ohio ROBERT MENENDEZ, New Jersey
ROB PORTMAN, Ohio ROSA L. DeLAURO, Connecticut
(ii)
C O N T E N T S
__________
Page
Testimony of:
The Honorable C.W. Bill Young, Chairman, Committee on
Appropriations............................................. 7
The Honorable David R. Obey, Ranking Minority Member,
Committee on Appropriations................................ 11
The Honorable Ike Skelton, Ranking Minority Member, Committee
on Armed Services.......................................... 45
The Honorable W.J. (Billy) Tauzin, Chairman, Committee on
Energy and Commerce........................................ 54
The Honorable John D. Dingell, Ranking Minority Member,
Committee on Energy and Commerce........................... 60
The Honorable Dan Burton, Chairman, Committee on Government
Reform..................................................... 70
The Honorable Henry A. Waxman, Ranking Minority Member,
Committee on Government Reform............................. 75
The Honorable Porter J. Goss, Chairman, Permanant Select
Committee on Intelligence.................................. 125
The Honorable Nancy Pelosi, Ranking Minority Member,
Permanant Select Committee on Intelligence................. 130
The Honorable Henry Hyde, Chairman, Committee on
International Relations.................................... 116
The Honorable Tom Lantos, Ranking Minority Member, Committee
on International Relations................................. 117
The Honorable Sherwood L. Boehlert, Chairman, Committee on
Science.................................................... 141
The Honorable Ralph M. Hall, Ranking Minority Member,
Committee on Science....................................... 145
The Honorable Don Young, Chairman, Committee on
Transportation and Infrastucture........................... 169
The Honorable James L. Oberstar, Ranking Minority Member,
Committee on Transportation and Infrastructure............. 179
The Honorable William M. Thomas, Chairman, Committee on Ways
and Means.................................................. 190
The Honorable David M. Walker, Comptroller General, General
Accounting Office.......................................... 199
Material Submitted for the Record:
Opening Statements of Select Committee Members............... 7
Statement of the Honorable Michael G. Oxley, Chairman,
Committee on Financial Services............................ 225
Appendix--Recommendations of the Standing Committees:
Committee on Agriculture..................................... 227
Committee on Appropriations.................................. 239
Committee on Armed Services.................................. 249
Committee on Energy and Commerce............................. 269
Committee on Financial Services.............................. 297
Committee on Government Reform............................... 303
Permanant Select Committee on Intelligence................... 365
Committee on International Relations......................... 371
Committee on the Judiciary................................... 378
Committee on Science......................................... 427
Committee on Transportation and Infrastructure............... 454
Committee on Ways and Means.................................. 481
(iii)
H.R. 5005, THE HOMELAND SECURITY ACT OF 2002, DAY 3
----------
WEDNESDAY, JULY 17, 2002
U.S. House of Representatives,
Select Committee on Homeland Security,
Washington, DC.
The committee met, pursuant to call, at 10:47 a.m., in Room
345, Cannon House Office Building, Hon. Richard K. Armey
[chairman of the committee] presiding.
Present: Representatives Armey, DeLay, Watts, Pryce,
Portman, Pelosi, Frost, Menendez, and DeLauro.
Chairman Armey. The select committee will come to order.
The Chair is advised that Chairman Young is on the way, and the
Chair believes we can begin proceedings and have him join us in
time for him to give his statement.
Mr. Obey, we welcome you here this morning. It is the
practice of this committee to have two opening statements, one
on each side, and to have those remaining members on the
committee place any opening statements they have in the record.
So, without objection, we will place all the opening statements
in the record, and the Chair will recognize the gentleman from
Ohio, Mr. Portman, for a brief opening statement.
Mr. Portman. Thank you, Mr. Chairman. Mr. Chairman, the
shock of the September 11 attacks in New York and Pennsylvania
and here at the Pentagon is still very much with us. In a
single morning, 19 men bent on terror and destruction killed
more innocent United States civilians than did all our previous
foreign enemies combined. The grief of that sudden loss was
overwhelming, and part of what prevents that national grief
from healing is the reality that that threat is still very much
with us.
We are here today to do whatever we possibly can to counter
that threat and to avoid more loss of innocent life. Our
Federal Government and we as Members of Congress have no
greater responsibility. The major problem I see with our
current system of homeland security is that it is uncoordinated
and spread too thin. Everyone is in charge, and no one is in
charge. There is no accountability in such a system.
The dangerous threat we all must now acknowledge requires
new thinking and a new approach. That is laid out clearly in
the National Strategy on Homeland Security we saw yesterday
unveiled by the President. The strategy is the culmination of
lots of work, years of thoughtful study, tracing back well
before September 11. The Hart-Rudman Commission and other
studies have helped us think about how government can best
deploy assets to secure us here at home. The President's
strategy also reflects the good work of many Members of
Congress.
Yesterday we heard from Representatives Mac Thornberry,
Jane Harman, Ellen Tauscher, and Jim Gibbons, who introduced
their own legislation to create a new agency. Senator Joe
Lieberman has taken the lead in the Senate. Two members of our
own select committee, Mr. Chairman, J.C. Watts and Bob
Menendez, have both worked hard in this area, mindful of
unspeakable tragedies that occurred so close to their own homes
and so deeply affecting so many of their own constituents.
Building on this good work, the President's National
Strategy lays out three strategic objectives: prevention of
attacks, reducing our vulnerabilities, and minimizing damage.
This strategy provides us with a clear framework to align our
resources, people, and capital and to align responsibility and
accountability to the task of homeland security. Of course, Mr.
Chairman, central to that new alignment is the creation of a
new department. Putting the responsibility for homeland
security within a single unified structure will make us more
efficient and more effective against attacks. It won't make us
immune from terrorism, but it will make us safer.
Over the past several weeks this Congress has acted
quickly, but thoughtfully, to pass legislation needed to create
this new department. The standing committees of Congress have
moved with dispatch on a bipartisan basis to mark up provisions
of this legislation under their jurisdiction, and we will hear
from them today. The select committee has heard thoughtful
testimony from nine Cabinet Secretaries, the director of the
Office of Personnel Management, and several of our colleagues.
I have been struck by the emphasis in this testimony on the
importance of creating a lean, agile 21st century agency with
budget, organizational, and human resource flexibility to meet
the challenge. We have done this before, including in 1998 when
I worked with Senator Bob Kerry on reorganizing the Internal
Revenue Service, a troubled Agency with over 100,000 employees.
We gave the IRS needed flexibility on personnel and management,
and they have used it fully to begin to change the culture and
to improve service and morale.
This new Department needs to have flexibility, too, for the
challenge of consolidation and creating a new culture of
urgency is great and the stakes couldn't be higher. Of course,
Congress must retain oversight and can and should use it
aggressively. What we are setting out to do is to create a new
Agency, not for this administration but for our country, into
the foreseeable future. And Congress will be absolutely key to
its successful implementation.
Today's witnesses bring with them a special expertise in
the specific affected agencies. They have been the ones
responsible for their oversight. We need their input and
ongoing expertise.
Finally, Mr. Chairman, I want to commend you, Minority Whip
Pelosi, and my select committee colleagues for the
extraordinary spirit of nonpartisanship that you have brought
to these deliberations. We share a passion for fulfilling our
fundamental responsibility to protect our country, our
citizens, our families, from this new threat. We must not lose
sight of that single goal as we work to bring this critical
legislation forward to our colleagues.
I look forward to today's testimony and I thank you for the
time.
PREPARED STATEMENT OF THE HONORABLE ROB PORTMAN, 2ND DISTIRCT, OHIO
The shock of the September 11th attacks in New York, Pennsylvania,
and here at the Pentagon is still very much with us. In a single
morning, nineteen men bent on terror and destruction killed more
innocent United States civilians than did all our previous foreign
enemies combined. The grief of that sudden loss was overwhelming; and
part of what prevents that national grief from healing is the reality
that the threat is still very much there. We are here today to do
whatever we possibly can to counter that threat and avoid more loss of
innocent lives. Our Federal Government--and we as Members of Congress--
have no greater responsibility.
The major problem I see with our current system of homeland
security is that it is uncoordinated and spread too thin--everyone is
in charge and no one is in charge. There is no accountability in such a
system. The dangerous threat we all now must acknowledge requires new
thinking and a new approach.
That is laid out clearly in the national strategy on homeland
security unveiled recently by the President. The strategy is not new:
it is the culmination of years of thoughtful study, tracing back well
before September 11th. The Hart-Rudman Commission and other studies
have helped us think about how government can best deploy assets to
secure us at home from this new insidious threat.
The President's strategy also reflects the good work of many of our
colleagues: yesterday we heard from Representatives Mac Thornberry,
Jane Harmon, Jim Gibbons, and Ellen Tauscher who had introduced their
own legislation to create a new agency. Senator Joe Lieberman has taken
the lead in the Senate.
Two Members of our own Select Committee, J.C. Watts and Robert
Menendez, have both worked long and hard in this area, mindful of
unspeakable tragedies that occurred so close to their own homes and
that so deeply affected so many of their own constituents.
Building on this good work, the President's National Strategy for
Homeland Security lays out three clear strategic objectives:
Prevention of attacks;
Reducing our vulnerabilities; and
Minimizing the damage and maximizing the recovery should
attacks occur.
This strategy provides us with a clear framework to align our
resources--people and capital, and align responsibility and
accountability to the task of homeland security.
Of course, Mr. Chairman, central to that new alignment is the
creation of a new Department of Homeland Security. Putting the
responsibility for our homeland security within a single, unified
structure will make us more efficient and more effective against
attacks. It won't make us immune from terrorism, but it will make us
safer.
Over the past several weeks, this Congress has acted quickly but
thoughtfully to pass the legislation needed to create this new
department. The standing committees of Congress have moved with
dispatch on a bipartisan basis to mark up the provisions of this
legislation under their jurisdiction, and we'll hear from them today.
This Select Committee has heard thoughtful testimony from nine
Cabinet Secretaries, and several of our colleagues. I have been struck
by the emphasis in the testimony on the importance of creating a lean,
agile 21 century agency with both organizational and human resource
flexibility.
We have done this before. In 1997 and 1998, I worked with former
Senator Bob Kerrey on reorganizing the Internal Revenue Service--an
agency with over 100,000 employees. We gave the I needed flexibility on
personnel and management--and they have used it fully to improve
service and morale. This new Department needs to have flexibility too,
for the challenge of consolidation and creating a new culture of
urgency is great and the stakes could not be higher.
Of course, Congress must retain oversight, and can and should use
it. What we are setting out to do is to create a new agency not for the
current Administration but for our country into the foreseeable future,
and Congress will be key to its successful implementation.
Today's witnesses bring with them a special expertise in the
specific affected agencies. They have been the ones responsible for
their oversight, and we need their input and ongoing expertise.
Finally, Mr. Chairman, I commend you, Minority Whip Pelosi, and my
Select Committee colleagues for the extraordinary nonpartisan spirit
you have all brought to these deliberations. We share a passion for
fulfilling our fundamental responsibility to protect our country, our
citizens, our families from this new threat. We must not lose sight of
that single goal as we work to bring this critical legislation forward
to our colleagues.
I look forward to today's testimony and thank you for allowing me
this time.
Chairman Armey. Thank the gentleman from Ohio. The Chair is
now pleased to recognize the gentlewoman, Ms. DeLauro.
Ms. DeLauro. Thank you, Mr. Chairman. Mr. Chairman, since
the attacks on September 11, Congress and the President have
come together to ensure our Nation's security, reflecting the
Nation's renewed unity. Together we have committed to do--.
Chairman Armey. I wonder if the gentlelady will suspend for
just a moment and we can invite the Chairman, who has arrived,
to join Ranking Member Obey at the desk. Mr. Young, you have
had illness in the family, and we appreciate your effort to be
here and we want to welcome you to the desk. Ms. DeLauro is
giving her opening statement, and we will be ready to proceed
on conclusion of that statement.
Mr. Young of Florida. Mr. Chairman, thank you very much.
And I think there are several members of my family here. I
don't know where they are.
Chairman Armey. The gentlewoman from Connecticut is giving
an opening statement and then we will cut to you. Thank you
again.
Ms. DeLauro. First of all, it is a pleasure to welcome the
chairman and the ranking member, Mr. Young and Mr. Obey, here
this morning.
Since the attacks on September 11, Congress and the
President have come together to ensure our Nation's security.
Reflecting the Nation's renewed unity, together we have
committed to do what is necessary to win the war on terrorism,
and now we are prepared to do what is necessary for our
homeland defense. We have no more solemn responsibility under
this Constitution.
I want to sincerely thank all of the chairmen and ranking
members who will testify before us today for their hard work in
the past few weeks. You have truly accomplished a Herculean
task. You are asked to take on the most important issue facing
our Nation today, protecting our homeland, and to come back in
just a few weeks with your recommendations on how we should
address that challenge.
The committees responded to an historic calling with
historic bipartisanship, working together to iron out the
details and make a good idea better. I believe the select
committee must give the committees' recommendations serious
consideration as we officially begin to draft this legislation.
These recommendations carry with them the expertise, the in-
depth knowledge of each of their chairs and ranking members who
understand perhaps better than anyone how to ensure that we
successfully marshal our efforts to protect the homeland
without harming nonsecurity-related duties, responsibilities
that are equally important.
As fellow Members, we know how hard you work all year
round. We know that each of you has an unparalleled level of
knowledge regarding the agencies in your jurisdictions, and we
need to take that expertise and knowledge under advisement as
we prepare to mark up this legislation on Friday.
As I have said before, I support the creation of the new
Department to coordinate our homeland security efforts to
safeguard American citizens. However, I have a number of
questions and concerns that I hope can be addressed and I
believe that many of the committees have done so with their
recommendations.
I continue to be concerned that transferring the public
health functions of the Centers for Disease Control and
biomedical research efforts underway at the National Institutes
of Health would adversely affect our world-class research
centers. From a public health standpoint, there is no
difference between the response to a naturally occurring
outbreak and one that is deliberately caused. The same labs,
the same investigators, the same scientific methods, are used
in either case. Furthermore, the research underway at the NIH
is the envy of the world, and scientists at the National
Institutes of Allergy and Infectious Diseases have already
implemented a strategic plan to guide their bioterrorism
research. I see no reason to transfer budget control oversight
or the power to set priorities regarding these responsibilities
to the new Department. I strongly support the Commerce
Committee's recommendation to keep those responsibilities where
they are, while ensuring coordination with the new Department.
I also have a number of concerns regarding the good
government provisions in this legislation. We all understand
the need to safeguard sensitive information relating to our
national security, but I continue to be concerned about the new
FOIA exemption which comes despite statements by Ronald L.
Dick, director of the FBI's National Infrastructure Protection
Center, that--and I quote--``We believe there are sufficient
provisions in the FOIA now to protect information that is
provided to us,'' end quote. If it works for the FBI, the CIA,
and the Defense Department, why do we need a broader exemption
for the new Department? Unfortunately, this exemption was
broadened by the Government Reform Committee, and I hope we are
given the opportunity to address that problem at a later time.
The proposal also includes an unnecessary check on the
Inspector General to investigate and report to Congress on
issues that might arise. The Defense Department, Justice
Department, and other agencies already handling sensitive
information require the Inspector General to report to Congress
if his or her access to information is impeded. In this
proposal, the Secretary reports if he or she impedes an
investigation, a clear conflict of interest. Both the Judiciary
Committee and the Government Reform Committee have addressed
this issue, and I am optimistic that we can bring this language
in line with current Defense Department regulations.
I pose these questions precisely because we stand firmly
with the President and the administration on ensuring security.
We face enemies who leave us no room for error, and we owe the
American people nothing less. We have a responsibility to get
this right the first time without compromising the ideals that
make this country strong.
I thank the chairman and I thank ranking member Pelosi for
this opportunity, and I look forward to hearing from our
colleagues. Thank you, Mr. Chairman.
Chairman Armey. Thank you.
PREPARED STATEMENT OF THE HONORABLE ROSA L. DeLAURO
Thank you, Mr. Chairman. Since the attacks on September 11th,
Congress and the President have come together to ensure our nation's
security. Reflecting the nation's renewed unity, together we have
committed to do what is necessary to win the war on terrorism. And now
we are prepared to do what is necessary for our homeland defense. We
have no more solemn responsibility under this Constitution.
I want to sincerely thank all of the Chairmen and Ranking Members
who will testify before us today for their hard work in the past few
weeks. You have truly accomplished a herculean task. You were asked to
take on the most important issue facing our nation today--protecting
our homeland--and to come back in just a few weeks with your
recommendations on how we should address that challenge.
The Committees responded to a historic calling with historic
bipartisanship, working together to iron out the details and make a
good idea better. I believe the Select Committee must give the
Committees' recommendations serious consideration as we officially
begin to draft this legislation. These recommendations carry with them
the expertise and in-depth knowledge of each of their Chairs and
Ranking Members, who understand perhaps better than anyone how to
ensure that we successfully marshal our efforts to protect the
homeland, without harming non-security related duties responsibilities
that are equally important.
As fellow Members, we know how hard you work all year round. We
know that each of you have an unparalleled level of knowledge regarding
the agencies in your jurisdictions. And I hope that we will take that
expertise and knowledge under advisement as we prepare to mark up this
legislation on Friday.
As I have said before, I support the creation of the new Department
to coordinate our homeland security efforts to safeguard American
citizens. However, I have a number of questions and concerns that I
hope can be addressed, and I believe that many of the committees have
done so with their recommendations. I continue to be concerned that
transferring the public health functions of the Centers for Disease
Control and biomedical research efforts underway at the National
Institutes of Health would adversely affect our world-class research
centers. From a public health standpoint, there is no difference
between the response to a naturally occurring outbreak and one that is
deliberately caused--the same labs, the same investigators, and the
same scientific methods are used in either case.
Furthermore, the research underway at the National Institutes of
Health is the envy of the world, and scientists at the National
Institute of Allergy and Infectious Diseases have already implemented a
strategic plan to guide their bioterrorism research. I see no reason to
transfer budget control, oversight, or the power to set priorities
regarding these responsibilities to the new department. I strongly
support the Commerce Committee's recommendation to keep those
responsibilities where they are, while ensuring coordination with the
new department.
I also have a number of concerns regarding the 'good government'
provisions in this legislation. We all understand the need to safeguard
sensitive information relating to national security. But I continue to
be concerned about the new FOIA exemption, which comes despite
statements by Ronald L. Dick, director of the FBI's National
Infrastructure Protection Center, that '[W]e believe there are
sufficient provisions in the FOIA now to protect information that is
provided to us.' If it works for the FBI, the CIA, and the Defense
Department, why do we need a broader exemption for the new department?
Unfortunately, this exemption was broadened by the Government Reform
Committee, and I hope we are given the opportunity to address that
problem at a later time.
The proposal also includes an unnecessary check on the Inspector
General to investigate and report to Congress on issues that might
arise. The Defense Department, Justice Department and other agencies
already handling sensitive information require the Inspector General to
report to Congress if his or her access to information is impeded. In
this proposal, the Secretary reports if he or she impedes an
investigation--a clear conflict of interest. Both The Judiciary
Committee and The Government Reform Committee have addressed this
issue, and I am optimistic that we can bring this language in line with
current Defense Department regulations.
I pose these questions precisely because we stand firmly with the
President and the Administration on ensuring security. We face enemies
who leave us no room for error, and we owe the American people nothing
less. We have a responsibility to get this right the first time,
without compromising the ideals that make this country strong. I thank
the Chairman and Ranking Member Pelosi for this opportunity, and I look
forward to hearing from our colleagues.
STATEMENT FOR THE RECORD OF THE HONORABLE DICK ARMEY
Today we continue our effort to consider how we can best transform
our government to address the threats we face in the 21st Century. When
people wonder how Congress can possibly complete such a large task in a
short amount of time, they forget the strength that can be found in our
committee system.
Each of the committees that we welcome here today-as well as the
Judiciary Committee from whom we heard yesterday-has met the challenge
and provided us with their legislative recommendations. They each
considered portions of the President's proposal that matched their
jurisdictions and areas of expertise, assuring that the job would be
done thoroughly.
That they could also complete this task so swiftly is evidence that
the Select Committee will likewise be able to finish its work on time.
Later today we will also extend our welcome David Walker,
Comptroller General of the United States. As head of the General
Accounting Office, he will add his experience with the workings of the
federal government to the detailed presentations we will hear today.
With so many able speakers, it's obvious that this will be a long,
but productive, hearing. It is an essential part of our effort to
provide an open and deliberative process. Every committee of
jurisdiction will have the opportunity to argue their case and help the
committee frame its judgments on the key issues at hand.
This is a common effort against a common enemy--those who hate the
freedoms and personal liberty that America embodies. As we discuss many
different points of view on key elements of this proposal, we should
continue to proceed in the same spirit of cooperation and
bipartisanship that has made the past several hearings a success.
STATEMENT FOR THE RECORD OF THE HONORABLE DEBORAH PRYCE
Thank you Mr. Chairman.
Today, the Select Committee begins its final day of hearings in
anticipation of our Friday mark-up of this historic legislation.
Today's hearing is arguably the most important we have undertaken
with regard to our ability to produce an effective and mutually
satisfactory bill for consideration on the House floor. The twelve
standing committees that reviewed the homeland security legislation
have given us the benefit of their expertise and long experience with
the issues under their jurisdictions, and they have done so in a
bipartisan and collaborative fashion. Today, we will hear directly from
the committee chairmen and ranking members.
I am pleased that this select committee has also proceeded in a
cooperative manner. As Members on both the majority and minority on
this committee have noted, protecting our nation cuts across party
lines, and it is a requirement of this process that we work in a
bipartisan fashion and produce a bill that can gain overwhelming
support on the floor. Passage of this legislation not only takes us a
step closer to a vital government reorganization, it sends a message to
those who would threaten us that we, as a nation, are ready and able to
rise to this challenge.
I know that we have all taken great pride in the way that the
American people have responded following the tragedy of September 11.
Our government must continue to reflect their spirit and will as we
undertake difficult tasks to make our nation safe. There are hard
choices to be made in the times ahead. With regard to this
reorganization, the committees have already begun tackling these tough
decisions, and I look forward to learning from their experience, as
well as from the Comptroller General of the GAO, so that we can perfect
and create the new Department of Homeland Security.
Thank you Mr. Chairman.
Chairman Armey. Gentlemen, let me tell you how pleased we
are to have the chairman and ranking member of Appropriations
here this morning. We will, of course, put your written
statements in the record and we would like to invite you in
your turns to give your opening statements. We will start with
you Mr. Young.
STATEMENT OF THE HON. C.W. BILL YOUNG, CHAIRMAN, COMMITTEE ON
APPROPRIATIONS
Mr. Young of Florida. Mr. Chairman, thank you very much for
giving us the opportunity to be here. You all have a tremendous
and awesome responsibility. Protecting the homeland and the
people who live in our homeland is a major responsibility, and
it is probably not going to be easy to get a legislative
package together that everyone is going to agree on. As you
prepare the bill, I think you will find that out, but it has to
be done and I strongly support the President's effort to do
this.
I will be brief, Mr. Chairman, because I know you have a
lot of other witnesses to hear from today, and we also have an
appropriations bill on the floor which we would like to get
completed as soon as possible.
I think Mr. Chairman, this is going to be the largest
restructuring of our government that most of us can recall, but
certainly the largest since Pearl Harbor when we reorganized
the Department of Defense and created the Joint Chiefs and the
structure that we basically have now in the Executive Branch.
The Appropriations Committee reported its recommendations
to the Select Committee last Thursday. We have limited our
specific recommendations to matters directly affecting the
jurisdiction of the Appropriations Committee and not to the
progeam elements of the bill that the President has suggested
to the House. Namely, we dealt with the transfer authority that
the Administration is seeking to establish the Department of
Homeland Security. I hope you have had a chance to review this
document, because I believe it speaks directly to the
constitutional authority of the Congress, and not only the
authority but also the responsibility of the Congress, and the
separation of powers between the executive and legislative
branches.
The Appropriations Committee has been in the forefront of
strengthening the Nation's capacity to fight terrorism. After
the attack on September 11, the Appropriations Committee
brought to the floor a $40 billion supplemental to respond to
the tragedy that the country was facing. Three days after the
attack, the bill was passed and it was sent to the President on
the same day. We worked around the clock to put this
legislation together. We recognized that there was an immediate
need and, frankly, we met that need immediately.
As far as giving flexibility to the President--and I think
he has done an outstanding job and continues to do so in
protecting America and fighting the terrorists--I think you all
recall that the Appropriations Committee recommended giving the
President $20 billion with no strings attached. The second $20
billion of that $40 billion bill, did have a requirement to go
through the appropriations process. I would also suggest to you
that as of today, according to the budget director of OMB, 46
percent of that money hasn't been spent or obligated.
Regardless, the Appropriations Committee did recognize the need
and we moved quickly and provided the funding necessary to do
whatever had to be done to meet this tremendous threat: the
massive recovery effort in New York City, the immediate need to
increase security both here and abroad, and the war that we
were about to undertake against the Taliban and al Qaeda.
The Appropriations Committee is still addressing the needs
of our country. We are trying to complete the second war
supplemental to give money to our troops to maintain their
readiness, to the Intelligence Community, to law enforcement
and to other agencies for our safety and the security of the
American people, and for the victims of New York.
We have tried to provide rescources to promote U.S. Foreign
policy as we form our coalitions with allies to join together
in the fight against terrorism. We strongly support efforts to
improve the management and efficiency of the Nation's homeland
security activities. In fact, the current administrative
difficulties troubling a number of key homeland security
agencies would argue for even more congressional scrutiny and
oversight. And I can give examples about that if you are
interested.
We believe we can accomplish this without sacrificing the
constitutional process that has served the Nation well for over
two centuries and the pledge that we all take when we swear our
oath of office.
Our recommended amendment to H.R. 5005 is a bipartisan
proposal. In our view the administration's transfer proposal is
overly broad and unprecedented and would undermine the
appropriations that the committee and this Congress carefully
deliberate every year. H.R. 5005 includes permanent transfer
authority which would allow the head of the Agency to rewrite
appropriations bills that were enacted by Congress.
It is important to support the President in establishing
this new Department, but we believe this can be accomplished
under existing law and existing practices.
Our recommendation does the following: It replaces the
open-ended transfer authority with a restatement of transfer
authority that exists in current law, and it provides for
additional authority, as needed, in subsequent appropriations
acts.
We have been told by the administration that they need the
broad transfer authority to skim enough money off the agencies
to set up a new departmental entity and to have the flexibility
to move money around between the agencies in the event of an
emergency. The committee recommendation relies on existing
procedures to handle these requirements and would ensure that
the constitutional prerogatives of the Congress are not
degraded.
Our proposal would recommend that we allow the agencies
which are moved under this new Department to bring with them
the money and assets we have appropriated to them and the
reprogramming authority they have been granted.
It requires the executive to propose and obtain
congressional approval to increase funding levels or change the
uses of appropriated funds.
If money is needed to set up a new department
superstructure, we can provide transfer authority in any one of
our 2003 appropriations bills to do just that. We just need to
have an idea of how much they need for fiscal year 2003.
If there is an emergency, current law will allow them to
move money within the agencies and Economy Act reimbursement
agreements can be executed among the various agencies to cover
unforeseen requirements.
This process is very similar to the process used when the
Department of Energy was created in 1977 and when the
Department of Education was created in 1979. In both cases,
legislation establishing the new Departments provided for
transfer of appropriations balances along with the functions
being transferred, but only for the purposes for which the
funds were originally appropriated.
Mr. Chairman, I don't think we have a major disagreement on
what we need to accomplish here, but we are concerned about the
constitutional responsibilities of the Congress in dealing with
the public funds.
And I just would read one sentence from Article I of the
Constitution that says: No money shall be drawn from the
Treasury but in consequence of appropriations made by law, and
a regular statement and account of the receipts and
expenditures of all public money shall be published from time
to time.
I think we can work within current law to do what the
President needs to do, and I certainly intend to strongly
support the creation of an Agency that would have the
authority, the ability, and assets to protect our people and to
fight the war against terrorism wherever it might be.
And I thank you very much for the opportunity to make these
comments.
Chairman Armey. Thank you, Chairman Young.
[The statement of Mr. Young of Florida follows:]
PREPARED STATEMENT OF HON. C.W. BILL YOUNG, CHAIRMAN, COMMITTEE ON
APPROPRIATIONS
Mr. Chairman and Members of the Select Committee on
Homeland Security, I am pleased to appear before you today
regarding the recommendations of the Appropriations Committee
on H.R. 5005, a bill to establish the Department of Homeland
Security.
I will make my remarks brief because I know you have a
number of witnesses to hear from and as you know our Committee
has a bill on the floor today.
I would like to start by saying that I believe your
Committee has a formable task ahead. The creation of the
Department of Homeland Security will be the largest
restructuring of government that most of us can recall, but
certainly the largest reorganization since Pearl Harbor. At
that time, we reorganized the Department of Defense and created
the Joint Chiefs.
Our Committee reported its recommendations to the Select
Committee last Thursday. We have limited our specific
recommendations to matters directly affecting the jurisdiction
of this Committee--namely the transfer authority the
Administration is seeking to establish the Department of
Homeland Security. I hope you have had a chance to review this
document, because I believe it speaks directly to the
constitutional authority of the Congress and the separation of
powers between the Executive and Legislative Branches.
The Appropriations Committee has been in the forefront of
strengthening the nation's capacity to fight terrorism. Three
days after September 11, 2001, the Appropriations Committee
brought to the floor a $40 billion supplemental to respond to
the tragedy our country was facing. We worked around the clock
to pull this legislation together, to ensure that all the
concerns were addressed--the massive recovery effort in New
York City, the immediate need to beef up security both at home
and abroad, and the war we were about to undertake. And now,
the Appropriations Committee is still at the helm of addressing
the needs of this country. We are trying to complete the second
War Supplemental to give money to our troops to maintain their
readiness, to the intelligence community, to law enforcement
and other agencies for our safety and security, to the victims
of New York and to promote U.S. foreign policy. And we are in
the process of working through 13 appropriations bills for FY
2003, all of which will include substantial funds for homeland
security and the war.
We also strongly support efforts to improve the management
and efficiency of the nation's homeland security activities. In
fact, the current administrative difficulties troubling a
number of key homeland security agencies would argue for even
more intense Congressional scrutiny and oversight. However, we
believe we can accomplish this without sacrificing the
constitutional processes that have served the nation well for
two centuries.
Our recommended amendment to H.R. 5005 is a bi-partisan
proposal. In our view, the Administration's transfer proposal
is overly broad and unprecedented. It would undermine the
appropriations that our Committee and this Congress carefully
deliberate each year. H.R. 5005 includes permanent transfer
authority, which would allow the head of this agency to rewrite
Congress' enacted appropriations laws.
It is important to support the President in establishing
this new Department, but this can be accomplished under
existing law and practices.
Our recommendation does the following:
it replaces the open-ended transfer authority with
a restatement of transfer authority that exists in current law;
and
it provides for additional authority as needed in
subsequent appropriations acts.We have been told by the
Administration that they need broad transfer authority for the
following reasons:
to skim enough money off the agencies to set up a
new Departmental entity; and
to have the flexibility to move money around
between the agencies in the event of an emergency.The Committee
recommendation relies on existing procedures to handle these
requirements and would ensure that our constitutional
prerogatives are not degraded. Our proposal would allow:
the agencies which are moved under this new
department to bring with them, the money and assets we have
appropriated to them and the reprogramming authority we have
granted them;
it requires the executive to propose and obtain
congressional approval to increase funding levels or change the
uses of appropriated funds;
if money is needed to set up a new Department
superstructure, we can provide transfer authority in any of our
FY 2003 bills to do that, we just need to have an idea how much
they need for FY 2003; and
if there is an emergency, current law will allow
them to move money within the agencies and Economy Act
reimbursement agreements can be executed among the various
agencies to cover unforeseen requirements.
This process is very similar to the process used when the
Department of Energy was created in 1977 and when the
Department of Education was created in 1979. In both cases,
legislation establishing the new departments provided for
transfer of appropriations balances along with the functions
being transferred--but only for the purposes for which the
funds were originally appropriated. In both cases, further
transfers were allowed only to the extent specifically
authorized in appropriations legislation. And as I mentioned
earlier in my testimony, when we reorganized the Defense
Department after the attack on Pearl Harbor, Congress did not
provide such extensive transfer and reprogramming authority. To
this day, the Secretary of Defense must obtain approval of
Congress to reprogram funds and he is very limited in his
ability to transfer appropriations from one appropriation to
another.
Our goal is a regular order appropriations process for this
new Department. We expect that if legislation to set up this
new Department is enacted this year, the FY 2004 President's
budget will request funds for the new Department and its
agencies. The Appropriations Committee will be prepared to
appropriate funding for this new Department and its agencies in
whatever form is enacted into law.
That concludes my testimony, and I will be happy to address
any questions you may have on our recommendations.
Chairman Armey. Congressman Obey, we would be happy to hear
from you.
STATEMENT OF THE HON. DAVID R. OBEY, RANKING MINORITY MEMBER,
COMMITTEE ON APPROPRIATIONS
Mr. Obey. Thank you, Mr. Chairman. Mr. Chairman, let me
congratulate Chairman Young for the statement he has made. I
agree with virtually every word of it. Secondly, I am sure that
you all understand that on an issue like this, there will be no
Democrats, no Republicans, no liberals, no conservatives. We
are all, I hope, just legislators trying to do our
constitutionally sworn duty, and in that sense I hope we are
all constitutionalists.
I have two sets of concerns: one, the financing of this
Agency which Chairman Young has just referred to; and secondly,
the organization itself.
Let me point out that the Magna Carta--or since the Magna
Carta was signed in 1215, one of the driving principles that
has been a key underpinning of Western democratic societies is
the idea that the power of the purse shall remain outside of
the hands of the executive and firmly in the hands of the
legislative body. At the Constitutional Convention, this was
not even disputed. There was virtually no debate on the issue.
It was accepted by everyone. And that undiminished authority
remained intact during the war of 1812 when the U.S. Capitol
was burned, during two world wars, and I would hope and expect
it would remain intact now. That is our principal duty in
putting together alterations to the White House's proposal. And
the fact is that no member of the executive branch at any time
in history has ever had the authority to terminate programs, to
sell assets, or to redirect resources without the prior
agreement of the Congress. And I hope it will remain so.
This bill provides four sweeping abdications of the power
of the purse. Chairman Young has mentioned them. It gives the
Agency in effect a totally free hand to set up this new
Department any way they want, without any significant
congressional financial oversight. Now, if you think that is a
great idea, then I would urge you to review the history of the
newly created Transportation Security Administration. They
created an Agency of over 70,000 people. They proposed an
average salary in the headquarters office in Washington of
$90,000. Now, this is not an average salary of the executives.
This is counting everybody, including the clerks, the
messengers, everybody, average salary $92,000.
That is higher than the average salary in the White House,
it is higher than the average salary in the Supreme Court. They
recommended an absurd salary structure at local airports that
started by planning to have guards paid $85,000 a person. That
information came out from the Agency and one day afterwards,
when the press laughed it to death, they said oh, you are using
old information, because by then they had changed their
recommendations and they had scaled down those salaries. That
does not suggest to me a quality of analysis that could survive
even rudimentary scrutiny.
This is going to be a huge bureaucracy. They are going to
have 16 Assistant Secretaries, if we listen to these
recommendations. It is going to be incredibly bloated. It is
going to have the extraordinary authority to sell assets
without the approval of the Congress, and instead of putting
the money from those assets into the Treasury, as is now the
requirement, they would have the authority to keep those moneys
themselves and use them for any purpose they wanted.
That should not be allowed to go forward. We have seen many
corporations in this country in big trouble because they gutted
the ability of their boards of directors to provide strong
oversight over the chief executive officers of the company. We
should not make that same mistake in the Federal Government.
The Congress is supposed to be an active, caring, alert, and
aggressive board of directors and we cannot walk away from that
responsibility.
Some other points: It is a spectacular misnomer to call
this a Homeland Security Agency. If you take a look at
departments that are supposed to be folded into this Agency
under the recommendations, they contain 133 agencies and
offices. Only 22 of them are actually transferred into this
Agency, leaving 111 still outside the tent.
I would do three things. I would first of all keep the
Office of Homeland Security in the White House, and make sure
that the executive order that created that Agency is converted
to statute so that it has the prestige and the clout needed to
coordinate all of these other agencies, along with the 22 that
are being dumped into this new Agency.
Secondly, I would elevate the director in prestige to the
same level at least enjoyed by the drug czar, by the science
advisor, by the OMB director, by making them confirmed by the
Senate. That does not damage his position. That strengthens it
because they are on an equal footing. They have been ratified
by the entire system, and they would have the necessary clout
to knock heads together and see that people cooperate.
Thirdly, I would give that officer the power to decertify
budget recommendations from OMB if they do not meet the
standards that were laid out by the Agency in order to assure
the security of the homeland. I believe that the debate on this
issue so far has been far more sterile than it should be and
far less substantive, and I do not believe that is the fault of
Congress in either party. I think Members of both parties have
been thoughtful and expressive concerning their terms about
this product.
I do believe that the position of the executive branch has
been far too dominated by OMB whose world view and knowledge
about security matters is certainly not commensurate with their
knowledge about domestic budgets, and I think we need to face
that.
There are a number of questions I think you ought to ask
yourself. Whatever you recommend, will it increase the focus on
antiterrorism or not? A department that has to care about
earthquake recovery, about dealing with pet stores, about oil
spills, about protecting wine producers from the glossy wing
sharpshooter, is spread too widely to really do a decent job of
focusing on antiterrorism.
I think we should focus on putting together the agencies
that have the most to do with providing security at the borders
and in our ports: the immigration side of INS, the Customs
Service, the Transportation Security Administration--if we can
ever get that baby put together right--but should we add AFIS
in all of its glory with its 8,000 employees? I don't believe
so.
And there is one other terrible example. That is the area
of bioterrorism, and the gentlewoman from Connecticut has
already mentioned it. Last fall the Nation discovered that we
have a fantastic asset in the National Institute of Infectious
Diseases at the National Institutes of Health. That is the
Agency that does world-class research on AIDS, on agents like
Ebola, West Nile virus. They are headed by a brilliant
director, Dr. Tony Fauci, as you all know. Nothing would be
more destructive or idiotic than to take the dollars that have
been bestowed upon that Institute by the Congress and instead
make it a freestanding isolated research program. We need to
piggy-back on the knowledge and the synergy that exists by
having that Agency within NIH. We don't need to fragment it in
any way or give it conflicting lines of authority. In short, we
don't need to screw it up. It is working terribly well.
Thirdly, we cannot let new administrative costs eat up
frontline activities like cargo inspection and the
identification of illegal entrants into this country. CBO has
estimated that this is going to cost at least $3 billion in new
administrative costs. I would personally be flabbergasted if it
is not at least double that, based on my experience and based
on the analysis of previous organizations. I would also ask you
to remember, there was a good reason why the defense
establishment was organized in 1947 and not 1944; because in
1944, we were in the middle of a war. We were kind of busy, and
the last thing we want to do is to so overreach in the
reorganization we provide that we ignore the fact it is going
to take an immense amount of time to move into new offices, to
get new telephone numbers, to get new desks, to get new bosses,
to understand what your relationship with those new bosses and
colleagues, and these administrators are going to be tempted to
sit on their duffs and hold back and take a look at the lay of
the land for months and months, until they know what they can
do without getting their heads shot off.
So I would urge you to recognize there is a fantastic
potential for disruption which we have a mortal duty not to
ignore.
And then there are other problems. We have the gratuitous
and, in my view, ill-advised exemption from civil service law
and whistle-blowing protection and freedom of information.
People will say oh, you can't release information about
national security. The Freedom of Information Act already has
exemptions for national security and for critical law
enforcement material. There is no need to provide the kind of
blanket authority provided in this legislation. If you do what
this legislation says, it would be very easy for agencies and
industries with whom these agencies work to simply launder a
whole lot of information that the public has a right to know,
through this Agency, on issues such as public health and
safety, thereby shielding it from public awareness. We cannot
let that happen.
In my view, there are two major problems that we have to
deal with and that this proposal before us does not address.
When Bill Young and I and our staffs interviewed every single
intelligence agency virtually during the 5 days when we were
locked out of here because of anthrax, we talked to the NSA, we
talked to the CIA, we talked to the FBI, CDC, HHS, you name it.
What struck me--and I was thunderstruck by this--is that there
were literally thousands of pages of raw information on the
floor, sitting on desks and filing cabinets, unreviewed by
anybody. And for two reasons: number one, because we do not
have the systemic ability to separate the wheat from the chaff
in these agencies. We don't have the technology up to speed,
and we don't have the organization down. And secondly, we do
not have the language translation capacity that we need. We
need at least five times the capacity that we have right now if
we are going to do a really thorough job of reviewing these
intercepts.
And then the second problem is the FBI. Now, this is no
criticism of the FBI, but it is an analysis. The FBI today is
structured to focus on thousands of individual acts of
unrelated crime. That is their job. But by being organized that
way, as the FBI director has said, you do not have a mindset in
that Agency or a capacity to analyze over the broad field,
looking for patterns. And that is what you need to be doing if
you are trying to uncover potential terrorist activities. So we
need to focus on reshaping the FBI to be able to do that job,
and that is I think far more important than any other
organizational--or recommendations that we have here today.
In short, I would simply say, as Chairman Young has been
saying, don't throw away the precious separation of powers
arrangement just because some hotshots in this town tell you it
will make it easier to catch bin Laden. It won't. It won't.
I would just urge you to recognize that corporations are in
trouble because they decided to run only with the wisdom of
their CEOs and their close advisers, and they didn't allow
boards of directors to conduct aggressive activities to review
their conduct, and I think we have to avoid that. So, in short
I would ask you, don't salute the first draft that you get from
downtown. Think about it and then think about it some more,
because the country you will be protecting is your own and our
own. Thank you.
[The statement of Mr. Obey follows:]
PREPARED STATEMENT OF THE HONORABLE DAVID R. OBEY, RANKING MINORITY
MEMBER, COMMITTEE ON APPROPRIATIONS
Mr. Chairman and Members of the Committee, I appreciate the
opportunity to testify before you today. I know you understand
that on this issue there can be no Democrats and no
Republicans, no liberals and no conservatives. We are only
American legislators with the sworn duty to do what is best for
the country, what is consistent with the Constitution.
My thoughts on Homeland Security are expressed in the
recommendations of the Appropriations Committee and in the
letter that Congressman Waxman and I sent to Governor Ridge
last week as well as in the testimony that I am about to
deliver.
I will divide my remarks today into two segments. First, I
would like to discuss proposals regarding a new Department of
Homeland Security that would affect the role of the Congress in
appropriating money. Secondly, I would like to talk about how
the government's broad responsibilities with respect to
homeland security could be better coordinated and structured
and how the creation of a new Department would fit within that
restructuring.
protecting the constitution and our system of checks and balances
Since King John signed the Magna Carta in 1215, the notion
that the executive should not have power of the purse has
become increasingly central to the structure of Western
Democracies. In the three months of passionate debate, conflict
and compromise that led to crafting the U.S. Constitution,
there is no evidence of any debate whatsoever over clause 7 of
Section 9 of Article I, which states, ``No Money shall be drawn
from the Treasury, but in Consequence of Appropriations made by
Law.'' Every one of the thirteen colonies had already adopted
constitutions that gave their individual legislatures ``the
power of the purse.'' Providing to the Congress the central
authority over spending was simply so universally agreed to it
was not even a topic of discussion.
Congress was quick to use those powers and to specify in
great detail how appropriated funds could and could not be
spent in connection with the establishment of a standing army
to defend against a possible invasion by France in the late
1790s. Those powers were undiminished during the War of 1812
when the nation was attacked and both the Capitol and the White
House were burned. The Congress' authority over spending
remained intact through the Civil War and through two World
Wars. It is therefore surprising and disturbing that the
administration would choose to revisit a decision so central to
our Constitutional heritage.
Simply put, no member of the executive branch at any time
in the history of this country has ever had the authority to
terminate programs, sell assets and redirect resources without
consultation with the Congress that the legislation before this
Committee would grant the new Secretary of the Department of
Homeland Security. The proposed legislation provides four basic
authorities:
First, Section 803(c ) of H.R. 5005 provides that the
President may upon enactment and prior to the actual transfer
of existing agencies and activities to new Department, transfer
5% of the funds appropriated to those agencies and activities
for use in setting up the bureaucratic superstructure envisaged
in the act. What this essentially provides is a totally free
hand to the Secretary and his staff in structuring the new
Department without consultation or involvement of the Congress.
The record of the last six months in setting up new
homeland security activities should give the Congress and the
American people serious pause about providing such authority.
The new Transportation Security Administration has put forth
plans indicating that it plans to employ more than 70,000
people simply with respect to the airline safety portion of its
mission. Many of us were deeply concerned when we learned that
the agency planned to locate more than 800 of those people here
in their Washington headquarters. Adding to that concern was
the fact that they planned an average salary for the employees
of that huge headquarters of more than $90,000 a year. That is
not the average for the senior managers but for all employees
including stock clerks and secretaries. That is a higher
average salary than is paid by the Executive Office of the
President within the White House and it is higher than the
average salary paid at the Supreme Court.
Those concerns grew further when it was learned that the
size of the contemplated headquarters of this operation had
grown from the original 800 employees to more than 1200 even
after the agency had been criticized for being top heavy.
Certainly nothing spoke more clearly to the lack of
administrative and fiscal discipline than the decision by the
agency to spend more than $400,000 for redecorating the offices
of the Director and his staff at the same time they were
claiming to be critically short of funds.
The broader strategic decisions have also been replete with
examples of poor judgment. Initial salary schedules would have
resulted in the guards employed to protect the passenger and
baggage screening operations being paid more than $85,000 a
year-more than the airport managers, mayors or police chiefs in
many of the communities they would be located in. Equipment for
baggage screening was ordered without any attention to the
facilities that would have to be constructed to house the
equipment. Since facilities take longer to construct than it
takes to manufacture equipment we are almost certain to have
baggage-screening equipment sitting in warehouses for some
extended period of time waiting for a decision to be made with
respect to where it will be installed. Plans also called for,
and still do call for the hiring of 3500 ``shoe carriers'' to
collect and scan shoes that set off magnetometers. This is in
spite of the fact that magnetometers that are sensitive enough
to screen out the false alarms caused by shoes can be purchased
for a fraction of the first year's salary of the ``shoe
carriers.'' And while decisions like this were being made, the
agency failed to request funds which would allow the full
strengthening of cockpit doors on schedule or permit sky
marshals to communicate with their superiors on the ground.
These are only some examples of the kinds of decisions that
we have already seen with respect to the organization of
homeland security activities. We would be naive to expect that
we have seen the last of these and we would be derelict in our
duty as a Congress if we did not maintain close vigilance about
how tax dollars are used in this department. This is
particularly true given the grandiose nature of the hierarchy
called for in the Administration's proposed Department. H.R.
5005 would create a Secretary and Deputy Secretary, 5 Under
Secretaries, up to 16 Assistant Secretaries, a Director of
Secret Service, a Commandant, an IG, and a CFO and on and on-
making it one of the largest sub cabinet operations in
Washington.
Even more disturbing is the authority requested in Section
803(e) of the bill, which states that appropriations balances
shall be transferred to the Secretary of Homeland Security for
appropriate allocation ``notwithstanding the provisions of
section 1531(a)(2) of title 31, United States Code.'' This in
effect provides the Secretary with the authority to terminate
any program or activity contained within any agency or office
transferred to the new Department and to spend the funds on any
activity within the very broad jurisdiction of this Department
without regard to law or act of Congress. If he unilaterally
concludes that headquarters staffing at the Transportation
Safety Administration is a higher priority than control of boll
weevils or other agriculture pests those programs could be
eliminated before the Congress ever had a chance to enter the
discussion. If he decided that marine safety instruction
programs or maintenance of right of way programs at the Coast
Guard would make a good bank for funding his own private
intelligence operation, we would simply have to accept his
decisions. We have never done business this way in the past and
there is no reason to start now.
Another authority requested is the on going authority to
transfer funds between accounts even after fiscal 2003. Section
733(b) permits up to 5% of appropriated funds to be transferred
between programs within the Department. While there is
precedent for providing limited transfer authority among
accounts within a number of agencies and Departments they are
generally confined to transfers between activities that have
relatively similar objectives and purposes. This provision
would permit transfer of funds intended for international
adoption programs to be used for pet store regulations or funds
intended for counter narcotics operations to be used for
hurricane cleanup. Because of the proposed size of this
Department, the total amounts that could be made available for
activities that the Congress might find low priority would be
huge.
Finally, the Administration requests the extraordinary
authority to sell assets without prior approval, to withhold
the proceeds of those sales from the Treasury of the United
States and to then spend them on priorities which they alone
would identify and which would require no appropriations from
Congress. This would include for instance an extensive
portfolio of Coast Guard properties-some of which are quite
valuable-that could be sold off and used for any acquisition or
activity that the Congress for whatever reason had been
reluctant to provide funding for. This again is aimed at
weakening the checks and balances that have served this country
well for more than two centuries. It is akin to the thinking
that led corporate managers in the United States over the past
several decades to seek boards of directors that would serve as
little more than rubber stamps for the decisions of CEOs and
their appointed minions. It was the wrong direction for
American business and it is certainly the wrong direction for
American government.
maintaining government coordination and creating a department that is
lean, mean and well focused
While I feel strongly about how this new Department might
be financed, I feel equally strongly about how it will be
composed and about how we will structure and coordinate the
overall war against terrorism and protection of the homeland.
The first point I want to make-and I think it is an
extremely important point for every member of this Committee to
grasp-is that calling this proposed entity the ``Department of
Homeland Security'' is a total misnomer. Even if we put every
agency, office and activity that the White House has proposed
for transfer into the new Department, it would represent a tiny
fraction of overall government activities with respect to
``homeland security.''
If we look at the organization chart prepared by the White
House when this proposal was originally announced we see that
there are currently a total of twelve departments of the
federal government involved in various aspects of protecting
the homeland. The agencies and offices contained in those
departments and identified on that chart total 133.
This is our best effort to represent what the government-
wide Homeland Security efforts would look like if a Department
along the lines proposed by the White House were created.
Of the 133 agencies and offices listed on the first chart,
22 have been moved to the new department. But 111 are still
outside the department! Furthermore, the most important
agencies and offices in protecting the homeland are in most
instances on the outside. These include the new Northern
Command, the National Guard, the Federal Bureau of
Investigation, the Central Intelligence Agency, along with the
National Security Agency and National Imagery and Mapping
Agency, the Centers for Disease Control and key elements of the
Energy Department and the Drug Enforcement Agency.
This means that no matter what we do with respect to
creation of a new Department, even if we move every agency and
activity that has been proposed, the bulk of the government
activity directed at protecting the homeland will still be
outside this Department. Therefore, we will continue to need to
find way of strengthening interdepartmental coordination at the
level of the White House. In my opinion, this is more important
than whether or not we create a department.
I would propose three things to accomplish this. First, I
would retain the Office of Homeland Security and make the
executive order that President Bush signed creating that office
statutory.
Secondly, I would elevate the director of that office to
the same level within the White House as the Drug Czar, the
Science Advisor and most importantly, the Director of OMB. That
would require that he be subject to Senate confirmation.
Thirdly, I would give him the authority to decertify OMB
budget submissions if they were inconsistent with the overall
homeland security plan. In other words, OMB would not be able
to go forward with budget submissions to the Congress without
the signoff of the Director of Homeland Security. If the two
directors cannot reach agreement, then the argument gets passed
up to the President. That would place a check on the OMB
director but it would also ensure that any decision involving a
tradeoff between the security of the American people and
additional spending would be decided at the highest level.
I think that the debate that we have been having in this
town over how we restructure government and expand our capacity
to protect ourselves has been far more sterile and far less
substantive than the nation deserves. That by and large has not
been the fault of the Congress. I think members of both parties
have for the most part been very thoughtful and have brought
good ideas to the table. But I think the position of the
executive branch has been far too dominated by analysts at OMB
whose overall worldview and knowledge about security issues is
not commensurate with their knowledge about budgets. We need
both perspectives in order to make the right choices and we
need both perspectives to be considered at both ends of
Pennsylvania Ave.
Having said that, I would support the creation of a new
department to handle some portion of the security problems
facing the country. If done properly, such a department could
increase the efficiency and coordination between certain key
activities needed to protect us against future terrorist
attack. On the other hand, I would urge the committee to
carefully weigh the fact that consolidation of disparate
agencies and activities into single huge department could
create a bureaucratic morass that not only would waste large
sums of taxpayer money but also would seriously impede existing
efforts to protect the American people.
There are three principles that I think the Congress should
look to in attempting to decide the size and shape of the new
department if there is to be one.
First, does a proposed transfer of an agency or activity to
the new Department increase the focus and coordination of
government counter terrorism activities?
As I already pointed out, H.R. 5005 moves less than two
dozen of 133 agencies and offices involved in homeland security
into the new department. The overwhelming majority of such
agencies and activities are outside the proposed department.
The question that must be asked is whether the agencies
proposed for transfer form a good cluster from a management
perspective. Can the proposed department manage these various
programs and maintain a strong focus or are they going to have
to maintain so many unrelated programmatic objectives that no
one will really understand what is going on inside the
Department?
I think any Department that must deal with earthquake
recovery, licensing pet stores, cleaning up oil spills,
protecting our wine producers from the Glassy Winged Sharp
Shooter, international adoption policies, ice breaking and
collection of tariffs has got too much on its plate before it
even begins to think about combating terrorists.
I think there is a need in this government to more tightly
weave the activities of the various agencies involved with
security at our borders and at ports of entry. There is a
portion of the programs proposed for inclusion in this
Department that is already largely focused on that set of
issues. The immigration side of the INS, the Customs Service
and the Transportation Security Administration all fit that
description.
Once you get past those three activities you start dealing
with agencies that are only partially involved in border
security. They are agencies that have very large and important
responsibilities that have little or nothing to do with counter
terrorism. For instance, APHIS has some inspectors in airports,
but that is only a fraction of the 8,000 employees who are
attempting to control plant and animal diseases that are
already here. APHIS needs to work more closely with customs and
immigration on cross border issues but they also must remain
close to the farm community and they will probably always spend
the large majority of their time on diseases that are already
in the country than those that are on the outside.
Like APHIS, most of these agencies will have a wide range
of problems that will inject their own set of nightmares into
the management of the new department. As a result, inclusion of
such agencies will likely increase administrative requirements,
increase overhead expenditures and make it difficult for the
leadership of the department to maintain a clear focus on
security issues.
Finally, there are a number of activities that are slated
for this Department that will be much more successfully managed
where they are currently located than they could possibly be
within this Department.
Last fall when we started thinking about bioterrorism, we
realized that we had a huge resource with respect to dealing
with that threat. That resource is the National Institute for
Allergy and Infectious Diseases. That is where most of the
basic work on AIDS research is taking place. That is where our
work on the fundamental mechanisms of diseases such as Ebola
and West Nile Virus is being preformed.
We are much further along in understanding infectious
disease mechanisms and how the body defends itself against
them, how we can aid in that defense and what the weaknesses of
these various viruses and bacteria than we were twenty years
ago when we were thinking about biological warfare in the
context of the Cold War. We have one of the most brilliant
Institute directors in the long and distinguished history of
NIH, Dr. Tony Faucci, now running that institute. We realized
that we could piggyback our concerns about bioterrorism on top
of this wealth of new knowledge. We have the resources there to
jump-start a program and be years ahead of where we might
otherwise be in identifying and combating these kinds of
agents. I can't think of anything that would be more idiotic
than taking the bioterrorism money that we put into NIAID last
year and moving it as a free standing research program to a
newly created Department.
The second test that a new department should be expected to
meet is that it can be managed with a reasonable allocation of
administrative resources. This committee and the Congress
should ask: Can this amalgamation of programs be managed
without a massive diversion of resources from front line
activities such as containerized cargo inspections or the
identification, apprehension and deportation of illegal
entrants in order to pay for a sprawling Washington-based
bureaucracy?
In the Defense community this question is referred to as
the relationship between the tooth and the tail (what portion
of the budget supports real on the ground war fighters and what
portion is dedicated to the bureaucracy that supports them.) It
is easily possible to organize government activities in such a
way that the cost of coordinating the activities becomes more
expensive than the activities themselves. There is ample reason
to be concerned that H.R. 5005 could seriously erode resources
needed to sharpen the tooth.
This is particularly true if the administration maintains
its stated intention to fund all activities of the Department
within the existing budgets for those activities. If that
policy is followed, it will mean that most of the resources
necessary to fund the activities of the Secretary, nearly 30
proposed sub cabinet positions and the staffs for each will
have to be met through cuts in border inspectors, immigration
enforcement and local level first responders.
There will also be costs associated with moving and costs
associated buying land and constructing new buildings. CBO
estimates those costs will run at least $3 billion--I would be
amazed that if in the end they are not double that and all of
it will be paid out of front line efforts if we are not
realistic about the price tag from the outset.
Thirdly, will the reorganization disrupt highly sensitive
security functions during critical threat periods?
There is a reason that the Executive Reorganization Act of
1947 took place in 1947 and not 1944. The consolidation of the
War Department and the Navy may have created more efficiency
and better coordination of defense activities in the long term
but it certainly had significant short-term costs with respect
to both of these goals. Similar disruptions are inevitable in
any reorganization.
The severity of such disruptions and time lost resulting
from reorganization will vary based on the amount of
administrative change envisaged for a particular program or
activity. Simply changing the chain of command involves a
relatively small loss of work effort. Changing network servers
and phone systems and phone numbers adds to the loss in terms
of short-term performance. Relocating facilities, restructuring
personnel assignments and lines of authority often entail
dislocations that can take months or even years to fully
recover from. If there is a clear case for greater focus and
long term efficiency these costs may be acceptable so long as
they do not reduce performance during periods of potential
threat.
Any reorganization should carefully weigh these factors
with respect to both the entities to be transferred to the new
department and the timing of that transfer.
other considerations
In addition to commenting on the structure of the
department, I would also point out that this proposal contains
ill-advised exemptions from good government laws, Civil Service
laws, whistle-blower protection, and procurement rules, and it
contains an exemption from the Freedom of Information Act.
There is no reason to do that as the Freedom of Information Act
already provides exemptions for national security information,
for sensitive law enforcement information, and for confidential
business information. Agencies and industries could deny the
public needed access to basic information about health and
safety by simply laundering that information through this new
agency.
On another front, this bill also deals with the question of
the organization of our collection and analysis of
intelligence. I think we clearly have a problem in that area,
but I am not convinced that setting up another parallel
organization will solve that problem. I think the problem can
be best resolved by taking it head on and solving it at its
core. Our biggest need right now is not a new organization
table. We have knitted together a group of organizations that
can meet our needs relatively well if we honestly assess their
failures and make the appropriate adjustments.
One adjustment that we need to make as rapidly as possible
is a much greater language capability than we now possess.
There are literally thousands of pages of information that we
have collected that is sitting on floors, in files, and on
desks throughout the government unread because we lack adequate
resources to screen the raw material and adequate language
skills to do the translating. There is also a great deal of
intelligence which we have only partially exploited or we
derive inaccurate intelligence from because the language skills
we have are not good enough to get a really accurate
translation.
Another adjustment is to recognize that our most important
agency in terms of countering threats from within the country,
the FBI, currently has three serious weaknesses. First, the FBI
has been more focused on law enforcement than counter-terrorism
and it does not have the analytical capabilities that you need
if you are going to put together the massive amounts of
information that is now flowing through the system. That is not
a critical need when you are dealing with thousands of largely
unrelated criminal acts. It is a critical need when combating
large-scale terrorist networks. The second weakness is the
totally dysfunctional information technology systems at the
Bureau. The third is a general lack of skilled investigators,
particularly in certain areas such as cyber-crime.
We can't create an organization to do the FBI's job. We
have to fix the FBI. If we create a parallel organization that
does domestic threat analysis we may be compounding the
difficulty of fixing the FBI.
In closing, I would strongly urge you not to overreach. Do
what is essential, get our strategy in place first for dealing
with terrorism, then make whatever additional adjustments are
needed down the line. Don't grab the first tomato out of the
box. Reorganization will only improve our capability to protect
ourselves if it is done well. It can easily damage that
capability if it is done poorly.
And don't throw away our separation of powers and our
system of checks and balances because some hotshot downtown
says it will help catch Bin Laden. It won't. It is the same old
prescription that some of these people have offered for one
problem after another. Leave it all up to the executive branch
and the problem will get solved. That has not happened with
respect to transportation security and it won't happen
elsewhere. Good agencies welcome Congressional interest and
Congressional input. Good policy comes from open discussion and
the fusion of different viewpoints.
Corporations got in trouble because the CEOs, the CFOs, and
the accountants ran amuck without adequate restraint by
corporate boards. In government, the President is the CEO, OMB
and the agencies are the rough equivalent to the CFO and the
management team. Congress is the board of directors. We need to
do our duty.
Don't salute the first draft you get. Think about it then
think about it some more. Listen to advocates then listen to
devil's advocates. The country that you will be protecting is
your own.
Chairman Armey. I want to thank both gentlemen. It is the
practice of this committee to question the witnesses under the
5-minute rule. I should make it clear that the Chair interprets
the 5-minute rule to apply to both the question and the answer.
I expect both to be in the 5-minute rule. We are all aware of
the process here. We know the drill and remind the witnesses
that you can read the time clock from your side as well as
ours. If we are all parsimonious in our use of time, I think we
can make sure that at least every member of the panel gets one
round of questions of these witnesses.
And with that, I would recognize the gentleman from Texas,
Mr. DeLay.
Mr. DeLay. Thank you, Mr. Chairman. I have no questions. I
just congratulate both gentlemen on their testimony, and I am
very impressed with the thought that has been put in both your
testimonies, and I think this select committee should take it
to heart and your testimony to heart and make sure that we do
this right and do it right with the thoughtful recommendations
that you have made. Thank you.
Chairman Armey. The gentlelady from California, Ms. Pelosi.
Ms. Pelosi. Thank you very much, Mr. Chairman. Another
historic day. I wish to associate myself with the remarks of
Mr. DeLay. Mr. DeLay?
Chairman Armey. Mr. DeLay, you have a rare moment here.
Ms. Pelosi. I want the record to show and I want you to
acknowledge that I am associating myself with your remarks.
I do wish to congratulate both of you. It is always
wonderful to see how you operate on the committee. Masters at
work, Mr. Chairman, working in a very bipartisan way for our
country. And it is important for our country for us to maintain
our separation of powers, our checks and balances, so we don't
want the terrorists to have any victories in undermining the
foundation of our own democracy in that respect and in respect
to privacy and other issues as well.
Your testimony spoke for itself. It was excellent. I
believe, Mr. Obey, that those are your charts over there, and I
wondered if you wanted to shed any light on them, because for
those of us of a certain age, it looks like a lot of ants
crawling on a page. And that is quite a statement about what
this organization would do.
Mr. Obey. The fact that I forgot to mention them
demonstrates that I am not used to testifying before
congressional committees. But what they show is simply this:
The chart on the left is the administration's description of
what the existing structure is within the government for all
the agencies and offices that have anything whatsoever to do
with homeland security responsibilities.
The chart on the right is our best efforts to explain how
that organizational chart would look after the reorganization.
As you can see, there are more offices, not less. The area in
red represents the agencies that have been pulled from anywhere
on the left graph under the new Agency named the Homeland
Security Agency. But as you can see, there are still a
tremendous number of agencies and offices involved, not under
that rubric, not under that umbrella. So this may be a lot of
things, but it is not a streamlining. It is not a
simplification.
Ms. Pelosi. Thank you very much.
Chairman Young and Ranking Member Obey, you both have
raised serious concerns about the administration's legislation
that would undermine the role of Congress in the appropriations
process, and I was pleased to associate myself with Mr. DeLay
in commending you for your presentation. We will be writing a
bill, and you have made suggestions.
You have an alternative. I wish you would be a little more
specific in saying what you think the appropriate role is for
the Appropriations Committee in funding the new Department of
Homeland Security. Is there any aspect of the new Department
that should not be subjected to the regular appropriations
process?
Mr. Young of Florida. If I could respond to the
distinguished gentlelady from California, the existing law
works very well. Our recommendation does not get into the issue
of the structure of this new Homeland Security Agency. That was
not our role or our mission when we were assigned this bill.
But I would like to ask that we submit for the record a
very long list of transfer authority provisions that are in the
fiscal year 2002 appropriations bills. The committee and the
Congress, agreeing with those recommendations, have provided a
lot of transfer authority but to the Executive Branch agencies
we have maintained our oversight capability in doing so, and I
think this works very well.
And we also, of course, have the reprogramming requests
which we deal with quickly. There are those occasions when we
immediately approve a reprogramming. There are other occasions
we may have a question, and it is amazing how often the agency
requesting the reprogramming will say, they, I never thought
about that. We really ought to decide what is the right thing
to do here.
Congress playing an oversight role does a good job. If I
could submit this for the record, I think you will be impressed
with how the Congress has dealt with transfer authority in the
past, and I would be happy to give you a copy of the law that
created the Department of Education as an example of the
transfer authority we are suggesting in our presentation. So I
think this type of transfer authority will work.
If you transferred 10 agencies, 20 agencies, or 30 agencies
into the new Homeland Security Agency, this transfer authority
will work.
Chairman Armey. If I may mention to the gentlelady, the
record is open for that submission and, without objection, it
will be accepted.
Department of Commerce Statutory Transfer Authorities Found in Annual
Appropriations Acts
Departments of Commerce. Justice, and State, the Judiciary, and Related
Agencies Appropriations Act, 2002
NOAA:
The Operations, Research and Facilities account receives transfers
from the Promote and Develop Fishery Products and Research Pertaining
to American Fisheries (P&D) Account and the Coastal Zone Management
Fund (CZMF)
Text:
P&D
Provided further, That, in addition, $68,000,Q00 shall be derived
by transfer from the fund entitled Promote and Develop Fisher Products
and Research Pertaining to American Fisheries':
CZMF
Of amounts collected pursuant to section 308 of the Coastal Zone
Management Act of 1972 (16 U.S.C. 1456a), not to exceed $3,000,000
shall be transferred to the `Operations, Research, and Facilities'
account to offset the cost. Of implementing such Act.
NIST:
N1ST is authorized to transfer funding to the NTST Working Capital
Fund.
Text: For necessary expenses of the National Institute of Standards
and Technology, $321, 111,000, to remain available until expended, of
which not to exceed $282,000 may be transferred to the Working Capital
Fund'.
GENERAL PROVISIONS:
``Sec. 204. Not to exceed 5 percent of any appropriation made
available for the current fiscal year for the Department of Commerce in
this Act may be transferred between such appropriations but no such
appropriation shall be increased by more than 10 percent by any such
transfers: Provided, That any transfer to this section shall be treated
as a reprogramming of funds under section 605 of this Act and shall not
be available for obligation or expenditure except in compliance with
the procedures set forth in that section.
``Sec. 205. Any costs incurred by a department or agency funded
under this title resulting from personnel actions taken in response to
funding reductions included in this title or from actions taken for the
care and protection of loan collateral or grant proper shall be
absorbed within the total budgetary resources available to such
department or agency: Provided, That the authority to transfer funds
between appropriations accounts as may be necessary to carry out this
section is provided in addition to authorities included elsewhere in
this Act: Provided further, That use of funds to carry out this section
shall be treated as a reprogramming of funds under section 605 of this
Act and shall not be available for obligation or expenditure except in
compliance with the procedures set forth in that section.
Transfer Provisions in fiscal year 2002 Department of Justice
Appropriations Act
TITLE I GENERAL PROVISIONS
``Sec. 107. Not to exceed 5 percent of any appropriation made
available for the current fiscal year for the Department of Justice in
this Act may be transferred between such appropriations but no such
appropriations, except as otherwise specifically provided, shall be
increased by more than 10 percent by any such transfers: Provided, That
any transfer pursuant to this section shall be treated as a
reprogramming of funds under section 605 of this Act and shall not be
available for obligation except in compliance with the procedures set
forth in that section.
GENERAL ADMINISTRATION
SALARIES AND EXPENSES
Provided further, That the Attorney General is authorized to
transfer, under such terms and conditions as the Attorney General shall
specify, forfeited real or personal property of limited or marginal
value, as such value is determined by guidelines established by the
Attorney General, to a State or local government agency, or its
designated contractor or transferee, for use to support drug abuse
treatment, drug and crime prevention and education, housing, job
skills, and other community-based public health and safety programs:
Provided further, That any transfer under the preceding proviso shall
not create or confer any private right of action in any person against
the United States, and shall be treated as a section 605 of this Act.
LEGAL ACTIVITIES
SALARIES AND EXPENSES. GENERAL LEGAL ACTIVITIES
Provided further, That notwithstanding any other provision of law
upon a determination by the Attorney General that emergent
circumstances require additional funding for litigation activities of
the Civil Division the Attorney General may transfer such amounts to
``Salaries and Expenses, General Legal Activities'' from available
appropriations for the current fiscal year for the Department of
Justice as may be necessary to respond to such circumstances: Provided
further, That any transfer pursuant to the previous proviso shall be
treated as a reprogramming under section 605 of this Act and shall not
be available for obligation or expenditure except in compliance with
the procedures set forth in that section.
SALARIES AND EXPENSES, UNITED STATES ATTORNEYS
Provided further, That notwithstanding any other provision of law,
the Attorney General shall transfer to the Department of Justice
Working Capitol Fund unobligated all unexpended funds appropriated by
the first heading of chapter 2 of title II of division B of Public Law
l06-246 and by section 202 of division A of appendix H.R. 5666 of
Public Law l06-554: Provided further, That the fourth proviso under the
heading 'Salaries and Expenses, United States Attorneys'' in title I of
H.R. 3421 of the 106th Congress, as enacted by section 1000(a)(1) of
Public Law 106-111 shall apply to amounts made available under this
heading for fiscal year 2002.
SALARIES AND EXPENSES, COMMUNITY RELATIONS SERVICE
and, in addition, up to $1,000,000 of funds made available to the
Department of Justice in this Act may be transferred by the Attorney
General to this account: Provided, That notwithstanding any other
provision of law, upon a determination by the Attorney General that
emergent circumstances require additional funding for conflict
prevention and resolution activities of the Community Relations
Service, the Attorney General may transfer such amounts to the
Community Relations Service, from available appropriations for the
current fiscal year for the Department of Justice, as may be necessary
to respond to such circumstances: Provided further, That any transfer
pursuant to the previous proviso shall be treated as a reprogramming
under section 605 of this Act and shall not be available for
obligations or expenditures except in compliance with the procedures
set forth in that section.
CITIZENSHIP AND BENEFITS, IMMIGRATION SUPPORT AND PROGRAM DIRECTION
Provided further, That the Attorney General may transfer any funds
appropriated under this heading and the heading ``Enforcement and
Border Affairs'' between said appropriations not-withstanding any
percentage transfer limitations imposed under this appropriations Act
and may direct such fees as are collected by the Immigrations and
Naturalization Service to the activities funded under this heading and
the heading ``Enforcement and Border Affairs'' for performance of the
functions for which the feed legally may be expired.
FEDERAL PRISON SYSTEM
SALARIES AND EXPENSES
Provided, That the Attorney General may transfer to the Health
Resources and Services Administration such amounts as may be necessary
for direct expenditures by that Administration for medical relief for
inmates of Federal penal and correctional institutions:
BUILDINGS AND FACILITIES
Provided further, That not to exceed 10 percent of the funds
appropriated to ``Buildings and Facilities'' in this or any other Act
may be transferred to ``Salaries and Expenses'', Federal Prison System,
upon notification by the Attorney General to the Committees on
Appropriations of the House of Representatives and the Senate in
compliance with provisions set forth in section 605 of this Act.
STATE AND LOCAL LAW ENFORCEMENT ASSISTANCE
For assistance authorized by the Violent Crime Control and Law
Enforcement Act of 1994 (Public Law 103-322), as amended (``the 1994
Act''); the Omnibus Crime Control and Sale Streets Act of 1968 as
amended (``the 1968 Act''); the Victims of Child Abuse Act of 1990, as
amended (``the 1990 Act''); and the Victims of Trafficking and Violence
Protection Act of 2000 (Public Law 106-386); $2,403,354,000 (including
amounts for administrative costs, which shall be transferred to and
merged, with the ``Justice Assistance'' account), to remain available
until expended as follows: . . .
WEED AND SEED PROGRAM FUND
For necessary expenses, including salaries and related expenses of
the Executive Office for Weed and Seed, to implement ``Weed and Seed''
program activities, $58,925,000, to remain available until expended,
for intergovernmental agreements, including grants, cooperative
agreements, and contracts, with State and local law enforcement
agencies, non-profit organizations and agencies of local government
engaged in the investigation and prosecution of violent crimes and drug
offenses in ``Weed and Seed'' designated communities, and for either
reimbursements or transfers to appropriation accounts of the Department
of Justice and other Federal agencies which shall be specified by the
Attorney General to execute the ``Weed and Seed'' program strategy:
Provided, That funds designated by Congress through language for other
Department of Justice appropriation accounts for ``Weed and Seed''
program activities shall be managed and executed by the Attorney
General through the Executive Office for Weed and Seed: Provided
further; That the Attorney General may direct the use of other
Department of Justice funds and personnel in support of ``Weed and
Seed'' program activities only after the Attorney General notifies the
Committees on Appropriations of the House of Representatives and the
Senate in accordance with section 605 of this Act.
COMMUNITY ORIENTED POLICING SERVICES
Provided further, That all prior year balances derived from the
Violent Crime Trust Fund for Community Oriented Policing Services may
be transferred into this appropriation: Provided further, That the
officer redeployment demonstration described in section 1701(b)(1)(C)
shall not apply to equipment, technology, support system or overtime
grants made pursuant to part Q of title I thereof (42 U.S.C. 3796dd et
seq.)
JUVENILE JUSTICE PROGRAMS
For grants, contracts, cooperative agreements, and other assistance
authorized by the Juvenile Justice and Delinquency Prevention Act of
1974, as amended (``the Act''), including salaries and expenses in
connection therewith to be transferred to and merged with the
appropriations, for Justice Assistance, $286,403,000, to remain
available until expended,. . .
TITLE III--THE JUDICIARY
General Provisions.
``Sec. 302. Not to exceed 5 percent of any appropriation made
available for the current fiscal year for the Judiciary in Act may be
transferred between such appropriations, but no such appropriation,
except ``Courts of Appeals, District Courts, and Other Judicial
Services, Defender Services'' and ``Courts of Appeals, District Courts,
and Other Judicial Services, Fees of Jurors and Commissioners'', shall
be increased by more than 10 percent by any such transfers: Provided,
That any transfer pursuant to this section shall be treated as a
reprogramming of funds under section 605 of this Act and shall not be
available for obligation or expenditure except in compliance with the
procedures set forth in that section.
TITLE IV--DEPARTMENT OF STATE AND RELATED AGENCY DEPARTMENT OF
STATE
ADMINISTRATION OF FOREIGN AFFAIRS DIPLOMATIC AND CONSULAR PROGRAMS
Provided, That, of the amount made available under this heading,
not to exceed $4,000,000 may be transferred to, and merged with, funds
in the ``Emergencies in the Diplomatic and Consular Service''
appropriations account, to be available only for emergency evacuations
and terrorism rewards
EMERGENCIES IN THE DIPLOMATIC AND CONSULAR SERVICE
For expenses necessary to enable the Secretary of State to meet
unforeseen emergencies arising in the Diplomatic and Consular Service,
$6,500,000, to remain available until expended as authorized, of which
not to exceed $1,000,000 may be transferred to and merged with the
Repatriation Loans Program Account, subject to the same terms and
conditions
REPATRIATION LOANS PROGRAM ACCOUNT
For the cost of direct loans, $612,000, as authorized: Provided,
That such costs, including the cost of modifying such loans, shall be
as defined in section 502 of the Congressional Budget Act of 1974 In
addition, for administrative expenses necessary to carry out the direct
loan program,$607,000, which may be transferred to and merged with the
Diplomatic and Consular Programs account under Administration of
Foreign Affairs.
GENERAL PROVISIONS-DEPARTMENT OF STATE AND RELATED AGENCY
``Sec. 402. Not to exceed 5 percent of any appropriation made
available for the current fiscal year for the Department of State in
this Act may be transferred between such appropriations, but no such
appropriation, except as otherwise specifically provided, shall be
increased by more than 10 percent by any such transfers Provided, That
not to exceed 5 percent of any appropriation made available for the
current fiscal year for the Broadcasting Board of Governors in this Act
may be transferred between such appropriations, but no such
appropriation, except as otherwise specifically provided, shall be
increased by more than 10 percent by any such transfers Provided
further, That any transfer pursuant to this section shall be treated as
a reprogramming of funds under section 605 of this Act and shall not be
available for obligation or expenditure except in compliance with the
procedures set forth in that section.
TRANSFER LANGUAGE INCLUDED IN THE DEFENSE APPROPRIATIONS ACT
Since at least 1986, the bills appropriating funds for the
Department of Defense have carried a provision that allows for general
transfer authority. The provision establishes a total amount that may
be transferred and sets certain guidelines for these transfers. The
general transfer authority applies to the transfer of funds for the
fiscal year in which the provision was enacted. For example, the
general transfer authority provision included in the Department of
Defense Appropriations, 2002, is used for transfers only between fiscal
year 2002 appropriations.
In addition to the provision on general transfer authority, the
Defense Appropriations bills contain specific transfer authorities for
specific purposes. The most common specific transfer authorities are:
environmental restoration, contingency operations, foreign currency
fluctuations, and drug interdiction. When specific transfer authority
is provided, it is provided in addition to other transfer authorities,
including the general transfer authority, contained in the Act.
The underlying statute for this transfer authority is contained in
title 10 U.S.C. Section 2214. In addition, Section 2215 of title 10
prohibits the transfer of Department of Defense funds to any other
department or agency without a certification from the Secretary of
Defense that transferring such funds is in the national security
interest of the United States.
Section 8005 of the fiscal year 2003 Department of Defense
Appropriations Act includes the following transfer of funds language:
``Sec. 8005. Upon determination by the Secretary of Defense that
such action is necessary in the national interest, he may, with the
approval of the Office of Management and Budget, transfer not to exceed
$2,500,000,000 of working capital funds of the Department of Defense or
funds made available in this Act to the Department of Defense for
military functions (except military construction) between such
appropriations or funds or any subdivision thereof, to be merged with
and to be available for the same purposes, and for the same time
period, as the appropriation or fund to which transferred: Provided,
That such authority to transfer may not be used unless for higher
priority items, based on unforeseen military requirements, than those
for which originally appropriated and in no case where the item for
which funds are requested has been denied by the Congress: Provided
further, That the Secretary shall notify the Congress promptly of all
transfers made pursuant to this authority or any authority in this Act:
Provided further, That no part of the funds in this Act shall be
available to prepare or present a report to the Committees on
Appropriations for reprogramming of funds, unless for higher priority
items, based on unforeseen military requirements, than those for which
originally appropriated and in no case where the item for which
reprogramming is requested has been denied by the Congress: Provided
further, That a request for multiple reprogrammings of funds using
authority in this section must be made prior to May 1, 2003.''
TRANSFER LANGUAGE INCLUDED IN THE FOREIGN OPERATIONS APPROPRIATIONS
ACT
The annual appropriations Act for Foreign Operations includes a
provision, section 509, which reads:
``None of the funds made available by this Act may be obligated
under an appropriation account to which they were not appropriated,
except for transfers specifically provided for in this Act, unless the
President, prior to the exercise of any authority contained in the
Foreign Assistance Act of 1961 to transfer funds, consults with and
provides a written policy justification to the Committees on
Appropriations of the House of Representatives and the Senate.''
TRANSFER AUTHORITIES IN THE INTERIOR BILL
Appropriations Accounts
Department of the Interior:
Bureau of Land Management, Central Hazardous Materials Fund -
allows transfers to other accounts to pay for clean-ups.
Bureau of Land Management, Wildland Fire Management - allows
transfers to repay wildfire suppression transfers from other accounts.
National Park Service Historic Preservation Fund - allows transfer
of Save America's Treasures funds to accounts of Federal grant
recipients.
National Park Service, Construction - allows transfers to the Army
Corps of Engineers (related to Everglades water projects).
Bureau of Indian Affairs, Operation of Indian Programs - allows
transfer of forestry funds to tribal trust accounts.
Bureau of Indian Affairs, Construction - allows transfer of Navajo
Indian Irrigation Project funds to the Bureau of Reclamation.
Office of Special Trustee for American Indians, Federal Trust
Programs - allows transfer of trust management improvement funds to the
Bureau of Indian Affairs and Departmental Management.
Office of Special Trustee for American Indians, Indian Land
Consolidation--allows transfer of trust management improvement funds to
the Bureau of Indian Affairs and Departmental Management.
Departmental Offices, Natural Resource Damage Assessment and
Restoration--allows transfers to other accounts to carry out activities
under the Comprehensive Environmental Response, Compensation, and
Liability Act (CERCLA).
Department of Agriculture:
Forest Service, Wildland Fire Management--allows transfers to repay
wildfire suppression transfers from other accounts and for State and
volunteer fire assistance and for forest health management, etc., and
for reimbursement for Endangered Species Act consultation.
Administrative Provisions, Forest Service--allows transfers from
other accounts for to wildland fire management and transfers to other
agencies for Forest Service activities (work performed by others).
General Provisions
Section 101--allows transfers to repair facilities damaged by
fires, floods, storms, etc.
Section 102--allows transfers from no-year accounts to respond to
wildland fires and various other specifically enumerated emergencies.
Section 113--allows transfer of Bureau of Indian Affairs and Office
of Special Trustee appropriations for trust management activities
pursuant to the High Level Implementation Plan.
Section 116--allows transfers within Tribal Priority Allocation
funds (Bureau of Indian Affairs) to address funding inequities.
TRANSFER AUTHORITIES LABOR, HHS AND EDUCATION SUBCOMMITTEE
DEPARTMENT OF LABOR
Appropriation Act Transfer Authorities - Discretionary
Section 102 of the fiscal year 02 Labor, HHS, Education
Appropriations Act allows the Secretary to transfer up to 1 percent of
funds between appropriations so long as no account is increased by more
than 3 percent as the result of the transfer.
Section 501 of the fiscal year 02 Labor, HHS, Education
Appropriations Act allows the Secretary to transfer unexpended balances
of prior appropriations to accounts corresponding to current
appropriations in the LHE bill for the same purposes and periods of
time for which they were originally appropriated.
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Appropriation Act Transfer Authorities--Discretionary Funds
Secretary's One (1) Percent Transfer Authority HHS agencies
General Provisions Title II Section 207: Not to exceed 1 percent of
any discretionary funds (pursuant to the Balanced Budget and Emergency
Deficit Control Act of 1985, as amended) which are appropriated for the
current fiscal year for the Department of Health and Human Services in
this or any other Act may be transferred between appropriations, but no
such appropriation shall be increased by more than 3 percent by any
such transfer: Provided, That an appropriation may be increased by up
to an additional 2 percent subject to approval of the House and Senate
Committees on Appropriations: Provided further, That the Appropriations
Committees of both Houses of Congress are notified at least 15 days in
advance of any transfer.
DEPARTMENT OF EDUCATION
Appropriation Act Transfer Authorities
Section 304 of the fiscal year 02 Labor, HHS, Education
Appropriations Act allows the Secretary to transfer up to 1 percent of
funds between appropriations so long as no account is increased by more
than 3 percent as the result of the transfer.
Section 501 of the fiscal year 02 Labor, HHS, Education
Appropriations Act allows the Secretary to transfer unexpended balances
of prior appropriations to accounts corresponding to current
appropriations in the LHE bill for the same purposes and periods of
time for which they were originally appropriated.
Authorizing Statute Transfer Authorities
Section 411 of the Department of Education Organization Act allows
the Secretary or any officer or employee of the Department to exercise
any legislative authority (including appropriations Acts) to carry out
any function transferred from a predecessor agency through the
Organization Act.
Section 424 of the Department of Education Organization Act allows
the Secretary, when authorized in an appropriation Act, to transfer
funds from one appropriation to another within the Department so long
as no account is either increased or decreased by more than 5 percent
or beyond its authorization level as a result of the transfer.
Section 501 of the Department of Education Organization Act
provides that all contracts, unexpended balances, allocations and other
funds connected to programs transferred by the Organization Act shall
be transferred to the Secretary. It further requires that unexpended
funds transferred must be used only for the purposes for which they
were originally authorized and appropriated.
United States Department of Agriculture Statutory Transfer Authority in
Appropriations Acts
----------------------------------------------------------------------------------------------------------------
STATUTORY CITATION/DESCRIPTION BRIEF TEXT
----------------------------------------------------------------------------------------------------------------
General Miscellaneous Provisions ............................................................
----------------------------------------------------------------------------------------------------------------
Ag. Appropriations Act, 2002 (P.L. 107-76, Title Permits the Secretary to transfer discretionary funds made
VII, Sec. 704). Transfer of discretionary available by this Act, as well as other available
unobligated balances of the Department of unobligated discretionary balances of the Department, to
Agriculture to the WCF. the WCF for the acquisition of plant and capital equipment,
with prior approval from the agency administrator.
----------------------------------------------------------------------------------------------------------------
Treasury and General Government Appropriations Authorizes the head of each Executive department and agency
Act, 2002 (P.L. 107-67, Title VI, Sec. 629). to transfer to the Policy and Operations account, GSA, with
Authorizes the transfer of funds made available 0MB approval, funds made available for fiscal year 2002,
for fiscal year 2002 to the GSA, including including rebates from charge cards and other contracts for
rebates from charge cards and other contracts. use to support Governmentwide financial, information
technology, procurement, and other management innovations,
initiatives and activities, as approved by 0MB. Transfers
only to be made 15 days following notification of the House
and Senate Committees on Appropriations by the Director of
0MB. Total funds transferred shall not exceed $17,000,000.
----------------------------------------------------------------------------------------------------------------
Farm Service Agency--Farm Loans and Other Programs ............................................................
----------------------------------------------------------------------------------------------------------------
Ag. Appropriations Act, 2002 (P.L. 107-76, Title ``Provided further, That other funds made available to the
I, Farm Service Agency, Salaries and Expenses). Agency for authorized activities may be advanced to and
Merging of other funds into this account. merged with this account:''
----------------------------------------------------------------------------------------------------------------
Ag. Appropriations Act, 2001 (P.L. 106-387, Title ``Provided further, That this amount shall be transferred to
I, Farm Service Agency, Dairy Indemnity Program). the Commodity Credit Corporation: Provided further, That
Transfer to the Commodity Credit Corporation. the Secretary is authorized to utilize the services,
facilities, and authorities of the Commodity Credit
Corporation for the purpose of making dairy indemnity
disbursements.''
----------------------------------------------------------------------------------------------------------------
Ag. Appropriations Act, 2002 (P.L. 107-76, Title Provides that, ``for administrative expenses necessary to
I, Agricultural Credit Insurance Fund). Transfer carry out the direct and guaranteed loan programs,
of funds for administrative costs. $280,595,000, of which $272,595,000 shall be transferred to
and merged with the appropriation for ``Farm Service
Agency, Salaries and Expenses''.'
----------------------------------------------------------------------------------------------------------------
Ag. Appropriations Act, 2002 (P.L. 107-76, Title Provides that, ``Funds appropriated by this Act to the
I, Agricultural Credit Insurance Fund). Transfer Agricultural Credit Insurance Program Account for farm
of funds among operating and direct loans. ownership and operating direct loans and guaranteed loans
may be transferred among these programs: Provided, That the
Committees on Appropriations of both Houses of Congress are
notified at least 15 days in advance of any transfer.''
----------------------------------------------------------------------------------------------------------------
P.L. 480 ............................................................
----------------------------------------------------------------------------------------------------------------
Ag. Appropriations Act, 2002 (P.L. 107-76, Title ``In addition, for administrative expenses to carry out the
V, P1. 480 Title I Program Account). Transfer of credit program of title I, Public Law 83-480, and the Food
funds for administrative costs. for Progress Act of 1985, to the extent funds appropriated
for Public Law 83-480 are utilized, $2,005,000, of which
$1,033,000 may be transferred to and merged with the
appropriation for ``Foreign Agricultural Service, Salaries
and Expense'', and of which $972,000 may be transferred to
and merged with the appropriation for ``Farm Service
Agency, Salaries and Expenses.'' '
----------------------------------------------------------------------------------------------------------------
Ag. Appropriations Act, 2002 (P.L. 107-76, Title ``.. Provided, That funds made available for the cost of
V, P.L 480 Title I Ocean Freight Differential agreements under title I of the Agricultural Trade
Grants). Interchange of funds within Title I. Development and Assistance Act of 1954 and for title I
ocean freight differential may be used interchangeably
between the two accounts with prior notice to the
Committees of Appropriations of both Houses of Congress.''
----------------------------------------------------------------------------------------------------------------
Commodity Credit Corporation ............................................................
----------------------------------------------------------------------------------------------------------------
Ag. Appropriations Act, 2002 (P.L. 107-76, Title Provides that, `.. $3,224,000 may be transferred to and
V, Commodity Credit Corporation Export Loans merged with the appropriation for ``Foreign Agricultural
Program Account). Transfer of funds for Service, Salaries and Expenses'', and of which $790,000 may
administrative costs. be transferred to and merged with the appropriation for
``Farm Service Agency, Salaries and Expenses''.'
----------------------------------------------------------------------------------------------------------------
Rural Development ............................................................
----------------------------------------------------------------------------------------------------------------
Ag. Appropriations Act, 2002 (P.L. 107-76, Title Provides that oif funds made available for rural utilities
III, Rural Community Advancement Program [RCAP], programs under RCAP, ``not to exceed $24,000,000 shall be
115 STAT. 719). Provides for three transfers. for water and waster disposal systems for rural and native
villages in Alaska pursuant to section 306D of such Act,
with up to 1 percent available to administer the program
and up to 1 percent available to improve interagency
coordination may be transferred to and merged with the
appropriation for ``Rural Development, Salaries and
Expenses;'' '
Provides that any prior year balances for high cost energy
grants authorized by section 19 of the Rural
Electrification Act of 1936 shall be transferred to and
merged with the ``Rural Utilities Service, High Energy
Costs Grants'' account.
Provides that of the funds appropriated by this Act to RCAP
for guaranteed business and industry loans, funds may be
transferred to direct business and industry loans as deemed
necessary by the Secretary and with prior approval of the
Committees on Appropriations of both Houses of Congress.
----------------------------------------------------------------------------------------------------------------
Ag. Appropriations Act, 2002 (P.L. 107-76, Title Provides that any balances available from prior years for
III, Rural Development Salaries and Expenses, 115 the Rural Utilities Service, Rural Housing Service, and the
STAT. 721). Provides for prior year balances to Rural Business-Cooperative Service salaries and expenses
be transferred. accounts shall be transferred to and merged with this
appropriation.
----------------------------------------------------------------------------------------------------------------
Ag. Appropriations Act, 2002 (P.L. 107-76, Title Provides for administrative expenses necessary to carry out
III, Rural Housing Service, Rural Housing the direct and guaranteed housing loan programs to be
Insurance Fund Program Account, 115 STAT. 721). transferred to and merged with the appropriation for
Provides for transfer of administrative expenses. ``Rural Development, Salaries and Expenses.''
----------------------------------------------------------------------------------------------------------------
Ag. Appropriations Act, 2002 (P.L. 107-76, Title A combined amount is appropriated for these loans and grants
III, Rural Housing Service, Farm Labor Program and the Appropriations Act states the funds are ``for
Account, 115 STAT. 723). Provides funds for loans direct farm labor housing loans and domestic farm labor
and grants. housing grants and contracts.'' Use of funds is explained
at 42 U.S.C. 1806 and it states that loans can be forgiven
under certain circumstances; thus, loan funds would become
grant funds.
----------------------------------------------------------------------------------------------------------------
Ag. Appropriations Act, 2002 (P.L. 107-76, Title Provides for administrative expenses necessary to carry out
III, Rural Business-Cooperative Service, Rural the direct Rural Business--Cooperative Service loan
Development Loan Fund Program Account, 115 STAT. programs to be transferred to and merged with the
723). Provides for transfer of administrative appropriation for ``Rural Development, Salaries and
expenses. Expenses.''
----------------------------------------------------------------------------------------------------------------
Ag. Appropriations Act, 2002 (P.L. 107-76, Title Provides for administrative expenses necessary to carry out
III, Rural Utilities Service, Rural the direct and guaranteed electric and telecommunications
Electrification and Telecommunications Loan loan programs to be transferred to and merged with the
Program Account, 115 STAT. 724). Provides for appropriation for ``Rural Development, Salaries and
transfer of administrative expenses. Expenses.''
----------------------------------------------------------------------------------------------------------------
Ag. Appropriations Act, 2002 (P.L. 107-76, Title Provides for administrative expenses, including audits,
III, Rural Utilities Service, Rural Telephone necessary to carry out the loan programs to be transferred
Bank Program Account, 115 STAT. 725). Provides to and merged with the appropriation for ``Rural
for transfer of administrative expenses. Development, Salaries and Expenses.''
----------------------------------------------------------------------------------------------------------------
Ag. Appropriations Act, 2002 (P.L. 107-76, Title Provides for administrative expenses necessary to carry out
III, Rural Utilities Service, Local Television the guaranteed loan programs to be transferred to and
Loan Guarantee Program Account, 115 STAT. 725). merged with the appropriation for ``Rural Development,
Provides for transfer of administrative expenses. Salaries and Expenses.''
----------------------------------------------------------------------------------------------------------------
Animal and Plant Health Inspection Service ............................................................
----------------------------------------------------------------------------------------------------------------
Ag. Appropriations Act, 2002 (P.L. 107--76, Title Provides that, in emergencies which threaten any segment of
VII, Sec. 704). Transfer of funds from agencies the agricultural production industry of this country, the
or corporations of the Department for use in Secretary may transfer from other appropriations or funds
plant and animal disease emergencies available to the agencies or corporations of the Department
such sums as may be deemed necessary, to be available only
in such emergencies for the arrest and eradication of
contagious or infectious diseases or pests of animals,
poultry, or plants, and for expenses in accordance with the
Act of February 28, 1947, and section 102 of the Act of
September 21, 1944, and any unexpended balances of funds
transferred for such emergency purposes in the preceding
fiscal year shall be merged with such transferred amounts.
----------------------------------------------------------------------------------------------------------------
Agriculture. Appropriations Act, 2002 (P.L. 107- Of the total amount available under this heading in fiscal
76, Title I). Makes Agricultural Quarantine year 2002, $84,813,000 shall be derived from user fees
Inspection user fees available by appropriation. deposited in the Agricultural Quarantine Inspection User
Fee Account.
----------------------------------------------------------------------------------------------------------------
Departmental Administration ............................................................
----------------------------------------------------------------------------------------------------------------
Ag. Appropriations Act, 2002 (P.L. 107-76, Title Allows the funds appropriated to the Department for
I) Transfer of unexpended balances for Hazardous hazardous materials management to be transferred to
Materials Management. agencies of the Department as required.
----------------------------------------------------------------------------------------------------------------
Ag. Appropriations Act, 2002 (P.L. 107-76, Title Permits transfers to or from the rental payments account
I) Transfer of unexpended balances for based on changing space requirements.
Agriculture Buildings and Facilities and Rental
Payments.
----------------------------------------------------------------------------------------------------------------
Office of the Secretary ............................................................
----------------------------------------------------------------------------------------------------------------
Ag. Appropriations Act, 2002 (P.L. 107-76, Title Allows a portion of the funds appropriated to the Office of
I) Transfer of unexpended balances for the Office the Assistant Secretary to be transferred to agencies.
of the Assistant Secretary for Congressional
Relations.
----------------------------------------------------------------------------------------------------------------
Food and Nutrition Service ............................................................
----------------------------------------------------------------------------------------------------------------
Ag. Appropriations Act, 2002 (P.L. 107-76, Title ``For necessary expenses to carry out the National School
IV, Child Nutrition Program) Authorizes the Lunch Act (42 U.S.C. 1751 et seq.), except section 21, and
transfer of Section 32 Funds to Child Nutrition the Child Nutrition Act of 1966 (42 U.S.C. 1771 et seq.),
for Use in School Lunch Programs. except sections 17 and 21;'' $10.1 billion ``, to remain
available through September 30, 2003, of which'' $4.9
billion ``is hereby appropriated and'' $5.2 billion ``shall
be derived by transfer from funds available under section
32 of the Act of August 24, 1935 (7 U.S.C. 612c):''
----------------------------------------------------------------------------------------------------------------
Ms. Pelosi. I thank the gentleman.
Mr. Obey. Basically what we are recommending is four
things: to strike from the bill the provision that overrides
existing law to allow funds transferred to the new Department
to be spent for any purpose; to strike the provision that
allows the President to deduct up to 5 percent of
appropriations made for agencies scheduled to be moved to that
Department; to strike the provision that allows the Secretary
of Homeland Security to sell off real estate and other assets
without congressional supervision; and to strike the provision
that grants the Secretary permanent authority to transfer funds
among accounts within his Department. And instead, as the
chairman said, we substitute existing procedures, those which
are very similar to those that were provided when the
Department of Energy and the Department of Education were
created.
Ms. Pelosi. I thank the distinguished chairman, and I thank
you.
Chairman Armey. The gentleman from Oklahoma, Mr. Watts.
Mr. Watts. Mr. Chairman, I am going to be brief. And I want
to start by echoing what the gentlelady from California said. I
think you all have put a lot of thought into this and, Mr.
Obey, based on your charts--and I hope we all would consider
the massive, massive undertaking that we are taking on in this
effort, and I think when you talk about the appropriations
process, you two are probably as knowledgeable about the
appropriations process as any people in this House.
And then the transfer authority, I had some questions about
the transfer authority that you have actually answered based on
what Ms. Pelosi has asked.
So I appreciate your being here today, but I will ask one
question. Chairman Young, you mentioned some other areas that
the transfer authority applied to. Can you just kind of name
some of those and give us some background, some reference on
what you have actually submitted for the record, some things
that the transfer authority has applied to in the past to kind
of put the President's request in context?
Mr. Young of Florida. Let me start on the first page and I
think it is a very good question.
The first page has to do with transfer provisions in the
Fiscal Year 2002 Department of Justice Appropriations Act.
Under General Administration, salaries, and expenses, we
provided that the Attorney General is authorized to transfer,
under such terms and conditions as the Attorney General shall
specify, forfeited real or personal property of limited or
marginal value at such value as determined by guidelines
established by the Attorney General.
The idea here is that we give the heads of the agencies the
authority they need, but only after Congress has reviewed the
requests and determined that they really should have that
authority.
Also on the first page, under legal activities, salaries
and expenses, ther is basically the same provision, but again
only after Congress reviewed the request and played its
oversight role.
There are three other items on that first page. On the
second page, we provide a similar transfer authority for the
Federal Prison System buildings and facilities account, also
for State and local law enforcement assistance, the Weed and
Seed program, community-oriented policing services, and
juvenile justice programs. These are all requests that were
made, the committee recommended favorably on what the agency
requested, and they became part of the law.
Mr. Watts. Mr. Chairman, you have adequately answered my
question, but again I appreciate the thought that you all have
put into this, and I hope that Congress will continue to
understand its role in this new Agency, in the oversight role.
And, Mr. Chairman, I yield back the balance of my time.
Chairman Armey. Thank you. The gentleman from Texas, Mr.
Frost.
Mr. Frost. I thank the gentleman. The testimony by these
two witnesses is very, very important. And Mr. Young, I would
like to ask you a question, if I may. Despite the sympathetic
statements that we heard from Mr. DeLay, if this committee
ignores your recommendations and does not incorporate them in
the bill that we report out on Friday, and if the Committee on
Rules were to deny you a vote on your recommendations on the
floor when this bill is considered, what would be your posture
at that point?
Mr. Young of Florida. Well, sir, that is a hypothetical
question and I usually prefer not to respond to hypothetical
questions. However, I can just say to you that I understand the
awesome responsibility that this select committee has. That is
why such very distinguished members such as yourselves are on
this committee and have this responsibility. I am satisfied
that you are going to recommend a workable bill, one that does
what you have been charged with doing, and that will provide
security for our homeland. And I think you would also report a
bill that would be consistent with our constitutional
responsibilities.
The oath of office that we all take, basically is about
supporting and defending the Constitution of the United States.
Now, hypothetically, it is my strong desire and my strong hope
that I am going to be just as excited about your proposal as
you are going to be. That is my general attitude. Now, when you
report that bill, I may come back and ask that you consider
something different.
My role is to be supportive of what this very select
committee is going to recommend, but I think that I do not
fulfill my responsibility, if you are suggesting something that
I think is very inappropriate, and I don't remind you and give
you what little advice I might have for you to consider. I
think that is part of my responsibility, is to review what you
are doing and suggest, if there is a reason to suggest, that
maybe you should change something.
So I will play that role, but think all of you know that I
will play it in a very cooperative way. You and I have met on
so many occasions at the Rules Committee, and I have always
tried to be very direct and honest in answering your questions,
and I would do the same thing on whatever bill you report.
Mr. Frost. I would ask Mr. Obey the same question.
Mr. Obey. Well, we can have reasonable disagreements about
a lot of these pieces. But if in my view this package guts the
principal protection that we have against tyranny and
fundamental mistakes by government, namely the power of the
purse, I would oppose it.
Mr. Frost. And I would say to both gentlemen that it is the
strong preference on our side of the aisle, that there be an
open procedure, an open amendment procedure on the floor, and
we hope that will be permitted by the Majority when our bill is
sent to the Rules Committee.
Mr. Obey. I will simply say that, like Mr. Young, I cannot
believe that the top elected leadership of the greatest
deliberative body in the Western world would in fact abdicate
our historically long constitutional responsibilities on
maintaining the control of the power of the purse.
Mr. Frost. Thank you. One other question. Later today,
probably much later today, we will hear from the Comptroller
General of the United States, David Walker. We have a copy of
his testimony already, and he points out the $3 billion issue
raised by CBO. And let me just read you his recommendation:
``administration has urged that CBO estimates are inflated.
More important than a precise cost estimate of the transition,
however, is a recognition that there will be short-term
transition costs and that these costs need to be made
transparent. To fully recognize the transition costs, in fact,
Congress should consider appropriating for them separately.'' .
Do you agree with his recommendation?
Mr. Obey. Well, it seems to me we ought to learn from what
is happening with corporations these days. The market is in
turmoil because people have lost trust. I think that they ought
to be able to trust whatever Congress recommends to be honest
in its accounting. And I am concerned that the reason we have
these unprecedented and phenomenally dangerous grants of
spending authority to the agencies is as a substitute for
facing up to and as a method of hiding the true cost of these
reorganization efforts.
I don't think the American people will begrudge the
President or any of us whatever funds are necessary to
accomplish an intelligent reorganization of these functions,
but I think they would be unforgiving if we sandbagged our
constitutional processes or were not up front and honest with
them about the actual costs about to be incurred.
Mr. Frost. Thank you, gentlemen.
Chairman Armey. The gentlelady from Ohio.
Ms. Pryce. Thank you, Mr. Chairman.
Gentlemen, welcome. Thank you for the hard work you have
put into this. It is extremely important. Your committee is
very busy this time of year, so we appreciate the efforts you
put into this and your members as well.
Mr. Obey. We welcome the relief from the floor activities.
Ms. Pryce. Let me go in this direction. Your committee, by
virtue of the process that we use here in the House of
Representatives, works with every authorizing committee that we
have. Do you believe that there is any reason that the normal
authorization and appropriations process that we have used
through the eons will not work if we put forth this bill? Do
you think that it will, that it won't, that there are ways that
we can streamline the process that would make it more efficient
and come forward with a better product?
Mr. Young of Florida. Government was intended to be
inefficient. That is why there is a separation of powers; that
is why there is a bicameral legislature. While we try for
efficiency in expediting our business, it does not always work
because of the way that our government was created.
I would suggest to the gentlelady, that as a member of the
Rules Committee she knows that usually the Appropriations or
the respective subcommittees and the authorizing committees
have a very good working relationship. We tend to be
cooperative with each other.
Now, you are dealing with something here that none of us
have dealt with before. I was a young kid when Pearl Harbor was
attacked, but I had no idea what ramifications the government
went through in order to respond to Pearl Harbor and to fight
and win one of our contruy's major wars. But I believe that the
system that we have created does work.
You have a different responsibility than most of our
committees have been faced with. You are plowing new ground. I
suggest that you have probably heard from a number of
authorizing committee chairmen and ranking members, and if you
haven't, I suspect that you will. You will probably find a lot
of different opinions and a lot of different ideas, but that is
why the brain trust that sits at your table is there, in order
to filter through these ideas. And hopefully when you develop
your product, you are going to have the support of the
authorizing committees as well as the Appropriations Committee.
Ms. Pryce. But the reason for the transfer authority and I
think that the reason the administration wants to have it so
badly is because of the inefficiencies that are built into our
system that in most instances do protect us. But this is
emergency-related. It is a fast response and a jolt is very
important in this instance, so I am just wondering if--Mr.
Obey, I can see you are eager to comment.
Mr. Obey. Yes. I would like to comment. We have had a
serious, serious problem develop in this country because of
September 11. It is a very serious problem. But in my view, it
is no more serious than the War of 1812 or World War I or World
War II when we were in mortal combat to save the valleys of
Western civilization, especially in World War II, and we did
not use those dangers as an excuse to give away the main power
that the Congress has to assure a sensible use of taxpayers'
money and to protect freedom at the same time.
When we come to this place the first time, all we have is a
political license as politicians to become skilled,
knowledgeable legislators over time. It is our service
primarily on committees that turns us from politicians into
politicians and legislators. And if this House does not take
advantage of the knowledge and experience that the authorizers
and the appropriators develop in their fields, then this House
is not using its principal asset, and then we are making
judgments that turn out to be almost solely political rather
than substantive.
So there is a reason that these processes have been
developed over time. It is because virtually everything has
been tried and these have been found to work. They are not
perfect, but the Republic has gotten along pretty well for over
200 years, and I don't think we have to do anything as drastic
as gut the ability of Congress to fulfill its principal
function of this country.
Mr. Young of Florida. I would like to add that your
responsibility and the threat that our country is dealing with,
is different than the War of 1812, different than World War II
and World War I, because for the first time we are not just
dealing with an army on a battlefield or soldiers in trenches
or in tunnels or in jungles, and our military organized as a
military establishment. That is not what we are dealing with
today. We are dealing with people who are hiding, cowards who
come from behind the bush and do not attack a military
institution or military production facility, but attack women
and children. And we have watched this happen in Israel for
many years, and that is the threat that America is facing
today.
So you have a challenge that is different than a committee
like our armed services committees, that was preparing to fight
a war. Instead you are preparing to fight an enemy, that you
don't know where he is, but you have to provide the strength.
This President has shown a strong leadership and we need to be
as supportive as we can, but we can't do away with the
Constitution in the process.
And one other point I'd like to make that doesn't have to
do with appropriations--you can't create a system that denies
American people the freedoms that we are fighting to protect.
If we legislate something that takes away these freedoms, we
are almost as bad as the guy that takes them away by violent
acts of terrorism.
You have a tremendous responsibility, and I want to be
there in a supporting role, but I still believe that the
constitutional system works very well when dealing with the
purse.
Ms. Pryce. Thank you very much.
Chairman Armey. I thank the gentleman for your comments,
and the Chair recognizes the gentleman from New Jersey.
Mr. Menendez. Thank you, Mr. Chairman. I want to thank Mr.
Young and Mr. Obey for their insights. First, the committee
voted out your recommendations on a bipartisan basis.
Mr. Obey. Without objection.
Mr. Menendez. Without objection. And from my perspective, I
agree with that bipartisan decision.
We have heard a lot from administration witnesses here
speaking about flexibility, and that flexibility has been
described in a variety of ways: budgetarily, personnel, and
other ways.
First of all, would you describe the provisions of the
President's proposal on transfer authority and budgetary powers
as extraordinary?
Mr. Obey. Yes, and unprecedented.
Mr. Menendez. Extraordinary and unprecedented. In that
regard do you see, even though I agree with your position that
you have stated, do you see anything that needs to be given in
this regard to the executive branch to give them the
flexibility they claim that they have, or do you believe that
our process in and of itself will be able to guarantee the
responses that may be unforeseen?
Mr. Obey. The process is not going to guarantee
flexibility. Maturity will guarantee flexibility. I mean, I
think the record of this committee--let us take you back to day
one. When we were hit, the executive branch's first request was
to give them an unlimited amount of money for an unlimited
amount of time. ``No Year money'' is what it is called. Both of
us said, no way, we are not going to write a blank check. But
by the end of the week, working together, we produced a $40
billion package which gave the President greater flexibility.
We are not arguing against flexibility, God knows we need
it. What we are saying is don't use the argument about
flexibility in order to throw out our protections and abandon
our obligations. And we will give plenty of flexibility in the
individual appropriation bills, flexibility that is appropriate
to the specific programs. But you have different requirements
for different kinds of programs. We recognize that it is a
decentralized operation, but it works.
Mr. Menendez. And lastly, do you believe that there should
be some mechanism in this legislation that creates this new
Department to ensure that nonsecurity missions that are being
transferred into this Department should be preserved and
enhanced; and, if so, do you have any suggestions as to how
that could be accomplished?
Mr. Obey. I personally don't think nonsecurity issues
should be transferred into this Department, and I still think
whatever you do on reorganization, the most important thing you
can do is to upgrade the prestige and the strength and the
clout of the White House Adviser on Homeland Security because
as that chart demonstrates, you can have a Cabinet Secretary
handling all the boxes in red. You have got to have somebody at
the White House who has got enough clout and enough authority,
official authority, so that the Congress and the agencies alike
will respect his judgment in dealing with that whole universe.
Mr. Menendez. But if I may just pursue that question, I
understand your view, Mr. Obey; but, for example, if the Coast
Guard ultimately gets transferred into this Department, it will
by its nature have nonsecurity missions such as search and
rescue, maritime environmental enforcement, navigational
issues. Do you not think there should be mechanisms to ensure
that those other missions that, whether voluntary or not, get
transferred in here are preserved?
Mr. Obey. Well, I would want them to. I think that is going
to be very, very hard to do. I would hope that you could. I
think it would be preferable to leave the Coast Guard in a
different position than this legislation suggests, but I am
open on that. But I think it is going to be very hard to do
what you are talking about. It ought to be done. I doubt it
will be. That is my concern.
Mr. Young of Florida. I would like to offer a word of
caution. You mentioned the responsibilities of the United
States Coast Guard, and they have a tremendous responsibility.
A lot of Members really aren't aware of what the Coast Guard
does and what they are called on to do. Those of us who live in
areas where the Coast Guard functions every day, understand
this.
I think you want to be careful. As you transfer the
authority or responsibilities of an agency like the Coast
Guard, you shouldn't disband it. Don't turn the Coast Guard
into something that it was never intended to be. The Coast
Guard is a military organization. When America goes to war, the
Coast Guard goes to war. When we were in Bosnia we had Coast
Guard port security units in the ports along the coastlines of
the Baltic States. They are responsible for drug interdiction,
search and rescue, and environmental issues in our ports. And
they have been called on now to do a tremendous program of
interdicting shipping coming into our ports, something we have
not been able to do in the past because the Coast Guard has not
had enough assets. But we don't want to divide up the Coast
Guard so it can't do all of these things, and I wouldn't
suggest creating a new agency either to do that, because nobody
does it as well as the United States Coast Guard.
One more thought. I have always felt that the Department of
Transportation is not the right home for the Coast Guard. I
believe they should be in the Department of Defense because
they are a military organization.
Chairman Armey. Mr. Chairman, I am afraid I am going to
have to cut you off. Complete your thought.
Mr. Young of Florida. Just don't divide up the Coast Guard.
Chairman Armey. I thought it was a thought well taken, and
I do appreciate it but I do feel we must get on. We have other
panels waiting.
The gentleman from Ohio.
Mr. Portman. I thank the Chair, and I appreciate the
testimony this morning from two members who put a lot of
thought into this and had a lot of experience. I am tempted to
get off on some of these issues about organization and
structure, Mr. Obey, that you mentioned and, Chairman Yound,
you mentioned with the Coast Guard; but I think it is more
important to try to stay on the issues of your committee's
appropriations responsibilities. If we have time I would love
to get into that.
All these boxes we see on the left and the right must be
made more efficient, and therefore more effective, if this is
to work. And the way the new Agency would be structured,
according to what has been proposed to us, would be that there
be one Border and Transportation Security Division of the
Agency, which would include, as you know, Customs, Coast Guard,
INS and so on. And that notion is consolidation simplification
and keeping a good organization like the Coast Guard intact.
A key worry as you know of the new Department is that they
are going to be different from some other departments. And
Chairman Young mentioned the agility of our enemy and the
immoral nature of the threat. They think that the
unpredictability of their mission will be as great or greater
than the other department as a percentage of their budget. And
I think we acknowledge there is a tremendous amount of
unpredictability because of the nature of the threat.
They are also worried that they are going to be heavy with
regular full-time employees, so at the end of the year they are
not going to have a lot to move around. And that is, primarily
on the border side which is where most of the employees will
be, they are not going to have an unobligated balance at the
end of the year.
A third concern is that without some transfer authority
that is fairly substantial, their unanticipated needs may be
met by moving within the same account, and may have the effect
that Mr. Menendez just expressed concern about; in other words,
taking away from nonhomeland security functions. All of those
are reasons to give them more flexibility.
I guess my question to you would be: Is there a middle
ground between what the administration asked for, which was 5
percent transfer authority, and where we have come out? I look
at the Department of Energy organization bill, Department of
Agriculture, what we already give DOD; and the chairman has
been very good about talking about what actually happens year
to year, that you do provide more flexibility.
Mr. Portman. Given the extraordinary nature of the threat,
is there any flexibility on your part in terms of meeting them
part way up front and then being--you would be responsive as
needs come in?
Mr. Young. Well, first let me apologize to the gentleman
for getting off on the Coast Guard. A question was asked that
related to the Coast Guard, and I had the opportunity to say
what I had to say.
The proposal that we have recommended allows for the normal
reprogramming procedures. Now, the way a reprogramming works
is, the agency with the Administration's approval, sends a
request to the Congress. We take a look at it, and we may sign
off on it, an it is done. Or if we have questions, we will ask
the agency, and as I said earlier, oftentimes they will say,
that they haven't thought about that or may want to send a
revised reprogramming that changes the source of funds, for
example So we have some oversight.
I have been here with the President since Richard Nixon was
President, and I can say that they all want to get Congress off
their back. They all want to be able to do whatever they want
to do without Congress providing any oversight; and that is
okay in a different form of government, but ours is a
constitutional form of government.
I think with the reprogramming provisions and the transfer
authority that we have already provided on a regular basis; and
the fact that we responded to September 11th with a $40 billion
supplemental appropriation which provided no strings attached
for the first $20 billion--and I am not sure that was even a
good idea--but we did it because we wanted the President to be
able to move quickly anywhere that he had to move, shows.
I believe, that flexibility is already there in our system,
but I think we have got to maintain the constitutional
perogative of the Congress being responsible for the
appropriation of funds and learning and knowing about how those
funds are used. That is what I read to you from the
Constitution earlier.
Congress appropriates, and Congress will make sure that
there is accountability for the money that has been spent. That
is the way the system is supposed to work. It is what the
Constitution intended, and that is what we are recommending
here, that we stay within the Constitution.
Mr. Obey. If I could just make the point, in all of the 33
years I have been here, no Congress has ever changed any
President's budget by more than 2.5 percent. That 2.5 percent
is the difference between a monarchy and a democracy, and as
the chairman indicated, we have immense flexibility now through
the processes; and those processes are individualized so that
different agencies are treated in different ways depending upon
the nature of control that must remain in legislative hands in
order to prevent abuse and the needs of the agencies involved.
That has been worked out over time.
But if you want an example of what will happen if we don't
hang on to our constitutional responsibilities, look at that
Transportation Security Administration. Five months after they
were created, they still had not sent a budget down to the
Congress. When they did send one down, it was so outlandishly
ridiculous, that it became the laughing stock of the country.
We can't afford that.
Chairman Armey. I thank the gentleman for his cogent
observation and thank the gentleman from Ohio, recognizing the
gentlelady from Connecticut.
Ms. DeLauro. Thank you very much, Mr. Chairman, and let me
just use a word of my kids. When I listen to your testimony, it
is awesome; and I will just say to you, thank you both for
being skilled and knowledgeable legislators. You do us all
proud here today as Members of this great institution.
Let me--Ranking Member Obey, let me ask you a question. The
issue of cost, that was raised in the letter that you
coauthored with Representative Waxman, and have you seen any
evidence to support the administration's contention that the
cost of the new department, including its administration and
the new entities that it creates, can be funded from savings
achieved by, and I quote, ``eliminating redundancies in the
current structure''?
Mr. Obey. I have seen absolutely no evidence. In fact, to
the contrary, people in this town who are the most skilled at
making those evaluations have said just the opposite, including
CBO.
Look it, you have got 170,000 employees. Nobody can
convince me they are all going to stay in the same buildings
that they are located in now. Nobody can convince me you are
not going to have new office buildings built as a result of
this agency. Nobody can convince me that it isn't going to cost
a lot of money to put in a whole new phone system, a whole new
computer system, to move people; and I think it is pretty
obvious that one of the reasons this added flexibility is being
requested is simply so that the agencies can use program money
to pay for those costs that are not being admitted up front.
That is a classic OMB action; I don't care what
administration you are talking about. And, to me, that means
that you run the risk of having fewer port inspections, less
border protection, less aggressive action in getting illegal
entrance under control and out of the country.
In the military, it is called ``tooth to tail,'' the ratio
of tooth to tail. How much do you have to spend on the tail in
order to provide a set of teeth up front? And there are
obviously, in this kind of arrangement, going to be tremendous
administrative costs. We will damage a lot of the substantive
activities of these agencies if we don't admit up front what
the administrative costs are going to be; and the best way to
keep those costs down is to admit what they are up front and
appropriate what is necessary and make judgments about whether
there are unnecessary activities that should be curtailed or
not.
But no administrator in the history of this country has
ever had the kind of authority that is being requested in this
legislation to disregard existing law, spend money for purposes
not provided by law. Never done it. No reason to do it now.
Ms. DeLauro. Mr. Chairman, do you share that view, Mr.
Obey's view of the--.
Mr. Young. The question is, do I share that view?
Ms. DeLauro. Yes.
Mr. Young. Yes, I do. And if I might.
Mr. Young. --say one thing that neither one of us has
mentioned regarding flexibility--the Economy Act provides great
flexibility. I would recommend that you have your staff review
the Economy Act and advise all of you on just how much
flexibility there is for executive branch agencies under the
Economy Act to get reimbursements for activities that they
believe need to be done in an emergency situation.
We could go into a lot of detail about it today, but I
think your staff could provide you with a review what the
Economy Act provides for executive branch agencies.
Ms. DeLauro. Thank you.
Let me just ask, Mr. Chairman--Mr. Obey, in his comments,
talked about his thoughts on the issue of CDC and NIH and
moving out of the funding. I mean, there has been a tradition
on the Labor-HHS subcommittee. We don't dictate to the NIH
where they should spend the funds that are given to them. I
think that that has been a very good practice, and both sides
of the aisle have agreed that scientists know where these funds
ought to be spent better than politicians.
What is your sense--as I say, I have heard from Mr. Obey on
this issue--about the proposal to allow the DHS Secretary to
set priorities that affect NIH research?
Mr. Obey. Me or--.
Ms. DeLauro. I will ask Chairman Young first, and then I
will ask Mr. Obey to comment.
Mr. Young. I didn't hear part of your question.
Ms. DeLauro. The point of the question is, how do you feel
about the Secretary of the new department being able to set
priorities that would affect the NIH research, given what we
have prided ourselves on in the Appropriations Committee on
Labor-HHS of not taking on the role of the scientists?
Mr. Young. Well, let me say this. We have colleagues who
believe that we should micromanage everything that every agency
does, including the Department of Defense and NIH. We resist
that. We resist that in our--and you are a member of our
committee and you know that we do resist the attempts to
micromanage. And so I believe that the Secretary of Homeland
Security, if that is the title that that person is given,
should be dealing with homeland security and should not be
disrupting existing agencies that are going about the normal
business of the Nation.
But I would also suggest that the Secretary of Homeland
Security should certainly be able to call on any of the
agencies, whether they are within the jurisdiction of the new
agency or not, for aid and assistance in providing security for
the homeland.
It is very much like the Central Command, for example, that
is managing the war in Afghanistan. Central Command does not
have a huge military organization under the command of Central
Command, but they have the ability to reach out to other
military organizations of all of the services for what they
need as they go about their function.
And so I would think that the ability to reach out and get
the assistance certainly should be there for the Secretary of
Homeland Security, but it should not be disruptive of the
existing ongoing activities of those agencies.
Mr. Obey. Why should we take the institution that has more
credibility than virtually any other in government and screw it
up?
Ms. DeLauro. Thank you.
Thank you, Mr. Chairman.
Chairman Armey. Gentlemen, the Chair reserves the final 5
minutes for himself. I am going to use my time to give you a
few reassurances, and then I will save the remainder of my time
for you, each of you, to make any final statement you would
like to make before the committee.
I would like to thank you for your excellent testimony. It
is as I expected. But let me say, Mr. Young, I think you will
see that this committee does understand, has a deep respect for
our constitutional separation of powers. We are acutely aware
of how important that is and how important, it be preserved.
You will also see, I think, Mr. Obey, that this committee
has not just saluted the first iteration that has come along.
Indeed, the next two iterations of Homeland Security that you
all see will be the chairman's mark, which will be completed
sometime, I would guess, in the wee hours of tomorrow morning;
and you will see, I think clearly, there that the chairman's
mark reflects the respectful consideration of that which has
been brought to us by all our committees of jurisdiction, as
well as that which was initially introduced by the President.
The next iteration you will see of the Homeland Security
Act, following that, will be the report of this committee, and
I dare say, judging by the people on this committee, you may
see some difference between that and the chairman's mark as
well, because there is a process that I think is deeply
thoughtful and committed, and yet one where there will be
divergent points of view that will be, I think, in the final
analysis, worked out through the process of voting in this
committee. So please take confidence in that as you watch the
next few days.
Finally, on the particular jurisdictional concern of your
committee, the whole question of transfer authority
flexibility, it is the Chair's understanding and hope that
there are still ongoing discussions between your committee and
the White House. If those are not going well, let the Chair
offer whatever resources we have at the disposal of this
committee to facilitate further discussion.
It would be most advantageous, I think, to all concerned if
indeed this very important committee of jurisdiction and the
White House could come to some agreement that could be seen as
satisfactory with respect to the need for flexibility on the
part of the White House and the clear and certain commitment
that your committee has to its constitutional mandates. And we
would like to see that worked out and facilitate that, if at
all possible.
If not, then I am afraid both the White House and your
committee will have to find a way hopefully to accept the
communal judgment of this committee as we try to find out. It
is far better that you work it out to your satisfaction first.
We would like to help with that.
With those observations, let me just then concede the
remainder of my 5 minutes to the two gentlemen from the
Appropriations Committee for your final observations before
this committee. And I thank you again. Mr. Young.
Mr. Young. Well, Mr. Chairman, first, thank you for again
letting us be here to give you our thoughts on some of these
important issues. And I want to emphasize what you just said,
Mr. Chairman. It is important that the Congress and the
President of the United States work together, and the Members
of both political parties need to work together.
On September 11th, the Pentagon had Republicans and
Democrats who lost their lives. On September 11th, nearly 3,000
people died in the World Trade Center. I would bet that there
were both Republicans and Democrats in the World Trade Center,
and I know some of them, because I lost some friends on that
day.
The people of America do not want to live in fear of
terrorism, and they insist that we, the Congress, and the
administration, work together to protect the people of this
great country in our homes, in our places of business where we
work, where we pray, and where we have recreation. I think that
is essential, and I know that that is exactly what your
committee is going to do; and our committee is going to do the
same thing to work together with you and the President to do
what is right for the people of America.
Chairman Armey. Thank you. Mr. Obey.
Mr. Obey. Well, Mr. Chairman, I also want to thank you and
the committee for the opportunity to testify here today, and I
would simply have one observation.
We can all have legitimate arguments about structure, and
some of those can be very important, and some of them can be
minor; and we all have to make judgments about that. The one
thing that is not minor and the one thing that in my view
should not be compromisable is the willingness of this
institution to maintain the power of the purse against the
desires that are routinely expressed by every administration we
have ever had in this country.
There has never been a President, there has never been an
OMB Director who hasn't wanted to use whatever incidents of the
moment that they could find in order to get out from under the
nuisance aspects of democracy. But Congress is maintaining the
integrity of the power of the purse so that we can assure that
taxpayers' dollars are never spent for any purpose other than
that for which they were appropriated. That is a core value
that we cannot compromise away.
Mr. Young. Mr. Chairman, if I could just take 30 more
seconds. I will tell you that in a lot of our conversations,
when we are talking about responsibilities and authorities and
the Constitution, we are not talking about the Appropriations
Committee or only those of us who are appropriators. We are
talking about the Congress of the United States.
The Constitution doesn't say a darn thing about the
Appropriations Committee, but it does say a lot about the
Congress, and that is what we are trying to do--to represent
the prerogatives and the responsibilities of the United States
Congress.
Chairman Armey. Thank you. I thank you again, gentlemen,
and the witnesses are excused.
The committee is now very excited and anxious to hear from
the Armed Services Committee. I see that Ranking Member Skelton
is here.
Mr. Skelton--the Chair may introduce Ike Skelton. One of
the wonderful pleasures we have in Congress is always
introducing one another to people who already know one another,
but we all do know Ike Skelton, that you are an acceptable
spokesman for this committee to Republicans and Democrats
alike. The collegial relationship and mutual dedication to the
Nation's defense that you share with the chairman is clearly
recognized throughout the House, and I believe--I daresay, on
behalf of the Armed Services Committee and this committee that
in the absence of Chairman Stump, that Ike Skelton, as ranking
member, can speak for the entire committee; and we should
receive your testimony without doubt or reservations.
So, Mr. Skelton, it is my pleasure to welcome you before
the committee. Our procedure is to give you, and we would hope
for, a 5-minute opening statement. Also we would encourage you
that your recorded statement will be entered in the record,
your formal statement; proceed to the 5-minute rule, where we
will anticipate the inclusion of both questions and answers
within the individual committee member's 5 minutes.
Mr. Skelton, please proceed.
STATEMENT OF THE HONORABLE IKE SKELTON, RANKING MINORITY
MEMBER, COMMITTEE ON ARMED SERVICES
Mr. Skelton. Mr. Chairman, Ms. Pelosi, I do thank you for
this opportunity to make recommendations to the Select
Committee from the Armed Services Committee on H.R. 5005.
The members of the Armed Services Committee voted on a
bipartisan basis to support the President's efforts to create a
Department of Homeland Security, and I agree with my colleagues
that establishing this Homeland Security Department is
appropriate. Let me give this caveat, if I may. I only wish
that the administration's proposal had been presented in a way
that put forward a central homeland security strategy first.
Mr. Chairman, the strategy which was presented only
yesterday would have been more helpful to the standing
committees--not just ours, but to the others--had we been given
the opportunity to review it before making recommendations.
I am glad that this committee, this Select Committee, will
have the opportunity to review the strategy document that--
homeland security document that has been set forth, and I urge
you to review it in light of your very arduous duties. I don't
envy the work that you have cut out for yourselves.
The Armed Services Committee was asked to examine those
areas of this bill within its jurisdiction, mainly the
functions being transferred from the Department of Defense and
the national security elements of the Department of Energy,
actually, two very narrow areas.
The administration's proposal requests only modest
transfers, and by and large, we did support those requests. We
did, however, amend the underlying legislation in places to
ensure that the capabilities of this new department were
enhanced while not doing harm to the critical national security
activities of the Department of Defense, Department of Energy.
For example, our committee authorized the Under Secretary
of Homeland Security for Chemical, Biological, Radiological and
Nuclear Countermeasures to stand up an intelligence
capability--I think this is very important--within the new
department, focusing on those particular types of threats.
The committee strengthened the new department by
recognizing the importance of a coordinated research and
development program to achieving our homeland security goals.
We designated these functions as a core mission for the
Secretary. The committee also called for the establishment of a
center to serve as the primary location for carrying out
research and development, a national security laboratory.
The committee debated whether or not to put this in the
statute, the location of this center of this laboratory, and
although the administration has repeatedly mentioned the
Lawrence Livermore Laboratories as its preferred site, we left
the specifics of that selection up to the new Secretary of
homeland defense.
This effort to provide a centralized location for research
and development activities, I think is critical. There are
superb scientific capabilities throughout our national
laboratory system, and this new department must be able to
access the very best of those capabilities to secure the
American people. The committee recommends that a primary
research and development location with secondary locations at
other national laboratories is needed.
The committee believes these changes strengthen the new
department while preserving the national security capabilities
of the Departments of Defense and Energy. All told, the
transfers from the Defense Department only amount to about 90
people. It is a good thing, given the disastrous policies the
Defense Department is now considering--and hear me out on
this--considering with regard to the size and strength of our
military forces.
The Baltimore Sun published an article on July the 10th,
indicating that the Pentagon is planning in fiscal year 2004 to
drastically reduce the number of men and women in uniform,
including 20,000-25,000 Army soldiers, 40,000 airmen, 20,000
sailors, and 5,000 Marines; in total, over 90,000 servicemen
and women may be forced to leave the services according to the
Baltimore Sun. Such a reduction, in my opinion, is totally
unacceptable, particularly while our Nation is at war.
Now, I bring this to the Select Committee's attention,
because these cuts, if undertaken, will do enormous damage to
American national security. The administration's homeland
security strategy contemplates the expanded use of military
forces for homeland security missions.
This proposal raises serious questions about the existing
law, including the 1878 Posse Comitatus Act, which would have
to be carefully considered. But in general terms, the strategy
underlines the importance of a strong U.S. military to homeland
security, because what the military does at home or through the
National Guard, through the civil support teams or abroad, is
very, very important. If we are successful in Afghanistan and
other places, then the homeland security is all the better off.
Beyond the United States, the President has publicly stated
numerous times that the war on terrorism will continue for some
time. And yet, while we have people searching for terrorists in
Afghanistan, helping fight terrorism in the Philippines,
training military forces in the Republic of Georgia, equipping
and training government forces in Colombia, aiding the peace
process throughout the Balkans, the Defense Secretary has
contemplated reducing our troop strength. My position on this
Armed Services Committee, in the work that I have done, causes
me to seriously question that.
Right now, we have over 85,000 Guard and Reservists doing
active duty work. You wear these young people out, and yet
there is--and this will have a direct effect on the legislation
that you will pass out of your committee.
Well, I could tell you, and my statement reflects the fact,
that in recent days the Army Chief of Staff, the Navy Chief of
Naval Operations, air force chief of staff, and the Commandant
of the Marine Corps all have recommended additional soldiers,
Marines, sailors, airmen; and my statement will reflect that.
That was the reality before September the 11th, and the place
of operation for our troops has only increased and been
expanded since then.
So I hope that that background will give you an idea of how
a good many of us on the Armed Forces Committee feel with our
relation to what you do, because all of this has to work
together. You cannot isolate what you do from what many do in
uniform, whether it be Guard, Reserve, active duty, aboard
ship, or whenever it is. The security of the United States and
the security of the young folks, senior citizens, and those
that are our neighbors depends upon everybody working together.
Your work product must dovetail with those in uniform,
whether they be active duty, Guard, Reserve or the like. Thank
you for this opportunity.
[The statement of Mr. Skelton follows:]
PREPARED STATEMENT OF HON. IKE SKELTON, RANKING MINORITY MEMBER,
COMMITTEE ON ARMED SERVICES
Thank you, Mr. Chairman and Ms. Pelosi. I appreciate the
opportunity to explain the recommendations made by the Armed
Services Committee in its amendments to H.R. 5005.
The members of the Armed Services Committee voted on a
bipartisan basis to support the president's efforts to create a
Department of Homeland Security. I agree with my colleagues
that establishing a homeland security department may be
appropriate. I only wish the president's proposal had been
presented in a way that put forward a central homeland security
strategy first. The strategy, presented yesterday, would have
been more helpful if the standing committees had been given the
opportunity to review it before making their recommendations. I
am glad that the Select Committee will have that chance.
The Armed Services Committee was asked to examine those
areas of H.R. 5005 within its jurisdiction-namely the functions
being transferred from the Department of Defense and from the
national security elements of the Department of Energy. The
administration's proposal requested only modest transfers in
these areas and the committee, by and large, supported those
requests.
The committee did, however, amend the underlying
legislation in places to ensure that the capabilities of new
Department were enhanced while not doing harm to the critical
national security activities of the Departments of Defense and
Energy. For example, the committee authorized the Under-
Secretary of Homeland Security for Chemical, Biological,
Radiological, and Nuclear Countermeasures to stand up an
intelligence capability within the new department focusing on
these particular types of threats.
The committee strengthened the new department by
recognizing the importance of a coordinated research and
development program to achieving our homeland security goals.
We designated these functions as a core mission for the
Secretary. The committee also called for the establishment of a
center to serve as the primary location for carrying out
research and development at a national security laboratory of
the National Nuclear Security Administration. The committee
debated whether or not to put in statute the location of this
laboratory, as the administration has repeatedly mentioned
Lawrence Livermore as its preferred site, but we have left the
specifics of this selection to the new Secretary.
The committee believes these changes strengthen the new
department while preserving the national security capabilities
of the Departments of Defense and Energy. All told, the
transfers from the Defense Department only involve about 90
people. This is a good thing, given the disastrous policies the
Defense Department is now considering with regard to the size
and strength of our military forces.The Baltimore Sun published
an article on July 10 indicating that the Pentagon is planning
in fiscal year 2004 to drastically reduce the number of men and
women in uniform-including 20,000 to 25,000 Army soldiers,
40,000 airmen, 20,000 sailors, and 5,000 Marines. In total over
90,000 servicemen and women may be forced to leave the
services. Such a reduction is totally unacceptable,
particularly while our nation is at war.
I bring this to the Select Committee's attention because
these cuts-if undertaken-would do enormous damage to U.S.
national security. The administration's homeland security
strategy contemplates the expanded use of military forces for
homeland security missions. This proposal raises serious
questions about existing law-including the 1878 Posse Comitatus
Act-that would have to be carefully considered. But in general
terms, the strategy underlines the importance of a strong U.S.
military to homeland security.
Beyond the United States, President Bush has publicly
stated numerous times that the war on terrorism will continue
for some time. Yet, while we still have forces searching for
terrorists in Afghanistan, helping fight terrorism in the
Philippines, training military forces in the Republic of
Georgia, equipping and training government forces in Colombia,
and aiding the peace process throughout the Balkans, Defense
Secretary Rumsfeld is contemplating reducing our troop
strength.
Such a consideration is more amazing if you consider what
the chiefs of the military services have been saying for some
time. In testimony before September 11, Army Chief of Staff,
General Shinseki, told the Armed Services Committee that the
Army needed 40,000 additional troops to meet its mission
requirements. Admiral Clark, Chief of Naval Operations, told us
he needed 14,000 more sailors. The Chief of the Air Force,
General Ryan, and the Commandant of the Marine Corps, General
Jones, testified that their services needed 10,000 more airmen
and 4,000-5,000 more Marines respectively.
This was the reality before September 11 and the pace of
operations for our troops has only increased and expanded since
then. The Congress must ask Secretary Rumsfeld to reverse this
trend by increasing, and not dramatically reducing, the number
of men and women in uniform. This is essential to our ability
to defend the American people at home and to fight nation's
wars abroad.
Thank you for the opportunity to testify, Mr. Chairman. I
hope the Select Committee is able to support the
recommendations of the Armed Services Committee.
Chairman Armey. Thank you. The Chair recognizes the
gentlelady from Ohio.
Ms. Pryce. Thank you, Mr. Chairman. I don't really have any
questions at this point.
It is a pleasure to have you here, Mr. Skelton. Thank you
for your committee's hard work on this. It is one of the most
important things that this Congress will have before it and,
probably, many of us have looked at in our entire careers. So
thank you for your assistance with our deliberations.
Thank you, Mr. Chairman.
Chairman Armey. The gentlelady--or gentleman from Texas,
Mr. Frost.
Mr. Frost. Well, thank you very much, Ike, and I want to
underscore one thing that you said.
On the document--in the document the President issued
yesterday, Homeland Security, National Strategy, on page 48 in
that document is one paragraph: ``Federal law prohibits
military personnel from enforcing the law within the United
States except as expressly authorized by the Constitution or an
act of Congress. The threat of catastrophic terrorism requires
a thorough review of the laws permitting the military to act
within the United States in order to determine whether domestic
preparedness and response efforts would benefit from greater
involvement of military personnel, and if so, how.'' .
This is the posse comitatus that you referred to. When you
put that statement side by side with the statistics that you
have included in your statement, quoting from the Baltimore
Sun, saying that the administration is contemplating reducing
our active duty force by over 90,000 people in 2004, it is
ludicrous.
It is ludicrous to think that we could reduce our standing
force by 90,000, which is already fairly small and which has
extraordinary demands being put upon it right now, as you
indicated in your statement, and at the same time take some of
that reduced force and have them patrol our borders. I don't
understand this. I think you are absolutely correct to caution
us on that point.
I don't know where we go from here. This committee is not
being asked at this point--if I understand correctly, there is
nothing before us on the question of posse comitatus. Perhaps
we would make a comment on that in any report that we would
issue, but you are correct to sound the alarm about our
situation and reducing our active duty forces, particularly if
the administration is serious about the reports that it may--
and I underscore may--invade Iraq anytime soon.
Mr. Skelton. Our committee, in the base bill that we passed
out and passed on the floor, actually increased the end
strength of each of the services, reflecting testimony that--.
Mr. Frost. The defense authorization bill?
Mr. Skelton. Yes.
Mr. Frost. Not what you sent to this committee, but the--.
Mr. Skelton. No. Excuse me, our base bill, the
authorization bill.
Based upon testimony ranging back over 2 years, including
testimony that year, where Admiral Blair, CINCPAC in the
Pacific, Joe Ralston, the commander in chief in Europe, both
said they didn't have enough personnel to meet their
commitment, and General Buck down at the Forces Command said
that the troops are stretched and strained today--and you see
the active duty challenges that we have are being met by some
85,000 Guard and Reservists. And the fewer Guard and Reserves
that are available for the governors or for the civil support
teams or for national disasters that come along, that are
outside of any of what we are talking about today, would be a
detriment to many Americans.
So we have to consider this, and I raise it with this
committee, because you should understand all of this works
together. There is no singular part or parcel, separate from
the other when you talk about homeland security or the security
of our Nation.
Mr. Frost. You are exactly correct, and I--I, as one
Member, appreciate your bringing this to our attention.
Chairman Armey. The gentleman from Ohio.
Mr. Portman. Thank you, Mr. Chairman.
Mr. Skelton, thank you for being here this morning to give
us your learned perspective.
Just a general point: This administration has made it a
priority, as you know, to increase not just the number of
people in our military, but also their pay and benefits,
improve their equipment, improve their training; and I know
they have worked closely with you and with Chairman Stump in
that regard.
As a result, we have a stronger military, and we are a
flexible military.
Mr. Skelton. We do.
Mr. Portman. And I think it was interesting that they
chose, in putting together this proposal to the Congress, not
to include the military in the homeland security area. As you
mentioned, 90 people would be transferred, and it is an office
that Secretary Rumsfeld supports being moved, because it
relates directly to homeland security.
But you are absolutely right, there is a seamless
relationship between homeland security and our national
defense, and you see that clearly with the Coast Guard, but
also with all of the other entities involved in protecting our
borders and making sure that we have the right information so
that we can react to this new threat.
You said in your testimony that you were concerned about
the strategy. You now have seen the strategy. Are you satisfied
with the strategy as laid out yesterday by the President?
Mr. Skelton. I must tell you, from a perusal of it, it is
positive. To be right honest, receiving it only yesterday, I
have not had the opportunity to fine-tooth-comb it, but
basically it is in the right direction.
I wish I had a better answer for you, but time has not
allowed me to study it as each of us should.
Mr. Portman. In our deliberations, we have talked a lot
about flexibility, and in order to keep costs down and in order
to be able to better respond to an agile enemy, we all want to
be sure that there is flexibility and that this is a lean
department.
You actually gave the President more flexibility in your
pro-
posal. Instead of naming Lawrence Livermore Labs as the lead
agency--.
Mr. Skelton. No--.
Mr. Portman. --the President--.
Mr. Skelton. There is nothing wrong with that. I think we
did right.
Mr. Portman. Could you give us a little more background as
to why you believe that it is not appropriate for the Congress
and this committee to propose a specific lead, but rather, to
put that decision at the President's level?
Mr. Skelton. Well, we think it is important to have a
central research and development operation, no question about
that; and it ought to be at one of the laboratories. And I
don't think you will find a major disagreement on that.
The administration has recommended Lawrence Livermore as
the site. However, there will be a serious discussion between
those areas, the three particular laboratories, as to which one
is best.
Why tie the Secretary's hands? Although one is recommended,
why should we put it into law? So what is wrong with
flexibility? The end result would be the same, if not better.
Mr. Portman. And the key is to get the best R&D and to have
that flexibility?
Mr. Skelton. The important thing is that you have a central
system, a central place for research and development, because
that will be a challenge for the various threats that are out
there, some we haven't even dreamed of.
Mr. Portman. Thank you very much, Mr. Skelton.
Mr. Skelton. Thank you.
Chairman Armey. The gentleman from New Jersey.
Mr. Menendez. Thank you, Mr. Chairman.
Mr. Skelton, thank you for your service to our country. It
is really one of the exceptional people in the House and
particularly in the context of our Armed Services and defense
issues. Really, I think you are a giant in that regard.
I really don't have a question, except to join with you and
Mr. Frost in the strategy document that the administration put
out yesterday. I am concerned about that section.
I believe that the essence of what we want to ultimately
achieve in homeland security starts with prevention, which
means good intelligence, raw materials analyzed in real time,
shared across the spectrum, so that we can then act when we
need to in a preventive capacity. And thereby the military of
the United States is an essential, if not the key, ingredient--
after that, intelligence gathering--to perform that preventive
function.
I do not see them providing a role here domestically in, in
essence, law enforcement functions; and I think that is a
dangerous proposition for this country. If we were being--if we
had ships coming up or armies crossing borders, of course that
would be different, but in essence to suggest that the Defense
Department would act in what are essentially law enforcement
obligations, I think is a dangerous proposition.
I think we need to reserve our capabilities and the risks
of the challenges that we will face for the preventive aspects
that we want abroad, and so I want to commend you for raising
that issue. I know it is not part, physically, of the
administration's proposal, but since the strategy is ultimately
going to guide the future actions of the administration, it is
important to raise our sabers now and start saying kind of what
we think about this.
So thank you for doing that, and I appreciate your service
and your information.
Mr. Skelton. Thank you for your comments. We should remind
ourselves that there are, at the present time, some 27 national
forward civil support teams which would help in the event of a
disaster. There will be a proposal to establish a total of 51,
is my understanding.
Let me mention a concern with you. You mentioned
intelligence. There are two aspects to intelligence. Number one
is gathering it, which is sometimes very difficult and you rely
on everything all the way from electronics on the one hand to
HUMINT on the other. And the second is that of analyzing it;
and I am concerned about there being too many layers of
analysis, and while that happens, something bad comes to pass.
So put that in the back of your mind so there will not be
layers of bureaucratic intelligence analysis that would cause
us to miss the boat in something untoward happening. That
concerns me.
I am not just sure how you would write it, or prevent that,
but just put that in the back of your mind. I think that is a
potential problem for all of this.
Mr. Menendez. Well, I appreciate your comment. I am sure
our distinguished ranking member on this committee and on the
Intelligence Committee, Ms. Pelosi, is right on top of those
issues and has been leading in that regard.
I just want to comment on your part of the National Guard
in the context of helping us respond. That is much different
than the law enforcement aspect, and certainly that is one that
we would embrace.
Thank you for your comments. I yield back the balance of my
time.
Chairman Armey. Gentlelady from Connecticut.
Ms. DeLauro. Thank you very much, Mr. Chairman. I want to
thank Ranking Member Skelton for being here and for being a
continued advocate for our armed services. And I thank you for
your years of service in this committee and the knowledge that
you will bring to this.
I think that there are questions that have to do with the
relationship between the Department of Defense and the--how the
Pentagon, which is charged with fighting terrorism abroad, will
work with the new department that is fighting terrorism here at
home; and I think one of the crucial areas to take a look at
is, how do the two departments handle the competing demands of
Coast Guard and National Guard? And I would love to have your
views on this and your sense if there is any--what the process
might be for coordination, and whether or not--get your opinion
on whether or not the two Guard services will have the
necessary capabilities to meet both departments' demands.
Mr. Skelton. I don't think there is a problem regarding the
National Guard. As you know, their commanders in chief on a
day-to-day basis are the governors, and they perform many
domestic duties--disaster, et cetera--on a Federal level,
unless they are federalized to serve, as we have some 85,000
Guard and Reservists serving on active duty today. The civil
support teams, 27 of which exist to date, are the best
examples, but I don't think that is a problem.
The question, to which I don't have an answer, is the one
dealing with the Coast Guard, because you have a bifurcated set
of duties. One is search and rescue, which they do a phenomenal
job. The other is drug interdiction, and they are first class
now.
On the other hand, you have antiterrorism-type of
activities. I don't know how you are going to bifurcate that.
That will be one of the biggest challenges your committee has.
I don't have a solution for that, unless there is some sharing
agreement between the Department of Transportation, which owns
the Coast Guard, and the department head of Homeland Security;
of maybe bifurcating the duties or certain sections of the
Coast Guard. There is no easy answer to this.
Now, I know this may be one of your biggest challenges, and
I wish I had a good answer for you. There is none.
Ms. DeLauro. I thank the ranking member.
Thank you, Mr. Chairman.
Chairman Armey. Gentlelady from California.
Ms. Pelosi. Thank you very much, Mr. Chairman. I want to
join you and our colleagues in commending the distinguished
ranking member of the Armed Services Committee for his
wonderful leadership and his very thoughtful statement today,
which is very valuable to the committee.
I appreciate the caution you recommend in your statement in
terms of posse comitatus and the Posse Comitatus Act. Also your
concerns that you raised, not directly related to our work
here, but certainly related to the mission that we have, which
is to protect the American people, to reduce risk to them. And,
of course, force protection is a very important part of what we
do on the intelligence side of it. So your insightful comments
are very helpful.
I also want to say that while it is not the work of our
committee today, I look forward to--not now because the time
does not permit, and it is a much longer discussion--to hearing
some of your thoughts on transformation of the military, which
will be very important to protecting the American people. I
know that you will always be a leader in that regard.
So I thank you for all that you have done for young men and
women in the armed services. We are very, very, very proud of
them, and thank you again for your leadership in helping them
do their job, to do our constitutional duty to protect and
defend the American people.
Thank you very much, Mr. Chairman.
Mr. Skelton. I appreciate your kind words.
This intangible thing we call ``transformation of the armed
services'' is real. It is looking ahead to potential threats
and challenges so that we will have the Armed Forces prepared
to face them in the years ahead. Each of the services is
working on them, and I hope that it is about ongoing challenge,
that the next several years will find us not only modernizing
but transforming into the secure force that we need.
It is a major challenge on our committee, but we appreciate
your support and your help.
Ms. Pelosi. Thank you very much, distinguished gentleman.
Thank you, Mr. Chairman.
Chairman Armey. Mr. Skelton, does your committee have any
direct testimony from the Pentagon about the force reduction
plans reported in the Baltimore Sun?
Mr. Skelton. No.
Chairman Armey. It is conceivable then that the Baltimore
Sun can simply be wrong?
Mr. Skelton. I don't believe it is.
Chairman Armey. You do not believe it is. Would you not
find it unacceptable, patently unacceptable, for the Baltimore
Sun to have information regarding force strength that your
committee does not have?
Mr. Skelton. I don't think it is a good idea, but I do
believe the reporter is a highly respected reporter, and I
believe what it said.
Chairman Armey. How would the Baltimore Sun have
information about the force strength of the United States armed
services that the House Armed Services Committee would not
have? By what basis could a reporter have that information and
your committee not have it?
Mr. Skelton. I can only tell you to ask the reporter that.
Chairman Armey. You know, I thank the gentleman for that
suggestion. I believe I will ask the Pentagon that.
Mr. Skelton. Good. I think you will receive an interesting
answer.
Chairman Armey. Thank you. Thank you for your testimony.
And the witness is excused with great appreciation.
The Chair now looks forward to hearing from the
distinguished chairman and ranking member of the Energy and
Commerce Committee. I believe it is--would be accurate for the
Chair of the Select Committee to observe that both the chairman
and the distinguished ranking member of the Energy and Commerce
Committee understand, with a great deal of adeptness, the
administration of the committee's business under the 5-minute
rule.
I think that you are both experienced before this chairman,
so let me just remind you that it is indeed the practice of
this committee to take testimony under the 5-minute rule. We
would ask you to please submit your formal statement for the
record, and if you could make your independent statements
within the 5-minute rule, we will try to see to it that the
committee addresses its questions within the context of that
rule as well.
And we do welcome you so much for your testimony here. We
will begin with Chairman Tauzin.
STATEMENT OF THE HONORABLE W.J. (BILLY) TAUZIN, CHAIRMAN,
COMMITTEE ON ENERGY AND COMMERCE
Mr. Tauzin. Thank you, Mr. Chairman. First, let me indicate
that we have had two days of full committee hearings, in which
we heard from 40 different witnesses from Federal, State,
local, academia, professors, all sorts of research communities,
et cetera.
We should also point out that after those 2 days of
hearings, the work we presented to you was approved unanimously
by our committee. It was constructed in a bipartisan fashion,
just as was the bioterrorism preparedness bill, the sweeping
$4.6 billion bill that our committee shepherded through
Congress most recently, and was done in a true bipartisan
fashion.
I want to thank Ranking Member Dingell for that great
effort that allows us to bring to you a bipartisan set of
recommendations in regard to our committee's jurisdictional
areas in this critical area of homeland security.
There are four specific areas we want to address. First,
with respect to biomedical research and emergency preparedness
of the Department of Health and Human Services, in our
committee we literally recognize the role of the department and
actually enhance its capacity beyond that which the President
originally proposed. But we want to make it clear that HHS
would still maintain primary responsibility over human health-
related research. Most of which is currently being conducted by
the CDC and by the NIH. We understand the administration
supports this clarification and does not wish to duplicate the
research capabilities of NIH and CDC.
We also understand from Governor Ridge's testimony that it
was not the administration's intent to give a new Secretary the
unilateral authority to direct these HHS programs or their
priorities, but rather simply to ensure collaboration between
the two agencies; and I think we concur in the need for that.
However, we do not believe the new department should have
primary authority, including budgetary authority, over
bioterrorism programs that remain at HHS. Substantively, we
don't believe the new Secretary should have primary control
over the $1.9 billion in NIH grants relating to pathogens and
countermeasures, or the $1.5 billion in public health emergency
grants to State and local public health departments.
We simply want to point out that this money spent by these
agencies is spent not just to prepare the country for the
possibility of bioterrorism, but it is for building up the
infrastructure, such as surveillance, communications systems,
our improved responses for all sorts of human health
emergencies, whether they are naturally occurring or
intentionally caused by some threat. We want to hopefully make
sure that those programs don't get crippled by a new complex
bureaucratic model.
The administration recognized as much by leaving these
programs at HHS, but the model that is put up, one that would
put the programs in HHS. But subject it to the authority of
Homeland Security, raises some real problems. For example,
language that suggests the new Secretary could direct or manage
public health emergency activities raises some very difficult
questions.
For example, who would declare the public health emergency?
Who would issue quarantines? That is normally done through the
authority of these agencies.
Administratively, we believe it would be unnecessarily
cumbersome and bureaucratic for the funds to first go to the
Homeland Security Department and then be appropriated through
these agencies for these ordinary, ongoing public health
purposes.
Last, with respect to HHS, the committee recommends
retaining at HHS the Assistant Secretary of Public Health
Emergency Preparedness. This is the office we created in the
bioterrorism bill. Now, we support the transfer of several of
its responsibilities, the operation of the Office of Emergency
Preparedness, The National Disaster Medical System, and the
Metropolitan Medical Response System, but we want to note
something for you.
If FEMA goes to the new department, then it makes sense to
move these three functions over. But if you make a decision not
to move FEMA, then we would question the appropriateness of
even moving these three functions because they are more closely
associated with the work of FEMA.
Second, with respect to critical, physical, and cyber
infrastructures, such as those that run telecommunications and
electric power systems, we think the President's efforts on
consolidation and increased coordination are right on the mark;
but we have some concerns. The original language could have
been construed to give the new Secretary regulatory authority
over the security of critical infrastructures that are
currently regulated by the Federal Government, or that are now
regulated by other Federal agencies.
We make it clear in our print to you that the creation of
this new department does not include new regulatory powers for
the Secretary to directly compel security improvements through
regulations or mandates. Rather, you would work with the State,
Federal and other agencies who have jurisdiction to enhance
security and to work directly with the private sector in the
collaborative fashion designed in the President's report.
We also recommend the emphasis on cyber security within the
new department be greatly enhanced. What we have done over the
last 4 years, Mr. Chairman, is an extensive review of the
vulnerability of America's agency cyber security weaknesses. I
have to tell you, every system we looked at we used the GAO red
teams to come in and challenge those systems and every single
one demonstrated pervasive weaknesses.
So we recommend to you the creation of the Federal computer
security red teams in the new department to, in fact, test
these systems out and provide information and recommendations
to strengthen them. We think this needs to be a high priority
of the new department.
Third, in the area of research and development, we believe
that the committee concurs in the need expressed by many of
those in Congress to have this new department play a critical
role in coordinating, accelerating and improving the focus on
research and development in the new technologies that are going
to be used to fight terrorism. For example, the things that are
going to be included in our reports to detect the possibility
of radiological material coming in.
To address these needs, we recommend the new department
serve as a focal point for technological research and
development activities, and that it establish a Federal
technology clearinghouse. Not to design the technology, but
simply to go through the recommended technology improvements
and recommend which ones work and which ones don't work for all
the agents of government who may in fact use this technology to
better protect our ports in our country.
We think the current bill makes it unclear as to whether
the new department could directly contract with the national
laboratories. We make it clear they can't. They can directly
task the national laboratories to do work for them in this
regard.
Fourth, with respect to the control of dangerous pathogens
and select agents, in the bioterrorism bill, we set up the
within CDC a department that has the capacity to track not only
who has these agents, but when they transferred it, for what
reason they transferred, and the license of the section and
transfer of these agents. It is a critical component of that
bioterrorism bill.
We also set up something similar within the Department of
Agriculture for pathogens and agents that might affect animal
health; that has some relation to the section in CDC.
If the CDC section is going to be transferred to this new
agency, we would obviously be concerned that the section in
Agriculture would similarly go with it. If the second doesn't,
then we question whether the first should go. Otherwise, it is
going to create some real problems in coordinating between
pathogens that affect animals and may similarly affect human
health in terms of bioterrorism threats.
In closing, I want to again thank you for allowing us to
come and make these recommendations and to thank my colleague,
John Dingell, who has been an extraordinary partner in our
committee's work in making these recommendations to you.
Thank you, Mr. Chairman.
[The statement of Mr. Tauzin follows:]
PREPARED STATEMENT OF HON. W.J. (BILLY) TAUZIN, CHAIRMAN, COMMITTEE ON
ENERGY AND COMMERCE
Thank you, Mr. Chairman. I am pleased to join you and the
ranking Member, Congresswoman Pelosi, to provide testimony
regarding President Bush's historic proposal to create a new
Department of Homeland Security. I believe the President's
proposal reflects a sound framework for Congressional
consideration, and I fully support creating a Cabinet-level
department with an empowered Secretary to get this critical job
done.
I am here today to testify on behalf of the Members of the
Committee on Energy and Commerce who convened last week and
voted, without opposition, to support a Committee Print that
preserves the President's key priorities in the areas within
our Committee's jurisdiction. We did so while clarifying the
new Department's powers and authorities, enhancing the
functions and focus of the new Department, and improving the
workability of the interface between the new Department and the
Departments of Health and Human Services and Energy.
Over the past three weeks, the Committee has given serious
deliberation to the President's proposal. We held two days of
hearings at which over forty witnesses from Federal, State, and
local governments, the private sector, academia, and the
scientific and research communities shared their views on the
President's proposal. In addition, over the last year, the
Members of the Committee helped to shepherd through Congress a
sweeping $4.6 billion bioterrorism preparedness bill that the
President recently signed into law. In both of these efforts,
we were able to work in a bipartisan fashion to address
homeland security, and I want to thank and praise the
Committee's Ranking Member, John Dingell, for working with us
to get this done.
The Committee's recommendations to the Select Committee
fall into four specific areas, which I will address in turn.
First, with respect to the biomedical research and emergency
preparedness activities of the Department of Health and Human
Services, the President's proposal rightly recognizes what our
Committee's oversight has revealed--that the Federal
government's bioterrorism-related programs have been cumbersome
to navigate and have been poorly coordinated in the past,
leaving critical gaps unattended while being duplicative in
other aspects. We agree with the President that the new
Department should play an important role in changing that. In
particular, given that the new Department will have important
intelligence, threat, and vulnerability-related information
necessary for the identification of program priorities, the new
Department should develop our national strategic plan for
bioterrorism activities and identify our most urgent national
priorities, including priorities for programs at HHS. Our
Committee Print not only recognizes this role of the new
Department, but enhances it beyond what the President initially
proposed.
The Committee Print also makes clear that HHS will maintain
primary responsibility over human-health related research, most
of which is currently being conducted by CDC and the National
Institutes of Health (NIH), and that this new Department will
not engage in such R&D efforts. We understand that the
Administration supports this clarification, and does not wish
to duplicate the research capabilities of NIH and CDC at the
new Department. We also understand, based on Governor Ridge's
testimony before our Committee, that it was not the
Administration's intent to give the new Secretary the
unilateral authority to direct these HHS programs or their
priorities, but rather simply to ensure collaboration between
the two agencies. We concur with the need for such
collaboration and our Committee Print adds an explicit
requirement that the Secretary of HHS must collaborate with the
Secretary of Homeland Security on setting the HHS research
priorities related to countermeasures for terrorist attacks.
However, we do not believe that the new Department should
have primary authority--including budgetary authority--over
bioterrorism programs that remain at HHS. Substantively, we do
not believe that the new Secretary should have primary control
over the $1.9 billion in NIH research grants relating to
pathogens and countermeasures, or the $1.5 billion in public
health emergency grants to state and local public health
departments included in our recently enacted bioterrorism
legislation. As GAO experts emphasized in testimony before the
Committee, much of the terrorism-related research currently
being performed through NIH and CDC is dual-purpose in nature--
serving the priorities and needs of both counter terrorism and
traditional public health. Similarly, the grants to state and
local public health departments and hospitals are not just to
prepare for the possibility of bioterrorism, but for building
up basic infrastructures such as surveillance and communication
systems to improve response to all sorts of public health
emergencies, whether intentionally caused or naturally
occurring. Unlike more conventional acts of terrorism or those
involving radiological or chemical elements, a bioterrorist
attack will look, at the beginning, just like a naturally
occurring disease outbreak. The people, resources, and skills
necessary to respond to bioterrorism will not likely be
different than those necessary to respond to naturally
occurring outbreaks of diseases. We cannot and should not
separate either of these dual-purpose activities, or have them
be under the under the control of two different departments.
The Administration recognized as much by leaving these
programs within HHS. But its model--one in which the programs
remain in HHS but are subject to the authority of the Homeland
Security Department--potentially creates more problems than it
would solve. The Committee does not believe it is feasible to
separate authority from responsibility, or to separate the
officials charged with administering those responsibilities
from the personnel required to do so. Moreover, any language
suggesting that the new Secretary could direct or manage the
public health emergency activities of HHS raises many difficult
questions, such as who can declare public health emergencies or
issue quarantines under the Public Health Service Act. The
Committee believes that these activities are properly
authorized and administered under the Public Health Service
Act. Neither a wholesale transfer of these responsibilities,
nor some unusual splitting of responsibilities, is warranted.
Administratively, we believe it would be unnecessarily
cumbersome and bureaucratic for the funds for such activities
to be appropriated in the first instance to the new Department,
only to be ``contracted'' back to HHS for further distribution
to NIH, CDC, and the hundreds of grant recipients conducting
such research and preparedness activities. The Committee
supports the need to improve the coordination of funding on
such activities across the Federal government, but we believe
that such coordination can occur without the control of HHS
funds. Under the Administration proposal, the new Secretary
would not receive control over the substantial research funds
of other agencies that conduct research activities similar to
those of HHS, including the Departments of Defense, Veterans'
Affairs, and Agriculture, the Central Intelligence Agency, and
others. Given that fact, the Committee does not believe that
budgetary control is necessary with respect to HHS research
dollars to ensure such coordination.
The type of budgetary maneuvering described in the
Administration's proposal could also result in delays,
hampering our efforts to get the money out the door and into
productive use as quickly as possible. These grant programs are
already in place at HHS and appear to working quite well. We do
not believe it makes sense to potentially disrupt these
programs now by routing them through the new Department, only
to have the new Department contract back with HHS to manage
them.
Last with respect to HHS, the Committee Print recommends
retaining at HHS the Assistant Secretary for Public Health
Emergency Preparedness created by the recent bioterrorism
response act, in order to coordinate remaining HHS emergency
preparedness functions and to serve as a liaison to the
Homeland Security Department. But we support the transfer of
several of his responsibilities, including the operation of the
Office of Emergency Preparedness, the National Disaster Medical
System, and the Metropolitan Medical Response System. These are
operations that currently work closely with the Federal
Emergency Management Agency (FEMA). We note that if the Select
Committee chooses not to transfer FEMA or its response
functions to the new Department, it would no longer make any
sense to transfer these emergency response activities of HHS to
Homeland Security either. If FEMA is not transferred, I believe
that most of Title V of the Administration's proposal would no
longer be appropriate, including the transfer of the National
Strategic Stockpile of vaccines and drugs run by HHS.
Second, with respect to the protection of our Nation's
critical physical and cyber infrastructures--such as those that
run our telecommunications and electric power systems--the
President's efforts at consolidation and increased coordination
are right on the mark. The key to success in this area is to
recognize that many of the most important critical
infrastructures are privately owned and operated, and may not
be subject to Federal security mandates or requirements. Thus,
the only way to succeed in ensuring their protection is through
a strong and effective public-private partnership for national
security.
The original language of H.R. 5005 could have been
construed to give this new Secretary regulatory authority over
the security of critical infrastructures that are not currently
regulated by the Federal government, or that are regulated now
by other Federal agencies. Based on testimony before our
Committee by Governor Ridge, it is clear that such an
interpretation was not intended by the Administration. Thus,
the Committee Print makes an important clarification to ensure
that the new Secretary's authority to assess vulnerabilities
and support protective measures with respect to private sector
critical infrastructures does not include new regulatory powers
for the Secretary to directly compel security improvements
through regulations or mandates. Rather, the Secretary will
work with the other Federal, State or local agencies that have
jurisdiction over such sectors to enhance security, and would
work directly with the private sector in a collaborative
fashion.
The Committee Print also recommends that the emphasis on
cyber security within the new Department be greatly enhanced.
Over the past four years, our Committee has conducted extensive
oversight of the cyber security practices of many of the
agencies within our jurisdiction, including the Departments of
Health and Human Services, Commerce, and Energy, as well as the
Environmental Protection Agency. With the help of expert
computer teams, sometimes known as ``red teams,'' from the
General Accounting Office, we found that, without exception,
the computer systems of these agencies were riddled with
pervasive weaknesses. Our homeland security depends on building
improved defenses to cyber attacks, which are occurring every
day. As a result, our Committee Print proposes the
establishment of a Federal cyber security program that will
provide computer security expertise to other Federal civilian
agencies to help improve protection of their critical
information systems. This program will include a Federal
computer security ``red team'' to test, and provide
recommendations on, the security of key Federal information
systems. It also will promote R&D on security enhancements for
critical information systems, particularly the command and
control systems that our Nation's critical infrastructures
depend upon--called SCADAs ('ska-duhs'). The vulnerability of
SCADA systems--such as those that control our electricity
networks or the operation of our large dams and drinking water
systems--needs to be a high priority for the new
Department.Third, in the area of research and development, it
is important for us to remember that new and improved
technologies and American ingenuity and innovation are among
the greatest advantages we have in fighting terrorism. Thus,
the Committee concurs with the need expressed by many others
within and outside of Congress for this new Department to play
a critical role in coordinating, accelerating, and improving
the focus of research, development, and implementation of new
technologies in our fight against terrorism.
Our country's top scientists are working through existing
programs at our national laboratories to develop new methods
for detecting and preventing terrorists attacks--such as
improved sensors to detect radiological devices, and new
scanners to screen luggage and cargo. But our oversight of
these programs has shown that they are not well-coordinated. As
a result, our Nation's current ability to detect radiological
or nuclear materials that may be entering our ports or other
border entry locations is woefully inadequate, and I strongly
believe that the Federal government must improve both our
research in these areas, as well as the speed of deployment of
viable technologies to prevent illegal radiological devices
from entering our country. We have heard from those on the
front lines that they need guidance from the Federal government
as to what types of technologies are available, what they
should be looking for in such technologies, and how best to
implement them. Yet today there is no single Federal agency
they can turn to for help.
To address these needs, the Committee Print recommends that
the new Department serve as the focal point for such technology
research and development activities within the Federal
government, and that it establish a Federal technology
clearinghouse to assist other Federal agencies, State and local
governments, and the private sector in evaluating,
implementing, and disseminating information about key homeland
security technologies, such as radiation and bio-weapon
detectors. We do not intend to create mandatory Federal
standards for such technologies, or a Federally-approved list
of technologies. Rather, the goal is to provide assistance and
guidance to those on the front lines as they seek to evaluate
and implement the use of such technologies, so as to accelerate
deployment of useful technologies and better protect the
American people from weapons of mass destruction.
In addition, H.R. 5005 is unclear as to whether the new
Department could directly contract with our national
laboratories with respect to the transferred DOE functions and
programs, or whether it would have to negotiate with DOE over
such work through the traditional ``work for others'' program.
The Committee Print ensures that direct tasking of the
laboratories by the new Department would be permitted, and
would indeed be the anticipated method. Such an approach will
ensure that the new Department can carry out these important
R&D responsibilities in the most direct and effective manner,
and avoid the bureaucracy and extra costs involved in the
current DOE ``work for others'' program.Fourth, with respect to
the control of dangerous biological agents and toxins known as
``select agents,'' the Committee Members recently helped to
enact a sweeping new registration, tracking, and security
structure--both for those select agents regulated by the
Centers for Disease Control and Prevention because of their
potential human health threat, and for those agents regulated
by the Department of Agriculture because of their potential
threat to livestock and crops. While the Administration's
proposal clearly transfers the CDC select agent program to the
new Department, it is less clear with respect to the companion
USDA program.
The Committee recognizes that there are certain
disadvantages to transferring the CDC select agent program. But
if both the CDC and USDA programs are transferred to a single
department, it will enhance the joint registration and
regulatory system that is a key component of our recently-
passed bioterrorism act. These are companion programs designed
to serve as one national registration and regulatory system for
tracking the possession and use of the most dangerous
biological agents. If the agricultural select agent program
remains at USDA, then the Committee views the transfer of the
CDC program as only exacerbating existing coordination
problems. We simply do not think it makes sense to transfer
half of this program to the new Department, while leaving the
other half at another Federal agency.
In closing, I ask you to take into consideration and lend
support to the recommendations of the Committee on Energy and
Commerce when you mark up the President's homeland security
proposal. We will be pleased to work closely with the Select
Committee on the matters within our jurisdiction and ask that
you continue to provide opportunities to do so. Thank you for
inviting me to testify today, I would be happy to respond to
any questions.
Mr. DeLay. [Presiding.] Thank you, Mr. Chairman.
Mr. Dingell, you are recognized for any statement that you
want to make.
STATEMENT OF THE HONORABLE JOHN D. DINGELL, RANKING MINORITY
MEMBER, COMMITTEE ON ENERGY AND COMMERCE
Mr. Dingell. Mr. Chairman, thank you for the privilege of
being here. I join Chairman Tauzin in bringing the amendments,
adopted unanimously by the Committee on Energy and Commerce.
The committee functioned bipartisanly with both staff and
members working together.
I think this committee knows my grave doubts of the wisdom
of much of the President's proposal. Quite frankly, I think it
is a fine opportunity for confusion, for waste, for overlap,
for duplication, and quite frankly, for a splendid amount of
delay.
Having said that, our committee has done its duty, and we
have thought to bring you a sensible and workable way in which
to address matters within our charge. I ask you to respect the
expertise, experience and hard work that the committee has
given to this matter when you consider what to recommend to the
House.
I want to praise my chairman and my colleagues on both
sides of the aisle for the work that they have done, and done
in a bipartisan fashion.
Perhaps the most important element of our work is the
protection of the important public health and biomedical
research programs from potential inadvertent harm. We make it
clear in title III that the Department of Health and Human
Services will continue to control funds and priorities in human
health-based research in collaboration with the new department.
We also make it clear in title V that HHS will retain the
primary responsibility for carrying out public health
preparedness activities at the Federal, State and local levels,
again in consultation with Homeland Security.
Essentially, the Department of Energy--rather, the
Committee on Energy and Commerce has responded to the concerns
of the public health community, which overwhelmingly supports
our recommendations to you. The General Accounting Office,
bioterrorism experts and others have also supported what we
have done, and we have tried, in consultation with them, to
strike an appropriate balance.
Another important element of our proposed amendment is a
twofold savings clause. Absent specific authorities transferred
to the legislation, the new Secretary will be given no new
regulatory responsibility; and the legislation does not change
or allow the new Secretary to override the regulatory authority
of the existing agencies. This clause found in section 737
ensures that we will not sacrifice regulatory certainty, slow
down ongoing efforts to assess vulnerabilities for critical
infrastructures, or jeopardize other vital programs if this new
department is to be created.
The committee's process goes into many more issues, and I
know the staff on both sides of the aisle have been working
closely with the staff of the individual members of this
committee and of the committee.
We are also doing our best to be constructive under a
process that I find both objectionable and unduly constraining.
I believe the haste shown here is counterproductive to the
shared goal that we all have of improving this Nation's
homeland security. I urge this committee not to make matters
worse by ignoring or undoing the many improvements that have
been developed, again on a bipartisan basis, in the Committee
on Energy and Commerce.
[The statement of Mr. Dingell follows:]
PREPARED STATEMENT OF HON. JOHN D. DINGELL, RANKING MINORITY MEMBER,
COMMITTEE ON ENERGY AND COMMERCE
I join Chairman Tauzin in presenting the amendments adopted
unanimously by the Committee on Energy and Commerce. All of you
know of my grave doubts about the wisdom of much of the
President's proposal. And you have probably figured out that I
am not a fan of this rushed and truncated process for
addressing an issue of this magnitude. But our Committee has
done its duty, and has brought to you a sensible and workable
way to address the matters within our charge. I urge you to
respect the Committee's expertise, experience, and hard work as
you consider what to recommend to the House.
Perhaps the most important element of our work is the
protection of important public health and biomedical research
programs from potential inadvertent harm. We make it clear, in
Title III, that the Department of Health and Human Services
(HHS) will continue to control the funds and set priorities in
human-health related research in collaboration with the new
Department. We also make it clear, in Title V, that HHS will
retain the primary responsibility for carrying out public
health preparedness activities at the federal, state, and local
level--again in consultation with Homeland Security.
Essentially, the Committee on Energy and Commerce has responded
to the concerns of the public health community, the General
Accounting Office, bioterrorism experts and others by striking
an appropriate balance.Another important element of our
proposed amendments is a two-fold savings clause. Absent the
specific authorities transferred in the legislation, the new
Secretary is given no new regulatory responsibility, and the
legislation does not change, or allow the new Secretary to
override, the regulatory authority of existing agencies. This
clause, found in Section 737, ensures we will not sacrifice
regulatory certainty, slow down ongoing efforts to assess
vulnerabilities for critical infrastructures, or jeopardize
other vital programs, if this new department is to be created.
Our Committee's product goes into many more issues, and I
know staff on both sides of the aisle have been working closely
with the Select Committee Members' staff to explain what we
have done and why. We are doing our best to be constructive
under a process that I find objectionable. This haste likely
will be counterproductive to the shared goal of improving this
Nation's homeland security. I urge the Select Committee not to
make matters worse by ignoring or undoing the many improvements
developed on a bipartisan basis in the Committee on Energy and
Commerce.
Chairman Armey. [Presiding.] Thank you, gentlemen, for your
statements, and we are going to operate under the 5-minute
rule.
We will begin with questions of the gentleman from Texas,
Mr. Delay.
Mr. DeLay. I thank you for your statements. I just have one
quick question.
One of the main objectives of the administration's bill was
to get technology expedited into the hands of the first
responders, the emergency responders, at the State and local
levels.
Do you have any ideas based upon your testimony that we
could accomplish that?
Mr. Tauzin. I have no doubt we can. The whole concept of
setting up the technology clearinghouse within this department
is designed to do that. What we have learned is that port
authorities don't know whether or not to call to find out what
kinds of equipment would really do the job of testing to see
whether or not someone is trying to bring in something harmful
to this country.
One of our ports in Virginia has volunteered on their own
and they spent a great deal of money installing equipment in
some of their cranes to do that. But we had to rush in and give
them advice because they had no one to turn to.
This department needs to be tasked with the job of actually
clearing what technologies work, what should be the standards
to have a quality enough product out there so that it really
does give us a measure of security; and then, hopefully, assist
in the State and local grants that we provide in the
bioterrorism bill to make sure that those technologies are
deployed properly.
Mr. DeLay. But I think the key word of my question is
``expedited.'' how do we get past what is the normal
bureaucracy that takes sometimes more than a year to approve
technology?
We are in the process right now of--in the Transportation
Security Administration, on baggage screeners, and it seems
they want to buy old technology when new technology is almost
ready, yet they want to go spend all this money for old
technology and don't want to wait for the new technology.
Mr. Tauzin. We include in here measures recommended by
Heather Wilson that would actually invite those in the
community who are inventing and improving technology to bring
it to the Department so that it can be quickly reviewed for
effectiveness, and then recommendations are issued from that.
In other words, the Department would not actually tell
anyone, you have to install this or that particular technology,
but it could test quickly whether or not the manufacturer or
the inventors' suggestions about the quality of his product are
true or valid, and then make recommendations to folks in the
private sector and in some public agencies on whether or not
that technology might meet their needs.
Expediting it obviously is going to be the role of the new
Secretary and making sure this happens very quickly.
Mr. DeLay. Mr. Dingell, do you have any comments on that?
Mr. Dingell. I have nothing to add to what my chairman
said.
Mr. DeLay. Thank you and thank you for your testimonies.
Chairman Armey. The gentlelady from California.
Ms. Pelosi. I would like to follow up on Mr. DeLay's
question.
First, I want to welcome both of you and thank you for your
excellent presentations and the hard work that went into
developing your product today.
On the intelligence side, we have needs and leads. We know,
you know, what we need technologically and we try to go find
that; or people come in with leads which are excellent. I spoke
to a technology group a couple of weeks ago, and I said we had
approximately 7,500 suggestions coming forward, and that
morning they said, no, it is now up to 10,000. That was a few
weeks ago.
So this new department, as well as other agencies of
government, are going to have to be very resourceful and agile
in how we can accommodate what will help us technologically.
I would have hoped that this department would have been
more of a reflection of the advances in technology and used
technology for coordination rather than attempting to establish
a gigantic department, which I think is an old-fashioned way of
approaching it, especially heeding the distinguished ranking
member's caution about acting in haste, that we are going very
fast.
But hopefully, with all of the collective wisdom of our
Chairs and ranking members and the receptiveness of our
distinguished chairman to heed the recommendations, we will be
able to produce something that will reduce risk to the American
people and manage our resources judiciously, as the President
spells out in his strategy.
My question was one that you addressed, Mr. Dingell, in
your comments, and that was an important part of your
legislation, and that is section 337 relating to the regulatory
authority of existing agencies.
I asked some of the Cabinet Secretaries yesterday if they
thought that any regulatory authority of an existing agency
that was not spelled out to be given to Homeland Security, in
their view, resided where it was to begin with, in the existing
agency. They all said, yes.
Would you spend a moment to tell the committee the basis of
your putting forth this as a priority and why, therefore, it is
important?
Mr. Dingell. Thank you.
This was a matter of very special concern in the committee
to us. When you reorganize, you have to be sure that you know
what you transfer and what you do not transfer. The best way of
being sure that you transfer what you want, you don't create
confusion and disorder later, is by being exquisitely precise.
The functions of section 737 are to assure that.
The section achieves two important results. First, it makes
it clear that except for regulatory authority that comes with
specific functions being transferred to the new department, no
new regulatory authority is being created by the provisions of
section 201 or other parts of the bill. That is H.R. 5005.
I want to make it clear, we limit this to the sections
within the jurisdiction of our committee, and I have sought to
do nothing about the responsibilities of other committees. Oh,
I think this committee, in its wisdom, may very well want to
consider whether you want to apply something like section 737
to the work of other committees, but I leave that to your
wisdom and your discussion with those committees.
Second, the rule of construction ensures that existing
regulatory authorities of agencies, our part of agencies that
are not being transferred to the new department are not changed
or diminished in any other matter. For example, the Nuclear
Regulatory Commission, the Environmental Protection Agency and
other agencies have authority and responsibilities to assess
vulnerabilities of critical infrastructures in their areas of
expertise.
This provision is important to ensure that those agencies
can continue to exercise their authorities to protect the
American people. And I want to make it very clear, if you
transfer authorities from the existing agencies, Food and Drug,
and NRC, EPA, the Department of Energy, you may very well find
that you leave yourself in a situation where you have all of a
sudden moved important public health or other concerns like
that to an agency that really doesn't concern itself with those
questions and is concerned with security.
I would beg you to be exquisitely careful of that because
there is great opportunity for mischief here.
Ms. Pelosi. Thank you.
Mr. Chairman, would you like to comment?
Mr. Tauzin. Let me second Mr. Dingell's comments. Not only
did we spend more time on section 737, which is a rule of
construction that is going to be critical for agencies and
courts to decide whether this new department has new authority
to regulate, or whether it is taking authority from someone
else who had it in our government structure.
This rule of construction has been very carefully vetted
with our counsel, and many of us who helped write it, to do two
things. One is to protect against an inadvertent transfer of
authority, or complications or confusions about that particular
subject matter. And secondly, to make it clear, however, in our
savings clause that is we don't mean by this reservation not to
require the collaboration and the coordination of the
Secretary, the roles he is given in respect to other sections
of the bill.
One final thought. Again, we cannot, obviously, recommend
to you what you might do with sections not under our
jurisdictional control. But if this works for the sections
under our jurisdictional control, we urge you to seriously
think about whether or not it might work for other areas not
covered in our report to you.
Ms. Pelosi. Once again, thank you very much for your very
valuable contribution and for your leadership.
Thank you, Mr. Chairman.
Chairman Armey. The gentlelady from Ohio.
Ms. Pryce. Thank you very much, Mr. Chairman. And Chairman
Tauzin, I am very sorry, I missed your presentation. But I have
a question about your committee's work in terms of changing the
Department, the proposal the Department has to make the
Division of Chemical, Biological, Radiological and Nuclear
Countermeasures into a division focused primarily on research
and technology. And I am sure you addressed that in your
remarks.
But many have criticized the administration's effort, up to
now, of being too broad already. And broadening this aspect of
it, I would like your thoughts about how this could, or perhaps
may not, detract from the division's mission to prevent these
chemical and nuclear, biological attacks on American soil.
And do you think that broadening this part of the plan is a
good idea in terms of how large it is already?
Mr. Tauzin. Well, first of all, there is no question that
in our hearings, as I say, we had 40 witnesses that came
forward. We learned two things. One is that much of this work
is already being conducted on very important areas of research
and development. That is critical in the various authorities
that currently exist in those departments, and we don't want to
interfere with that.
On the other hand, this department should have the right,
for example, to specifically direct the laboratory to examine
an issue that may affect the security of our homeland. So we
have made it clear they have that power to specifically direct
some laboratory research that may be necessary. But, as I said,
we very much object to the notion that they ought to control
the funding that eventually goes to these departments to do
these kinds of things that currently are being done in research
and development at NIH and CDC, that generally affect the
public health or agricultural health of our country, when that
work is customarily performed for nonterrorist activities. So
we have tried to balance it very carefully.
In structuring the bill, our recommendations has a
requirement for collaboration and consultation in giving the
new Secretary actual authority to direct research when he or
she may need it for protection of our homeland, but
nevertheless respecting the current role of these agencies who
every day protect us from infectious diseases and outbreaks and
who every day are working on cures for cancer and all the other
things that are critically important to our country without a
terrorist threat.
Ms. Pryce. Does your committee's proposal put this under
the new department?
Mr. Tauzin. We leave to the HHS, as the President has
recommended, these functions, but we give to the new department
the right, in fact the obligation, to consult with, collaborate
with these agencies in setting priorities that might affect
homeland security. And we give them, as I said, specific
authority to direct research at our labs when it is clear that
research will yield some benefit to homeland security.
Ms. Pryce. Thank you, Mr. Chairman. I yield back.
Chairman Armey. The gentleman from New Jersey.
Mr. Menendez. Thank you, Mr. Chairman. I want to thank both
the chairman and the ranking Democrat on the work that they
have done.
I raised a series of questions with Secretary Thompson,
Governor Ridge and others when they were here, based upon
statements made by a variety of people on the whole question of
our public health and research, and I think that you have
addressed it; but I want to raise them again and have you tell
me whether what you did in committee responds to these
concerns.
Dr. Margaret Hamburg of the Nuclear Threat Initiative said
that if these programs, referring to public health research and
work of the CDC, are carved out of their current habitats and
moved into the new proposed department that the likely outcome
would be to weaken and fragment our Nation's capacity to
respond to infectious disease, whether occurring naturally or
caused intentionally. Dr. Tara O'Toole of the Center for
Civilian Biodefense at Johns Hopkins said that if this takes
place, the country will be forced to create parallel work
forces, one in Homeland Security for bioterrorism preparedness
and another in HHS for normal public health functions. And the
GAO found that the structure, as proposed, does not ensure both
the goals of homeland security and public health will be met or
how priorities for basic public health capacities currently
being funded to the dual CDC programs will be maintained.
Do you believe what you did in the committee--particularly,
I saw your comments, Mr. Dingell, on title III. Do you believe
that that responds to those concerns, as well as you, Chairman
Tauzin?
Mr. Tauzin. We think they do. We make it very clear, and we
understand the administration supports us in this
clarification. Those programs remain with the agencies that are
conducting that research and development. Research and
development does not move to the new department. The new
Secretary does not have the power to set the priorities.
Mr. Menendez. That is different than the administration's
mark.
Mr. Tauzin. That is a little different. We clarified it, I
suppose is a better way to put it.
What we made clear is that the new Secretary nevertheless
has the right to collaborate with those agencies in defining
priorities. So, in fact, the President and new Secretary
determine that the work of these agencies can best be
prioritized in an area that is critical to a new element
affecting homeland security. Collaboration is then required to
determine that new priority.
Mr. Menendez. We would want all of our departments to
collaborate in terms of suggesting what is the best course for
public health in the Nation, including within a security
context, but your committee made it very clear that HHS retains
the power to make that decision at the end of the day.
Mr. Tauzin. That is correct. Obviously, who controls the
money has a lot to do with that. That is why our committee
strongly recommends that the new Secretary not have primary
control over the $1.9 billion that goes into NIH grants or the
$1.5 billion that goes into public health emergency grants. We
think that money needs to go to those agencies, so that they
maintain their primary role in setting the priorities of those
research and development projects, always giving the Secretary
and the President the capacity to collaborate those agencies
and reassessing priorities, if that is necessary.
But controlling the money obviously does shift and lever
the decisions and priorities; and we think not only would that
be wrong, but that would be a much more cumbersome way in which
to make the money flow expeditiously to the purposes intended.
Mr. Menendez. Mr. Dingell, would you agree with that?
Mr. Dingell. I agree absolutely.
Mr. Menendez. And that vote that took place was bipartisan
in your--.
Mr. Tauzin. Yes.
Mr. Menendez. Also, one thing: I want to commend you, Mr.
Tauzin. Something we have not touched upon in this committee or
looked at in the context of this department, but it is cyber
security, and you make the point in your written statement that
the vulnerability of some of these systems that control our
electricity networks or the operation of large dams or drinking
water systems is incredibly important and subject to attack. In
the committee's mark, could you describe where within the new
department you see such functions taking place?
Mr. Tauzin. We actually recommend a special department
within the new department. Those will be focused on cyber
security. And the reason we recommend that is because our 4-
year hearing process into this matter has quite disturbed us.
We have had red teams from GAO come in and demonstrate in
front of our committee members the ease with which they have
been able to hack into sensitive government material, sometimes
not into a government agency, but a government agency that is a
link to a government agency. They have been able to compromise
the security systems, and been able to take control of our
microphones, they have been able to take control of the video
cameras on top of computers in some of these agencies.
And to see them do that in our committee, I think
heightened all of our awareness. This new threat to our Nation,
which we understand now from the Intelligence Committee
information gathered and presented to us, very much includes
cyber attack capabilities. It needs to be a high priority, a
special unit within the new department focusing on
strengthening and improving the security systems of our
Nation's sensitive infrastructures, not just those that are
public, but very importantly, as you point out, the private
water systems or electric systems or utility systems that are
critical to our Nation's health and economy.
Mr. Menendez. Thank you.
Chairman Armey. We can't help but observe how much more
active these hackers will be when they all have broadband.
Mr. Tauzin. Absolutely. But again you make a good point.
With the slow-speed dial-up systems that currently exist, it is
one thing to protect them, but when you get into digital
broadband high-speed systems, we had better have a special
department within this new department on top of these new
systems because they are going to be extraordinarily
vulnerable. And the technology has changed so rapidly that
unless somebody is on it constantly, and as Mr. DeLay pointed
out a minute ago, unless somebody is finding new technology,
not the old technology, we are going to be in a lot of trouble.
Chairman Armey. Thank you.
Mr. Portman. Thank you, Mr. Chairman. I appreciate the
testimony on Energy and Commerce. I appreciate the seriousness
with which the Committee, on a bipartisan basis, has looked at
its areas of jurisdiction and notwithstanding--so Mr. Dingell's
larger concerns have given us some constructive changes. The
big one is, I think, the funding issue.
Secretary Thompson, as you know, testified before this
committee that he believed that the administration's proposal
is the proper way to go; in other words, taking some of these
funding decisions of public health away from him and, instead,
putting them in Homeland Security.
You talk about a consultation process where the Secretary
of HHS will continue to have that budget authority, but he
would consult with the Homeland Security Department and that
Secretary. Is there a way to strengthen that?
In other words, can you see a way where, perhaps not a
veto, but there would be more than simply consultation on
behalf of the Homeland Security agency to be sure they are
getting the public health information they need?
Mr. Tauzin. Mr. Portman, I think we have literally tried to
strike that balance. The original language required
consultation. We went a great deal forward when we talked about
collaboration to actually make the decisions together when it
comes to homeland security priorities. But again I don't have
to tell you, it is one thing to leave the program at HHS, CDC,
or NIH and then have a new Secretary control the funding.
How can you not agree with the man who has the money to
decide whether or not you spend it?
Mr. Portman. You are aligning responsibility and authority.
The second question--and Mr. Dingell feel free to chime in
here on these--there are in your draft section 503 changes with
regard to the Secretary of Homeland Security and his ability to
be able to respond to a threat of a nuclear incident. Your
language, as I read it, says he must wait for an actual threat
to occur before he can take charge of a nuclear incident
response team. Is that accurate?
Mr. Dingell. I don't think that is what we said, and I
don't think that is what we have intended. I think we expect a
certain amount--I think the language of this proposal
indicates--an expectation is that the Department of Homeland
Security will do the things it has to do on a participatory
basis to provide the necessary security protection of the
public interest here.
We face a very major problem. A huge problem this country
confronts is addressing problems of health, of biology, of
risks from diseases and things of that sort. We have a
wonderful mechanism set up to address that. If you make
changes, you are liable to significantly adversely affect that
capacity. We don't want that to be hurt any more than it has to
be by the changes we are engaging in here.
We are trying, at the same time, to see to it that the new
agency gets the authorities it needs to address the concerns it
confronts. Those will occur less frequently, but they will
require considerable participation at the right time and
fashion.
We want to see both occur, but we don't want to lose what
has been very valuable in this country, and that has been the
ability to move forward on diseases and public health risks
which are very severe, and we didn't want to see the shift of
emphasis from public health to simply addressing the problem of
a momentary exercise, which involved essentially addressing
some kind of a terrorist act.
It is a difficult balancing, but you have to understand you
have to protect both capabilities.
Mr. Tauzin. The staff indicates to me, Mr. Portman, that we
didn't make any significant changes.
Mr. Portman. So section 503 in terms of the nuclear
incidents is pretty much the way the administration proposed
it?
Mr. Tauzin. Yes. My staff indicates to me that we have not
materially affected the print that was offered in the bill.
Mr. Portman. I do appreciate the fact that your committee
has seen some inadequacies in our response to bioterrorism and
taking advantage of this opportunity to try to streamline that
approach, so that next time we are faced with such a threat, we
can be better prepared; and I want to commend you for that. And
I think, again, you have given the Select Committee some
constructive suggestions along these lines over and above what
the administration had proposed.
One final quick question, Mr. Dingell: You were here when
the Department of Energy was created. You were integral to
that. What lessons did you learn from the creation of the
Department of Energy that we could--.
Mr. Dingell. Lessons? Well, the following--.
Mr. Tauzin. Restrain yourself, John.
Mr. Dingell. One, be very careful. Two, it is full of
surprises. Three, you are liable to create enormous confusion
and mess you can't anticipate. And last I would say be careful
what you ask for because you are just liable to get it and you
may be sorry.
Mr. Tauzin. I will be more specific with you, Mr. Portman.
The Department of Energy was, in many cases, an agency
cobbled together with a lot of different things that were
happening in our government. Many of those areas cobbled
together not only don't get along, but are antagonistic to one
another in many cases. It is an agency riddled with fiefdoms,
and I believe one of the most unfortunate, badly cobbled
together agencies of the Federal Government.
And Mr. Dingell's advice to the President at the very
beginning of this process, to look at what happened in the
Energy Department when it was created.
Mr. Portman. To be sure there was a clear mission, clear
strategy--.
Mr. Tauzin. And to make sure we don't repeat those mistakes
has been a good message.
Mr. Dingell. One of the things I learned--and I handled the
legislation on the House side as the chairman of the
subcommittee of jurisdiction--is that through a remarkable
effort of cooperation, coordination, and so forth, led by a
wonderful gentleman by the name of Frank Zarb for both
President Ford and President Nixon, we were able to meet the
serious character of the energy threat that we confronted.
We did it without setting up a new department. We did it as
a Nation by having the President fully behind the power, the
prestige and capability of Mr. Zarp to address this; and he did
it with an extraordinary level of understanding and
cooperation, which he engendered among all who were concerned,
including the private companies which were absolutely vital to
the accomplishment of these goals.
I didn't understand it at the time, but looking back in
history, I can tell you, I do now understand what he did. I can
telling you that when you have a crisis, you don't just
manufacture a department to deal with it. You begin to bring in
all the people that you have to bring in to do the work, and
you get them to cooperate in America--public, private, ordinary
citizens, all of them who will work together on this.
I can tell you, you put them in a department, and then the
warfare and the trouble starts. And I can just tell you that
you should anticipate you are going to have a vast period of
confusion when you set this agency up. It is going to be
counterproductive.
Mr. Tauzin. We are going to have to oversee every part.
Chairman Armey. Let me thank both our witnesses and the
gentleman from Ohio.
The gentlelady from California.
Ms. Pelosi. I have already had my questions. I want to join
in thanking our distinguished witnesses for their excellent
testimony, and I know you have the last word.
Chairman Armey. I believe I heard the Chair--I heard the
chairman have the last word, and I believe it is a good word
for us, ``oversight.'' the agency and the Federal Government
must be subjected, as all of our Federal Government must, to
congressional oversight. I have no doubt that your mark is
instructive on that as it is on other matters.
I want to thank both of you gentlemen and your committee
for a good mark. It is quite constructive to me as I prepare my
chairman's mark. Thank you for your testimony, and we may
excuse our witnesses with great appreciation.
Without objection, the Select Committee will stand in
recess until 2 o'clock.
[Recess.][2:05 p.m.]
Chairman Armey. The committee will come to order.
The committee is delighted to hear from the Government
Reform Committee. Gentlemen, we try to work with a 5-minute
rule here. We will, without objection, place your written
statements in the record, and we will ask you each in your
turn, so far as you are able, to summarize your opening
statements within the 5-minute rule; and then we will proceed
from there to questioning under the 5-minute rule.
With those admonitions, we will begin with Chairman Burton.
STATEMENT OF THE HONORABLE DAN BURTON, CHAIRMAN, COMMITTEE ON
GOVERNMENT REFORM
Mr. Burton. Thank you, Mr. Chairman. I would like to say at
the outset that I probably will go a little bit over the 5
minutes, and that is because we had the whole bill, not just
parts of it, and there were 40-some amendments that we dealt
with. So I will try to be as brief as possible.
First of all, I would like to say how proud I am of what
the committee did on this bill. We marked it up last Thursday.
We started working at 10:00 in the morning and finished close
to 2:00 the next morning, a 16-hour marathon. We had almost 40
amendments, and when we were through, even though we had a lot
of discussions and disagreements, the bill was passed by a vote
of 30 to 1.
At the beginning of the meeting, I said that I wanted this
to be bipartisan. And I have to say to my colleague, Mr.
Waxman, who is here, it was bipartisan; and we had
disagreements and long debates, but I think things were handled
in a pretty fair way, and we all worked together.
I am especially proud of the fact that we voted together to
keep the main building blocks of the President's plan, as some
of the other committee's did not. And I am a strong supporter
of President Bush's plan. We voted to keep the Coast Guard in
the bill. We voted to keep the INS in the bill. We voted to
keep the Secret Service and FEMA in the bill, and those are
very important votes.
Without those agencies, the Department of Homeland Security
simply won't work. You cannot have a department that focuses on
border security without the Coast Guard. You cannot have a
permanent department that focuses on recovery from terrorist
attacks without FEMA.
The fact remains that we weren't prepared to prevent what
happened on September 11, and we weren't prepared to recover
from a terrorist attack of that magnitude. We need to have
these agencies working together in a coordinated way to prevent
the next terrorist attack. By creating this new department, we
think we are going to improve upon that coordination.
Let me say a few words about management flexibility.
Putting together this department is going to be a huge
undertaking. They are going to need some flexibility to get the
job done. We did not give the administration everything that
they asked for; however, we put together proposals on
procurement and property and personnel that I think are
balanced and fair. I think these provisions are sound, but at
the same time, we are open to further discussions. People may
have ideas that will improve on what we have done, and
obviously what you decide will be the final decision.
I want to emphasize two specific personnel issues, first,
the Morella amendment. I have a lot of respect for Connie
Morella. We worked together on a number of issues, but I
disagree with her on this amendment. Her amendment would limit
the President's authority to restrict collective bargaining at
the Homeland Security Department on national security grounds.
I think this would be a very big mistake.
First of all, there is no evidence of a problem here. This
is a power that has been used sparingly by Republican
Presidents and Democratic Presidents, so I don't understand
what problem we are trying to fix.
Secondly, we are in a war. The Homeland Security Department
is a central part of our strategy to win that war. Why would we
want to give the President less authority over Homeland
Security, in that department, than he has over any other
department?
This was probably the most controversial issue we dealt
with last week, and by the way, we had members of the committee
who are strong supporters of Federal employees speak against
this amendment as well. It was approved by only one vote.
I think it is a mistake to limit the President's national
security authorities right now, since we are in a war; and I
would ask the Select Committee to reconsider that issue.
The second issue I want to raise in this area is pay
ceilings. At one time or another, almost every Federal agency
has come to our committee and asked that they have these pay
ceilings lifted for the senior executives. I think that is a
mistake. We have had agencies come to us and ask that they be
allowed to pay their managers more than the head of an agency.
That does not make sense from a management standpoint and
doesn't make sense from a fiscal standpoint either. When you
look at those agencies that have been given exemptions from the
pay ceilings, I think you will find that their costs have gone
up and that their management has not necessarily improved.
So I would ask that you would follow our example and not
remove the pay ceiling.
Now, regarding indemnification, the indemnification
provisions that we added to the bill are very important. There
are high tech companies across the country that are developing
cutting-edge technology to help prevent terrorist attacks, but
in some cases, they cannot sell them to the government because
they can't get enough insurance. The risks of liability from
major terrorist attacks are so great that insurance companies
cannot, or will not, afford to insure these products.
We need these new technologies to protect the country and
critical infrastructures. Right now we are vulnerable.
We put together a very responsible proposal to deal with
this problem. It would allow the Federal agencies to indemnify
contractors for antiterrorist technology after they purchased
as much private insurance that they can get. In other words, if
they buy insurance up to a certain level that is the maximum
level they can get, they are worried about their exposure, the
government will be able to provide a hold harmless clause above
that.
The Secretary of Homeland Security could also indemnify
contractors on behalf of State and local governments on the
same terms. The Director of OMB would have a very strong role
to play in the process to protect the interests of the
taxpayers.
This proposal has bipartisan support, and I hope you will
include this in the bill you send to the floor.
Finally, I would like to make a few brief comments on the
issue of visas. I believe very strongly that the authority for
issuing visas belongs at the Homeland Security Department. I
think this is part of our first line of defense against
terrorists trying to get into this country. The State
Department has never taken security concerns very seriously in
this area. Many of my colleagues agree with me, including the
chairman of the Judiciary Committee, Mr. Sensenbrenner.
Unfortunately, we did not prevail last week and I want to give
you a couple of examples.
Charles Parish worked in Beijing. He granted visas to
people because of sexual favors and money. He took the Fifth
Amendment before my committee. After he took the Fifth
Amendment, he got four separate raises, was promoted, and they
put him in charge of checking out visas for Iran and Iraq in
the Middle East; and here is a guy who sold visas for sex and
money. Now, I just can't understand how the State Department
could allow that.
We had visa fraud in Qatar. Just last week it was reported
that an employee there was selling visas for $10,000 or more
apiece. He sold one visa to a person who was involved or linked
to the September 11 tragedy.
We had fraud cases in other countries. In Guyana, a fellow
got 21 years in prison for selling 800 visas for over $10,000
apiece and 26 of the individuals he sold visas to committed
crimes in the U.S. including gang rape and other crimes. In
Juarez, Mexico, a consular officer was recently arrested for
selling visas. Also, a DEA embassy staffer was recently
convicted for bribery for helping Nigerians obtain fraudulent
visas.
This has to be tightened up, and I don't see the State
Department tightening it up.
Now, they also failed to investigate the September 11
tragedy. This is something most people don't know. We learned
that GAO interviewed a number of the consular officers over in
Riyadh, Saudi Arabia, and when they asked the consular officers
about the visas they were dealing with before the tragedy on
September 11, they said the people from GAO were the first
people to ask them about that. And this was just recently;
nobody from the investigative arm of the State Department ever
went over and checked that out, and you would have thought that
would have been the first thing they would have done.
They also had a process over there called Visa Express
where you could go get a visa from a travel agent, and it was
just rubber-stamped at the embassy. Three of the hijackers
received their visas through the Visa Express program; and that
should be eliminated right now. And the State Department still
has that ongoing, even though that is a tragedy.
Let me just end up by saying I am disappointed that we had
a compromise on that. We did work with our colleagues on the
Democrat side. In particular, we worked with Representative
Lantos on this. We did come up with a compromise where there
would be a person from Homeland Security in each embassy to
oversee that. That is a giant step in the right direction, but
I still feel personally, and I think many of my colleagues do,
that we ought to take the visa situation completely out of
State and put it under Homeland Security. That is the first
line of defense.
And finally let me just say once again that I think the
committee did an outstanding job. I compliment my colleague,
Mr. Waxman, and his colleagues for their cooperation; and I
hope that you will look favorably on almost everything we did.
[The statement of Mr. Burton follows:]
PREPARED STATEMENT OF THE HON. DAN BURTON, CHAIRMAN, COMMITTEE ON
GOVERNMENT REFORM
Good afternoon. Thank you for inviting me to testify before
you today.
Before I talk about the substance of the bill, I want to
say a few words about the Government Reform Committee. I'm very
proud of the work that our Committee did on this bill. We
marked it up last Thursday. We started working at 10:00 in the
morning, and we went straight through until 1:00 the next
morning. We voted on nearly 40 amendments. At the end of that
process, we approved that bill by a vote of 30 to 1.
At the beginning of our meeting, I said that I wanted us to
have a bipartisan process--and it was. We had some
disagreements. We had some long debates. But we handled every
issue in a fair and open way. At the end of the day, we wound
up with a good bill that Republicans and Democrats voted for.
keeping the structure intact
I'm especially proud of the fact that we voted to keep
together the main building blocks of the President's plan. I'm
a strong supporter of this plan.
We voted to keep the Coast Guard in this bill.
We voted to keep the INS in this bill.
We voted to keep the Secret Service and FEMA in
this bill.
Those were very important votes. Without these agencies,
the Department of Homeland Security won't work. You cannot have
a department that focuses on border security without the Coast
Guard. You cannot have a department that focuses on recovery
from terrorist attacks without FEMA.
The fact remains that we weren't prepared to prevent what
happened on September 11. And we weren't prepared to recover
from a terrorist attack of that magnitude. We need to have
these agencies working together in a coordinated way to prevent
the next terrorist attack. By creating this new department,
we're going to improve that coordination.
management flexibility
Let me say a few words about management flexibility.
Putting this department together is going to be a huge
undertaking. They're going to need some flexibility to get the
job done. We didn't give the Administration everything they
asked for. However, we've put together proposals on procurement
and property and personnel that I think are balanced and fair.
I think these provisions are sound, but at the same time, I'm
open to further discussions if people have ideas that will
improve what we've done.
I want to emphasize two specific personnel issues. First--
the Morella Amendment. I have a lot of respect for Mrs.
Morella. We've worked together on a number of issues. But I
disagree with her on this amendment. Her amendment would limit
the President's authority to restrict collective bargaining at
the Homeland Security Department on national security grounds.
I think this would be a mistake.
First of all, there's no evidence of a problem here. This
is a power that's been used very sparingly, by Republican
Presidents and Democratic Presidents. So I don't understand
what problem we're trying to fix. Secondly, we're in a war. The
Homeland Security Department is a central part of our strategy
to win that war. Why would we want to give the President less
authority over the Homeland Security Department than he has
over any other Department?
This was probably the most controversial issue we dealt
with last week. And by the way, we had Members of the Committee
who are strong supporters of Federal employees speak against
this amendment. It was approved by only one vote. I think it's
a mistake to limit the President's national security
authorities right now, and I would ask the Select Committee to
reconsider this issue.
The second issue I want to raise in this area is pay
ceilings. At one time or another, almost every Federal agency
has come to my Committee and asked to have the pay ceilings
lifted for their senior executives. I think this is a mistake.
We've had agencies come to us and ask that they be allowed to
pay their managers more than the head of the agency. That
doesn't make sense from a management standpoint. And it doesn't
make sense from a fiscal standpoint. When you look at those
agencies that have been given exemptions from the pay ceilings,
I think you'll find that their costs have gone up, but that
their management hasn't necessarily improved. So I would ask
you to follow our example and not remove the pay ceiling.
indemnification
The indemnification provisions that we added to the bill
are very important. There are high-tech companies across the
country that are developing cutting-edge technology to help
prevent terrorist attacks. But in some cases, they can't sell
them because they can't get enough insurance. The risks of
liability from a major terrorist attack are so great that
insurance companies can't afford to insure these products.
We need these new technologies to protect critical
infrastructures. Right now, we're vulnerable. We've put
together a very responsible proposal to deal with this problem.
It would allow Federal agencies to indemnify contractors for
anti-terrorist technology after they've purchased as much
private insurance as they can get. The Secretary of Homeland
Security could also indemnify contractors on behalf of state
and local governments on the same terms. The Director of OMB
would have a very strong role to play in the process to protect
the interests of the taxpayers. This proposal has bipartisan
support, and I hope you'll include this in the bill you send to
the floor.
authority over visas
Finally, I'd like to make a few brief comments on the issue
of visas. I believe very strongly that the authority for
issuing visas belongs at the Homeland Security Department. I
think this is part of our first line of defense against
terrorists trying to get into this country. The State
Department has never taken security concerns very seriously.
Many of my colleagues agree with me, including the Chairman of
the Judiciary Committee. Unfortunately, we didn't prevail last
week.
I'm disappointed in that, but I do think that the
compromise we've arrived at is better than the Administration's
proposal. It would give the Homeland Security Department the
authority to have employees on site at every consulate to
monitor visa activity. And it would clarify that the final
authority to reject a visa application rests with the Secretary
of Homeland Security. I hope the Select Committee will adopt
this language. I also hope that you'll adopt an additional
amendment that we approved that would terminate the Visa
Express program in Saudi Arabia. Fifteen of the 19 September 11
hijackers came from Saudi Arabia. Three of them got their visas
through the Visa Express program. Given those facts, I can't
imagine why we would have a program in that country that let's
people apply for their visas through a travel agent. It doesn't
make any sense. The fact that the State Department continues to
defend it speaks volumes about why this responsibility belongs
at Homeland Security.
Thank you again for allowing me to testify. That concludes
my statement. I'd be happy to take any questions.
Chairman Armey. Thank you. Mr. Waxman.
STATEMENT OF THE HONORABLE HENRY A. WAXMAN, RANKING MINORITY
MEMBER, COMMITTEE ON GOVERNMENT REFORM
Mr. Waxman. Members of the Select Committee, thank you for
inviting me to testify today.
It is clear we need homeland security legislation. Federal
departments are not working together as they should to protect
our Nation. Unfortunately, the bill proposed by the President
has serious flaws; in fact, I think it may well cause more
problems than it solves.
Last week, I joined with Representative David Obey, the
ranking member of the Appropriations Committee, in sending a
letter to Governor Ridge outlining a number of serious concerns
with this bill; and I ask that that letter be part of the
record.
Chairman Armey. Yes. The record is open, and without
objection, it will be in.
[The information follows:]
July 9, 2002.
Dear Governor Ridge: Congress is considering the President's
proposal to create a new Department of Homeland Security on an
accelerated schedule. But now that Congress has received the
legislative language that would implement the President's plan. Many
issues have arisen about the details of the proposal. We are writing in
the hope that you will be able to provide expeditious responses to
these concerns.
The issues fall into ten main areas. First, the new Department will
inherit a vast array of responsibilities that have nothing to do with
homeland security. These include administering the National Flood
insurance Program, cleaning up oil spills at sea, and eradicating pests
like the boll weevil. Giving the new Department dozens of
responsibilities unrelated to homeland security risks bloating the size
of the bureaucracy and diluting the new Department's counterterrorism
mission.
Second, the legislation lacks an effective mechanism to coordinate
the activities of the many federal agencies that have major homeland
security functions. The President's submission to Congress listed 153
different agencies, departments, and offices involved with homeland
security.\1\ After the creation of the proposed new Department, this
number actually will increase to 160 agencies, departments, or offices
with security roles. But the draft bill does not include a mechanism
for developing and implementing a unified homeland security strategy
across the entire government.
---------------------------------------------------------------------------
\1\ President George W. Bush, The Department of Homeland Security
(June 2002) (hereinafter ``White House Briefing Document'') (on line at
http://www.whitehouse.gov/deptofhomeland/).
---------------------------------------------------------------------------
Third, there are inefficiencies and coordination problems that will
arise when parts of agencies are removed from their existing
departments and moved to the new Department. The goal of the
legislation is to make government more efficient, but some of the
proposed changes could have exactly the opposite effect. For example,
GAO has testified that programs transferred from the Department of
Health and Human Services include ``essential public health functions
that, while important for Homeland Security, are critical to basic
public health core capacities.'' \2\
---------------------------------------------------------------------------
\2\ General Accounting Office. Homeland Security: New Department
Could Improve Coordination but May Complicate Public Health Priority
Setting, 6 (June 25, 2002) (GAO-02-883T).
---------------------------------------------------------------------------
Fourth, despite prior assurances that the Administration supported
reforms of the Immigration and Naturalization Service (INS) that were
passed by the House, The President's proposal would import the INS into
the new Department of Homeland Security wholly intact and without these
needed internal reforms.
Fifth, the legislation includes broad exemptions from our nation's
most basic ``good government'' laws. The legislative language would
allow the new Secretary, in conjunction with the Office of Personnel
Management, to waive all provisions of our civil service laws. These
laws have evolved over many decades to ensure that our government has a
professional civil service hired on the basis of merit rather than
political favoritism. Yet the proposed legislation would allow the new
Department to waive all of these protections, including those that
prohibit patronage, protect whistle blowers, provide for collective
bargaining rights, and ensure health and retirement benefits.
A similar approach has been taken with procurement and the
management of real property. Under the proposal, the Secretary does not
have to comply with cornerstone procurement principles, such as open
and competitive bidding. Moreover, basic government in sunshine laws,
such as the Freedom of Information Act and the Federal Advisory
Committee Act, have been limited in their application to the new
Department.
Sixth, the President's proposal would give the new Department
extraordinary powers to avoid meaningful congressional oversight. Not
only would the new Department be able to exempt itself from civil
service, procurement, and property laws, it would also be able to
rearrange functions, eliminate offices, and transfer large amounts of
appropriated funds without having to seek prior Congressional approval.
Seventh, the proposal does not address the potential for disruption
in the nation's war against terrorism. According to David Walker, the
Comptroller General of GAO:
[R]eorganizations of government agencies frequently encounter
start up problems and unanticipated consequences that result
from the consolidations, are unlikely to fully overcome
obstacles and challenges, and may require additional
modifications in the future to effectively achieve our
collective goals for defending the country a terrorism.\3\
---------------------------------------------------------------------------
\3\ U.S. General Accounting Office. Homeland Security: Proposal for
Cabinet Agency Has Merit, But Implementation Will Be Pivotal to
Success, 5 (June 25, 2002) (GAO-02-886T).
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Although Administration officials have compared this restructuring to
the formation of the Department of Defense in the 1940s, that
reorganization was not attempted until after the war was over, and even
then it caused confusion and inefficiencies for decades.
Eighth, there is no comprehensive national strategy for combating
terrorism to guide the new Department. Logically, a major bureaucratic
reorganization like this should be proposed as part of a comprehensive
national strategy for providing homeland security. But in this case,
the reorganization is occurring in a vacuum. There is no national
strategy that identifies the major threats the nation faces and
explains how the new Department will meet them. Nor is there a
comprehensive threat and risk assessment that identifies and
prioritizes threats in a coherent manner.
Ninth, the costs of this proposal have not been identified.
Although the Administration has stated that the creation of this new
Department ``would not 'grow' government,'' \4\ this is not credible.
According to the nonpartisan Congressional Budget Office, even the less
ambitious reorganization proposed by Senator Lieberman will cost
taxpayers over $I billion over the next five years.\5\ Costs for the
Administration's plan inevitably will be higher.
---------------------------------------------------------------------------
\4\ House Briefing Document, supra note I, at 17.
\5\ Congressional Budget Office, Cost Estimate: S. 2452, National
Homeland Security and Combating Terrorism Act of 2002, 1 (June 17,
2002).
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Finally, the Administration's proposal was developed in secret by a
small group of White House advisors, without substantive input from the
agencies that handle homeland security. It is being rushed through
Congress on an accelerated schedule. This is not normally an approach
that produces sound policy. The potential for making grave mistakes as
a result of this truncated process should be a serious concern for all
Americans.
We need to work together to address the concerns raised in this
letter and to make improvements in the legislation. Your response to
the issues and questions raised in the body of this letter will be an
important step in this process. For this reason--and given the short
time frame Congress has for consideration of the legislation--we urge
you to respond by July 15, 2002.
I. TRANSFER OF FUNCTIONS NOT RELATED TO HOMELAND SECURITY
According to the White House briefing document issued on June 7,
2002, the Department of Homeland Security ``must be an agile, fast and
responsive organization.'' \6\ Transferring functions that do not
involve homeland security to the new Department, however, interferes
with this goal. Giving the new Department unnecessary responsibilities
inevitably will expand the size of its bureaucracy and dilute its
counterterrorism mission.
---------------------------------------------------------------------------
\6\ White House Briefing Document, supra note 1, at 16.
---------------------------------------------------------------------------
At the same time, giving vital but unrelated government
responsibilities to the Department creates the risk that these
responsibilities will be neglected and performed poorly. As GAO has
concluded, many of the unrelated functions being given to the new
Department ``represent extremely important functions executed by the
federal government that absent sufficient attention, could have serious
implications for their effective delivery and consequences for sectors
of our economy, health and safer research programs and other
significant government functions.'' \7\ Despite these risks, many
important government functions that are not related to homeland
security are being transferred to the new Department. In fact, the new
Department will have to carry out over three dozen completely unrelated
missions under the President's proposal.
---------------------------------------------------------------------------
\7\ GAO-02-886T, supra note 3, at 19.
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Section 402(3) of the President's proposal would transfer the
Animal Plant Health inspection Service (APHIS), which is now currently
part of the Department of Agriculture, into the new Department. APHIS
has nearly 8,000 full-time employees (FTEs), but few have
responsibility for inspecting plants and animal products at the border.
The other APHIS employees perform functions that are critical to
various sectors of the economy, but are not related to homeland
security. For example, APHIS is responsible for:
Eradicating pests, such as the boll weevil, the citrus
canker, the gypsy moth, and various noxious weeds through detection and
control strategies throughout the United States;
Approving animal drugs that are made from biological
materials, such as animal vaccines;
Approving field trials of genetically modified crops; and
Maintaining the missing pet network at www.missingpet.net.
Section 502(1) of the President's proposal would transfer the
Federal Emergency Management Agency (FEMA) into the new Department. To
date, however, FEMA has had a limited role in counterterrorism.
According to former FEMA director James Lee Witt, ``[o]ver the last
decade FEMA has responded to more than 500 emergency and major disaster
events. Two of those were related to terrorism (Oklahoma City and New
York City).'' \8\ In Mr. Witt's view, ``[f]olding FEMA into a homeland
or national security agency will seriously compromise the nation's
previously effective response to natural hazards.'' \9\ Major FEMA
responsibilities that are unrelated to homeland security include:
---------------------------------------------------------------------------
\8\ James Lee Witt and Associates, Department of Homeland Security
and FEMA (white paper) (June 19, 2002).
\9\ Id.
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Providing flood insurance and mitigation services
(including pie-disaster mitigation, the Hazard Mitigation Grant
Program, and flood mapping);
Conducting various programs to mitigate the effects of
natural disasters, such as programs to assist states in preparing for
hurricanes and the National Earthquake Hazards Reduction Program;
Providing temporary housing and food for homeless people;
and
Operating the National Fire Data Center and the National
Fire incident Reporting System to reduce the loss of life from fire-
related incidents.
Section 402(4) of the President's proposal would transfer the
United States Coast Guard out of the Department of Transportation and
into the new Department. The Coast Guard describes itself as a ``multi-
mission, military, maritime'' agency. Although it performs some
security-related functions, it also conducts many others unrelated to
homeland security. For example, Coast Guard responsibilities include:
Providing navigational tools to ensure that vessels can
navigate the nation's waterways;
Promulgating and enforcing boating regulations to ensure
that oceangoing vessels are safe;
Protecting the nation's fishery resources, as well as its
endangered species, by enforcing prohibitions against illegal and
excess fishing;
Protecting the maritime environment by preventing oil
spills in the nation's waters and ensuring that spills are cleaned up
expeditiously if they happen: and
Maintaining a fleet of ships that is capable of breaking
ice in order to maintain maritime mobility and monitors the movement of
glaciers.
These Coast Guard functions are essential, but they could be
jeopardized by the transfer to a new Department focused on homeland
security. Indeed, the effects of the shift in the Administration's
priorities are already being felt. According to the Administration's
homeland security budget justification for fiscal year 2003, ``[a]fter
September 11, the Coast Guard's port security mission grew from
approximately 1-2 percent of daily operations to between 50-60 percent
today.\10\ Without a sustained commitment to its core marine and
fishery functions, the Coast Guard's ability to protect boaters and the
marine environment will be jeopardized.
---------------------------------------------------------------------------
\10\ President George W. Bush, Securing the Homeland; Strengthening
the Nation, 18 (undated) (hereinafter ``fiscal year 2003 Budget
Justification') (on line at http://www.whitehouse.gov/homeland/
homeland--security--book.html).
---------------------------------------------------------------------------
There are many other examples of unrelated functions being
transferred to the new Department. The transfer of the Environmental
Measurements Laboratory from the Department of Energy (DOE), for
example, will make the new Department responsible for maintaining the
Human Subjects Research Database, which contains descriptions of all
projects involving human subjects that are funded by the DOE, as well
as the program that assesses the quality of 149 private laboratories
that measure radiation levels. Radiation measurement quality control
undoubtedly will seem like a small item to the new Department of
Homeland Security, but assuring that the laboratories make accurate
measurements is important, as mistakes potentially could affect public
health and cause large unnecessary public expenditures at DOE
facilities.
Appendix A contains a list of 40 unrelated functions that would be
transferred to the new Department by the President's proposal. While it
may be impossible to create a new Department without transferring some
unrelated functions, there would seem to be serious dangers inherent in
the wholesale transfer of unrelated functions as contemplated in the
Administration's proposal.
II. LACK OF EFFECTIVE COORDINATING MECHANSMS
At the same lime that the Administration's proposal transfers
numerous unrelated functions to the new Department, the proposal also
fails to include provisions that would ensure the coordination of the
more than 100 federal entities that will continue to have significant
homeland security functions.
According to the Administration, ``responsibilities for homeland
security are dispersed among more than 100 different governmental
organizations.'' \11\ Indeed, an organizational chart provided by the
White House listed 153 different agencies, departments, and offices
with a role in homeland security (see Figure 1). The White House argues
that the President's proposal would solve this problem by
``transforming and realigning the current confusing patchwork of
government activities into a single department.'' \12\
---------------------------------------------------------------------------
\11\ House Briefing Document, supra note 1, at I (emphasis in
original).
\12\ Id.
---------------------------------------------------------------------------
IMAGE HERE (Should see if same scan as prior image (put it in
again).
In fact, however, the President's proposal will not simplify this
patchwork and may even make it worse. Even after all of the changes
proposed in the President's legislative language, the federal
government would continue to have well over 100 agencies, departments,
and offices involved in homeland security. According to an analysis by
the minority staff of the Appropriations Committee, the total number of
departments, agencies, and offices with a role in homeland security
actually will grow under the President's proposal, from 153 to 160 (see
Figure 2) \13\
---------------------------------------------------------------------------
\13\ A post-transfer organizational chart provided by the White
House Office of Management and Budget shows the number of federal
agencies, departments, and offices dropping to 134. The While House
chart, however, lists the new Department of Homeland Security as having
only six offices involved in homeland security. The White House chart
omits major components of the new Department that will have homeland
security functions, including the Coast Guard, the Office of Threat
Analysis, and the office responsible for stale, local, and private
sector coordination.
---------------------------------------------------------------------------
IMAGE HERE (See if same as prior image)
One example of the continued need for coordination across agencies
involves providing emergency response. According to the Administration:
Currently, if a chemical or biological attack were to occur,
Americans could receive warnings and health care information from a
long list of government organizations, including HHS, FEMA, EPA, GSA,
DOJ, OSHA, OPM, USPS, DOD, USAMRIID, and the Surgeon General - not to
mention a cacophony of local agencies.\14\
---------------------------------------------------------------------------
\14\ White House Briefing Document, supra note 1, at 5.
---------------------------------------------------------------------------
But under the President's proposal, all but one of these 11 federal
agencies (FEMA) would continue to exist, and this one agency would be
replaced by the new Department. The potential for confusion--and the
need for effective coordination--remains as great after the creation of
the new Department as before.
In fact, in some cases, the reorganization will actually create
confusion. Currently, three separate federal agencies are in charge of
protecting the food supply: the Food and Drug Administration (FDA),
which prevents adulteration of fruits, vegetables, processed foods, and
seafood; the Environmental Protection Agency (EPA), which regulates
environmental contaminants, such as pesticides; and the Department of
Agriculture, which regulates the safety of meat and poultry for human
consumption, as well as the spread of plant and animal pests through
food products. Leading experts, such as the National Academy of
Sciences, have called for consolidating these diffuse authorities into
a single agency.\15\
---------------------------------------------------------------------------
\15\ National Research Council. Ensuring Safe Food from Production
to Consumption, National Academy Press (1 998) (recommending a major
overhaul of food safety laws and appointment of a single federal
official to oversee food safety). See also U.S. General Accounting
Office, Food Safety and Security : Fundamental Changes Needed to Ensure
Safe Food (Oct. 10, 2001) (GAO-02-47T) (recommending a single food
safety agency).
---------------------------------------------------------------------------
The Administration's proposal, however, would further fragment
regulation of the food supply by transferring some of Agriculture's
responsibilities to the new Department, creating a fourth food safety
agency. APHIS, which is charged with inspecting imports to ensure that
pests and bugs that could harm crops or livestock do not enter the
United States, would become part of the new Department. But the Food
Safety inspection Service of the Department of Agriculture, which
inspects domestic and imported meat and poultry for threats to human
health, would remain at Agriculture. The nonsensical result, as GAO has
observed, is that ``the focus appears to be on enhancing protection of
livestock and crops from terrorist acts, rather than on protecting the
food supply as a whole.'' \16\
---------------------------------------------------------------------------
\16\ GAO-02-886T, supra note 3, at 18.
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One area in which coordination is urgently needed is among law
enforcement and intelligence agencies, in particular the Federal Bureau
of Investigation (FBI) and the Central Intelligence Agency (CIA). How
the new Department would relate to these agencies is not clear,
however. One of the primary missions of the new Department is to
``[p]revent terrorist attacks within the United States.'' \17\ The
Administration says that a new department with this mission is needed
because ``[t]oday no one single government agency has homeland security
as its primary mission.'' \18\ But the FBI has also just undergone a
major reorganization. Now, it's primary mission is also ``[p]rotecting
the United States from terrorist attack'' \19\--identical to that of
the new Department of Homeland Security. As a result, rather than
having no single federal agency with homeland security as its mission,
the Administration seems to be proposing two.
---------------------------------------------------------------------------
\17\ White House Briefing Document, supra note 1, at 8.
\18\ Id. at 1.
\19\ Statement of Robert S. Mueller, III, before the Senate
Committee on the Judiciary (June 6, 2002) (on line at http://
judiciary.senate.gov/testimony.cfm?id=279&wit--id=608).
---------------------------------------------------------------------------
Under the Administration's proposal for a new Department of
Homeland Security, there will be a new office for intelligence and
threat analysis. This office will assist in ``pulling together
information and intelligence from a variety of sources.'' \20\
Similarly, under FBI Director Mueller's reorganization proposal, there
will be a new office in the FBI called the Office of Intelligence that
will also assist in ``pulling together bits and pieces of information
that often come from separate sources.'' \21\ The Department of
Homeland Security's intelligence office would ``have the ability to
view the dangers facing the homeland comprehensively, ensure that the
President is briefed on relevant information, and take necessary
protective action.'' \22\ Similarly, the FBI's intelligence office will
be charged with ``providing analytic products to policy makers and
investigators that will allow us to prevent terrorist acts.'' \23\ This
does not appear to be a recipe for a unified approach.
---------------------------------------------------------------------------
\20\ House Briefing Document, supra note 1, at 14.
\21\ Mueller Statement, supra note 19.
\22\ White House Briefing Document, supra note 1, at 14.
\23\ Mueller Statement. supra note 19.
---------------------------------------------------------------------------
The investigation of the September 11 attacks has already revealed
serious lapses in the analysis and sharing of intelligence information.
In July 2001, an FBI special agent in Phoenix reported to his
supervisors that followers of Osama bin Laden might be training at U.S.
aviation schools and suggested a nationwide canvass of the schools.\24\
But this warning was apparently ignored. As early as January 2001), the
CIA obtained information that two of the September 11 assailants--Nawaz
al Hazmi and Khalid al-Midhar--met with al-Qaeda agents in Malaysia.
But this information was not provided to the INS until August 2001, by
which lime al-Hamzi and al-Midhar had already entered the United
States.\25\
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\24\ FBI Whistle-Blower Assails Bloated Bureaucracy, Washington
Post (June 7, 2002).
\25\ Terrorism ``Watch List'' Was No Match for Hijackers,
Washington Post (Sept. 23, 2001); Can We Stop the Next Attack?,
Time.com (March 3. 2002). The CIA has claimed that it provided
information on al-Midhar as early as January 2001, but the FBI has
asserted that the information provided contained little detail.
Sources: CIA Warned FBI About Hijacker, CNN.com (June 4, 2001); FBI and
CIA Fight It Out Over Who Was to Blame for September 11 Blunders, The
Guardian (June 5, 2002).
---------------------------------------------------------------------------
The Administration's proposed bill, however, does not adequately
address these problems. Although the bill gives the Secretary of
Homeland Security rights of access to reports, assessments, and
analytical information from other agencies that relate to threats and
vulnerabilities, the Department remains primarily a ``consumer'' of
intelligence information collected by agencies outside its control
after that information is already processed by those agencies. This
passive role will not ensure that the new Department obtains access to
information that the collecting agencies deem insignificant, such as
the warning from the FBI agent about flight schools. Although the
Administration's bill allows for the transmittal of ``raw''
intelligence from outside agencies to the Department of Homeland
Security, the Department is not given the resources to cope with the
volume and complexity of this information.\26\ Moreover, the new
Department has no ``tasking'' authority to direct what intelligence is
collected, making it difficult for the new Department to ensure that
possible threats it identifies are properly pursued.
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\26\ Of the 1,000 people slated to staff the new Information
Analysis and Infrastructure Protection Division, 800 reportedly will
come from the FBI's National Infrastructure Protection Center(NIPC).
These individuals, however, are already fully occupied with their
current responsibilities, which involve protecting critical
infrastructure, particularly with respect to computer and information
technology. If given the new role of processing all raw intelligence
information from the FBI, CIA, and other intelligence agencies, the
existing NIPC staff would be both overwhelmed and diverted from its
current tasks.
---------------------------------------------------------------------------
Another concern is the potential for confusion and interference in
the actual response to bioterrorist incidents. The FBI will bring a law
enforcement focus to the scene of a bioterrorist event, while the new
Department will be concerned with the emergency response. Under the
President's proposal, it is unclear which will prevail. Under
Presidential Decision Directive 62, which was signed during the
previous Administration, the FBI was designated as the lead agency for
``crisis management,'' which included efforts to anticipate, prevent,
and resolve terrorist attacks. FEMA was designated the lead agency for
``consequence management,'' which included broader measures to protect
public health and safety. The President's proposal seeks to ``clarify''
these responsibilities by ``eliminating the artificial distinction
between `crisis management' and `consequence management.' '' \27\ But
it does not describe how the new Department and the FBI will handle the
scene of a bioterrorist attack if they both arrive at the same time
with fundamentally conflicting interests and goals.
---------------------------------------------------------------------------
\27\ White House Briefing Document, supra note 1, at 12.
---------------------------------------------------------------------------
There are many other instances of coordination problems that the
President's proposal does not address. It is unclear in the President's
proposal, for instance, how the Department of Homeland Security would
organize and coordinate the various different police forces that exist
among federal agencies. The Administration's proposal would transfer
some of those forces (the Federal Protective Service, which protects
buildings belonging to the General Services Administration (GSA)), but
not others (the security forces protecting Department of Energy,
Veterans, and judicial buildings). Moreover, removing the Federal
Protective Service from GSA creates its own problems because, as GAO
has observed, ``security needs to be integrated into the decisions
about location, design and operation of federal facilities.'' \28\
---------------------------------------------------------------------------
\28\ GAO-02-886T, supra note 3, at 18.
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What is urgently needed is an effective entity at the While House
level that can unify the disparate federal agencies with homeland
security functions behind a comprehensive national strategy. This is
supposed to be the mission of the White House Office of Homeland
Security, which President Bush created in October 2001, and which you
head. But the proposal does nothing to give the head of the office the
kinds of authority needed to succeed.
III. PROBLEMS WJTB EXTRACTING CERTAIN AGENCIES
The sections above have raised concerns with transferring functions
unrelated to homeland security and the lack of coordinating mechanisms
regardless of whether agencies are inside or outside the structure of
the new Department. Also of concern are the potential effects of
removing certain functions from their home agencies.
This is a particular problem for the functions being transferred
from the Department of Health and Human Services (HHS). Section 502(5)
of the President's proposal would move the Office of the Assistant
Secretary for Public Health Emergency Preparedness and ``the functions
of the Secretary of Health and Human Services related thereto'' to the
new Department of Homeland Security. This provision makes little sense.
In the Public Health Security and Bioterrorism Preparedness and
Response Act of 2002, Congress created the Office of the Assistant
Secretary for Public Health Emergency Preparedness in recognition of
the need to have a central office in HHS to coordinate how the various
agencies within the Department respond to public health
emergencies.\29\ Moving this office to another department will not
eliminate the need for a coordinating office within HHS. It will simply
recreate the same problems within HHS that Congress was attempting to
fix.
---------------------------------------------------------------------------
\29\ According to the Public Health Security and Bioterrorism
Preparedness and Response Act of 2002 (Pub. Law 107-588), the Assistant
Secretary coordinates all agency interfaces on emergency preparedness
between HHS and ``other departments, agencies and offices of the United
States.'' This person also ``[i]nterfaces between the Department and
State and local entities with responsibility for emergency
preparedness.'' As part of this person's duties, he or she also
``coordinate the efforts of the Department to bolster State and local
emergency preparedness for a bioterrorist attack or other public health
emergency.''
---------------------------------------------------------------------------
Richard Falkenrath, director of policy at the White House Office of
Homeland Security, was asked about this problem during a briefing for
staff on July 1,2002. He answered that the challenge of coordinating
emergency preparedness and response activities within HHS could be
handled by ``a couple of people'' in the Secretary's office. Obviously,
this cavalier attitude is seriously misinformed.
Section 505 is also problematic. It transfers control over HHS
programs to provide assistance for state and local preparedness from
HHS to the new Department. These funds, which total over $1 billion,
allow states and localities to enhance their surveillance,
communication, and laboratory abilities, all of which are essential for
responding to numerous public health threats, including threats that
are not related to terrorism. As GAO has stated, these programs
``include essential public health functions that, while important for
homeland security, are critical to basic public health core
capacities.'' \30\ As a result, GAO made the following conclusions:
---------------------------------------------------------------------------
\30\ GAO-02-883T, supra note 2, at 6.
---------------------------------------------------------------------------
We are concerned that this approach may disrupt the synergy that
exists in these dual-purpose programs. We are also concerned that the
separation of control over the programs from their operations could
lead to difficulty in balancing priorities. Although the HHS programs
are important for homeland security, they are just as important to the
day-to-day needs of public health agencies and hospitals, such as
reporting on disease outbreaks and providing alerts to the medical
community. The current proposal does not clearly provide a structure
that ensures that both the goals of homeland security and public health
will be met.\31\
---------------------------------------------------------------------------
\31\ Id. At 8.
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Section 403 also creates uncertainties by transferring to the new
Department vague authorities over visa processing. Currently, approving
and denying visas is an important activity of the State Department,
which processes about 400,000 immigrant visas and over six million non-
immigrant visas annually. To perform this function, the State
Department employs thousands of foreign service officers skilled in
hundreds of languages. Section 403(1) transfers to the Secretary of
Homeland Security ``exclusive authority'' over this function, but this
authority would be exercised ``through'' the Secretary of State. As a
result, it is unclear whether the State Department must concur in
policy decisions, or whether this is merely an administrative function.
Additional statements by the Administration have not clarified this
provision. The Administration has stated that consular officers will
remain employed by the State Department, but that the new Secretary of
Homeland Security will delegate back to the Secretary of State some
visa functions unrelated to security.
Similar problems affect the provisions transferring portions of the
Department of Energy. The provisions in the bill are ambiguous and
potentially very broad. For example, section 302(2)(G) of the
President's proposal would transfer ``the advanced scientific computing
research program and activities'' at Lawrence Livermore Laboratory to
the new Department. Although the exact scope of this provision is
unclear, it appears to encompass parts of the Lawrence Livermore
Laboratory's Computation Directorate, which supports other programs at
the laboratory by providing computing capacity and capability, as well
as research, advanced development, and operations and support related
to computing, computer science, and information technologies. Such a
transfer could harm the laboratory's ability to support its key
mission--safeguarding the stockpile of nuclear weapons--as well as
other core laboratory activities.
Section 302(2)(E) gives the President authority to transfer from
DOE to the new Department any life science activity within the
biological and environmental research program that is related to
microbial pathogens. The result would be that ongoing DNA sequencing of
harmful microbes could be transferred to the new Department, while
virtually identical work on microbes with beneficial uses (such as
microbes that break down pollution) would stay at DOE. Splitting this
highly specialized work risks weakening the effectiveness of both.
IV. LACK OF RECOGNITION OF DISPARATE IMMIGRATION FUNCTIONS
In April, the House passed legislation (H.R. 3231) recognizing the
two distinct functions of the INS: an immigration services function and
an enforcement function. As part of this reform effort, the bill would
split the INS into a Bureau of Citizenship and Immigration Services and
a Bureau of Immigration Enforcement, both under the supervision of an
Associate Attorney General for Immigration Affairs within the
Department of Justice. The legislation aimed to correct longstanding
and widely- recognized systemic problems within the INS by separating
out its distinct and often conflicting service and enforcement
functions.
When the House immigration bill was being considered, the
Administration expressed its support. In addition, when the White House
issued its briefing document regarding the new Department of Homeland
Security, that support was reiterated. The briefing document stated the
following:
The new Department of Homeland Security would include the INS and
would, consistent with the President's long-standing position, separate
immigration services from immigration law enforcement.\32\
---------------------------------------------------------------------------
\32\ White House Briefing Document, supra note 1, at 10.)
---------------------------------------------------------------------------
Despite these assurances, however, the legislative language
proposed by the President would import the INS into the new Department
of Homeland Security intact and unreformed. There are no details
whatsoever regarding the structure of the INS after it is transferred
to the new Department. As a result, the Administration's proposal fails
to address internal structural and coordination problems that hamper
the effectiveness of the INS.
V. EXEMPTION FROM ``GOOD GOVERNMENT'' LAWS
The Administration's proposal would create broad exemptions to the
nation's ``good government'' laws. It would make the civil service,
procurement, and property acquisition and disposal laws essentially
optional for the new Department. In addition, the President's proposal
would weaken valuable sunshine laws, such as the Freedom of Information
Act and the Federal Advisory Committee Act. The bill would also create
a weak management and oversight structure by not fully applying the
Chief Financial Officers Act, the law governing Chief information
Officers, and the Inspector General Act.
A. Exemptions from Civil Service Protections
The nation's civil service laws have evolved over many decades to
ensure that the government has a professional civil service hired on
the basis of merit rather than political favoritism. Section 730 of the
President's proposal, however, would give the Secretary the authority
to create an alternative personnel system. The only limitation in the
statute is that the system should be ``flexible, contemporary, and
grounded in the public employment principles of merit and fitness.''
Under the President's proposal, employees of the new Department
could be exempted from essential provisions of title 5 of the United
States Code. No rationale has been offered to explain why affording
these basic protections for federal workers and their families would
undermine the mission of the new Department The civil service
provisions that become optional include the following:
The prohibition on discrimination r employees on the basis
of political affiliation and on coercing political activity (anti-
patronage protection);
The prohibition on hiring or promoting a relative (anti-
nepotism protection);
The prohibition on reprisal against employees for the
lawful disclosure of information about illegal and wasteful government
activity (whistleblower protection);
The preferences for veterans in hiring and in reductions-
in-force;
The protection from arbitrary dismissal or demotion
through due process appeal rights to the Merit Systems Protection
Board;
The right to organize, join unions, and bargain
collectively with management over working conditions;
Sick and annual leave for federal employees and family and
medical leave;
Retirement benefits, such as the Civil Service Retirement
System and the Federal Employees' Retirement System; and
Health insurance through the Federal Employees' Health
Benefits Program.
Moreover, important programs for ensuring diversity in the federal
workforce, such as the requirement to recruit minorities, would also
become optional under the proposed legislation.
Another potential threat to the civil service laws is section
732(b), which allows the Secretary to hire an unlimited number of
employees through ``personal service'' contracts rather than through
the civil service system. Although the rationale for this provision
seems to be to allow the new Department to obtain certain specialized
services in an emergency, there do not appear to be any limits on its
use. For example, current law requires these types of contracts to be
temporary (no longer than one year) and subject to salary caps (no
higher than the GS-l5 level). The President's proposal would allow
these contracts to go on indefinitelv and at any rate. In effect, the
section provides an alternative vehicle for bypassing the protections
and requirements of the civil service system.
B. Exemption from Procurement Rules
Under section 732(c) of the President's proposal, the new Secretary
could waive any and all procurement statutes and regulations, and the
Secretary would not be required to comply with the cornerstone
procurement principles of open and competitive bidding. In a section-
by-section analysis provided by the White House, the Administration
asserts that ``normal procurement operations would be subject to
current government-wide procurement statutes and regulations.'' \33\ To
the contrary, however, the legislative language would add the new
Department to the list of entities listed in 40 U.S.C. 474, such as the
Postal Service, which would exempt entirely the Department from the
federal government's normal acquisition laws.
---------------------------------------------------------------------------
\33\ The White House, Analysis for the Homeland Security Act of
2002, 11 (undated).
---------------------------------------------------------------------------
As a result, there is no guarantee that the new Department would be
getting the lowest prices, the best quality, or the best deals.
Fundamental principles of federal procurement such as the following
would not apply:
The requirement that acquisitions be publicly advertised;
The requirement that sufficient notice be given to allow
companies to respond;
The requirement that all responsible bidders be given the
chance to compete for a given acquisition; and
The requirement that all contractors be rated on the same
criteria when competing for a given contract.
These bedrock principles have helped to maintain competition in
federal contracting, which history has proven to be the best way to
ensure the best quality at the lowest prices while maintaining a system
free of favoritism or abuse. In addition, long-standing preferences for
small- and minority- owned businesses designed to encourage their
development and access to federal contracts would no longer be
guaranteed.
Section 732(a) of the President's proposal would explicitly grant
the new Department so-called ``other transactions authority'' for
research and development contracts. This authority was given to the
Defense Department to eliminate the open and competitive bidding
process in order to attract nontraditional contractors. In fact,
however, it has been used mainly by traditional contractors to
negotiate contracts that waive the federal government's rights to
review financial management and cost information, as well as its rights
to use new inventions discovered through research funded by the federal
taxpayer.\34\ In reviewing the use of this authority by the Defense
Department, the inspector General found that these that types of
contracts ``do not provide the government a number of significant
protections, ensure the prudent expenditure of taxpayer dollars, or
prevent fraud.'' \35\ .
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\34\ In general, for intellectual property developed with federal
funding, the government normally retains a nonexclusive,
nontransferable, irrevocable, and paid-up (royalty-free) license to use
the intellectual property.
\35\ Inspector General, Department of Defense, Comments on the
Service Acquisition Reform Act (H.R. 3832), 11(Mar. 12, 2002)
(concluding that ``other transactions have not attracted a significant
number of nontraditional Defense contractors`` and that ``traditional
protections for the public trust do not exist, for the most part, for
other transactions'').
C. Exemption from Property Rules
The new Department will acquire a considerable inventor of federal
property, particularly through the Coast Guard, which owns valuable
real estate across the country. Sections 732(d) and (f) of the
President's proposal, however, would give the new Department broad
authority to acquire and dispose of both real and personal property.
Specifically, the Department could acquire replacement real property
through exchange or transfer with other agencies or through the sale or
long-term lease to the private sector, in addition, the Department
would be authorized to retain the proceeds of such transactions.
Currently, under the 1949 Property Act, federal agencies must
determine whether they own ``excess'' property they no longer need. GSA
then screens this excess property for other federal uses. If there are
no federal uses for the property, GSA declares the property ``surplus''
and screens it for ``homeless'' or ``public benefit'' uses, such as for
schools, correctional institutions, airports, and other entities. If no
beneficial public use is found for the property. GSA may sell the
property through negotiated sales at fair market value without
restrictions on use. The property may also be sold to the public
through a bidding process if a negotiated sale does not occur. Under
the Administration's proposal, however, none of these procedures will
apply.
The Government Reform Committee reported a comprehensive reform of
federal property laws earlier this year (H.R. 3947). This reform gave
agencies more flexibility to manage their property, but it also
included safeguards to ensure that agencies respond to community input,
consider local zoning laws, and receive fair market value. None of
these safeguards are incorporated into the Administration's proposal.
D. Exemption from Freedom of Information Act
Section 204 of the President's proposal would exempt the new
Department from complying fully with the Freedom of information Act
(FOIA). If nonfederal entities or individuals provide information
voluntarily to the new Department that relates to infrastructure
vulnerabilities or other vulnerabilities to terrorism, that information
would not be subject to FO1A. This exemption would apply to information
that ``is or has been in the possession of the Department.''
FOIA was designed to preserve openness and accountability in
government. In order to protect sensitive information, FOIA already
contains sufficient exemptions from disclosure. These exemptions cover
critical infrastructure information. FO1.A does not require the
disclosure of national security information (exemption 1), sensitive
law enforcement information (exemption 7), or confidential business
information (exemption 4). Therefore, new exemptions to its provisions
do not appear necessary.
The danger in creating new exemptions to FOIA is that important
information about health and safety issues could be withheld from the
public. In fact, the provision is drafted so broadly that it could be
used to ``launder'' embarrassing information through the new Department
and thereby prevent public disclosure.
One particular target of the new FOIA exemption appears to be the
``Risk Management Plans'' that chemical plants are required to file
under the Clean Air Act. These plans inform communities about the
dangers they would face in the event of an explosion or chemical
accident in a nearby plant. Chemical industry officials argued that
Congress should restrict public access to this information because the
information could be used by terrorists to target facilities.
Congress addressed this issue by carefully balancing the goal of
informing emergency responders and the public about potential risks of
chemical accidents with the goal of keeping sensitive information away
from terrorists. In the Chemical Safer Information Site Security Act of
1999, Congress concluded that information about potential ``worst
case'' scenarios should remain available to the public, but with
certain restrictions to prevent a searchable database from being
readily posted on the internet. Congress ensured public access to basic
information about the risk management plans, preserving the right of
Americans to know about chemical accidents that could impact their
families and communities. Under the President's proposal, however,
chemical companies could now prevent the disclosure of all Risk
Management Plans under FOIA simply by sending them to the new
Department.
E. Exemption from Federal Advisory Committee Act
Section 731 of the President's proposal would exempt advisory
committees established by the Secretary of the new Department from the
Federal Advisory Committee Act (FACA). FACA requires that any committee
formed to provide advice to the federal government, and which consists
of members who are not federal employees, must follow certain rules in
order to promote good-government values such as openness,
accountability, and a balance of viewpoints. Generally, FACA requires
that such committees announce their meetings, hold their meetings in
public, take minutes of the meetings, and provide the opportunity for
divergent viewpoints to be represented.
To protect sensitive information, FACA includes exemptions for
information that relates to national security issues or information
that is classified. As a result, many agencies with homeland security
missions, such as the Department of Justice, The Federal Bureau of
investigation, and the Department of Defense, currently operate under
FACA without difficulty. The President's proposal contains no
explanation why the new Department could not also comply with FACA. In
fact, the only two agencies that are exempt from FACA are the Central
Intelligence Agency and the Federal Reserve.
At least 27 advisory committees that currently exist would be
transferred to the new Department under the President's proposal. These
existing advisory committees, which are currently subject to FACA,
include the Navigational Safety Advisory Committee at the Coast Guard,
the Advisory Committee of the National Urban Search and Rescue System
at FEMA, the Advisory Committee on International Child Labor
Enforcement at the Customs Service, and the Advisory Committee on
Foreign Animal and Poultry Diseases at APHIS. When rechartered under
the Homeland Security Department, none of these advisory committees
will be subject to the FACA requirement on balance and openness.
In addition, the President's proposal waives important conflict of
interest laws that apply to individuals serving on advisory committees.
Under section 731, if an individual serves on an advisory committee,
the individual will be exempt from the provisions of sections 203, 205,
or 207 of Title 18. United States Code. These sections contain
important protections. Section 207, for example, provides that a person
who serves on a committee that is advising an agency on a specific
matter cannot lobby the agency about the same matter after leaving the
advisory committee. No rationale is provided for exempting members of
advisory committees from these protections against conflicts of
interest.
F. Exemption from Chief Financial Officer Act
Section 103(d)(4) of the President's proposal would authorize the
President to appoint the Department's Chief Financial Officer (CFO)
without Senate confirmation. Current law requires that a CFO of a
cabinet department either be: (1) appointed by the President with
Senate confirmation; or (2) designated by the President from among
agency officials who are Senate-confirmed.\36\ In either case, current
law requires that CFOs be Senate-confirmed.
---------------------------------------------------------------------------
\36\ 31 U.S.C. Sec. 901(a)(l).
---------------------------------------------------------------------------
In addition, the President's proposal contains no language making
the CFO Act applicable to the new Department. The CEO Act contains core
financial management, accountability, and reporting requirements that
are at least as important for the new Department as they are for other
covered agencies, which include all existing cabinet departments.
Moreover, section 602 of the President's proposal provides that the CEO
shall report to the Secretary or to another official of the Department
as the Secretary may direct. This section is inconsistent with the CFO
Act, which requires that the CEO report directly to the agency head
regarding financial management matters.\37\
---------------------------------------------------------------------------
\37\ 31 U.S.C. Sec. 902(a)(1).
---------------------------------------------------------------------------
These exemptions from financial management requirements make little
sense. According to GAO, ``[i]t is important to re-emphasize that the
department should be brought under the Chief Financial Officers (CEO)
Act and related financial management statutes.'' \38\
---------------------------------------------------------------------------
\38\ GAO-02-886R, supra note 3, at 33.
G. Exemption from Chief Information Officer Legislation
The proposal does not appear to give the Chief information Officer
(CIO) of the new Department the same status and responsibilities as
ClOs at other agencies. Section 603 of the President's proposal
provides that the ClO shall report to the Secretary or to another
official of the Department as the Secretary may direct. The Clinger-
Cohen Act, however, requires that the ClO report directly to the agency
head.\39\
---------------------------------------------------------------------------
\39\ 44 U.S.C. Sec. 3506(a)(2)(A).
---------------------------------------------------------------------------
In addition, the Clinger-Cohen Act specifies numerous
responsibilities for ClOs. These include developing an accounting,
financial, and asset management system that is reliable, consistent,
and timely; developing and maintaining information systems; and
assessing and reporting on progress made in developing information
technology systems. The President's legislative language, however, does
not specify any responsibilities for the ClO. In fact, the bill would
assign responsibility for information technology systems to an Under
Secretary for Management at the new Department, a responsibility
assigned to the CI0 under the Clinger-Cohen Act.
H. Limits on Access to Information by Inspector General
Section 710 of the President's proposal would subject the inspector
General (IG) of the new Department to the Secretary's control and would
authorize the Secretarv to prevent the IG from doing work in areas
involving certain information. These areas are quite broad and extend
to information concerning any ``matters the disclosure of which would,
in the Secretary's judgment, constitute a serious threat to national
security.'' Under the President's proposal, the Secretary could
prohibit the IG from doing work ``if the Secret determines that such
prohibition is necessary. . . to preserve the national security or to
prevent a significant impairment to the interests of the United
States.''
IGs at certain other agencies (such as the Defense Department and
the Justice Department) have similar limitations on access. But in
those cases, the IGs are directed to report to Congress if the relevant
Secretary impedes their access 10 necessary information. In the case of
the IG for the new Department, this important check on Secretarial
interference has been eliminated. Instead, the proposal would give the
responsibility of reporting interference with an IG investigation to
the Secretary, who would have an obvious conflict of interest in full
reporting.
VI. EXEMPTION FROM CONGRESSIONAL OVERSIGHT
In addition to creating exemptions to many of the nation's good
government laws, the President's proposal would substantially undercut
Congress' ability to conduct oversight of the new Department. Through
several broad and sweeping provisions in the President's proposal, the
Secretary of the new Department would have new powers to rewrite
enacted legislation and override budgetary decisions made by Congress.
The President's proposal would give the Secretary of the new
Department the equivalent of a lump-sum appropriation of more than 530
billion, in transferring the various existing agencies to the new
Department. Several provisions of the President's proposal allow the
Secretary to transfer agency balances to the new Department. Section
803(e) of the President's proposal allows the new Secretary to allocate
those funds as the Secretary sees fit, and it expressly overrides the
provision of permanent Jaw that requires funds transferred to be used
only for the purposes for which they were originally appropriated.
Taken together, these provisions allow the new Secretary to rewrite
appropriations relating to both homeland security and all other
functions conducted by the new Department.
Section 733(b) creates for the new Secretary a permanent blanket
grant of authority to transfer between appropriations accounts up to 5%
of the appropriations made each year for agencies within the new
Department, so long as the Appropriations Committees are given 15 days
notice. This provision could allow the Secretary to transfer $2 billion
or more per year rather than addressing potential funding
misallocations through the annual congressional appropriations process.
In addition, section 733(a) allows the Secretary to ``establish,
consolidate, alter, or discontinue'' any organizational unit in the new
Department, including those established by statute, upon 90 days notice
to Congress. Although the Coast Guard and the Secret Service are exempt
from this provision, all other agencies transferred to the new
Department could be abolished entirely with no input from Congress.
VII. POTENTIAL FOR SERIOUS DISRUPTION IN THE WAR ON TERROR
The Administration asserts that the ``current components of our
homeland security structure will continue to function as normal and
there will be no gaps in protection as planning for the new Department
moves forward.'' \40\ Unfortunately, this is a difficult goal to
achieve, and the proposal submitted to Congress contains no
implementation plan that shows how disruptions will be avoided.
---------------------------------------------------------------------------
\40\ White House Briefing Document, Supra note 1, at 4.
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In fact, the history of corporate and government reorganizations is
not encouraging. As a management professor from Columbia University
recently remarked. ``[t]o think that a structural solution can bring
about a major improvement in performance is a major mistake.'' \41\ In
the corporate world, more mergers fail than succeed.\42\ According to
one expert, ``[p]rivate-sector data show that productivity usually
drops by 50 percent in the first four to eight months following the
initial announcement of a merger, largely because employees are
preoccupied with their now uncertain future.'' \43\
---------------------------------------------------------------------------
\41\ The Experiment Begins, National Journal (June 1 5. 2002).
\42\ See e.g., Breaking Up is Hard, Merging is Harder, New York
Times Week in Review (June 23,2002) (``Indeed, business history is
littered with failed attempts to unite far-flung enterprises that would
prosper through sheer scale''); and Stressed Out: Can Workplace Stress
Get Worse?, Wall Street Journal (Jan. 16, 2001) (``75% of those deals,
by several experts' estimates, will fail to achieve expected
results'').
\43\ Max Stier, Homeland Security: Mega Merger. Washington Post
(June 25. 2002).
---------------------------------------------------------------------------
The model most often cited by the Administration is the creation of
the Department of Defense in 1947. But that reorganization was not
undertaken until after World War II was over. Moreover, the newly
created Defense Department was riven with strife for decades after its
creation. As recently as 1983, when President Reagan ordered the
invasion of Grenada, the Army and the Marines had to split the island
in half because they could not figure out how to cooperate.\44\ The
original 1947 reorganization required four different amendments, the
last being the Goldwater-Nichols Act of 1986, before the problems
created by the 1 947 reorganization were finally addressed.
---------------------------------------------------------------------------
\44\ Repeating the Past, National Journal (June 15, 2002).
---------------------------------------------------------------------------
GAO has closely tracked the history of government reorganizations.
According to David Walker, the Comptroller General of GAO:
Often it has taken years for the consolidated functions in new
departments to effectively build on their combined strengths,
and it is not uncommon for these structures to remain as
management challenges for decades . . . [R]eorganizations of
government agencies frequently encounter start up problems and
unanticipated consequences that result from the consolidations,
are unlikely to fully overcome obstacles and challenges, and
may require additional modifications in the future to
effectively achieve our collective goals for defending the
country against terrorism.\45\
---------------------------------------------------------------------------
\45\ GAO-02-886T, supra note 3, at 5.
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Given this history, the burden should be on the Administration to
show how this bureaucratic reorganization can be accomplished
successfully. But virtually no detail has been provided to Congress
that addresses these serious implementation issues.
VIII. LACK OF NATIONAL STRATEGY
Most experts recommend three concrete steps for developing an
approach to homeland security: First, evaluate the threats posed to the
country: second, develop a plan for dealing with those threats; and
third, implement that plan through whatever reorganization and
realignment of resources is necessary. It appears, however, that the
Administration has taken exactly the opposite approach: White House
officials proposed the reorganization first; they will come out with a
strategy second; and they may eventually do a comprehensive assessment
of the threats facing the country.
Experts have consistently criticized the United States for failing
to have a comprehensive national strategy for fighting terrorism. GAO
has made this finding repeatedly.\46\ The U.S. Commission on National
Security, the bipartisan group headed by former Senators Warren Rudman
and Gary Hart, found that ``no overarching strategic framework guides
U.S. national security policymaking or resource allocations.'' \47\
Likewise, the independent panel headed by Governor James Gilmore
concluded that ``the United States has no coherent functional national
strategy for combating terrorism.'' \48\
---------------------------------------------------------------------------
\46\ See U.S. General Accounting Office. Combating Terrorism:
Selected challenges and Related Recommendations (September 2001) (GAO-
01-822); U.S. General Accounting Office, Combating Terrorism: Need for
Comprehensive Threat and Risk Assessments of chemical and Biological
Attacks (September 1999) (GAO/NSLAD-99-163); and U.S. General
Accounting Office Combating Terrorism. Threat and Risk Assessments Can
Help Prioritize and Target Program Investments (April 1998) (GAO/NSIAD-
98-74).
\47\ The United States Commission for National Security/21st
Century, Road Map for National Security: Imperative for Change (Mar.
15, 2001).
\48\ Advisory Panel to Assess Domestic Response Capabilities for
Terrorism Involving Weapons of Mass Destruction. Toward a National
Strategy for Combating Terrorism (Second Annual Report) (Dec. 15,
2000).
---------------------------------------------------------------------------
Nine months ago, in October 2001, the White House agreed with this
assessment. In the executive order creating the White House Office of
Homeland Security, President Bush recognized that developing a national
strategy was essential in the fight against terrorism. The executive
order establishing the Office provided that:
The mission of the Office shall be to develop and implement the
coordination of a comprehensive national strategy to secure the
United States from terrorist threats or attacks.\49\
---------------------------------------------------------------------------
\49\ Executive Order 13228)
---------------------------------------------------------------------------
When you assumed your position, you also recognized that developing
this strategy was your top assignment, calling it your ``main mission''
\50\ and your ``very first mission.'' \51\ In a speech in April, you
said, ``I take every word of that executive order seriously,'' and you
promised that the strategy would be ``guided by an overarching
philosophy: risk management: focusing our resources where they will do
the most good, and achieve the maximum protection of lives and
property.'' \52\
---------------------------------------------------------------------------
\50\ Ridge Says Focus is on Expanding Homeland Security Resources,
Speech at Homeland Security Conference, U.S. Department of State
(Washington, DC) (on line at http://usinfo.state.gov).
\51\ Tom Ridge Speaks to the Associated Press Annual Luncheon,
Office of the White House Press Secretary (Apr. 29. 2002) (on line at
http://www.whitehouse.gov/news/releases/2002/04/20020429-3.html).
\52\ Id.
---------------------------------------------------------------------------
Since that time, the national strategy has been promised
repeatedly. In the budget justification for fiscal year 2003, the
Administration made this statement:
The United States has never had a national blueprint for
securing itself from the threat of terrorism. This year with
the publication of the National Strategy for Homeland Security,
it will.\53\
---------------------------------------------------------------------------
\53\ Fiscal Year 2003 Budget Justification. supra note 10, at 6.
The Administration continued: ``The Budget for 2003 is a down payment
on a larger set of homeland security initiatives that will be described
in the national strategy and reflected in the 2004 and later budgets.''
Id. at 7.
---------------------------------------------------------------------------
Unfortunately, this strategy has not been developed.\54\ As a
result, Congress still does not have a list of priorities set forth in
a clear way and cannot gauge whether your reorganization proposal best
serves the nation's security goals. Moreover, the new Department will
have no clear strategy to implement after it is created. As John R.
Brinkerhoff, civil defense director at FEMA under President Reagan, has
stated: ``The Bush Administration is doing the wrong thing for the
wrong reasons. What worries me the most is that we've put the cart
before the horse: We're organizing, and then we're going to figure out
what to do.'' \55\
---------------------------------------------------------------------------
\54\ In testimony before the Government Reform Committee on June
20, 2002, you stated that the principles of the national strategy have
been evident ``ever since the President sent up his 2003 budget
initiative.'' House Committee on Government Reform, ``Hearing on The
Hearing of Homeland Security: An Overview of the President's Proposal
(June 20, 2002) (stenographic record). This statement is misleading at
best. The budget justification for fiscal year 2003 included absolutely
no information about the newly proposed Department of Homeland
Security, which the Administration now says is the cornerstone of the
national strategy. Moreover, the Administration's budget justification
for fiscal year 2003 makes clear that no national strategy existed when
the budget justification was submitted to Congress. Fiscal Year 2003
Budget Justification. supra note 10. at 6.
\55\ Bush's Homeland Gambit, National Journal (June 15, 2002)
IX. COST
The Administration has stated that the creation of this new
Department ``would not `grow' government.'' \56\ According to the
Administration: ``The cost of the new elements (such as the threat
analysis unit and the state, local, and private sector coordination
functions), as well as the wide management and administration units,
can be funded from savings achieved by eliminating redundancies
inherent in the current structure.'' \57\
---------------------------------------------------------------------------
\56\ White House Briefing Document, supra note 1, at 17.
\57\ Id.
---------------------------------------------------------------------------
This is not a credible statement. CBO has examined the costs of the
reorganization proposal put forth by Senator Lieberman (S. 2452).
According to CBO, the Lieberman bill ``would cost about $1.1 billion
over the 2O03-2007 period.'' \58\ CBO writes A] new cabinet-level
department would require additional resources to perform certain
administrative functions, including new positions to staff the offices
of the Inspector General, general counsel, budget, and Congressional
affairs for the new department.'' \59\ In addition. CBO states that the
new Department would require additional funding for ``centralized
leadership, coordination, and support services,'' and that ``new
departmental staff would be hired over the first two years following
enactment of the legislation.'' \60\
---------------------------------------------------------------------------
\58\ CBO Cost Estimate, supra note 5 (specifically excluding the
costs of obtaining a new or leased building and centralizing staff and
resources there).
\59\ Id.
\60\ Id.
---------------------------------------------------------------------------
The Administration's proposal is significantly more ambitious and
costly than Senator Lieberman's. It includes more agencies, such as the
Transportation Security Administration with over 40,000 employees.
Moreover, it requires the new Department to take on a host of new
functions, including:
A new office for ``Intelligence and Threat Analysis'' to ``fuse
and analyze intelligence and other information pertaining to
threats to the homeland from multiple sources,'' \61\ including
a new ``system for conveying actionable intelligence and other
information'' \62\ and a new system to ``consolidate the
federal government's lines of communication with stale and
local public safety agencies and with the private sector'';
\63\
---------------------------------------------------------------------------
\61\ White House Briefing Document, supra note 1, at 3.
\62\ Id. At 14-15.
\63\ Id. At 14.
---------------------------------------------------------------------------
A new ``state-of-the-art visa system, one in which
visitors are identified by biometric information''; \64\
---------------------------------------------------------------------------
\64\ Id. At 10.
---------------------------------------------------------------------------
A new ``automated entry-exit system that would verify
compliance with entry conditions, student status such as work
limitations and duration of stay, for all categories of visas''; \65\
---------------------------------------------------------------------------
\65\ Id..
---------------------------------------------------------------------------
New ``interoperable communications,'' including
``equipment and systems'' for the ``hundreds of offices from across the
government and the country'' that make up the ``emergency response
community'' (this would be a ``top priority'' of the new Department);
\66\ and
---------------------------------------------------------------------------
\66\ Id. At 12.
---------------------------------------------------------------------------
A new ``national system for detecting the use of
biological agents within the United States,'' including a new
``national public health data surveillance system,'' and a new ``sensor
network to detect and report the release of bioterrorist pathogens in
densely populated areas.'' \67\
---------------------------------------------------------------------------
\67\ Id. at 13.
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In addition to these new functions, the President's proposal would
establish an entirely new bureaucracy, complete with a management
hierarchy and accompanying staff. According to the President's
legislative language, the new Department would have up to 22 Deputy,
Under, and Assistant Secretaries. This is more than the number of
Deputv, Under, and Assistant Secretaries at the Department of Health
and Human Services, which administers a budget about ten times the
proposed budget of the new Department of Homeland Security.
Like CBO, GAO has also concluded that the new Department will
impose costs on the taxpayer. According to GAO, ``[n]umerous
complicated issues will need to be resolved in the short term,
including a harmonization of information technologv systems, human
capital systems, the physical location of people and other assets, and
many other factors.'' \68\ As a result, GAO concludes that the
President's reorganization proposal ``will take additional resources to
make it fully effective.'' \69\
---------------------------------------------------------------------------
\68\ GAO-02-886T, supra note 3, at 2.
\69\ Id.
---------------------------------------------------------------------------
Mark Everson. Controller at the Office of Federal Financial
Management within the White House Office of Management and Budget, was
asked about these costs at a staff briefing on July 1, 2002. He said
that the Administration had no estimate of the transition costs of
creating the new Department and no estimate of the level of savings to
be achieved by combining agencies. The only thing he said he knew was
that these unknown costs would equal these unknown savings.
Obviously. Congress needs more concrete information about budget
costs before it can legislate intelligently.
X. PROCESS
When the President made his nationally televised address on June 6,
2002. announcing his proposal for a new Department of Homeland
Security, it came as a surprise not only to Congress and the American
people, but also to the agencies. departments, and offices affected by
the proposal. The plan was put together with so much secrecy that
``[n]o Cabinet secretary was directly consulted about a plan that would
strip 170,000 employees and $37 billion in funding from existing
departments.'' \70\ In fact, there was so little communication between
the White House and the agencies that at least one major agency had to
call the minority staff of the Committee on Government Reform to learn
whether it was affected by the reorganization plan.
---------------------------------------------------------------------------
\70\ Bush Plan's Underground Architects; In Silence and Stealth,
Group Drafted Huge Security Overhaul, Washington Post (June 9, 2002).
---------------------------------------------------------------------------
This closed process utilized by the Administration is ill-suited to
ensuring that all potential problems are identified and addressed
beforehand. Moreover, the risk of making policy mistakes is compounded
by the rushed process being used in Congress to consider the
legislation. Ii is not clear how in this process the time and
opportunity will be found to make sure the legislation is done
correctly.
XI. CONCLUSION
The issues raised in this letter exemplify the serious questions
that should be resolved before Congress completes work on this
legislation. For this reason, we urge you to respond in detail and in
writing to the concerns raised in this letter by July 15, before the
House select committee starts its consideration of this bill.
Sincerely,
Henry A. Waxman,
Ranking Minority Member,
Committee on Government Reform
David R. Obey
Ranking Minority Member,
Committee on Appropriations
APPENDIX A
Transferred Functions Not Related to Homeland Security
Animal Plant Health Inspection Service
Animal Welfare Act: APHIS enforces the Animal Welfare Act, the act
that regulates the exhibition of animals in zoos and circuses and the
Transportation of animals on commercial airlines.
Bioiechnology Regulatory Policy: APHIS regulates the movement,
importation, and field testing of geneticallv engineered plants and
microorganisms.
Canadian Geese: APHIS works with state wildlife agencies and local
governments to address problems with non-migratory, resident Canadian
geese.
Disease and Pest Detection and Eradication: APHIS is responsible
for the detection and eradication of pests and diseases that affect
crops and livestock For example, on September 20, 2001, APHIS
implemented the accelerated National Scrapie Eradication Program. A few
of the other pests and diseases APHIS monitors for and eradicates
include: the boll weevil; the fruit fly; rabies; the Asian Longhorned
Beetle; the cirrus canker program; and the plum pox virus.
Horse Protection Act: APHIS enforces the Horse Protection Act, the
act which prohibits horses subjected to a process called soring from
participating in exhibitions, sales, shows, or auctions.
Missing Pets: APHIS maintains the missing pets network at
www.missingpet.net
National Poultry Improvement Plan: This is an industry/state/
federal program that establishes standards for evaluating poultry
breeding stock and hatchery products to ensure they are free from
hatchery-disseminated and egg-transmitted diseases.
Noxious weeds: APHIS cooperates with federal, state, and private
organizations to detect and respond to infestations of invasive plants,
such as branched broomrape and small broomrape.
Screwworm: APHIS is working to ensure that screwworm is not
reintroduced into the United States. This eradication program is close
to its goal of establishing a permanent sterile screwworm barrier in
the eastern third of Panama.
Trade Issue Resolution and Management: APHIS monitors emerging
foreign pest and disease threats at their origin before they have an
opportunity to reach U.S. ports. APHIS also participates in trade
agreements.
Veterinary Biologics: AIPHIS regulates veterinary biologics
including vaccines and diagnostic kits.
Coast Guard
International Ice Patrol: The Coast Guard has a fleet of ships
designed to break ice in cold regions to ensure that boats are able to
navigate the waterways.
Marine Safety: The Coast Guard enforces regulations to ensure that
boats and other marine equipment meet safety standards.
Maritime Drug Interdiction: The Coast Guard interdicts drugs
illegally brought into this country on the waterways.
Maritime Law Enforcement: The Coast Guard enforces the laws of the
waterways.
Maritime Mobility Missions: The Coast Guard provides aids to
navigation and bridge administration to ensure that vessels are able to
navigate our waterways.
Oil Spill Cleanup: The Coast Guard helps to prevent oil spills in
the nation's waters and assists in their cleanup when they occur.
Protection of Natural Resources: The Coast Guard protects our
domestic fishery resources and marine environment.
Search and Rescue: The Coast Guard, as one of its primary missions,
rescues troubled vessels and people on the nation's waterways.
Customs
Border Drug Interdiction: The Customs Service fights against drug
smuggling at the United States border.
Copyright Protection: The Customs Service helps to enforce the
Copyright Acts.
Enforcement of Health and Safety Laws: The Customs Service checks
imports to ensure that they comply with health and safety laws.
Fostering of Trade: The Customs Service works with the trade
community and identifies and confronts trade issues facing the country.
Child Pornography Prevention: The Customs Service enforces laws
protecting against child pornography.
Fair Trade Protection: The Customs Service enforces a variety of
fair trade laws such as the Lanham Trade-Mark Act and the Trade Act of
1974.
Protection of Species at Risk: The Customs Service enforces laws
protecting threatened species such as the Bald Eagle Protection Act and
the African Elephant Conservation Act as well as the Endangered Species
Act of 1973.
Revenue Collection: The Customs Service provides the nation with
its second largest source of revenue.
Stolen Antiquities and Art: The Art Recovery Team works to recover
stolen pieces of art and antiquities.
Tariff Enforcement: The Customs Service ensures that U.S. tariff
laws are enforced.
Department of Energy
Energy Emergency Support: The DOE Office of Energy Assurance
assesses the potential effects of natural disasters such as
earthquakes, hurricanes, tornados, and floods on energy infrastructure
and provides energy emergency support in the case of such disasters.
Human Subjects Research Database: The DOE Environmental
Measurements Laboratory (EML) maintains the Human Subjects Research
Database, which contains descriptions of all projects involving human
subjects that are funded by the DOE, performed by DOE staff, or
conducted at DOE facilities. EML also provides direct assistance to the
manager of the DOE Protecting Human Subjects Program, such as assisting
with production of educational and guidance materials.
A Quality Assessment Program for Contractor Labs: EML also runs a
quality assessment program for DOE contractor laboratories that measure
radiation. The program tests the quality of 149 private Laboratories'
environmental radiological measurements.
Mr. Waxman. One major problem is that the President's
proposal would transfer to the new department a vast array of
responsibilities that have nothing to do with homeland
security, such as administering the national flood insurance
program, cleaning up oil spills at sea, and eradicating pests
like the boll weevil. Giving the new department dozens of
unrelated responsibilities will bloat the size of the
bureaucracy and dilute the new department's counterterrorism
mission.
The President's proposal also lacks an effective mechanism
to coordinate the activities of the many Federal agencies with
major homeland security functions. According to the
administration, there are 153 different agencies, departments,
and offices now involved with homeland security. After the
creation of the new department, this number actually will
increase. There will be a 160 agencies, departments or offices
with security roles.
Another serious problem with the bill is its cost. The
administration has asserted that the creation of this new
department would not grow government. They have stated that any
costs that may be incurred will be paid for by eliminating
redundancies inherent in the current structure.
Since the administration provided no information on cost,
Chairman Burton and I asked the nonpartisan Congressional
Budget Office to provide their analysis. They concluded that
implementing the President's reorganization proposal will cost
the American taxpayers an astounding sum, $3 billion. If this
money were used at the front lines of fighting terrorism
instead of paying for a new bureaucracy, think how much better
off we might be.
Our job in the Committee on Government Reform was to make
the flawed proposal from the administration better, and I
believe we made some significant progress. The President's
original proposal included broad exemptions from our Nation's
most basic good government laws. The legislation allowed the
new Secretary to waive all provisions of our civil service
laws, including those that prohibit patronage, protect whistle-
blowers, provide for collective bargaining rights and ensure
health and retirement benefits. A similar approach was taken
with procurement and the management of real property.
Also, basic government in the sunshine laws, such as the
Freedom of Information Act and the Federal Advisory Committee
Act, were limited in their application to the new department.
Moreover, the Chief Financial Officer Act, the Clinger-Cohen
Act dealing with chief information officers, and the Inspector
General Act did not fully apply.
The Committee on Government Reform reported a bill that
limits many of these exemptions. The civil service protections
for Federal worker were restored while allowing for pay
flexibility with in the agency. Under our bill, Federal
employees who are transferred to the new agency will not have
their rate of basic pay reduced. The committee bill also allows
the Secretary to lift the salary cap on personal services
contracts, but only for an urgent homeland security need; and
those contracts still cannot exceed a year.
Finally, the savings clause ensures that theTransportation
Security agency rules cannot be expanded beyond TSA. Federal
employees would be further protected by a provision in the
committee print ensuring that the employees who were in
collective bargaining units prior to being transferred to the
new department would retain their bargaining rights.
Finally included in the committee's legislation is the
right to sue against any person, organization, or employer who
retaliates against a whistle-blower. The bill we reported
removed the original provision that would have exempted the new
department from the Federal Advisory Committee Act. We were
also able to fix other provisions to ensure that the Chief
Financial Officers Act and the Clinger-Cohen Act apply to the
new department. Although I would have preferred stronger
language, the IG language on reporting was also strengthened.
Also, the new department will have to manage its real
property in accordance with the bipartisan property bill
adopted by the committee earlier this year. Moreover, the new
department would have a privacy officer, an office of civil
rights and a citizenship and immigration service ombudsman.
Our committee print also takes a very different approach to
procurement than the administration's proposal. Although I
still question the need to deviate from current procurement
law, the committee print is an improvement from the
administration's proposal because it includes safeguards
against fraud and abuse.
There were a few provisions in our committee print that may
be considered a step backward for good government. For example,
I would have liked the committee to eliminate, not expand, the
FIOA loophole in the bill. In addition, I was disappointed that
indemnification provisions were included in our committee's
mark. This language could subject the Federal Government to
unlimited liabilities incurred from its contractors. In
addition, it is inappropriate for the Federal Government to
indemnify contractors if they fail to exercise sufficient
diligence and would impose an undue burden on the taxpayer.
The procurement provisions also expanded the use of credit
cards for the purchase of items up to $5,000. This very morning
in our committee we heard testimony, how these cards are being
used at strip clubs and to buy clothing from Victoria's Secret
at taxpayers' expense. As Representative Schakowksy and I wrote
Secretary Rumsfeld, we should be curbing this abuse, not
expanding it; and I ask that this letter also be made part of
the record.
Chairman Armey. Without objection.
[The information follows:]
House of Representatives,
Committee on Government Reform
Washington, DC, July 17, 2002.
Hon. Donald Rumsfeld
Secretary of Defense, The Pentagon, Washington, D.C.
Dear Secretary Rumsfeld: Revelations about corporate misdeeds and
accounting irregularities at companies such as Enron and WorldCom are
causing enormous public concern. Increasingly, this concern is
spreading to how the federal government manages the taxpayers' money.
We in government have an obligation to ensure that the government's
accounts are honest and the taxpayers' money is not squandered.
For this reason. we are writing you to bring to your attention
serious financial mismanagement within the Department of Defense.
Today, testimony and a report are being released by the General
Accounting Office that find widespread problems in the use of travel
and purchase cards at the Defense Department. A copy of the testimony
and report are enclosed.
Travel cards are special credit cards given to employees by the
Defense Department that are intended to be used to pay for travel on
official business. But GAO investigators found that these cards are
regularly being used for nonofficial business. According to the
testimony of Gregory Kutz, the Director of Financial Management and
Assurance for Defense at GAO, 15% to 45% of the charges on the travel
cards that GAO reviewed were for personal--not government--use.
For example, GAO investigators found that the travel cards were
frequently used by Army personnel to obtain cash at strip clubs. GAO
found that Army personnel would present the cards at a strip club and
ask for cash. The strip club would then commonly charge a 10 percent
fee for the cash and record it as a ``restaurant'' transaction. GAO
also found that these travel cards were being used to pay for
everything from dating and escort services to casino and internet
gambling to cruises.
GAO's investigation of purchase cards is similarly disturbing.
These purchase cards are designed to provide a convenient method to
purchase supplies that are not available through the General Services
Administration (GSA) or would take too long to purchase through GSA.
Although use of the cards is strictly limited to purchases for official
business, GAO's report finds that these cards are regularly being used
to purchase personal goods.
According to the GAO report, the personal goods bought with
taxpayer dollars on these purchase cards include jewelry, cosmetics,
and computer equipment. The purchases reviewed by GAO included:
An estimated $30,000 spent on items such as rings, purses,
and clothing, including purchases from Victoria's Secret;
Over $10,000 spent on a trip to Las Vegas, personal
clothing, and paying personal bills;
An estimated $100,000 for a variety of items including a
computer game station, digital camera, and a surround sound system; and
$630 for escort services.
According to GAO, this abuse can be traced to the poor financial
management practiced by the Department of Defense. Proper use of these
cards requires that someone independently verifies that the goods were
received by the government and that the purchase was for a government
use. GAO found rampant failures to provide these safeguards. In fact,
GAO found that ``none of the installations. . . audited had a
comprehensive or effective program of oversight and monitoring.'' \1\
---------------------------------------------------------------------------
\1\ U.S. General Accounting Office. Purchase Cards: Control
Weaknesses Leave Army Vulnerable to Fraud Waste, and Abuse. 17 (June
2002).
---------------------------------------------------------------------------
These new GAO findings are unfortunately not isolated examples of
financial mismanagement at your Department. Last year, GAO found that
Navy personnel were similarly using government purchase cards to
acquire personal items.\2\ And the Inspector General found that in
fiscal year 2000 alone, ``$1.2 trillion in department-level accounting
entries . . . were unsupported because of documentation problems or
improper because the entries were illogical or did not follow generally
accepted accounting principles.'' \3\
---------------------------------------------------------------------------
\2\ U.S. General Accounting Office, Purchase Cards: Control
Weaknesses Leave Two Navy Units Vulnerable to Fraud and Abuse (July
30.2001).
\3\ Office of the Inspector General, Department of Defense,
Independent Auditor's Report on the Department of Defense Fiscal Year
2001 Agency-Wide Financial Statements (Feb. 26, 2002) (D-2002-055).
---------------------------------------------------------------------------
Earlier this year, the Department convened a task force to examine
the issue of travel and purchase cards and, just two weeks ago, the
task force issued recommendations on how to address this problem. While
we commend your efforts in convening the task force, its
recommendations are clearly inadequate. For example, the
recommendations do not address how the use of these cards at strip
clubs can be avoided. Furthermore, the task force report does not lay
out a specific plan for implementing management changes.
We urge you to take immediate and decisive action to address the
problems of financial mismanagement at your Department. The Defense
Department should institute sound and effective oversight of these
cards, as recommended by GAO.
We also urge you to speak out against efforts by Republican leaders
in Congress to expand the use of these cards without proper oversight.
Just last week, Rep. Tom Davis, the chair of the Subcommittee on
Technology Procurement Policy, and Rep. Dan Burton, the chair of the
Government Reform Committee, inserted language in the homeland security
bill that raised the threshold for transactions using purchase cards
from $2,500 to $5,000. Due to the efforts of Rep. Jim Turner, the
ranking member of the Subcommittee on Technology and Procurement
Policy, the proposed increase in the threshold was reduced from $15,000
to $5,000. But even this increase is too much without proper financial
management.
At the same time as the federal budget is deteriorating rapidly,
our nation is fighting a new and expensive war on terrorism. We can not
afford to allow financial mismanagement to continue: The American
people need to be sure that every dollar is well spent. The Department
of Defense spent over $6.1 billion with purchase cards in fiscal year
2001. With the increase in the threshold for the cards and the
increases in appropriations for the Department, that number is sure to
rise. As it does, it is your responsibility to ensure that this money
is not wasted.
We respectfully request that you inform us of your plans to rectify
this financial mismanagement no later than September 4. 2002.
Sincerely.
Jan D. Schakowsky,
Ranking Minority Member
Henry A. Waxman,
Ranking Minority Member
Mr. Waxman. With regard to the structure of the department,
I would have liked the Government Reform Committee to limit the
size of the department. For example, an amendment to strike the
Secret Service from the department failed on a vote of 16 to
17, but not all members were in attendance. An amendment to
strike the Coast Guard from the department also failed on a
vote of 16 to 17.
Now, there were some close votes in our committee, but I
must say that our committee worked in a bipartisan basis; and
the decision to keep the civil service rules, for example, were
the unanimous decision on a bipartisan basis of our committee.
The Morella amendment was the only part of that that engendered
some controversy and was decided by a close vote.
I was pleased that the committee did not transfer the
Bureau of Consular Affairs of the State Department to the
Department of Homeland Security. In addition, I was pleased
that the entire Animal and Plant Health Inspection Service
would not be moved to the department under the Government
Reform bill, only certain aspects of the service.
Members of the Select Committee, I know you have a lot on
your plate to consider, and I look forward to working with you
as a homeland security bill moves through the legislative
process. Many committees reviewed this bill. Our committee has
the primary jurisdiction over government organization and
reorganization. I think that as the Select Committee acts, you
ought to respect the decisions of the committees that reviewed
the bill and allow our work product to be reflected in what you
recommend to the full House.
Mr. Burton and I don't agree on every decision we make. He
lost one close vote; I lost a couple of close votes. In those
cases, I know he wants you to reverse the decision he didn't
approve of; and I want you to reverse the decision where we
lost. But on those things where we were together, I think we
ought to recognize those are issues we ought to put aside; and
fight over those matters that were controversial in the
committees and not put everything up as if you never had any
committees of the Congress with expertise review of these
matters.
PREPARED STATEMENT OF HON. HENRY A. WAXMAN, RANKING MINORITY MEMBER,
COMMITTEE ON GOVERNMENT REFORM
Members of the Select Committee. thank you for inviting me to
testify today. It is clear, we need homeland security legislation.
Federal departments are not working together as they should to protect
our nation.
Unfortunately, the bill proposed by the President has serious
flaws. In fact, I think it may well cause more problems than it solves.
Last week, I joined with Rep. David Obey, the Ranking Member of the
Appropriations Committee, in sending a letter to Governor Ridge
outlining a number of serious concerns with the bill. I ask that that
letter become part of the record.
One major problem is that the President's proposal would transfer
to the new Department a vast array of responsibilities that have
nothing to do with homeland security, such as administering The
National Flood Insurance Program. cleaning up oil spills at sea, and
eradicating pests like the boll weevil. Giving the new Department
dozens of unrelated responsibilities will bloat the size of the
bureaucracy and dilute the new Department's counterterrorism mission.
The President's proposal also lacks an effective mechanism to
coordinate the activities of the many federal agencies with major
homeland security functions. According to the Administration, there are
153 different agencies. departments, and offices now involved with
homeland security. After the creation of the new Department, this
number actually will increase there will be 160 agencies. departments.
or offices with security roles.
Another serious problem with the bill is its cost. The
Administration has asserted that the creation of this new Department
``would not `grow' government.'' They have stated that any costs that
may be incurred will be paid for by ``eliminating redundancies inherent
in the current structure.''
Since the Administration provided no information on cost. Chairman
Burton and I asked the nonpartisan Congressional Budget Office to
provide an analysis. They concluded that implementing the Presidents
reorganization proposal will cost the American taxpayers an astounding
sum: $3 billion.
If this money were used at the front lines of fighting terrorism--
instead of paving for a new bureaucracy--think how much better off we
might be.
Our job on the Committee of Government Reform was to make the
flawed proposal from the Administration better. I believe we made some
significant progress.
The President's original proposal included broad exemptions from
our nation most basic ``good government'' laws. The legislation allowed
the new Secretary to waive all provisions of our civil service laws,
including those that prohibit patronage protect whistleblowers. provide
for collective bargaining rights, and ensure health and retirement
benefits.
A similar approach was taken with procurement and the management of
real property. Also, basic government in sunshine laws, such as the
Freedom of Information Act and the Federal Advisor Committee Act, were
limited in their application to the new Department. Moreover, the Chief
Financial Officer Act, the Clinger-Cohen Act dealing with Chief
Information Officers, and the Inspector General did not apply fully.
The Committee on Government Reform reported a bill that eliminates
many of these exemptions. The civil service protections for federal
workers were restored while allowing for pay flexibility within the
agency. Under our bill, federal employees who are transferred to the
new agency will not have their rate of basic pay reduced. The Committee
bill also allows the Secretary to lift the salary cap on ``personal
services'' contracts, but only for a urgent homeland security needs and
those contracts still cannot exceed a year. Finally, the savings clause
ensures that the Transportation Security Agency (TSA) rules cannot be
expanded beyond TSA.
Federal employees would be further protected by a provision in the
Committee print ensuring that employees who were in collective
bargaining units prior to being transferred to the new Department would
retain their bargaining rights. Finally, included in the Committee's
legislation is the right to sue against an person organization or
employer who retaliates against a whistleblower.
The bill we reported removed the original provision that would have
exempted the new Department from the Federal Advisory Committee Act. We
were also able to fix other provisions to ensure that the Chief
Financial Officers Act and the Clinger-Cohen Act apply to the new
Department. Although I would have preferred stronger language, the IG
language on reporting was also strengthened.
Also, the new Department will have to manage its real property in
accordance with the bipartisan properly bill adopted by the Committee
earlier this year. Moreover, the new Department would have a Privacy
Officer, an Office of Civil Rights, and a Citizenship and Immigration
Service Ombudsman.
Our Committee print also takes a very different approach to
procurement than the Administration's proposal. Although I still
question the need to deviate from current procurement law. the
Committee print is an improvement from the Administration's proposal
because it includes safeguards against fraud and abuse.
There were a few provisions in our Committee print that may be
considered a step backwards for ``good government.'' For example, I
would have liked the Committee to eliminate--not expand--the FOIA
loophole in the bill.
In addition. I was disappointed that indemnification provisions
were included in our Committee's mark This language could subject the
federal go to unlimited liabilities incurred from its contractors. In
addition, it is inappropriate for the federal government to indemnify
contractors if they fail to exercise sufficient diligence and would
impose an undue burden on the taxpayer.
The procurement provisions also expanded the use of credit cards
for purchases of items up to $5,000. This very morning in our
Committee, we heard testimony how these cards are being used at strip
clubs and to buy clothing from Victoria's Secret at taxpayer expense.
As Rep. Schakowsky and I wrote Secretary Rumsfeld, we should be curbing
this abuse, not expanding it. I ask that this letter also be made part
of the record.
With regard to the structure of the Department, I would have liked
the Government Reform Committee to limit the size of the Department.
For example, an amendment to strike the Secret Service from the
Department failed on a vote of 16-17. but not all members were in
attendance. An amendment to strike the Coast Guard from the Department
also failed on a vote of 16-17.
I was pleased that the Committee did not transfer the Bureau of
Consular Affairs of the State Department to the Department of Homeland
Security. In addition, I was pleased that the entire Animal Pant Health
Inspection Service would not be moved to the Department under the
Government Reform bill, only certain aspects of the Service.
Members of the Select Committee. I know you have a lot on your
plate to consider, and I look forward to working with you as a homeland
security bill moves through the legislative process.
Chairman Armey. Thank you for your testimony. We will now
proceed under the 5-minute rule, somewhat racing the clock on
the expectation of votes on the floor pending quickly.
I now recognize the gentlelady from California, Ms. Pelosi.
Ms. Pelosi. I defer to Mr. Menendez of New Jersey.
Mr. Menendez. Thank you.
Thank you both for your testimony. One of the focuses I
would like to pursue with you which has been, and I think will
be, one of the major contentious issues, possibly, in the
markup that will take place here on Friday and as we proceed to
the floor is what I said, that homeland security should not
mean public employee insecurity; and in that context I want to
jump off, Mr. Waxman, from the comment you--and Chairman Burton
is shaking his head, yes--that in fact putting aside the
Morella amendment for a moment, which some suggest expands
certain protections, that those fundamental protections that we
have described as good government in the first instance and
which we have pursued over a long period of time to ensure the
quality and the freedom from patronage and partisan influence
which have inured to a civil service that is probably amongst
the most exceptional in the world is protected under the
committee's mark. There has been much between the Cabinet
Secretaries that have come here to testify, and comments by
members of the committee made, of the need for flexibility.
Do you see any merit in those arguments that would rise to
the point that what the committee did should be undone, that
the protections for civil servants should be undone? I mean, I
am concerned that certain sections of title V speak to issues
and give powers--for example, section 7103 allows the President
to issue an executive order taking away title V labor
management rights, including the right to be in a union for
agencies or subdivisions for national security reasons. The
President used his authority last January to take away
collective bargaining rights for approximately 500 Justice
Department workers, most of whom were clerical employees that
have been unionized for decades. I look at other possibilities.
Could you speak to that because that clearly is something
your committee spent a lot of time on, came to a bipartisan
conclusion on, and is going to be one of the major subject
matters of debate.
Mr. Waxman. Mr. Menendez, Mr. Burton is allowing me to
answer this first.
Our committee has jurisdiction over so many of those issues
that we have developed an expertise over the years, and for
that reason, by unanimous vote of our committee under the
manager's amendment offered by Mr. Burton and supported by all
the members of our committee, we decided that what the
President originally proposed was not sound policy. We didn't
think it was necessary to throw out all the civil service
protections that protect employees, and also protect the
government, because otherwise you could have patronage, you
could have employees that wouldn't have health benefits,
employees that wouldn't have the same kind of standing as other
Federal employees. We didn't think that was a good idea, so we
all agreed to put in the bill the existing law regarding civil
service protections.
So the Morella amendment was the only issue where we had a
division, and our side prevailed by a narrow vote. It would not
have expanded anything at all. It simply would have allowed
those employees who had collective bargaining rights to
continue those collective bargaining rights if they were
transferred over to the new department. And the majority
supported the Morella--.
Mr. Menendez. Let us me just pursue that one more step
because my time is midway gone here.
We have had Cabinet Secretary after Cabinet Secretary say
we are not undoing any of those things, we are not undoing
union rights, we are preserving whistle-blower protections. We
had OPM here saying, well, we are preserving all those things.
But as I read your statement on what the committee did, that
certainly was not the mark--the President's submission did not
provide for those protections.
Mr. Waxman. I don't want to be critical of the President's
original provision. The Administration had a lot to do in
developing the plan. But in that regard, if the Cabnet
secretaries thought they were trying to accomplish what you
just said they said, they were inaccurate. And what we did,
unanimously, is make sure all these those protections were
still written in the law and couldn't be waived.
Mr. Burton. If I may follow up, I think Mr. Waxman is
correct. We clarified that. We put in language that we thought
was easily understood, and we believe that the protections are
there for all the employees that were transferred, and that is
as it should be.
I would like to comment briefly, though, since we are
talking about the Morella amendment, because I think this is
very important, the Morella amendment which passed by one vote
weakens the President's authority to prohibit collective
bargaining for Federal employees due to national security
reasons and that is the main reason why I thought the Morella
amendment should not pass.
There are current threats to homeland security that are too
serious, and we should not be weakening the President's hand.
He should maintain the authority to limit collective bargaining
for national security reasons. That is an authority that has
been in effect since the Carter administration, and both
Democrat and Republican Presidents have never abused that.
Since 1979 Presidents Carter, Reagan, Bush, Bill Clinton and
George W. Bush used this authority sparingly, only 11 times in
23 years. It has never been misused.
In response to the 9-11 attacks, President Bush excluded
from collective bargaining five departments, the Department of
Justice offices vital to national security--the U.S. Attorney's
Office, the Criminal Division, Interpol, the National Drug
Intelligence Center and the Office of Intelligence Policy
Review; and especially since September 11 no steps--and I feel
strongly about this--no steps should be taken to limit this
Presidential authority. I think it would be a terrible mistake,
especially since we are in a war, and this amendment really
reduces the President's authority further in this new
department more than in any other department of government.
So I know this will be a contentious issue, but I hope you
will look very closely at the Morella amendment.
Chairman Armey. Thank you. As you noticed, the bells are
ringing--I guess for me and my gal; I don't know. I think we
have time for at least one more question prior to our having to
recess, and we will do it as far as we can, but the Chair will
ask the witnesses if you would return at end of our short
recess. Because your committee's jurisdiction is so large and
your work has been so important, this committee is going to
want to review it thoroughly.
With that observation, let me call upon the gentlewoman
from Ohio.
Mr. Portman. I thank the chairman. I was not expected--.
Chairman Armey. Excuse me. I said the gentlewoman from
Ohio.
Mr. Portman. I am sorry. That makes more sense, Mr.
Chairman.
Ms. Pryce. I don't know if I am up or not, but I will go.
Gentlemen, thank you very much. Your committee has had the
toughest part of all of this because you touch it all; and we
are very, very grateful for your hard work, for deferring to
the others to kind of wait until they got up and passed, so we
had a little bit of a semblance of order with all this. Truly,
it is some of the most important work that any of us will ever
do; and so we really appreciate your participation last week
and this week and all the way through.
Chairman Burton, there was a lot of discussion, and your
ears might have been burning a day or two ago as we discussed
the Morella amendment and what transpired at the committee; and
there was a lot of reference to the Burton amendment as perhaps
a compromise to that issue, and I wasn't certain if that was
something you had offered in committee or it was just an idea
that had been floated. But can you give this group any sense of
what the Burton amendment was, how you feel about it now, and
if you see it as a true place to compromise.
Mr. Burton. Obviously, I believe it was the right thing to
do. It was in the manager's mark. We had a substitute amendment
that we worked with instead of the original bill that was sent
up to our committee.
But what it did, which I think is better than the approach
taken by the Morella amendment, is, the Secretary of Homeland
Security, jointly with the Director of Office of Personnel
Management, would be authorized to adjust compensation levels
to remedy any pay disparities that exist between employees of
the department who perform similar jobs; and that means it
probably would raise them up to the level that the highest one
had, and I don't think there is anything wrong with that.
However, no employee can be compensated above the Cabinet
level, and we think that is important, too, for management
considerations.
To develop a disciplinary system based on existing law that
enables the Secretary to expeditiously suspend or remove
employees in the interest of national or homeland security. The
system shall include a process for employees to appeal a
suspension or removal decision, but it allows him to get rid of
them right away in case there is a security problem; to develop
and submit to Congress for approval a proposal for a
demonstration project for a human resources management system
that makes it easier to recruit and maintain talented
individuals, and that would ensure that the veterans
preferences whistleblower protection and collective bargaining
rights were retained, and authorized a performance appraisal
system for managers or supervisors--and that would give him 5
years to get that perfected--and finally, to exercise the human
resource management authorities under this section in
accordance with the merit principles contained in title V of
the U.S. Code.
The Morella amendment, as I said before, goes just too far,
and at this particular time I cannot for the life of me see why
you would go that far when it does not go that far in any other
agency.
Ms. Pryce. Clearly, this is probably the most contentious
issue that the House will deal with, at least from the
experience of this committee, and if there is a middle ground
and if this could possibly be it, it is great that you provided
us a place to go.
And, Mr. Waxman, I don't know if you care to comment.
Mr. Burton. I believe this is a middle ground, a fair
ground and I hope the committee will look with favor on that.
Ms. Pryce. Thank you.
Mr. Waxman. If you would permit me to comment, Mr. Burton--
I told you what we all agreed to; it was his manager's
amendment. It was worked out on a bipartisan basis, and it was
adopted unanimously. And this manager's amendment said that we
would ensure that veterans' preferences, whistle-blower
protection and collective bargaining rights were retained. That
was all agreed to.
The Morella amendment dealt with a narrow situation, those
people who were transferred from another department into the
Department of Homeland Security and who had collective
bargaining rights. It regarded whether or not they would retain
collective bargaining rights; it was pretty limited in scope.
Now, a majority of the committee,-although the chairman
didn't support it, did go along with Mrs. Morella. It was
bipartisan.
So that area was controversial, but ensuring civil service
protections was not controversal. I hear people talking about
civil service laws all being thrown out. That was in the
original proposal. I will give the administration the benefit
of the doubt that maybe it misdrafted the civil section. What
we did was protect veterans' preferences, whistle-blower,
collective bargaining rights, and almost all of the civil
service laws; we kept those intact. It was only that narrow
area where there was controversy.
Ms. Pryce. Thank you, gentlemen.
Chairman Armey. The Chair will recognize the gentlelady
from California, Ms. Pelosi, and following the conclusion of
response to her, we will recess for such time as 5 minutes
following the close of the last vote in the series.
Ms. Pelosi. Thank you, Mr. Chairman. And I thank the
distinguished chairman and the ranking member for their fine
testimony and hard work on this issue.
As a former member of Government Reform--it was called Gov
Ops in those days, in the olden days, and in the olden days--we
might have fashioned an old-fashioned department that looks
like the one being proposed. I know from the perspective of
your committee, which has the vast array, the total array, of
government operations as your brief and as one who sits on
Appropriations, another place where we see the total view, that
I have a tremendous respect for the perspective that you bring.
I have said many times here that I had hoped to see us do
something very special going forward with Homeland Security. We
want to do what the President calls upon us to do, to do what
is best to protect the American people.
In his strategy, he talked--in his strategy, he talks about
using our resources judiciously as we reduce risk for the
American people. We all share that goal, and we intend to do
that.
I would have hoped, and I would like your view from your
perspective, that we could have ended up with a very strong--
and I hope it could be still be included in our bill--very
strong Office of Homeland Security in the White House. An
office which really does coordinate the activities of many more
agencies, even those that are not--including these, but many
more beyond these agencies included in this Homeland Security
Department. And to have well as a lean Department of Homeland
Security that would address, coordinate technologically, use
the benefits of technology in a lean operation where the
Secretary would not be bogged down with administrative and
management responsibilities, but could, instead, have the value
added of this department, the freedom from all of that, and the
ability to coordinate rather than manage and organize a
department.
Could you express some views on that proposal?
Mr. Burton. I understand the approach that many of my
Democrat colleagues have advocated--.
Ms. Pelosi. If I just may interject, in my conversations
with Republicans, it is not a Republican view to have a huge
bureaucracy.
Mr. Burton. I understand. I think the predominant view on
the other side, the Democrat side, was that view, but there are
Republicans who agree with you.
My personal view is, the President is on track. There has
to be coordination that can only be handled by a department
head and secretaries working for him to make sure that all
those functions work together very rapidly to defend the
homeland, and when you have these in different agencies I think
it becomes more cumbersome, and it is very difficult for those
immediate decisions to be made that will protect us.
For that reason, I think the President was justified in
suggesting a new Homeland Cabinet position and agency. I know
we might differ on what ought to be included in that--.
Ms. Pelosi. That is our only difference. We all agree there
should be a department.
Mr. Burton. That is right. But I think the approach he
suggested, and advocated and our committee voted for, is the
right approach.
Mr. Waxman. I support the idea of a coordinating body,
Cabinet-level position on Homeland Security. It is sort of
ironic that the Republicans would want to push a bill that
takes the bureaucracy, moves it around, bloats it up and spends
billions of dollars.
It is not going to make us any more secure if it's wasted,
and I fear, in moving these agencies into one department they
won't quite know what to do. It will take a long time before
they figure out how they fit in, and during that time, I think
our country could be in danger.
Let me give you this example to keep in mind. AOL and Time
Warner merged. People thought this was brilliant. Well, this
merger into this Homeland Security agency is far greater than
that simple merger, and they haven't quite figured out how AOL
and Time Magazine and Warner Studios and all the other things
that go into that huge enterprise and that huge corporation
should work together. So they are struggling.
But I just worry about what happens in this country if you
set up this agency with all the bureaucratic pieces being moved
around without, coordination. Yes, give the Secretary of
Homeland Security power to insist that certain things be done;
but to transfer everything over to one department from others
just seems to me quite radical, quite bureaucratic, very
expensive, and may in the long run be very self-defeating.
Mr. Burton. I know we have to vote and I will just take a
moment.
I understand Mr. Waxman's position. There is no question in
my mind there are going to be some problems in transferring
these agencies into Homeland Security, but during that process,
I think the President will be very close to the situation and
make sure it works smoothly. That is number one.
Number two, we are looking at the long term. This terrorist
threat is not going to go away tomorrow. It may be with us
through our generation, our kids and long into the future. So I
think we need a Homeland Security just like we need a
Department of Defense that really deals with the problem of
securing this Nation.
Ms. Pelosi. I appreciate and respect both of your opinions.
I want to say one thing and then I am going to be gaveled down.
The Brookings Institution has said that the 170,000 is more
like 200,000-plus when you factor in everything that goes into
the department that is not accounted for yet. There are 85,000
jurisdictions in the United States. Only 125 of them have more
people than this department will have.
Salt Lake City, Utah--I am talking about the cities
themselves--Salt Lake City, Utah; Providence, Rhode Island;
Portland, Maine; Reno, Nevada. The list goes on and on of
cities that have less people than the Department of Homeland
Security will have. So I think we can all put our best thoughts
together as we go forward, how to manage that.
Mr. Waxman. It took over a decade before the Department of
Defense was fully coordinated. We need this department to be on
guard for the American people immediately, not in the long term
of 10 years from now.
Ms. Pelosi. Thank you both.
Chairman Armey. The Chair would appreciate if the two
gentlemen would return. There will be much questioning on the
subjects of your jurisdiction. Without objection, the committee
stands adjourned until 5 minutes following the close of the
last vote in this series of votes on the floor of the House.
[Recess.]
Chairman Armey. The committee will come to order. Let the
Chair open by thanking Congressmen Burton and Waxman for your
willingness to come back for a second round. I am sure our
committee members will be drifting up but as it stands, we have
the gentlewoman from Connecticut, Ms. DeLauro, and myself here.
So Ms. DeLauro, the Chair recognizes you for your questioning
under the 5-minute rule.
Ms. DeLauro. Thank you very much, Mr. Chairman. Let me
thank my colleagues for your testimony and thank you for your
years of service to the institution and the knowledge that you
bring to this effort. It really is--I have characterized the
hearings to some of our other colleagues, and I have said that
sometimes we just don't get to listen to and talk with our
colleagues the way that we should to understand the depth of
knowledge that they have on these issues.
Let me just ask Mr. Waxman, if I might, and I asked Mr.
Obey about this as well earlier today. There is one section of
your letter, of the Waxman-Obey letter which I also had put
into the record. I might add if I could just say, Mr. Chairman,
that it was on the McLaughlin show that John McLaughlin said
that this was one of the best pieces of analysis that he had
ever seen of this effort. So I just mention that in passing.
One section of the letter outlines a number of concerns
which have to do with the good government provisions. Talk to
me a little bit about how the Government Reform Committee's
recommendation improve on these provisions. Well, let me just
leave it at that.
Mr. Waxman. Well, the Burton substitute, which was
supported unanimously, did a number of important things that
are basically good government kinds of provisions. It said that
employees' rights would be protected. Whistleblowers would be
protected. The right to collective bargaining would be
protected. Those things were agreed to by everyone. The Morella
amendment, as I mentioned earlier, and I will go into more
detail if the committee chooses, dealt with a very narrow area.
Now, there were other provisions in the Government Reform
bill that I want to flag that I did not support. The Freedom of
Information Act provisions I thought did not meet good
government standards. The President's bill was very broad and
exempted all information voluntarily provided to the Department
about infrastructure vulnerabilities. from the Freedom of
Information Act.
Now, we adopted a Tom Davis amendment that added over 10
additional departments to be exempted from the Freedom of
Information Act--and the amendment defined ``critical
infrastructure'' very broad. Lots of information about chemical
plants, electric utilities, water systems could be exempted.
Freedom of Information Act is working well, and I don't believe
it should have been changed.
The indemnity provisions we adopted give the taxpayer
potentially unlimited liability. I think that is a mistake,
because we ought to indemnify people only if they exercise due
care. If they have been negligent, close to bordering on gross
negligence, I don't think we ought to indemnify them.
But let me just underscore again, the Burton substitute
restored basic civil service laws. It wasn't a compromise. It
was something that everybody thought made sense. It was a good
government provision, and an important part of the work of our
committee.
Ms. DeLauro. I just might add here that with regard to
FOIA, there was a statement made by Ronald Dick, Director of
the FBI's National Infrastructure Protection Center, that, and
I quote, we believe that there are sufficient provisions in the
FOIA now to protect information that is provided to us, and a
question with regard to that that I had had is if it works for
the FBI, the CIA, if it works for the Defense Department, then
why do we need a broader exemption for the new department?
Mr. Waxman, you appear to concur with that.
Mr. Waxman. I absolutely do.
Ms. DeLauro. Mr. Burton, do you concur with that statement
by the FBI Director?
Mr. Burton. Well, I think the thing that concerned us and
Mr. Davis and the White House is that you have new technologies
coming online and a lot of businesses have limits of liability
that say stop at 10 million or 20 million or 200 million,
whatever it happens to be, and they are very concerned--no.
Ms. DeLauro. That is a different issue.
Mr. Burton. Pardon me. I was thinking about two things at
once. I think that Mr. Davis and myself and the President and
others felt like that a lot of information would deal with
national security would be filtering through the homeland
agency, and other agencies as well that involved new
technologies, and if the people who are producing this new
technology or who were trying to protect things like nuclear
power plants felt like that there was going to be some leaks,
they wouldn't let that technology go to the agency that we are
talking about, Homeland Security, and for that very reason,
they felt like we ought to have more exceptions to the Freedom
of Information Act.
I have always been very strongly in favor of freedom of
information. In fact, I have taken on this administration as
well as the previous administration when they tried to block us
from getting vital information. However, we are in a war right
now, and I think there should be some exceptions and that is
why I think this particular clause is important.
Ms. DeLauro. I would just commend to you, and I know my
time is up, that the comments of the FBI, the Infrastructure
Protection Center and Director talking about that, he felt that
there were a number of protections within the law now and that
there were the exemptions that were necessary to take care of
this, and I just would mention that to take a look at in light
of--.
Mr. Burton. Well, I would presume, and I don't know this
for sure, that in the drafting of the original bill that came
from the White House and in the discussions we have had, the
heads of our CIA and FBI and DIA and other intelligence
agencies were involved in the process, and I find it difficult
to understand why the FBI Director would take a position
different than the President on this. So I will have to talk to
him about that.
Ms. DeLauro. Okay. Thank you very much. Thank you, Mr.
Chairman.
Chairman Armey. The Chair now recognizes the gentleman from
Texas, Mr. Delay.
Mr. DeLay. I appreciate both of you coming to testify. Your
testimony is probably the most important testimony that we will
hear today amongst all of the committees. Obviously your
jurisdiction is far reaching and your expertise as a committee
are vitally important to what we do here in trying to bring it
all together.
Having said that, my first knee-jerk reaction about this
proposal when I first heard about it was oh, no, another
department, another secretary, bigger government, but I have
come to realize that many are looking at this as just a
reorganization, and therefore that is why I think it is
important and it is an opportunity to provide reorganization.
Having said that, there have been suggestions that during
these hearings from everything to, oh, just have an office
over--just make the present Office of Homeland Security a
confirmable office and move on to expanded bureaucracy to
some--to a model sort of after the Drug Czar with no authority,
no manpower, no direction and expect it to do great things, and
so we are going to have to rely on you. Could either one of you
give me a bigger picture understanding of where you think we
ought to be heading in the bigger picture as far as what this
department may look like under your vision, if you could? And
please keep it short, because I have got a real important
second question.
Mr. Burton. I will go quick. Henry and I have a little
different opinion on this, and he can speak for himself. I
believe that there will be some problems in the transition, and
I believe there may be some times when we will have to be very
careful, because terrorists might take advantage of the
transformation and transfer of authority. However, in the long
run, I think it is absolutely essential that you have one
person in charge of homeland security; i.e., Department of
Defense for the United States of America, who can make sure
that he can coordinate all of these different agencies that are
spread all over the place right now, and I don't think he or
she can do that if they have to go to the Department of
Transportation for one thing or the intelligence department or
CIA for another one, and for that reason I think it is
extremely important that we put as many of these agencies or
parts of these agencies that are going to be dealing with
homeland security under one roof with one leader, and I think
the President has got his thumb right on the pulse. I think his
advisers were right on line, and I think that is why the
majority of our committee voted to give him that authority.
Mr. Waxman. If I could give you my view of it, I think your
initial judgment was probably correct. Think about it, this is
the homeland security department, but we are not putting the
FBI and the CIA into this new agency, but we are putting the
Animal Plant Health Information Services. We are putting the
Coast Guard, where they do marine safety, maritime law
enforcement, oil spill cleanups. We are taking Customs, where
they ore doing border drug interdictions and copyright
protection and putting that into the new department. And for
the Department of Energy, we take human subjects research
database, quality assessment program for contractor labs. These
are a lot of things that have nothing really to do with
homeland security. So either put everything in this Department
or figure out some way for the head of this new department to
be able to coordinate with these other groups such as with the
FBI and CIA in the most efficient manner, without so much
disruption that you end up creating another huge bureaucracy
falling all over itself, spending a lot of money and waiting
for all the kinks to be worked out.
So I am troubled by it. I think what the President is
trying to do is the right thing, but I don't think the
administration has thought it through. In fact, from my
understanding from the news reports, it was put together very
quickly. It was put together even before the strategy which we
recieved yesterday, was drafted. I think once the
Administration, I have seen this over the years--announces it
wants to do something, it goes forward without rethinking
whether the idea makes a lot of sense.
So I would give a strong coordinating function and
authority over the FBI and the CIA and other agencies of
government that relate to homeland security, but not move all
these things over to this new department that we have.
Mr. DeLay. I am running out of time. I want to give you an
opportunity, because there is a disagreement between the
Judiciary Committee and you on INS. Could you make--briefly
make your case for your position on the INS versus the
Judiciary's case?
Mr. Burton. Well, I will go first, I guess. I would just
like to follow up on one of the things that Henry said on the
last issue real quickly. I know you are out of time but I know
you want us to get this question. And that is he didn't mention
all of the functions of those agencies. Many of the functions
that he did not mention fit very well into homeland security.
Some will not, but they will do those functions anyhow. But
what we are talking about right now is declaring war on the
enemy and protecting America, and the best way to do that is to
have these agencies consolidated under Homeland Security.
Now, regarding the INS, it is one of the major building
blocks of the department. If we remove it or if we remove just,
say, half of it, we are going to be weakening the President's
plan very seriously, and that is why the committee voted to
keep it in this new department. Like FEMA and a number of other
agencies included in the new department, the INS performs a
variety of functions beyond homeland security. And I just
mentioned that. It facilitates legal immigration and enforces
immigration laws. Its security and processing functions are
closely related and should therefore both be included in the
new department. The INS also works closely with other agencies
like Customs Service that has a presence at our borders and
will become part of the new department. These two agencies have
overlapping functions in both enforcement and processing.
Carving out a portion of the INS would jeopardize the Secretary
of Homeland Security's ability to develop a cohesive Border
Patrol strategy. I think on its face the INS has to be one of
the first lines of defense against terrorists getting into the
country and keeping them out. So I think it is logical to have
that under that Homeland Security Department.
Mr. Waxman. Mr. Delay, just as our committee has expertise
because of our jurisdiction on civil service and procurement
laws and all of that, the Judiciary Committee has had a long
history with the Immigration and Naturalization Service. They
have just reorganized the INS after a lot of problems with it,
and their judgment that they have recommended is to separate
the service part from the enforcement part, and the enforcement
part they would move over to the Homeland Security Department.
The service part they would leave alone. I think that makes
sense. I would defer to their judgment, but it does seem to me
to make sense, because the enforcement issues are the ones that
relate to homeland security.
Mr. Burton. I just might follow up by saying when you
bifurcate or split up an agency like that, I think it takes a
lot of time and effort, and I think what we are trying to do is
expedite this as quickly as possible so the functions that are
very germane to homeland security are there as quickly as
possible.
Mr. DeLay. Thank you, Mr. Chairman.
Chairman Armey. Thank you. The gentleman from Texas.
The Chair would like to announce that absent another
minority member or Democrat member joining the committee, it
would be my attention to recognize the gentleman from Ohio and
then I would ask the members on your side to get your heads
together and see which of you might seek recognition to
represent your side, and then we will conclude with the
chairman. So with that intention noted, let me recognize the
gentleman from Ohio.
Mr. Portman. Thank you, Mr. Chairman, and appreciate the
testimony from both of my colleagues today, both of whom I
served with at one time on the committee. I am one of the alums
up here on the panel, and I worked with you on various
projects. You do have the largest single jurisdiction and you
have given us a lot of good things for us to work with in
coming up with a mark that we can take to the floor.
I just want to quickly ask about the final vote in
committee. Mr. Chairman, what was the final vote in the
committee, because we have heard different discussion about how
the committee reacted to different proposals?
Mr. Burton. The Morella amendment passed by one vote. It
was very controversial. What were the other ones?
Mr. Portman. How about final passage on the--.
Mr. Burton. Final passage on the bill was 30 to 1.
Mr. Portman. So it was 30 votes in favor of the
restructuring, making the new agency--.
Mr. Burton. Right.
Mr. Portman. Consolidating all these various departments
and agencies?
Mr. Burton. Right.
Mr. Portman. I have listened to my friend Mr. Waxman talk
about the bloated bureaucracy, and I must say somehow it hasn't
been properly explained to you or you haven't understood at
least what the President was trying to do, because there is no
sense this would be a larger bureaucracy. Indeed the whole
notion here is to consolidate and I think Mr. Burton said it
well earlier, which is right now we have so many different
offices and departments. You have said over 150, that the right
hand doesn't know what the left hand is doing, and often there
are so many masters, there is no master and therefore no one in
charge. And therefore it is a matter of accountability, and the
notion would not be to leave those bureaucracies as they are
but rather to make them work better together and to consolidate
them. The bureaucracies are going to be there. If we don't do
anything, if we simply put an office in the White House, like
the Drug Czar's office, it doesn't do anything to reduce the
bloated bureaucracy.
So that is the concept. There will be of course challenges
as we do this, as we have seen with every organization, but it
is certainly not the intention to bloat the bureaucracy.
Rather, it is to streamline it and that is the whole point.
Mr. Waxman. Mr. Portman, I would hope you take a look at
the letter that Mr.--.
Mr. Portman. I have seen your letter.
Mr. Waxman. And I hope you would also look at what the
Congressional Budget Office estimated.
Mr. Portman. And I have and that has been misrepresented a
number of times.
Mr. Waxman. This is estimated to create 21 Assistant
Secretary positions. It is incredibly large. I voted for final
passage, as did many other Members.
Mr. Portman. I realize that.
Mr. Waxman. I did vote for it, although I did not think it
was a good bill as it stood. I voted for it and I think others
did as well, to send it on to continue to work on the
legislation. If this were the final bill before us in the
House, I am not sure that I could still vote for it, or
certainly if it came out of conference I expected I would vote
against it.
Mr. Portman. Hopefully we can address some of your
concerns, and one of the concerns that you have raised
repeatedly is this notion there will be other nonsecurity
functions in the department. The answer to that is clearly that
we think some of these entities work quite well together now.
The Coast Guard for instance. You mentioned oil spill a few
times. The oil spill function of the Coast Guard is related in
an integral way to what they do to protect our borders. So we
want to keep that, it works well. It is a good agency.
The Customs Service, which is under the jurisdiction of
Ways and Means, where I serve, same thing. You mentioned the
Customs Service. You don't want to pull those agencies--.
Mr. Waxman. No. But I don't know if you have served on the
Transportation and Infrastructure Committee. They have a large
expertise on this, and Chairman Young doesn't agree.
Mr. Portman. I understand they have some jurisdiction
issues with moving it over at all, but that is not what you are
saying. You are saying maybe the border functions should go but
not the other functions. He would object to that, because he
would say, no, if you are going to move it, you need to do it
in full.
I will continue to talk to him on the record in a little
while.
Mr. Chairman.
Mr. Burton. Let me just say that if you move--let us say
there is a person or an agency that does two functions. One is
a homeland security function as we perceive it. The other is
maybe not a homeland security function. If you split that up,
what you are talking about is splitting the agency, and you may
be talking about more employees, because you are going to have
to leave some here and some there, and people who have the
expertise in both areas, you are going to have to have two
instead of one, and so I think the consolidation process we are
talking about, even though you are bringing in some functions
that are not germane necessarily to homeland security but some
that are, I think is going to make sure that we minimize the
amount of new employment that is going to be necessary. Whereas
if you split up agencies, I think you run the risk of saying we
have got to have people that do this function as well as this
function instead of one person or one agency.
Mr. Portman. In some agencies--and Customs is a good
example for me because it is in our jurisdiction--but people
have multitasks. Coast Guard obviously is another great example
of that.
I would say, too, with regard to the alternative, which is
to put something in the White House, I have lived through the
Drug Czar, and I know you have lived through CEQ and I know how
you view that, and maybe you can speak to that, but with no
budget authority, no people or ability to move these agencies
and departments, it is very difficult to do what we are trying
to do here, which is to change a mindset, to make the primary
function homeland security, and I would just suggest that if
there is going to be an office in the White House, that does
not have budget authority, it really is not going to have the
strength to be able to perform, even if it is statutory, even
if it has a confirmed director within the White House as is the
case with CEQ or the Council of Economic Advisers or the Office
of Drug Control Policy. They just don't have the ability to do
what we need to do to get done here.
Chairman Armey. I am afraid I might have to call time on
the gentleman from Ohio and we come to a conclusion and--.
Ms. DeLauro. We are going to have it both ways, Mr.
Chairman. I will ask a brief question and then yield to Mr.
Menendez.
Chairman Armey. The gentlelady is recognized.
Ms. DeLauro. Thank you very much. Following up on the cost
issue, have you seen any evidence to support the
administration's contention that the cost of the new
department, including its administration and new entities that
it creates, can be funded from savings achieved by eliminating
redundancies in the current structure?
Mr. Waxman. I can only respond that we asked the
Congressional Budget Office to evaluate that idea, that
premise, and they came back with an estimated $3 billion
expenditure, just for this department. That to me is an
incredible amount of money and could be used far more
effectively for our national security, internal security in
other ways than moving all of the bureaucracy around and moving
all these pieces and ending up with 21 Assistant Secretaries.
Mr. Burton. My view is that there will be initial
additional costs. Long term, there will probably be some
savings, but I am a realist. I think there will probably be
additional expenses, but what we are talking about here, and I
hope nobody loses sight of this fact, we are talking about in
effect a Department of Defense for America. We have maybe
thousands of terrorists, maybe more than that, in the United
States who want to do us ill, and we have to do whatever is
necessary, not only to protect the infrastructure but every
American citizen as much as possible. And we must realize that
it may very well cost more money than we anticipate, but what
is the alternative? To do less, you run the risk of a real
tragedy like we saw on September 11th. And so I don't know what
the additional costs might be or if there will be ultimately an
additional cost. All I am saying is that we have to do what we
have to do to protect this country.
Ms. DeLauro. I will just say, and I am going to yield to my
colleague, but it would be good at the outset to lay out the
fact that it is going to cost more money instead of trying to
indicate that it probably won't cost more money.
With that I yield to my colleague from New Jersey.
Mr. Menendez. I thank the gentlelady for yielding. Let me
go to the INS issue for a moment. The Hispanic Caucus today
puts out a statement of principles on this saying they would
really like to see it stay in the Justice Department, but if it
is going to be transferred, that they would like to see an
Under Secretary for all of those immigration functions within
the Department of Homeland Security, because we don't want to
get to the point that we treat immigration as terrorism.
Is that something that you would be supportive of?
Mr. Burton. Yes. I think it is very important that those
who are coming here to seek freedom and justice and the
American way of life not be hampered from getting to the United
States, and I think we ought to do whatever is necessary in the
Department of Immigration to make sure that those people do
have the ability to come to America if they follow the rules
and regulations to get here.
But we also believe that it is very important that along
with the visa provisions we were talking about earlier, that
there be very close scrutiny of people coming into the country
to make sure that we don't have terrorists slipping through the
cracks.
So I agree with you that we ought to make sure that we
still have immigration according to our immigration laws, but
at the same time there is going to be a dual purpose there, and
that is probably why we made need an additional secretary to
deal with that.
Mr. Menendez. Mr. Waxman, let me ask you a question. To the
extent that agencies propose to be transferred to this new
department end up being transferred to this department, which
agencies have multiple missions beyond security? Do you believe
that there should be language here for a mechanism of some sort
to try to guarantee the other managers of those departments
that they are held in their work, in their--.
Mr. Waxman. Well, I think that is part of the tricky
difficulties we have with this legislation, because, for
example, the FEMA agency deals with natural disasters and has a
traditional function. We are going to continue to need that
agency to deal with those kinds of problems. So I would hate to
see that agency disrupted, similarly I would hate disruptions
at the Coast Guard and the INS and other agencies as well. That
is why we have to be mindful that we are not creating redundant
bureaucracies. If we are going to leave them where they are now
with some functions and move other functions, we have to figure
out how to do that in a careful enough way. Otherwise it seems
to me we are going to have a real mess on our hands.
Mr. Menendez. But my concern is while we presume and assume
that they will continue those functions unless their budgets
are somehow preserved, unless their statements as to those
missions are being preserved in the context of a security focus
that has been the advocacy for those, there are no guarantees
that those missions are preserved in a way in which they can
succeed at, and that is of grave concern to us.
Mr. Burton. If I might comment on that, Mr. Menendez. Our
bill expanded the mission statement of this new department to
highlight the importance of nonterrorist functions and the need
for the department to respond to such things as national
disasters, in addition to terrorist attacks. FEMA is a central
agency for carrying out that mission. Therefore, it is critical
that they be included. And also we are going to have a number
of Assistant Secretaries. Many people differ on how many there
should be, but I suggest that at least one or two of those
Secretaries should be designated to deal with nonterrorist
functions to make sure that those are not overlooked or short-
changed. It is extremely important that if we transfer an
agency in there that can deal with terrorism, will deal with
terrorism but has other functions, that those are not
neglected.
Mr. Menendez. I thank you, Mr. Chairman.
Chairman Armey. So much of what has come from your
committee, I recognize another good looking suggestion. We will
look into that.
Just to update the committee, we now have two members that
have joined the committee who have not had the opportunity to
question this panel. The Chair's intention is to recognize the
gentleman from Oklahoma on my right, the gentleman from Texas
on my left, and then conclude our work with this panel with
myself. The gentleman from Oklahoma.
Mr. Watts. Mr. Chairman, I will try and be brief. Yesterday
we heard testimony from the Director of Office of Personnel
Management and she was talking about making the bureaucracy
work for us, and we have heard the--Ms. Pelosi talked about the
same thing, having a lean, streamlined department in the
Homeland Security Department, and I know that one of the ways
we can do that is by way of technology and different management
features, and so forth. And I was pleased to see that you all
included in your markup the Federal Information Security
Management Act, FISMA, and formerly H.R. 4629, which encourages
and supports carrying out innovative proposals to enhance
homeland security.
Can either you, Chairman Burton or Mr. Waxman, one or the
other or both, I would just like for you to kind of share how
you think each of these will help in securing America's
homeland.
Mr. Burton. Well, first of all, we differed a little bit
with the administration on this. We expanded the language that
they had in the original bill. We did that because we wanted to
make sure that we kept the brightest and the best in these
positions and that there wasn't a lot of problems with such
things as pay disparities and the like.
Let me just go through the kind of language we had further
in there to deal with this, and I hope that answers your
question. The Secretary of Homeland Security, along with the
head of OPM, will be authorized to adjust compensation levels
to remedy any pay disparities that exist between employees who
come into the department from various areas who are going to
perform similar jobs. Obviously if you bring somebody in from
one department that is going to do a job and somebody from
another department that is going to do a job and there is a pay
disparity, you have got to make sure you work that out. And I
presume that they would probably raise the pay so that it was
comparable.
To develop a disciplinary--however, no employee can be
compensated above the Cabinet level, and there was some that
wanted to take it to the degree that it would go up to the
President's salary and above Cabinet level salaries. We thought
that was going to be difficult for management purposes.
To develop a disciplinary system based on existing law that
enables the Secretary to suspend or expeditiously suspend or
remove an employee in case of national or homeland security:
Now, there is a process that we are talking about that would be
followed which would guarantee their rights, review of what
happened, but they can get them out of that position very
quickly if it was a security risk, to develop and submit to
Congress for approval a proposal for a demonstration project
for a human resources management system that makes it easier to
recruit and retain talented individuals. And that would ensure
that veterans' preferences, whistleblower protection and
collective bargaining rights would be retained and authorized
performance appraisal system for managers or supervisors, and
finally to exercise the human resource management authorities
under this section in accordance with the merit principles
contained in title 5, of the U.S. Code.
I don't know--does that answer your question?
Mr. Watts. Well, I think all of those things are good. The
two issues that I addressed or spoke to were the technical
innovations in using private sector innovations and technology
to manage and to enhance defense of America's homeland. I think
what you just shared with us I think does overlap into the
question that I asked.
Mr. Burton. I am sorry. I must have been thinking and
missed part of your question. There are provisions in the bill
which provide for mechanisms to make sure we get the best
technology, the best minds from the outside to make sure that
we have the ability and the technology to defend against any
kind of terrorist threat or terrorist attack. One of the
problems we had in getting the technology, for instance, is
some of those companies--and you weren't here when we talked
about this previously. Some of those companies have a limit of
liability in their insurance, which would--they are afraid that
if they were sued, if there was a national tragedy, it would go
above their limit of liability. And so we provided a hold
harmless provision in there so that the Director of Homeland
Security and OPM agreed that we need to provide this protection
for that company above their limit of liability. They get the
most insurance they could, but above that limit of liability so
we could get that technology, and we would go ahead and do it.
Mr. Waxman. Before I address your point on FISMA, I want to
make a comment on FOIA. I have a concern that we are going to
keep a lot of this information from the public, when it is
really not a matter of homeland or national security. So I have
some misgivings, and I think we ought to continue to look at
these new exemptions from FOIA.
There was an issue I will bring to your attention that came
up in the committee. In our bill based on an amendment by Mr.
Davis, we allow the lowering of standards for computer security
in order to make sure that more than one company could compete.
That didn't make sense to me. We ought to keep the best
standard and tell all the companies they should come up to that
standard. I had a sense that we were doing this because some
companies didn't have a good enough system to compete, and they
wanted the standard lower so they could also come in and see if
they could get government contracts. I didn't think that was
the right course for us to take, and you might look at that
provision again as well. My staff would certainly be available
to help you examine that and rethink whether we want to lower
standards for computer security simply to make some companies
more commercially viable rather than make our security standard
what we wanted out of the whole exercise.
Mr. Burton. If I might follow up real quickly--.
Chairman Armey. If I may ask you to do so.
Mr. Burton. I missed part of your question, and you asked
about three questions in one. I understand the committee
adopted an amendment that would improve information security in
the Federal Government. Currently information in the possession
of Federal agencies is vulnerable because of a lack of
coordinated uniform management. Resolving this problem is an
important aspect of homeland security because of our reliance
on information technology and the advancement of electronic
government, and that Mr. Davis provided we put in the bill.
Chairman Armey. Thank you.
Mr. Waxman. And I just want to add most of that we agreed
to. I raise just one point where we had a disagreement.
Mr. Watts. But I think that is beneficial for this effort,
and I was delighted to see you insert that.
Chairman Armey. Thank you again, and the Chair recognizes
the gentleman from Texas, Mr. Frost.
Mr. Frost. I just would like to nail something down so
there is no possibility of misunderstanding, and let me preface
by saying I am not asking you about the Morella amendment. Just
disregard that for a moment. I am asking you about section 730
in the bill in H.R. 5005, as introduced, and section 730, as
reported by your committee. Section 730 as reported--.
Mr. Burton. Okay. You want us to start off with what was in
the bill submitted to us by the White House?
Mr. Frost. Yes. Starting with that, and then I am asking
you about section 730 as reported by your committee.
Mr. Burton. Okay. Well, as reported by our committee--.
Mr. Frost. Let me ask the question, if I may. My question
is are you asking this committee to substitute the language
for--in section 730 as reported by your committee for the
language as appears in the bill as filed, H.R. 5005?
Mr. Burton. You know, that is a tough question to answer,
because I am a very strong supporter of the President and all
the work they put in this bill, but I believe, being realistic,
the language that the committee came up with is superior, will
work better and will solve the problems that are inherent in
this kind of a transfer.
Mr. Frost. So you are asking that we use your language?
Mr. Burton. I believe that would be preferable. Do you
agree with that, Henry?
Mr. Waxman. I do.
Mr. Frost. Mr. Burton, in the event that this committee
does not use your language for some reason, uses the language
as introduced rather than your language, will you want the
opportunity on the floor when this is considered to offer your
language as an amendment?
Mr. Burton. Well, I would have to discuss with the
leadership, people on this committee the reasons why they
preferred the other language to our language and make a
determination at that point. You know, I am not omnipotent,
although sometimes I might think I am, and there may be reasons
that I missed for the language that was sent to us in the first
place being used rather than ours. However, at the present
time, I believe what we put in the bill is the right approach,
and unless convinced otherwise, I would support that.
Mr. Frost. And Mr. Waxman, would you want the opportunity
to offer that as an amendment on the floor if this committee
chose not to put it in the bill?
Mr. Waxman. I certainly think the Members should have the
opportunity to vote on the provisions that were unanimously
adopted by the Government Reform Committee as it relates to
government employees.
Mr. Frost. I agree with you, and I hope that this committee
will see the wisdom on a bipartisan basis in using the language
that was reported unanimously out of your committee, and if
this committee does not on a bipartisan basis choose to use the
language reported out of your committee unanimously, then as a
member of the Rules Committee, I will certainly seek to have
that made in order as a floor amendment so that it can be
offered--considered on the floor of the House.
Mr. Burton. One real quick follow-up, and that is you said
putting the Connie Morella--.
Mr. Frost. I am not asking about that.
Mr. Burton. That is a very important amendment, a very
important issue, and I sincerely hope the committee will take a
hard look at that. I think that should be reversed.
Mr. Frost. But I wasn't asking on that question.
Mr. Waxman. But I also think that Mrs. Morella or some
other Member ought to be able to offer her provision which was
adopted by our committee, because I think it was a worthwhile
provision, and it is important to have it debated and Members
should be informed and make a decision about it.
Mr. Frost. I understand. I didn't want to confuse the two
issues, though, Mr. Waxman, because I wanted to make it clear
that as base text, it was the position of your committee, and
the chairman has just reiterated that, that the base text
adopted by your committee is superior to the base text in the
bill as filed with us.
Mr. Waxman. Well, the text adopted by our committee
includes the Morella amendment.
Mr. Frost. I understand. I am just asking about section
730, though.
Mr. Waxman. The Morella amendment was a closer vote, the
other parts of it were unanimous, but it was nevertheless the
recommendations of our committee.
Mr. Frost. Well, that I understand, but I was asking about
section 730 only. Although there are people--Mr. Waxman, there
are people who agree with you and people on our side who agree
with you on that, but there really are two separate questions,
and it is my concern that this committee, our Select Committee,
may ignore the very good work done by your committee in
redrafting section 730, and I think that would be a mistake and
I think it would be a step backwards in the effort to achieve
bipartisanship.
I have no further questions.
Mr. Waxman. I agree with you.
Chairman Armey. Gentlemen, let me thank you for being here.
The chairman of this committee does have some questions he
could direct to our panel, but the Chair remains confident that
in that event he would still remain more satisfied with his own
conclusions than the conclusions of the witnesses. So we will
spare you the difficulty of responding to my questions.
Mr. Burton. May I make one final request, and that is if
you or any member of the committee requires any information
from our staff or ourselves as far as why we did certain
things, we will be very happy to provide those for the
committee, and I would like to end up by saying these people
behind me and I am sure behind Henry worked their tails off.
They worked over the weekend. They worked hours and hours on
end and they are the unsung heros on this bill, and I just
really appreciate all the hard work they did.
Chairman Armey. Let me just say, and that is good of you to
mention that, we have already--our staffs from this committee
have already had the privilege of working with your committee.
We do feel very well-informed about the background thinking,
the chapter and verse discussions you had. I myself sat up
until 1:30 in the morning and watched your markup. I found it
scintillating. I don't imagine what I was thinking in my life
that I would have preferred to watch till 1:30 in the morning.
But it has been a very important exercise, what you have done
in your committee.
We will take you up on that offer, and we do so much
appreciate the time you have been willing to share with this
committee, and thank you so much for your hard work.
The Chair recognizes that we are now being joined by the
chairman and the distinguished ranking member of the
International Relations Committee, and the Chair would like to
invite Chairman Hyde and Ranking Member Lantos to the dais.
Gentlemen, as you approach, let me just explain that it is
our procedure here to by unanimous consent put your formal
statement in the record and then ask you if you could to
summarize your statement to us under the 5-minute rule, each in
your turn, and then following that, we will proceed to try to
stay on a fairly rigorous schedule by exercising our own
questions under the 5-minute rule.
So with that, let me just say thank you for being here. We
welcome you. We appreciate your hard work, and Chairman Hyde,
we will begin with you.
STATEMENT OF THE HONORABLE HENRY J. HYDE, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ILLINOIS
Mr. Hyde. Thank you very much, Mr. Chairman and ladies and
gentlemen of this very important and consequential committee.
We will be brief.
Mr. Lantos and I have worked together on this problem, and
we are in total accord, as we are on many issues before our
committee. The subject of the issuance of visas is a
controversial one. There are about 12 million applications for
visas every year. The ministerial administration of those 12
million applications for visas is a considerable task.
Some people wanted to take the whole function of issuing
visas and transplant it to the Homeland Security Agency or
Department, doing away with the State Department's function in
this process. We felt that was doing no favor to homeland
security, that much of this work, the overwhelming bulk of this
work is not connected to homeland security. We felt continuing
to use State Department personnel in the consular offices to do
the routine work would work, and we would put the Secretary of
Homeland Security in charge of policy, of training, of
discipline, of regulatory activity and have the power and
authority to send people out to these consular offices anywhere
in the world should the need arise.
This is the best of both worlds. It utilizes what are
already in place in the State Department, consular personnel
and at the same time hands over the authority to regulate, to
oversee, to train these personnel and to make policy to the
Secretary of Homeland Security, and so that amendment was
comfortably passed in International Relations. I am happy to
say that it passed in the Judiciary Committee comfortably, and
I am advised it also passed in Government Operations.
So that is what I am presenting to you today, plus one more
issue. I was somewhat startled to learn that in Washington,
D.C. there are 41 police agencies; that is, agencies who have
the right to arrest people and to carry weapons, 41 of them. I
have the list here, and neither the left hand knows what the
right hand is doing times 41, and so it seemed to me
appropriate that in this important subject of homeland
security, we advise the Secretary of Homeland Security of this
plethora, this proliferation of police agencies and suggest
some regulatory language to have them communicate with each
other.
It seems to me that having this firepower and not talking
to each other is wasteful and counterproductive. So we don't
provide how that should happen, but we suggest and require the
Secretary of Homeland Security to look at that and to make
regulations that will stimulate interfacing communication
between these police agencies. And I am now pleased to yield to
my colleague, Tom Lantos.
[The statement of Mr. Hyde follows:]
PREPARED STATEMENT OF HON. HENRY HYDE, CHAIRMAN, COMMITTEE ON
INTERNATIONAL RELATIONS
First, Mr. Chairman, I would like to thank you for
permitting me to explain the compromise provision on visa
processing in our Embassies and consulates abroad, which was
worked out last week among a bipartisan coalition of members
representing the three House committees with jurisdiction over
this vital issue.
The President's proposed legislation creating the
Department of Homeland Security included important changes in
the way in which the U.S. government processes the 10 to 12
million visa applications that stream each year into more than
200 U.S. embassies worldwide. The vast majority of these visa
applications are from people who are visiting relatives,
touring the country, or doing business in the United States.
The President's plan transfered ultimate authority over
visa issuance and refusal to the Secretary of Homeland
Security, while continuing to rely on U.S. foreign service
officers to perform the day-to-day work of reviewing
applications and conducting interviews.
Some expressed concern that the President's plan did not go
far enough to ensure that security would come first in the visa
adjudication process. In our examination of H.R. 5005 as
introduced, we determined that these concerns arose primarily
from ambiguity or uncertainty in the language of the
legislation. We were able to draft an amendment to clarify and
fortify this language, and our amendment was adopted (with
minor variations) by three separate Committees during their
markups last week.
The amendment which my colleagues--Tom Lantos, Ileana Ros-
Lehtinen, and Howard Berman--and I proposed, included several
important new provisions:
First, our amendment makes clear that ultimate authority
rests with the Department of Homeland Security. No visa will be
issued over the objections of the new Department.
Second, our amendment makes clear that the new Department
has authority to place homeland security officers in our
embassies not only to review individual visa applications, but
also to oversee consular activities, train and advise consular
officers on homeland security issues, and conduct
investigations relevant to these issues.
Finally, our amendment includes a very important provision
clarifying that a decision denying a visa is not subject to
judicial or administrative review.
Other members proposed more radical changes to the
President's plan. While eliminating any role for the State
Department in the visa process might be satisfying to those who
seek to punish the Department for past failures, over the long
run this approach could weaken, not strengthen, our efforts to
protect the American homeland. In my judgment, we would not be
doing Homeland Security any favors by requiring it to assemble
a new overseas bureaucracy to adjudicate 10 to 12 million
applications a year, the overwhelming majority of which present
no homeland security issues. Our compromise proposal will allow
Homeland Security officers to spend more time--as long as it
takes--on identifying and dealing with those applications that
do present risks to the security of the United States.
The Hyde-Lantos-Berman-Ros-Lehtinen compromise is endorsed
by the Bush Administration and by the three Committees of
jurisdiction. It will preserve the essence of the
Administration's proposal--the sensible division of labor under
which homeland security officers will be allowed to concentrate
on homeland security functions--while helping to ensure that
security concerns will be central to key decisions made abroad.
We would like to thank the Select Committee for its time,
and we hope our recommendations will be helpful in its drafting
of the final proposal.
Chairman Armey. Thank you, Chairman Hyde. Tom Lantos, it is
my pleasure, my friend, to have you here.
STATEMENT OF THE HONORABLE TOM LANTOS, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Mr. Lantos. Thank you very much, Mr. Chairman, Ranking
Member Pelosi, ladies and gentlemen. Let me first say that one
of the great joys of my 22 years of service in Congress has
been to work with Henry Hyde on the International Relations
Committee. I think I can say without any possibility of
contradiction that under Henry's leadership, this has been by
far the most bipartisan committee of the House of
Representatives and probably of either Chamber and that, as
Henry stated, we in the International Relations Committee, Mr.
Chairman, adopted the Hyde-Lantos proposal unanimously which
enjoys the full support of the administration.
I do not serve on the Judiciary Committee, but the
Judiciary Committee adopted essentially the same proposal. I do
serve on Government Reform, and in Government Reform again
overwhelmingly, with Republican and Democratic votes, we
accepted this proposal.
So I can only echo Henry's statement, but I would like to
take a minute, because I know how precious your time is, to
spend a little time on the culture of the Foreign Service as it
relates to this issue, because I think this is a very important
item. When you are 24 years old and take the Foreign Service
examination, at the end of your personal rainbow, Mr. Chairman,
there is not the item of issuing visas to Turkish housewives.
That is not what you are aiming at. You are aiming at becoming
an ambassador 25 years from now and to participate if not in
the formulation, at least in the implementation of U.S. foreign
policy.
And what we have today is really a 2, 3, 4-year bootcamp
for bright young people who do their kitchen police duty in the
State Department issuing visas, and they can hardly wait to get
a good grade on that so they can move on to other things.
Now, the notion of hiring a whole new bureaucracy of people
whose lifetime occupation will be the issuing of visas is an
absurdity. The State Department has been issuing visas for over
200 years, and we clearly, following September 11th, need to
readjust our priorities and our focus. So the Hyde-Lantos
amendment to the administration's proposal recognizes the
primacy of the Homeland Security Secretary in all aspects of
this process, but handling the issuing of the visas via the
State Department. The Homeland Security Secretary will have the
opportunity of assigning as many of his people as necessary who
will have full authority over the issuance of every single visa
that is issued, but it would be absurd to have this whole new
department take over a function which on the whole is very well
performed. I am fully cognizant of the horrendous failures that
have occurred in recent years, the security lapses, and that is
why the placement of homeland security people trained for that
job in whatever embassy or consular office the Secretary of
Homeland Security determines will be done.
There is only one exception in our scheme to the primacy of
homeland security, and I think we as members of Congress will
appreciate it. If the State Department official rejects a visa
application, then Homeland Security cannot overrule him. If the
State Department wants to issue a visa, then Homeland Security
has full authority to review it, and this I think in more ways
than one protects us as Members of Congress, because
constituents come to us and say an individual was rejected for
a visa, can you use some pressure to get that visa done? If the
State Department says no, that is the end of the rope.
I personally believe that our proposal, which has the
approval of three committees and the administration, should be
probably the easiest provision for your distinguished committee
to approve.
Thank you, Mr. Chairman.
[The statement of Mr. Lantos follows:]
PREPARED STATEMENT OF HON. TOM LANTOS, RANKING MINORITY MEMBER,
COMMITTEE ON INTERNATIONAL RELATIONS
Mr. Chairman, I would like to thank you, Ranking Democratic
Member Pelosi and other members of the Committee for receiving
our testimony here today on this critical endeavor,
establishing a Department of Homeland Security. I have an
extensive written statement, and I ask unanimous consent that
it be made part of the record.
Mr. Chairman, nothing this House will do this session is
more important than to move forward successfully this
gargantuan undertaking, and I believe we must do it in the most
expeditious and bipartisan manner possible. It was in this
spirit, Mr. Chairman, that Chairman Hyde and I worked together
on a bipartisan basis with other members of the Committee to
craft a sensible proposal relating to the division of labor
between the Secretary of State and the Secretary of Homeland
Security with respect to the visa function. I am very pleased
that the White House has announced its support for this
proposal, and that last week it was adopted by all three House
committees that considered it. Moreover, I understand that
Governor Ridge confirmed the Administration's support for the
Hyde-Lantos Amendment in testimony before your Committee
earlier this week.
Under our proposal, which builds on the President's
proposal in H.R. 5005, the Secretary of Homeland Security would
have all authorities relating to issuing regulations, enforcing
and administering the laws on processing visas at United States
diplomatic and consular posts abroad. The Secretary would also
have the authority to confer this authority on other officials
and employees of the U.S. Government. Absent such delegation,
however, these authorities would be exercised through the
Secretary of State and his highly trained cadre of consular
officers. The Secretary of Homeland Security can overturn
decisions of consular officers to grant a visa, alter visa
procedures now in place, and can develop programs of training
for consular officers.
In addition, in the spirit of a bipartisan compromise with
those who would like to move the entire visa function to the
new Department, the Hyde-Lantos amendment explicitly authorized
the assignment of Homeland Security employees in U.S.
diplomatic and consular posts abroad. Consular officers would
continue to have the primary responsibility for reviewing visa
applications. Rather than assume all visa processing functions,
Homeland security employees would concentrate on identifying
and reviewing cases that present homeland security issues.
Homeland Security officers will provide expert advice and
training for consular officers, investigate threats and ensure
that these officers have access to all the homeland security
information necessary to perform their function.
I want to stress again the bipartisan nature of this
amendment and its wide-ranging support. It was unanimously
adopted by voice vote in the International Relations Committee.
Chairman Hyde and Congressman Berman sponsored it in the
Judiciary Committee, where it prevailed on a combination of
Republican and Democratic votes. And Congresswoman Ros-Lehtinen
and I sponsored the amendment in the Government Reform
Committee, where it prevailed by an overwhelming voice vote.
Late in the Government Reform Committee markup, Congressman
Weldon, who had opposed the Ros-Lehtinen-Lantos Amendment,
slipped in a further amendment that was inconsistent with some
key provisions of the Ros-Lehtinen-Lantos Amendment. I
understand that the Administration opposes this amendment.
Thus, while I agree with the intent of the provision, that
there be more interviews and careful scrutiny of visa
applicants from Saudi Arabia, I think the Select Committee
either make substantive revisions to the amendment or consider
not including it in its mark.
Mr. Chairman and Ranking Member Pelosi, I want to take a
brief moment to tell you why I feel so strongly about this
amendment. The Department of State has some of our Government's
finest civil servants, trained in over 60 languages with
decades of experience in dealing with foreign cultures. Their
continuation in the Foreign Service is predicated on carrying
out their responsibilities successfully if they don't, they
will not get promoted and will be forced out of government
service altogether.
I believe that the current system can be improved,
particularly through additional resources for the State
Department to allow more detailed interviews of visa
applicants. But I do not agree with those who suggest that the
answer is moving the entire visa function to the Homeland
Security Department. I do not believe that standing up a whole
new bureaucracy, with little experience in foreign languages,
cultures, or conditions, and with little opportunity for
advancement to higher level posts, will draw the kind of
quality people needed to advance our national security.
Even more important, the proposal transferring the entire
visa function to Homeland Security would risk overwhelming
Homeland Security personnel with non-homeland security
functions and thereby make it difficult or impossible for them
to perform their central mission. With all the new agencies
that the Secretary of Homeland Security will have to integrate,
the last thing this Department should be focused on is creating
a whole new system for adjudicating over 11 million visas, at a
huge and unknown cost.
In addition, the Hyde-Lantos-Ros-Lehtinen-Berman proposal
also included an authority for the Secretary of State to refuse
visas if to do so was in the foreign policy or security
interests of the United States. This was somewhat of a
narrowing of the Administration's proposal, but was consistent
with the Administration's goal of retaining the Secretary of
State's authority to deny visas on foreign policy grounds and
has been endorsed by the Administration. In addition, the
amendment makes clear that there are certain authorities that
are vested by law in the Secretary of State that should not be
affected by this proposal. These authorities include
determinations regarding the issuance of diplomatic visas,
exclusion and deportation on foreign policy grounds, and
implementing Presidential proclamations regarding the
admissibility of classes of aliens. Other authorities included
authorities that are specifically related to narrow foreign
policy concerns, such as the exclusion of certain Haitian human
rights abusers and persons who were beneficiaries of U.S.
property expropriated by the Cuban Government. While the
Committee listed some of the most important provisions in this
regard, the list included in the Hyde-Lantos-Ros-Lehtinen-
Berman amendment is not meant to be exhaustive, and we expect
that the Secretary of State and the Secretary of Homeland
Security will reach an understanding through an interagency
agreement on the exact division of responsibilities between
them.
Finally, Mr. Chairman, the amendment provides that nothing
in the amendment shall be construed as creating a private right
of action. We did not intend to extinguish any existing cause
of action, but wanted to ensure that the reorganization of
functions embodied by the amendment did not affect the doctrine
of consular non-reviewability or create a new cause of action
not otherwise contemplated by law.
Mr. Chairman, Ranking Democratic Member Pelosi, other
members of the Committee, I respectfully request that in your
markup of H.R. 5005, you adopt the Hyde-Lantos-Ros-Lehtinen-
Berman proposal, which is supported by the Administration and
was adopted by all three relevant committees. If you do so, I
believe the House of Representatives should consider this issue
closed, with no need to address it as the legislation moves to
the House floor. However, to the extent this issue is
considered by the full House, I further request that it is done
so in a way that will allow an up or down vote on this
particular issue, as opposed to it being buried in the middle
of some large-scale immigration reorganization amendment.
Thank you, and I stand ready to answer any of your
questions.
Mr. Hyde. If I could just say one thing. The perception
among some of our more conservative Republicans is the State
Department is a little squishy, and we ought to straighten them
out by turning over this vital function to the Homeland
Security. I am suggesting that the Homeland Security will be in
the driver's seat. It will direct, supervise, oversee,
discipline.
Mr. Lantos. Overrule.
Mr. Hyde. Overrule. It will be a robust supervisor, and so
we have still the ability to utilize people that are in place
and superimpose on it a robust directorship that should meet
the worst fears of people who are concerned that the State
Department still exists.
Chairman Armey. Thank you. Thank you gentlemen, both, for
your opening statement. The Chair now recognizes the gentleman
from Texas, Tom DeLay, for his 5 minutes.
Mr. DeLay. I thank you, Mr. Chairman, for being here and
Ranking Member Lantos. It is great to have your testimony.
Quite frankly, you have done such a thorough job in your
committee that I have no questions. It is amazing how you have
done this in a bipartisan way but also gotten approval of the
administration and anybody and everybody else that may deal
with this issue. So I just congratulate you on the job that you
have done.
Mr. Lantos. It helps to be a team of septuagenarians, Mr.
Delay.
Chairman Armey. I agree with you. I concur fully on the
white hair. And the Chair recognizes the gentlelady from
California, Ms. Pelosi.
Ms. Pelosi. And I am not going into the white hair bit at
all. I want to join you, Mr. Chairman, and our distinguished
whip from Texas in commending the gentlemen, the distinguished
witnesses, for their fine work. I too want to acknowledge,
though, their great leadership on promoting democratic values,
which is a pillar of our foreign policy. They have both been
champions for promoting human rights. Mr. Lantos has chaired
the Human Rights Caucus, and over the years Mr. Hyde in his
various capacities in Judiciary and in the International
Relations Committee. They bring to the table a value that is
central to what we are talking about here, protecting freedom
now in our own country, and doing so in a way that values the
work of the people who have been issuing these visas but
recognizing the concern about protecting the American people.
Here the other day the Secretary of State, General Powell
testified that he supported the product of the International
Relations Committee.
So your work is done. You worked in a bipartisan way and a
thoughtful way with balance. That was recognized by the
administration. So for your part, you have made our work
easier, and I commend you for that. Thank you for your valuable
service today and for all time. Thanks, Mr. Chairman. I yield
back the balance of my time.
Chairman Armey. Thank you. Thank the gentlelady. The
gentleman from Oklahoma.
Mr. Watts. I have no questions.
Chairman Armey. Gentleman from Texas.
Mr. Frost. I would just like to add to the other comments
and thank you for what you have done. Oh, that the other
committees had been able to reach agreement with the
administration as effectively as you have.
Thank you.
Chairman Armey. The gentlelady from Ohio.
Ms. Pryce. Thank you, Mr. Chairman. We can tell it is late
in the afternoon. The questions are getting fewer and fewer and
far between. So I will just add my congratulations to the
gentleman and hope that the spirit of bipartisan cooperation
that you found in your committee's work will transfer all the
way through this process. It is very important that it does,
and so thank you for getting us started.
Mr. Lantos. Thank you.
Chairman Armey. The gentleman from New Jersey.
Mr. Menendez. Thank you, Mr. Chairman. As someone who sits
on the committee, I witness firsthand the great work of both
the chairman and the ranking Democrat, and I am very pleased
with both their work, their leadership and their effort. I just
want to take the opportunity, however, to say that I hope--you
know, it still sends somewhat of a shiver down my spine when I
think that the Secretary of Homeland Security can overturn
decisions of consular offices to issue a visa, can alter visa
procedures now in place, can develop, in essence--and I know
that is what we did, but I am concerned that there are those
who will look at immigration as terrorism, and as it is, a
consular officer right now has virtually unfettered discretion
to make a determination as to whether or not they issue a visa.
Mr. Menendez. Add to that this power of this new Homeland
Security Secretary to go ahead and send in--deny someone based
on what criteria; we are going to have to be looking at that in
the future. I certainly hope that we will continue our
oversight of how this unfolds as the committee--as the new
Department is created, because I think there are many United
States citizens who seek to be reunified with their family who
will be facing--their family member will be facing a consular
officer somewhere in the world. And there is enormous impact
upon the economy of this country in terms of tourism,
legitimate tourism of people from across the world that come
here that would have a significant consequence to our national
economy and to communities across this country for which
tourism is a big part. And probably one of the greatest aspects
of our democracy is how we permit students to come here from
across the world and learn what is so unique about America and
hopefully plant those seeds back where they go.
So I certainly commend the work of the two gentlemen and
the committee which I am privileged to serve on, but I hope we
will continue to be vigilant as this unfolds to make sure that
we are stopping those that wish harm to this country, but not
stopping those which would both enrich us and for which
provides part of our foreign policy and foreign objectives
abroad. Thank you, Mr. Chairman.
Chairman Armey. The gentlewoman from Connecticut.
Ms. DeLauro. Thank you very much, Mr. Chairman. And I want
to say thank you to Chairman Hyde and Ranking Member Lantos for
their testimony and for their good work.
I would associate myself with the remarks of my colleague,
Mr. Menendez. As the daughter of an immigrant family, I think
that we are always nervous about whether or not we are going to
treat immigration with other than the good spirit in which it
has provided great strength and energy to this great Nation.
And I would just say that we are relying on your knowledge,
your sensitivity, and your good judgment, as you have
demonstrated in the work that you put forth here today. So I
commend you for what you are doing, and I think we all need to
be vigilant to safeguard that very, very, very special quality
of this Nation in its immigrants, you know, past, present, and
in its future. Thank you.
Mr. Lantos. Mr. Chairman, if I may just make a one-sentence
comment, I fully concur with the statements of my colleagues,
Mr. Menendez and Ms. DeLauro. Although my ancestors came on the
Mayflower, I try to be sensitive to these concerns to the very
best of my ability.
Chairman Armey. Thank you. The Chair now recognizes
himself, which is no small matter at my age.
Let me begin, Mr. Hyde. Mr. Lantos says about the Weldon
amendment--and by the way, let me just say that this chairman
observed with great interest the manner in which you won your
point indeed in three committees: one where you chaired, two
where you served, two where you serve. But there is a
difference, I believe, that is drawn between the language of
your own committee, IR, and the language of Government Reform.
And that difference is the Weldon language. And I have Mr.
Lantos' statement which, Mr. Hyde, I will just read. And he
says: I think the select committee either makes substantive
revisions to the amendment or consider not including it in his
mark the Weldon amendment.
Mr. Hyde do you concur with that?
Mr. Hyde. Frankly, I am not familiar with the Weldon
amendment. I understand Mr. Weldon did not, in my opinion, did
not understand our amendment and was critical of it. But I did
have a talk with him but I am not sure what his amendment did.
Chairman Armey. Maybe I can--since Mr. Lantos is on both
committees. Mr. Lantos, is it possible that this Chair's
writing his own mark, looking at these two iterations, is it
possible that my staff might prevail upon your staff for advice
on, one, the question should it be dropped all together; or,
two, are there revisions that will make this a good service to
the American people?
Mr. Lantos. Mr. Chairman, as I understand the Weldon
amendment, it relates to Saudi Arabia, and properly so.
Chairman Armey. Yes.
Mr. Lantos. It was my view that since the Department of
Homeland Security has total authority over the issuance of
visas, it merely delegates the ministerial functions to the
Department of State. Should the Secretary of Homeland Security
choose to enunciate a policy according to which all visas in
Saudi Arabia must be reviewed by homeland security officials,
this would be possible under the original Hyde-Lantos proposal.
My understanding is further, Mr. Chairman, that the
administration may want to offer additional refinements, I
believe.
Chairman Armey. If I may, I do not mean to cut you off, but
I think you made the point that indeed under your language,
that designation with respect to Saudi Arabia is perfectly
within the power.
Mr. Lantos. It is perfectly within the power of the
Homeland Security Department.
Chairman Armey. I do not mean to cut you off, but I have a
couple of other points I want to cover. A few days ago we had
the privilege of seeing the Secretary of State here in the
committee, and he displayed for us, actually held up for us,
got a picture in The New York Times, the new visa, and talked
about some of the reforms that they have put in place in State.
And I gather, Mr. Hyde, from your comments that you see this as
substantive reform, recognizing some of the problems in State
that have troubled us and something that we in this committee
should acknowledge and appreciate on the part of the Secretary
of State. Is that a correct observation?
Mr. Hyde. Absolutely; yes, sir.
Chairman Armey. Thank you. Now, Mr. Lantos, I have admired
you for a great many reasons.
Mr. Lantos. Your judgment has always been flawed, Mr.
Chairman.
Ms. Pelosi. Or flawless.
Chairman Armey. But I seem to recall, I thought I recalled
correctly, that you were one of the few naturalized citizens to
be elected to the United States House of Representatives. Is
that not the case?
Mr. Lantos. That is correct, sir.
Chairman Armey. Are there others? I am thinking perhaps
Aliena Ros-Lehtinen, Mr. Diaz-Balart. But I feel like this
gives you an interesting perspective on a subject that I am
fascinated by. America probably today may stand alone as the
only Nation in the world that does not differentiate between
its own citizens and other persons within its borders with
respect to the rights protected for these persons. It is, I
think, a fairly unique American experience, one that in fact
some nations describe as naive on our part, but I cherish it as
a rather special thing.
Is the threat that we face now that prompts us to create
this division so great that this Nation should forsake its
time-honored tradition of protecting the rights of persons
without regard to citizenship?
Mr. Lantos. I believe, Mr. Chairman, the historic tradition
is well worth preserving. I believe we are able to take care of
our security concerns by other means, not through restricting
rights.
Chairman Armey. Mr. Hyde.
Mr. Hyde. If I could revert back to the Weldon amendment,
my staff has handed me a note that says the Weldon amendment
says no visa may be issued to a Saudi Arabian without an
interview by a Homeland Security officer. So it would undo the
compromise Mr. Lantos and I have put together, because our
language would allow the Secretary to require such interviews
but not force them on every applicant.
Chairman Armey. I appreciate that. And that was what I
grasped. But because you are such an international statesman
and such a jurist, I would appreciate your comment on my other
question. Do we face such a serious threat from international
terrorism that we should forsake what I think has been the
special American tradition of making no differentiations in the
rights of persons based upon whether they are or are not
citizens of the United States?
Mr. Hyde. I would say we should make no differentiation.
Chairman Armey. In the rights persons as protected in this
country on the basis of whether they are or are not citizens?
Mr. Hyde. I think the Constitution applies to everybody in
America, whether you are a citizen or not.
Chairman Armey. Thank you. Thank you both.
Do you seek recognition? Very quickly, we will recognize
the gentleman from Oklahoma.
Mr. Watts. I just want to say, Mr. Lantos mentioned at the
outset how bipartisan this committee was. And having gotten to
know Henry Hyde and Tom Lantos over the last 8 years, I would
have been highly surprised if it would have been anything other
than bipartisanship and total cooperation. And I just want to
say to the both of you, you honor us by being before our
committee this afternoon. And I cannot imagine any two other
people in all of Congress that work together that have been
anymore gracious than you gentlemen have been, and I think a
real example for all of us.
And I want to say to you what my papa told me once when I
reminded him of how white his hair was getting. He said,
``White and gray hair, when you see that,'' he said, ``that
means wisdom. And so it would have been fascinating for me to
be in one of your meetings, your deliberations from time to
time, and listen to all the wisdom that that white hair has
given you both. So I thank you both for how gracious both of
you have been.
Mr. Hyde. Mr. Watts, I hate to inform you of this, and Mr.
Armey, but both of you are retiring and it takes unanimous
consent to do that, and I object.
Chairman Armey. Thank you so much. I do see our next panel
is here. Thank you.
I should mention as we are changing panels to the very
important Intelligence panel, it is with a flurry of activities
going on around us; we have prevailed upon so many committees
to testify before this committee. It is the intention of this
chairman to stay with the process until we complete our
hearings. I know some may have to come and go, and some may
even switch sides on us for a moment. But I should say we do
intend to proceed.
We want to recognize the chairman and ranking member of the
Intelligence Committee, Mr. Goss. It is our purpose here to, by
unanimous consent, put your prepared statement in the record,
except under the 5-minute rule, the points you would like to
make before the committee. Ms. Pelosi knows the routine quite
well. And we will, after your statements, proceed under the 5-
minute rule, and we appreciate you being with us today.
So we will recognize Mr. Goss to proceed.
STATEMENT OF THE HONORABLE PORTER J. GOSS, CHAIRMAN, PERMANANT
SELECT COMMITTEE ON INTELLIGENCE
Mr. Goss. Thank you, Mr. Chairman. I appreciate the
opportunity to come before you and share the work product of
the House Permanent Select Committee on Intelligence on this
matter. The establishment of the Department of Homeland
Security is recognition that the Federal Government understands
the types of threats that terrorism brings to our homeland and
that these threats call for a different expanded approach to
protecting our national security that was what we needed during
World War II and ensuing years.
Mr. Chairman, our Ranking Member Mrs. Pelosi and I have
submitted to the committee a recommended amendment to title II
of H.R. 5005 that covers the area of information analysis and
infrastructure protection. I am pleased to report that the
Intelligence Committee passed this amendment out by a vote of
17 to 1 after a lot of hard work and discussion.
The committee also held two hearings on H.R. 5005 with the
Director of Central Intelligence, Mr. George Tenet; the
Director of the FBI, Robert Mueller; and Governor Ridge. Since
HPSCI's markup of 5005 last Thursday, committee staff have
discussed our recommendations in some detail with relevant
White House staff and others in the administration. We found
the administration to be generally supportive of our analysis
and information sharing proposals, but there are some areas
that they want to have further discussion and we will try and
make the benefit of those discussions available to you on a
timely basis.
Moreover, there is a unique quality to the analytical
portion of the new Department in that this is the only point
where all the disparate pieces of information come together. By
that I mean that this is where presumably foreign intelligence,
Federal law enforcement, and State and local information all
come together to be analyzed collectively in order to best
understand threats specifically to our homeland and to properly
evaluate the weakness in our defenses.
The HPSCI recommendations for the select committee provides
for the establishment of an all-source collaborative
Intelligence Analysis Center that will fuse intelligence and
information from the Intelligence Community as well as from
Federal, State, and local law enforcement agencies and the
private sector with respect to threats of terrorist acts
against the United States. This is something that we do not
have right now.
An equally important duty of the DHS Intelligence Analysis
Center will be to integrate intelligence and other information
to produce and disseminate strategic and tactical vulnerability
assessments with respect to terrorist threats. Committee
members were concerned that DHS not simply be a department of
counterterrorism. Protecting the Nation's infrastructure will
require a much broader focus.
For example, vulnerability assessments developed by DHS
will not address the insider threat to steal secrets or other
information on national resources or infrastructure, for
example, nor as the administration's bill specifically
addressed, the cyberthreat, terrorist-related or otherwise.
Additionally, terrorists' involvement in proliferation of
weapons of mass destruction, the financing of terrorist
operations themselves, the relationship between narco-
trafficking and terrorism, all are missing in the
administration's bill and we feel should be dealt with.
The committee's proposal to establish an all-source
intelligence fusion center within DHS seeks to fill these
national threat and vulnerability analysis gaps. The Center
would be charged with developing a comprehensive national plan
to provide for the security of key national resources and
critical infrastructures. The Intelligence Analysis Center
would review and recommend improvements in law, policy, and
procedure for sharing intelligence and other information within
the Federal Government and between Federal, State, and local
governments, an area that needs a lot of work.
The Intelligence Analysis Center is designed to not only
support the new Department's intelligence requirements. As
important, the Center will establish requirements for the
collection and coordination of information and intelligence
relating to threats of terrorism against the United States.
The committee believes the proposed Intelligence Analysis
Center should be made an element of the Intelligence Community
and be a funded program within the national foreign
intelligence program in accordance with the National Security
Act of 47. Making the center an NFIP element like this will
ensure that the Secretary of DHS has full and timely access,
which is critical, to all the relevant intelligence pertaining
to terrorist threats against the United States, as well to
ensure proper coordination between DHS and the Federal
intelligence and the law enforcement agencies of our country.
And rather than transferring Intelligence Community
agencies to DHS, the committee has recommended that some
intelligence analysts from the civilian and Defense Department
components of the Intelligence Community be detailed on a
reimbursable basis to the Intelligence Analysis Center for up
to 2 years. The specific number of detailees will be determined
through cooperative agreements between the DHS Secretary and
the Director of CIA, the Secretary of Defense, Attorney
General, Secretary of State, and other related agencies.
During the testimony before HPSCI on 5005, Governor Ridge,
Director Tenet, and Director Mueller each offered their
personal commitments that the new Department would have access
to intelligence pertaining to terrorist threats against the
United States. And although their stated willingness to share
intelligence is appreciated, and I believe they will because of
the chemistry that exists between those people, the committee
felt so strongly about the issue of the DHS's access to
intelligence that it included mandatory language to ensure the
immediate provision to the DHS Secretary of all intelligence or
other information that is collected by any U.S. Government
agency relating to terrorism and infrastructure vulnerability.
The HPSCI language creates a mechanism whereby the
President can resolve any disputes between DHS and the
Intelligence Community concerning timely access to
intelligence. These are very important gaps to fill.
And finally in closing, the Intelligence Committee's
proposal envisions an Intelligence Analysis Center that is
actual in terms of personnel and infrastructure; appropriately
flexible in terms of its authorities and its capacity to
address rapidly changing threats to the United States and the
nature of terrorism; is unique to our government in that it
incorporates the best analytical practices and capabilities
that are found both in government and the private sector to
defend our country and our people. That is using all of our
assets and talents and skills to the best we can bring them
together and I think is a timely and important suggestion.
Thank you, Mr. Chairman.
Mr. DeLay. [Presiding.] Thank you, Mr. Chairman.
[The statement of Mr. Goss follows:]
PREPARED STATEMENT OF HON. PORTER J. GOSS, CHAIRMAN, HOUSE PERMANANT
SELECT COMMITTEE ON INTELLIGENCE
Mr. Chairman, thank you for this opportunity to address this
distinguished committee on an area of great importance to our national
security. The establishment of the Department of Homeland Security is
recognition that the Federal Government understands the types of
threats that terrorism brings to our homeland, and that these threats
call for a different, expanded approach to protecting our national
security than what was needed during and since World War II. It is
indeed unfortunate and ironic that it took a World War II type event,
once again, to make the country understand that the world contains
individuals who would attack our way of life--our values, our
livelihood and our principles--in ways that are anathema to civilized
society.
In fact, Mr. Chairman, I believe that the world hasn't changed that
much since September 11th. What has changed is the audience. And it is
this same audience, the American people, which appears to be supportive
of making such a significant change to our government's structure. But
with that support, is the requirement to make sure that we do this
right; that national security is enhanced at the end of the day and
that we are positioned to reduce the risks to our security--to our way
of life--as best as possible. It is with that charge that I am honored
to appear before you Today to discuss those portions of the bill that
relate to the jurisdictional responsibilities of the House Permanent
Select Committee on Intelligence.
Mr. Chairman, our Ranking member, Ms. Pelosi, and I have submitted
to the Committee a recommended amendment to Title II of H.R. 5005, that
covers the area of Information Analysis and Infrastructure Protection.
I am pleased to report that the Intelligence Committee passed this
amendment by a vote of 17 to 1, with the one dissenting vote being cast
in relationship to the overall process of Congress' proceedings on the
establishment of this new department rather than on any substantive
differences with the Intelligence Committee's product. This amendment
is the result of a significant amount of work by our very experienced
and professional staff and our members who have been very significantly
involved in these issues through our normal oversight process and as
they participate in the bicameral inquiry into September 11th. The
Committee also held two hearings on H.R. 5005, with the Director of
Central Intelligence, George Tenet, the Director of the FBI, Robert
Mueller, and with Governor Ridge. Since HPSCI's mark-up of HR. 5005
last Thursday, Committee staff have discussed our recommendations in
some detail with relevant White House staff and have found the
Administration to be generally supportive of our intelligence analysis
and information sharing proposals for the new Department. There are one
or two areas where we will have further discussions, and it is possible
that we may offer additional thoughts in the very near future.
Before I summarize the Amendment, let me first give you an idea of
why the Committee took such actions. Mr. Chairman, if you look at the
overall structure of the new department, you will notice that the vast
majority of the organization has to do with planning, implementation,
protection and response to terrorist threats and actions. The
successful integration and operation of this portion of the department
is very important to strengthening our borders, our infrastructure, and
our security. This is a critical step in ensuring that federal, state,
and local entities are coordinated and effective. What we also know,
however, is that combating terrorism relies very much on information
and intelligence. We have seen this time and again both in combating
the threats posed during the Millennium and during our operations in
Afghanistan, the Philippines, and other areas where we are fighting
this war. This makes the analysis and proper handling of information
and intelligence related to the threats critical to the success of any
other actions we may take. I would submit that if the analytical
portion of the department doesn't work, the rest of the department's
operations and functions are somewhat academic. Moreover, there is
unique quality to the analytical portion of the new department in that
this is the only point where all the disparate pieces of information
come together. By that I mean that this is where, presumably, foreign
intelligence, federal law enforcement, and state and local information
will all come together to be analyzed collectively in order to best
understand threats, specifically to our homeland, and to properly
evaluate the weaknesses in our defenses.
This, again, makes having the right analytical approach critical.
Such resources must be a priority from the beginning and must be robust
and dynamic, and this where I will begin my summary of the HPSCI
actions. The Administration's proposed legislation lacks a provision
for establishing a robust analytic cadre to do terrorism threat
analysis. Without an all-source analytic capability to validate and
make sense of threat information, the Secretary will have to rely only
on Intelligence Community analysis that may be fractious,
contradictory, parochial and incomplete, and will have to make critical
analytical judgments in a vacuum.
Information sharing is also an issue of concern for the
Intelligence Committee. The Administration's proposal leaves unclear
the circumstances under which ``raw'' intelligence will be made
available to the Department. Given that the Secretary doesn't know what
he doesn't know, decisions on what DHS needs to know will be entirely
left to the various agency heads at CIA and FBI, with the risk that key
information will not always be shared, or not shared promptly or with
enough detail. And under the Administration's current information
analysis construct, it is unclear whether intelligence and law
enforcement sources and methods will be adequately protected and
whether certain information can be shared with the department.
It is also not clear how or whether DHS will task the Intelligence
Community with collection requirements, and how conflicting
requirements will be adjudicated or otherwise prioritized. Given that
DHS will be the first US Government entity to do vulnerability
assessments of infrastructure, there will necessarily be both analytic
and collection gaps from the outset. And during a 9-11 type of national
crisis, DHS will presumably play a key role, but, as currently
envisioned, without the benefit of a mechanism to input knowledge and
requirements into the intelligence and law enforcement communities'
systems.
The HPSCI recommendations to the Select Committee provide for the
establishment of an all-source, collaborative Intelligence Analysis
Center that will fuse intelligence and information from the
Intelligence Community as well as federal, state, and local law
enforcement agencies and the private sector with respect to threats of
terrorist acts against the United States.
An equally important duty of the DHS Intelligence Analysis Center
will be to integrate intelligence and other information to produce and
disseminate strategic and tactical vulnerability assessments with
respect to terrorist threats. Committee Members were concerned that DHS
not simply be a Department of Counterterrorism--protecting the nation's
infrastructure will require a much broader focus. For example,
vulnerability assessments developed by DHS will not address the insider
threat to steal secrets or other sensitive information on national
resources or infrastructure. Nor has the Administration's bill
specifically addressed the cyber-threat, terrorist-related or
otherwise. Terrorist involvement in the proliferation of weapons of
mass destruction, the financing of terrorist operations, and the
relationship between narcotics trafficking and terrorism are also
missing in the Administration's bill. The Committee's proposal to
establish an all-source intelligence fusion center within the DHS seeks
to fill these national threat and vulnerability analysis gaps.
The Intelligence Analysis Center would be charged with developing a
comprehensive national plan to provide for the security of key national
resources and critical infrastructures. The Intelligence Analysis
Center would review and recommend improvements in law, policy, and
procedure for sharing intelligence and other information within the
federal government and between the federal, state, and local
governments. The Intelligence Analysis Center is designed to not only
support the new Department's intelligence requirements. As important,
the Intelligence Analysis Center will establish requirements for the
collection and coordination of information and intelligence relating to
threats of terrorism against the United States.
The Committee strongly believes that the proposed Intelligence
Analysis Center should be made an element of the Intelligence Community
and be a funded program within the National Foreign Intelligence
Program in accordance with the National Security Act of 1947. Making
the Intelligence Analysis Center an NFIP element will ensure that the
Secretary of DHS has full and timely access to all relevant
intelligence pertaining to terrorist threats against the United States,
well as to ensure proper coordination between DHS and federal
intelligence and law enforcement agencies. Rather than transferring
Intelligence Community agencies to DHS, the Committee has recommended
that some intelligence analysts from the civilian and Defense
Department components of the IC be detailed, on a reimbursable basis,
to the Intelligence Analysis Center for up to two years. The specific
number of detailees will be determined through cooperative agreements
between the DHS Secretary and the Director of Central Intelligence, the
Secretary of Defense, the Attorney General, and the Secretary of State.
During testimony before HPSCI on H.R. 5005, Governor Ridge, DCI
Tenet and Director Mueller each offered their personal commitments that
the new Department would have access to intelligence pertaining to
terrorist threats against the United States. Although their stated
willingness to share intelligence is appreciated, the Committee felt so
strongly about the issue of DHS's access to intelligence that it
included mandatory language to ensure the immediate provision to the
DHS Secretary of all intelligence or other information that is
collected by any U.S. Government agency relating to terrorism and
infrastructure vulnerabilities. The HPSCI language creates a mechanism
whereby the President can resolve any disputes between DHS andthe
intelligence and law enforcement communities concerning timely access
to intelligence.
The Intelligence Committee's proposal envisions an Intelligence
Analysis Center that is agile in terms of personnel and infrastructure,
appropriately flexible in terms of its authorities and its capacity to
address rapidly changing threats to the United States, and unique to
our government in that it incorporates the best analytical practices
and capabilities found in both the government and the private sector to
defend our country and our people. Our proposal integrates the
traditional mission of intelligence analysis with new sources of
information and sophisticated information tools. As important, our
proposal views information and intelligence sharing as a two-way
street--with data moving up from localities and the private sector to
states and then torelevant federal authorities as well as national data
flowing down to states, localities and, when necessary, to the American
public.
In closing, I think that we all agree that developing effective
information analysis and dissemination functions within DHS is a very
complex and nuanced requirement. It is critical that timely
intelligence informs our homeland security strategy and its
implementation. But establishing this new department, and the
analytical center within it, will not completely solve our problem or
reduce the risks. The missing component is the implementation of
Intelligence Community reforms as well. I want to assure the Select
Committee that the Intelligence Committee is equally focused on this
urgent need to reform the civilian and defense elements of the
Intelligence Community and we are in active discussions with the White
House on such issues.
I appreciate the Select Committee's interest in the HPSCI's
recommendations and I look forward to responding to any questions that
panel members may have.
Mr. DeLay. Ms. Pelosi.
STATEMENT OF THE HONORABLE NANCY PELOSI, RANKING MINORITY
MEMBER, PERMANANT SELECT COMMITTEE ON INTELLIGENCE
Ms. Pelosi. Thank you very much, Mr. Chairman. I am very
pleased to join my distinguished chairman in our presentation
to the select committee to develop legislation for a Homeland
Security Department. I wanted to say at the outset that our
committee always works in a bipartisan way. Particularly I want
to commend Mr. Goss for the bipartisan leadership. He is always
open to our suggestions.
We worked hard for our presentation to you today because
there were so many different suggestions and proposals and
because, frankly, we are walking on sacred ground now. This
hearing takes place in the context of a joint inquiry that we
are having in our Committee on Intelligence with the Senate. We
will have some hearings tomorrow, we had some yesterday, and
that are concurrent with these hearings.
We have a common purpose in having the product of our work
give some comfort to the families who were affected on
September 11th: to reduce risk to the American people and to
protect our civil liberties as we protect the American people.
We began our deliberations in our joint inquiry with a
moment of silence in recognition of the suffering of those
families but also the gravity of the responsibility that we
have there. We also in the select committee have a tremendous
responsibility.
Our chairman has presented some of the provisions of our
amendment which we believe improves the legislation
significantly. We should have a good suggestion. We have worked
on these issues for many years. I would only like to add a
couple of points, more than a couple, but some points as we go
along.
As you know, our committee focused on title II of the bill,
which is the relevant section, and we set forth the
responsibility for the Under Secretary for Information Analysis
and Infrastructure Protection, the functions transferred to
this Department in this area, and the Secretary's access to
information, the note on which the Chairman ended his remarks,
especially intelligence information. The title also describes
the protection to be afforded information, including protection
from unauthorized disclosure and an exception from the Freedom
of Information Act for information infrastructure information
provided on a voluntary basis by the private sector.
I have some disagreement on that provision, but more on
that later.
After wide-ranging discussion of several options, the
committee voted 17 to 1 to recommend a substitute for title II.
The substitute contains many of the provisions proposed by the
President, but also establishes a distinct entity within the
Department of Homeland Security to produce all-source
collaborative intelligence analysis and threat assessments. The
committee recommends that the entity be called the Intelligence
Analysis Center, that it be an element of the Intelligence
Community, and that for budget purposes it be included in the
National Foreign Intelligence Program.
Importantly, the Center is intended to provide intelligence
support for all of the mission areas of the Department, whether
these are the prevention of terrorism, protection of
infrastructure, or the functions of the various entities
transferred to the Department. Thus the committee
recommendation calls for the intelligence elements of the Coast
Guard, the Customs Service, the Immigration and Naturalization
Service, the Federal Protective Service, and the El Paso
Intelligence Center of the Drug Enforcement Administration to
be transferred to the Intelligence Analysis Center, as well as
the infrastructure protection entities specified in section 202
in the President's bill.
I would note that a member of our committee had concern
over whether there will be sufficient analytic strength within
the Department of Homeland Security as originally proposed. We
recognized that this Department is to have a responsibility to
a new kind of strategic analysis that will build on but be
different from the analysis going on elsewhere in the Federal
Government. Our recommendation provides a viable framework for
the creation of a new analysis entity.
Questions remain, however, beyond the scope of the
Intelligence Committee's review, over whether there will be
sufficient resources provided to the Department to make this
Center viable and meld its various analytic entities together,
to provide training for the analysts, and to make its computer
systems and databases compatible. The Intelligence Committee
did not accept the proposition that a new domestic intelligence
service along the lines of the British or Canadian model should
be created. Far-reaching proposals outside the U.S. tradition
should be subjected to considerable study, and the committee
and the Senate Select Committee on Intelligence embarked on an
investigation of September 11th.
I believe Congress should await the findings of the joint
inquiry and we shouldn't try to include significant
organizational changes, for example, FBI and CIA for the
Intelligence Community, in legislation establishing the
Department of Homeland Security.
Finally, I have my reservations which I expressed at the
Intelligence Committee meeting about the provisions in the
committee's recommendation that would exempt from the Freedom
of Information Act information provided voluntarily by non-
Federal entities or individuals related directly to the duties
of the Under Secretary for Information Analysis and
Infrastructure Protection. I fear this provision may be too
broad in its scope and beyond what is necessary to satisfy the
concerns of the private sector with respect to proprietary
information about infrastructure vulnerabilities.
I believe the select committee should ensure that whatever
is done in this area is narrowly targeted and precisely
constructed. I say this with complete respect for the concerns
that we have about private sector information that is given to
us for our national security purposes, but I think we should
define it carefully.
As I always say, I love the freedom of a tightly-knit idea.
I think we can achieve our national security goals, we can
respect the legitimate concerns of the private sector and, of
course, continue the FOIA protection to the American people
that is important to us.
With that, Mr. Chairman, I again hope that the committee
will accept the recommendation of our committee. We worked very
hard on it. We had nearly unanimous support, certainly
overwhelming bipartisan support for the proposal, and it was
not without competition of many ideas to be presented here
today.
Thank you for your attention, Mr. Chairman, and members of
the committee.
Chairman Armey. Thank you both.
[The statement of Ms. Pelosi follows:]
PREPARED STATEMENT OF HON. NANCY PELOSI, RANKING MINORITY MEMBER,
PERMANANT SELECT COMMITTEE ON INTELLIGENCE
Mr. Chairman, members of the Select Committee, I appear before you
today as the Ranking Democrat on the Permanent Select Committee on
Intelligence to describe the Committee's recommendations to the Select
Committee with respect to the Homeland Security Act of 2002.
Our committee focused on Title II of the bill. Title II sets forth
the responsibilities of the Under Secretary for Information Analysis
and Infrastructure Protection; the functions transferred to the
Department in this area; and the Secretary's access to information,
especially intelligence information. The title also describes the
protection to be afforded information, including protection from
unauthorized disclosure and an exception from the Freedom of
Information Act for infrastructure information provided on a voluntary
basis by the private sector.
After a wide-ranging discussion of several options, the Committee
decided by a vote of 17 to 1 to recommend a substitute for Title II.
This substitute contains many of the provisions proposed by the
President, but also establishes a distinct entity within the Department
of Homeland Security to produce all-source collaborative intelligence
analysis and threat assessments. The Committee recommends that the
entity be called the Intelligence Analysis Center, that it be an
element of the intelligence community and that for budget purposes it
be included in the National Foreign Intelligence Program.
Importantly, the Center is intended to provide intelligence support
for all of the mission areas of the Department, whether these are the
prevention of terrorism, protection of infrastructure or the functions
of the various entities transferred to the Department. Thus, the
Committee recommendation calls for the intelligence elements of the
Coast Guard, the Customs Service, the Immigration and Naturalization
Service, the Federal Protective Service and the El Paso Intelligence
Center of the Drug Enforcement Administration to be transferred to the
Intelligence Analysis Center, as well as the infrastructure-protection
entities specified in section 202 of the President's proposal.
I should note that members of our Committee had considerable
concern over whether there would be sufficient analytic strength within
the Department of Homeland Security as originally proposed. We
recognized that this Department is to have a responsibility to do a new
kind of strategic analysis that will build on, but be different from,
the analysis going on elsewhere in the federal government. Our
recommendation provides a viable framework for the creation of a new
intelligence analysis entity. Questions remain, however, beyond the
scope of the Intelligence Committee's review over whether there will be
sufficient resources provided to the Department to make this Center
viable and meld its various analytic entities together, to provide
training for its analysts, and to make its computer systems and
databases compatible.
The Intelligence Committee did not accept the proposition that a
new domestic intelligence service along the lines of the British or
Canadian model should be created. Far-reaching proposals outside the
U.S. tradition should be subject to considerable study. The Committee
and the Senate Select Committee on Intelligence are embarked on an
investigation of the intelligence community before and after September
11 that may result in recommendations for change in the community's
organizational structure. I believe the Congress should await the
findings of the joint inquiry and not try to include significant
organizational change for the intelligence community in legislation
establishing the Department of Homeland Security.
Finally, I have my reservations, which I expressed at the
Intelligence Committee meeting, about the provision in the Committee's
recommendations that would exempt from the Freedom of Information Act
information provided voluntarily by non-Federal entities or individuals
related directly to the duties of the Under Secretary for Information
Analysis and Infrastructure Protection. I fear this provision may be
too broad in its scope and beyond what is necessary to satisfy the
concerns of the private sector with respect to proprietary information
about infrastructure vulnerabilities, I believe the Select Committee
should ensure that whatever is done in this area is narrowly targeted
and precisely constructed.
Chairman Armey. The Chair recognizes the gentleman from
Texas, Mr. Delay.
Mr. DeLay. I did read both your statements and I must say
you did an excellent job in making an excellent presentation
covering many issues that, frankly, are giving a lot of Members
on both sides of the aisle, liberal to Republican--I mean
liberal to conservative--very high concerns about this
particular office and the Intelligence Analysis Center.
Could you explain to me--I just I worry, because we seem to
be breaking down that high wall that we have built to make sure
that the CIA was not involved in our private lives, and now you
are proposing that we take detailees from other existing
agencies, including the CIA and FBI and NSA--and I would assume
even maybe DIA? Is that also suggested?
Mr. Goss. Yes, sure.
Mr. DeLay. Is there a possibility that the Center would
perform--could you make us feel better that there are enough
protections in your proposal that individuals's privacy rights
and civil liberties cannot be violated?
Mr. Goss. I think I can try and give you some satisfaction
on that. We are talking about an Analysis Center, and the
Center itself is going to be a place where information comes in
from outside, and where requests for information are going to
emanate to the outside. What you are looking for is the
safeguards on how that information is collected outside.
Presently in our form of government, we have excellent
safeguards over our foreign intelligence collection system.
Basically that is why we call it the National Foreign
Intelligence Program. We do not spy on Americans.
There is a secondary part which we are wrestling with, and
there is a great debate--which is not part of our
presentation--we are talking about analysis, not what the
analysts analyze, but the analysis capability, and that is the
debate about how do we go ahead in our country and safeguard
that democracy and freedom that we all care very much about,
which is our hallmark; and how do we nevertheless get
information that might be relevant through law enforcement
personnel who are working in this country to prevent something
of a terrorist nature from happening before it happens?
That is a very tricky and difficult question and probably
more appropriately addressed to the Judiciary people than it is
to the Intelligence people.
The Intelligence people are going to operate by the law.Now
you are suggesting that perhaps that by having Intelligence
Community analysts at work in homeland security, that we would
somehow be breaking down freedoms. Let me assure you that we
have Intelligence Community analysts working now in a number of
agencies that deal with a number of problems, domestic and
foreign in the United States. That is not uncommon. It is a
question of the operation against an American citizen or
American spying on an American. That safeguard is still there.
But if you are the object of a law enforcement search, or you
have broken a law and have attracted the attention of law
enforcement authorities, those are the areas where your
question goes, and I think that we do not try and address that
in our bill.
Ms. Pelosi. If I may, Mr. DeLay, your question is music to
my ears, because I think this is the challenge that we have. We
all take an oath, every single one of us in public office, to
protect and defend the Constitution. Again, as we protect and
defend the American people, we have to protect and defend the
Constitution. So we have a higher calling than other countries
might have. Some had suggested an MI-5, which is a British
model, which collects on the British people. We rejected even
the beginnings of something like that in our deliberation.
There are some who advocate for that, no one that I know of in
the administration. So we have bipartisan interest in not
collecting on the American people. And most us involved in this
would fight to the death on that issue.
I have said over and over, because there are shortcomings
in other aspects of our intelligence gathering analysis and
dissemination, we should not say the answer is to spy more on
the American people. The answer is to improve our collection
abroad, to improve our analysis across the board, and to
improve our dissemination so people know what it is that we
have.
So I look forward to working with you to make sure that
we--the Attorney General has rejected that, others in the
administration, I don't know if I am at liberty to say because
it was in our hearings upstairs but who have rejected that, and
it is not a part of our proposal here today.
Mr. DeLay. I appreciate your answers. Thank you.
Chairman Armey. The Chair recognizes the gentleman from
Texas, Mr. Frost.
Mr. Frost. Well, you both have talked about this some, but
I wish you could elaborate if you would, briefly, n the factors
that the committee took into account in not bringing more of
the Central Intelligence Agency and Federal Bureau of
Investigation into the Department of Homeland Security. I
assume you did look at this carefully, and if you could
indicate the reasons why you did not recommend more of a
consolidation of these functions.
Ms. Pelosi. We will take turns going first, I guess. First
of all, we were addressing the homeland security legislation
and the section that applied to intelligence. I think the
administration, rightly so, did not go down a path in the
homeland security bill that talked about incorporating CIA,
FBI, broadly in the bill.
We are, as I mentioned, we are in the middle of our joint
inquiry. Before September 11th even, we were in the process of
restructuring of the Intelligence Community. And in our bill
last year, we said this will be the last bill that looks like
this because with the restructuring next year, our bill will
look different. Little did we know that September 11th, God
forbid, would intervene.
The point is that when we come out of the joint inquiry,
lessons learned there, there is a Scowcroft Report to the
President on Restructuring that addresses some issues about the
Intelligence Community. At that time, we will be better
equipped to make some determinations.
I do not, just speaking myself, I do not see any situation
under which we will be including the CIA and the FBI under the
Homeland Security Department. But we certainly will be
restructuring the Intelligence Community, improving selection
analysis and dissemination of information.
Mr. Goss. I certainly associate with those remarks, and I
come to the same conclusion. I cannot foresee a time when we
would be putting a whole agency into the Department of Homeland
Security. There are actually some, I guess 14, depending on how
you count agencies that have an intelligence component, some
are 100 percent, some are a lot less than that, to make up our
foreign Intelligence Community.
The CIA has a great deal more responsibility and function
than just terrorism. Terrorism is obviously top of the list.
That is where the war is now, that is what we are focused on
now. It is highest priority. But there is a whole bunch of
other stuff that is critically important to us, too; just
defending our communications at the government level, those
kinds of things, those kinds of chores that are routinely taken
up by people that are a lot harder than you would think.
So when you take a look at the total work that needs to be
done and the way the Foreign Intelligence Service works for us,
it seems very appropriate that it stay outside of this Homeland
Security piece, to give the reassurance that we are not spying
on Americans in part, but also to take advantage of the full
range of capabilities that the foreign intelligence collection
and analytical capability that we have can be brought to bear
on the homeland security, and still do all the rest that it is
assigned to do, which is a very large amount of work on a
global basis, as you know.
With regard to the FBI, I think I have just received 12
pages of reforms that are going on in the FBI. I haven't even
had a chance to digest them superficially, but I believe it is
fair to say as our chief Federal law enforcement agency in the
country, it also has a very full menu that goes beyond
prevention of terrorism. And I think it is appropriate that we
not subsume all of the other activities to terrorism, but we
provide that terrorism has the priority. It is the first among
equals of the law enforcement challenges right now. I think
that was the reasoning. And we will be looking at the
architecture of the Intelligence Community once we get through
with the immediate task at hand.
Ms. Pelosi. If I may add to that, Mr. Frost. Force
protection--one of the primary responsibilities of the
Intelligence Community writ large, not just the CIA but
Intelligence, is force protection of our young men and women in
uniform around the country. So there is such--the scope of the
responsibilities is so broad and go well beyond homeland
security, as central as that is to us in this hearing today.
Mr. Frost. Mr. Goss, if I could, there has been a lot of
discussion in the press that the FBI is very good at catching
people after the fact but that it has not been always very good
at prevention. And I would hope that your recommendations, both
as a part of this and then your later recommendations, will
address that.
Mr. Goss. Indeed, Mr. Frost, they do. And we are well aware
of that, and it is not a criticism of the FBI. That was their
mission. Their mission has changed and it has been reinforced.
The understanding of that mission change is very clear to them.
And I think they are doing their best to adapt to it. And I am
satisfied that they are trying.
Mr. Frost. Thank you. Thank you.
Chairman Armey. The gentleman from Oklahoma.
Mr. Watts. Thank you, Mr. Chairman. In this new
Intelligence Analysis Center, Congressman DeLay mentioned civil
liberties, which I think we all are concerned about. And I
think not only do we have to be concerned about that, but we
have to be concerned about duplication as well. And in this new
Agency, given that the Center would take detailees from other
agencies like CIA, FBI, NSA, is there any possibility that the
Center would perform functions that duplicate some of the
activities of the existing agencies?
Mr. Goss. I think that the idea is to bring into focus the
terrorist target and terrorist threat and the vulnerability and
bring them all together and fuse them all together in one
place. We have counterterrorist centers, as you know, in other
agencies--without going too far into details in a public
hearing.
And, yes, I think there is a possibility that information
will come in and get analyzed in one area and then say oh, my
gosh, this would be of interest to the Homeland Security
people, let's channel that right down to them now. So I think
you will see more than one pair of hands handling some of this.
But I think that is of necessity, because I don't think anybody
is suggesting that Homeland Security should be running
intelligence operations overseas.
So inevitably as information comes in, goes through the
analytical process, I would believe that it would get a value
added from the Intelligence Community. But as a customer, it
would be receiving a good piece of information that would be of
particular interest to it; because people will know that if you
have got something that involves terrorism or counterterrorism
or the terrorist threat or the vulnerability of our
infrastructure here, the customer that is interested, in
addition to the President of the United States, are these folks
in the Department of Homeland Security.
Our Intelligence Community is actually pretty good at
understanding who their customers are and getting information
timely, whether it is the Defense Department or State
Department or whomever.
Ms. Pelosi. I would only add that some of us, post-
September 11th, wanted to assess the performance of every
agency that had any responsibility for preventing a act. And
some of these agencies are well beyond what you would say--the
CIA, the FBI and that. You have INS, FAA, and the rest of that.
And the Office of Homeland Security and the White House, of
course, will be the ultimate place which will see all. But some
of this information that you are talking about and the analysis
that would go on at the Department of Homeland Security that is
different from at the FBI and the CIA, is that the Secretary
would be seeing it within a larger context of the other
agencies under his purview. And, of course, the director at the
White House, if that is the title, advisor to the President,
whatever the title is, would be seeing it even in a broader
context, which I think would be valuable to the American--
protecting the American people.
Mr. Watts. I yield back the balance of my time.
Chairman Armey. The gentleman from New Jersey.
Mr. Menendez. Thank you, Mr. Chairman. And thank you both
for your work and your testimony.
I just want to focus on one element of this which I think
is so crucial, and that is information sharing. And in that
regard, you know, I think there is a difference--which is part
of what I have tried to bring out over the various witnesses we
have--between providing for information sharing and having
mechanisms that guarantee information sharing.
And I would just ask, Mr. Goss, I read your statement as
well as what you verbalized, and you expressed what the
committee was concerned about in terms of the President's
proposal, leaving unclear what raw intelligence would be made
to the new Department. And I think the line that I like here
the most is, ``Given that the Secretary does not know what he
does not know,`` you know, it is very telling.
Could you and Ms. Pelosi address, do you think that what
the Intelligence Committee has done provides--goes beyond
providing for information sharing and gives us some mechanisms
or guarantees of information sharing and at what levels?
Mr. Goss. Well, we certainly tried to take what we felt was
an uncovered part in the President's proposal and reinforce it
with a mandate that information will be shared; because without
getting into other work that we are doing too much, we have
found that information sharing--no secret to anybody--has not
been our brightest success story as we have gone along.
And breaking down what in the lingo they call the
``stovepipes,'' so that one agency really wants to get a piece
of information and polish it and guard it jealously and take it
up to the top and say, see what we at this agency have
contributed, which quite often you get a better product for
timely if you are coordinating horizontally at lower levels--
that is what we have tried to do.
So the answer to your question I hope is that we have
mandated sharing, but we hope in that mandate we have
encouraged the opportunity for, at the working level, people to
use the common sense to know that this is not about promoting
our agency and sticking our logo on a piece of paper that says
this is our product and you cannot have it until we get our
logo on it; that people will be protective in sharing
information.
Part of our problem, honestly--you have hit on a very
important point--is that there has not been a lot of reward for
that kind of initiative among the working people. It is high
risk. You get caught doing something like that, and you risk
the ire of your bosses. We have had some cases where we saw
some what you will call commonsense initiatives taken by some
people saying, I know a guy at another desk in another agency
who ought to know this right now, and they have gotten
themselves in some difficulty.
We have to change that culture that everything has to go
all the way up before it can go out. And I hope that we have
tried to get some forward progress on that. But I cannot tell
you that any amendment that we do or anybody else, any words
that you write on a paper, is going to make that happen. That
is a cultural change that is going to take leadership to make
that happen. That is my view, anyway. But I think we are
pushing the right way. Do you agree?
Ms. Pelosi. I agree with what the chairman has said. I
also--stop me--I think that it is okay to talk about what the
current law is?
Mr. Goss. Sure.
Ms. Pelosi. The current situation is now--and perhaps one
of these times we should sit down in a closed session to talk
about some of this as well--but right now the President of the
United States retains the power to give, for example, the
Secretary of Homeland Security, when that person is sworn into
office and is confirmed, raw data. Raw data.
The committee will be receiving reports, the committee--I
mean the Department will be receiving reports. The committee
will be doing its own analysis. And so the question is, can the
committee task back out to say I need more information about
this, I want you to pursue this further? Or I want the raw data
that supports what this report, this finished report says?
Right now, it is the President who makes the determination.
The President is obviously a busy person. I think that what we
suggested strengthens the hand of the Secretary of the
department who has the responsibility, who is accountable, to
get access to more raw data, as is his due, rather than having
to make a strong case on why he or she should have it.
Mr. Menendez. In this regard, while we have often talked
about the FBI and the CIA, I assume we are also talking about
Defense Intelligence, NSA, the whole litany of different
elements of the Federal Government that have intelligence
procuring abilities? This would be part of your information
sharing?
Mr. Goss. Very much so. We have tried to create enough
flexibility so that anything that is relevant to what the DHS
mission is, is available to them.
Mr. Menendez. And very, very briefly, Mr. Chairman, are
there any penalties, is there--you talked about incentivizing
and changing the culture so that people share. Are there
consequences if you do not share?
Mr. Goss. Yes. The World Trade Towers.
Mr. Menendez. I understand that. In the legislation, are
there consequences so that people understand, hey, if I do not
share this, there is some form--.
Mr. Goss. Not in our legislation. We have not gone that
far.
Mr. Menendez. Do you consider that something of value?
Mr. Goss. I think you need to provide an incentive, you
know, whether you should provide a stick. Nobody wants to
suggest, in my view, that we are creating a penalty for trying
to do an honest job. But I think that there are ways to,
already on the books, that if you are malfeasant or misfeasant
in your job that there is a penalty for that.
So I suggest what we do is set the guidelines for the
positive and let the normal guidelines or the normal standards
that we have for malfeasance or misfeasance pertain. But we did
not focus on that, to my knowledge.
Chairman Armey. The gentlewoman from Connecticut.
Ms. DeLauro. Thank you very much, Mr. Chairman. And thank
you both very much again. Your years of experience at this
important function are really demonstrated here today.
Let me just pick up a quick follow-on question to my
colleague from New Jersey. Can the Secretary of DHS request
that there be a particular kind of intelligence gathered? Or
can it work in the opposite way? In other words, they are not
collecting the raw data, they have access to raw data, as I
understand it. But can they request FBI, CIA, to move in
directions to gather intelligence in particular areas that may
seem relevant to looking at national security issues?
Mr. Goss. The answer is, under our proposals they can do
that. There are obviously management controls involved in that.
But the answer is, yes, we specifically do provide that the DHS
can task the Intelligence Community.
Now, tasking the Intelligence Community again, without
getting too far into this, the Intelligence Community is asked
to provide a lot more than it can possibly do. There are lots
of customers that are always asking it to do things. So DHS
would become a customer. But DHS would become a specialized
unique customer in the area of terrorism and terrorist threats.
So my answer is yes, they would have tasking capability to the
community, but that would be weighed against the other tasking
requirements that the community has to deal with.
For example, if we happen to be in a war at the time, a
shooting war, or there happened to be a need for a national
technical means for certain other higher priorities that the
administration felt--then it might be that their task wouldn't
be handled immediately or would be put on a shelf or would be
watered down or something else. But they have the right to get
into the tasking competition. And if there is a problem there
is a referee provided for.
Ms. DeLauro. They are a unique customer. But if we are
talking about the uniqueness of the issue and a Department of
Homeland Security, probably the single biggest issue that
potentially has prompted a Department of Homeland Security is
the issue of intelligence and intelligence gathering, sharing
what we know when we know it, when can you respond? I am not
clear about what the lines are in terms of if you were in a
shooting war, is there the potential for there to be a
terrorist attack accompany that kind of thing?
So I don't know ,among equals, how do these lines of
management, these management controls work? What is the thought
process of all of that? Help me; this is very new.
Mr. Goss. What I am trying to tell you is that the DHS will
have the unique requirement under this proposal to task the
community to get more information about something of interest
to them that they think is critically important. They will have
that capacity.
Ms. DeLauro. Not out of frivolous interest, but this is
about whether or not--.
Mr. Goss. No, let us say that John Doe comes into their
sights. They get a report that says, ``John Doe was seen in an
airport in country X. We would like to know more about John
Doe. Was he carrying a bag? What can you tell us about John
Doe? Go back to the agency that provided the report or the
information and say, can you tell us more?'' .
Now in order to get that information, you have to go into
the operational side of things. And the people who run those
operations are besieged with requests from lots of people. I
would say normally if it is the subject of terrorism, you are
going to get pretty good response.
Ms. DeLauro. That would be a priority, I would think.
Mr. Goss. I would think so. But just because it is coming
from DHS, everything else does not stop because that is not
necessarily true.
Ms. Pelosi. The chairman gave you a straightforward answer,
the reality. But I think that reality will be changed, just as
Mr. Menendez questioned what is the penalty for not sharing
information. I think the accountability factors will weigh in
very high in responding to the Secretary of Homeland Security
at his tasking request or at the sharing of information level.
Because the stakes are high, the expectation is too. And there
is a whole different attitude now in all of this. But the
chairman was giving you the honest answer.
Mr. Goss. The reason we wanted to put the Under Secretary
for Intelligence Analysis in the National Foreign Intelligence
Program is so that they have a seat at the table. They are a
member of the club. And that way they will be able to
coordinate more efficiently with more transparency, and they
will be able to get quicker and better answers. As far as I am
concerned, I think it is the right way to do it.
Ms. DeLauro. Thank you very much.
Chairman Armey. This chairman has the extraordinary
privilege of being able to discuss these matters in more
private settings with both the chairman and the ranking member,
and I find my discussions with you on these matters always
enlightening, and look forward to perhaps a few more very
important ones before I do my drafting work throughout the
night.
So I will not trouble you with questions now in this more
public setting. But I do want to take a moment to thank you
both for your service on this very important Intelligence
Committee.
And, Ms. Pelosi, while I want to thank you generously, I am
sure you would concur with me that this body, indeed this
Nation, should pay Porter Goss a special tribute of
appreciation.
Ms. Pelosi. This is true.
Mr. Goss. Thank you, Mr. Chairman.
Chairman Armey. Nobody in this body can be said to have
been willing, and to have demonstrated his willingness by
action, to make a larger sacrifice for his Nation than Porter
Goss when he decided to stay on the job. And, Porter, my
compliments and my appreciation.
Mr. Goss. Thank you very much, Mr. Chairman. I appreciate
that.
Ms. Pelosi. Mr. Chairman, as I said at the beginning of my
remarks, I commended him for the bipartisan manner in which he
conducted--we are point and counterpoint, as you can imagine,
on the intelligence issues. And while we may not always agree,
we frequently do. But we always work together to hammer out a
solution that is in the best interest of our country and is a
service to the Congress. And he has been a tremendous leader. I
associate myself with the remarks you made.
I do also say it is a tribute to him and his leadership on
the committee that we were able to present to you a model of
what we think this Department should look like. We have an
agile proposal that is easily absorbed by the new Department,
something that can be on line immediately in the important work
of intelligence as far as protecting the American people are
concerned.
So I hope that beyond the substance of our proposal, you
will see it as a model for how the Department should look in
its various aspects. With that, I thank the committee. And I
also as a member of the committee thank the distinguished
chairman.
Mr. Goss. You caught me and made me speechless, Mr.
Chairman, which is uncommon for me. But it is a pleasure
working with Mrs. Pelosi. She is an extremely valuable ranking
member, to put it mildly, and we have a marvelous working
relationship. It is great to understand national security tops
everything else when we get down to business, and Mrs. Pelosi
handles it extremely, extremely well and always brings a good
contribution, to put it mildly, to the table from a perspective
I usually hadn't thought of, which is very helpful.
And, Mr. Chairman, I want to tell you that the work you are
doing in your committee here is extremely important to this
Nation, and I wish you well. And we stand by, ready to help you
in any way we can. And I return the compliments that you have
been a great leader as well, and we will miss you.
Chairman Armey. The practice of this committee is that I as
chairman get in the final word. In this instance the final word
should come from my grandfather: You are, sir, a gentleman, a
scholar, and a poor judge of good whiskey.
We thank you.
The Chair now recognizes the chairman and ranking member of
the Science Committee. And we would invite you to come to the
dais. While you are approaching, let me just say that it is a
practice of this Committee to put your formal statement in the
record and to invite you each in your turn, under the 5-minute
rule, to make your statement before the Committee after which
the committee will conduct its questioning again under the 5-
minute rule. With that understanding, Chairman Boehlert, it is
a pleasure to see you here and we would welcome you to open
with your statement.
STATEMENT OF THE HONORABLE SHERWOOD BOEHLERT, CHAIRMAN,
COMMITTEE ON SCIENCE
Mr. Boehlert. Thank you, Mr. Chairman, and members of the
committee. It is a pleasure to appear here today. I think all
of us in the Congress are impressed with the way the Select
Committee is going about its very important business, and in
particular, Mr. Chairman, I wish to thank you and your staff
for being so open and cooperative with ours.
Writing this bill has been a true collaborative effort, as
it should be. That collaboration was part of the Science
Committee's deliberations as well. The Science Committee's
amendment to H.R. 5005 reflects work on both sides of the aisle
and it was approved by a voice vote. I am pleased we were able
to develop such a broadly supportive approach in a very short
time. The Committee on Science amendment has three main
components: strengthening research and development; improving
cyber security; and helping firefighting. Let me discuss each
briefly in turn.
The Committee on Science felt, as did several other
committees, that H.R. 5005 did not pay adequate attention to
research and development. The bill did not spell out the R&D
responsibilities or activities of the new department, did not
give them a central focus and did not designate a senior
official who would be accountable for, or for that matter, have
the background to run the department's research and development
program. We thought that that was a recipe for failure, and we
can't afford failures in this area.
As I have said before, like the Cold War, the war on
terrorism will be won as much in the laboratory as on the
battlefield. So following the recommendations of the National
Academy of Sciences, among others, we created an Under
Secretary for Science and Technology and gave that person clear
responsibilities for R&D across the department. You know,
Governor Ridge endorsed that approach when he appeared before
you on Monday. Let me be clear, the bottom line for us is that
there must be an Under Secretary for Science and Technology
with clear research and development responsibilities, but we do
not necessarily believe that this has to be an additional under
secretary as was proposed in our bill.
If the Select Committee wanted to meld our approach with
that of some other committees, and it is a daunting task I
know, and rename and reorient the under secretary created in
title III of H.R. 5005, that would fully accomplish our goals,
assuming the appropriate language was used.
I don't have time now, nor do you, to outline all of the
aspects of our R&D provisions that we consider important, but
let me name a few: We believe the Congress should have a clear
sense of how any transferred national labs will operate before
those labs are actually transferred; we are skeptical of the
need for other transactions authority; we think there needs to
be an office that can act as a single point of entry for
scientists and entrepreneurs with ideas to contribute to
improve homeland security; and we support the creation of a
homeland security institute.
We also have changed the organic statute for two agencies
under our jurisdiction: the White House Office of Science and
Technology Policy, and the National Institute of Standards and
Technology, to add homeland security as one of their principal
duties. Both already contribute to homeland security, and I
think that these are noncontroversial but necessary changes.
Moving to cyber security, we also focused on gaps in H.R.
5005 that drew the attention of several committees. The basic
problem is that while cyber security is one of our Nation's
greatest vulnerabilities, the bill never deals with it
explicitly, so we added a new section, 205, to make the title
II under secretary's cyber security duties explicit, and those
include improving the security of Federal computers and working
with private, state and local officials to improve the security
of their systems.
We also created a volunteer corps to respond if and when
security fails. For Federal computers, we drew on the approach
in current law and in Ms. Morella's H.R. 1259, which the House
has already passed. Under this approach the National Institute
of Standards and Technology, or NIST, a Federal laboratory that
is trusted by industry as an honest broker, will develop
standards for Federal computers, which the new department will
then promulgate and oversee. This is a sensible division of
labor endorsed strongly by the high tech community. With that
division of labor in mind, the Committee on Science rejected
the proposal in H.R. 5005 to move NIST's computer security
division to the new department.
We believe the move would be counterproductive in two ways.
First, the move would sever the very useful links between the
computer security division and the rest of NIST researchers on
whose work the division depends. Second, the move would
undermine the division's relationship with the private sector,
which trusts NIST as a neutral scientific agency with no direct
regulatory authority or national security responsibilities.
I know that a group of House members, like Mr. Goodlatte
and high tech industry specialists are in the process of
sending letters to the Committee, if you haven't already
received them, backing the Committee on Science position on
this matter.
Finally, let me say a brief word about the fire provisions.
Our Committee believes that the U.S. Fire Administration, a
unit of FEMA, needs to remain a distinct entity and have its
programs maintain their separate identity to ensure that
firefighters, truly the first of first responders, do not get
lost in the shuffle within the new department.
Mr. Chairman, I believe the Committee on Science has taken
a thoughtful, balanced, targeted, bipartisan approach to build
on and strengthen the very useful foundation that has been
built by the administration, and I will be happy to answer any
questions you might have. Thank you, Mr. Chairman.
Chairman Armey. Thank you, Mr. Chairman.
[The statement of Mr. Boehlert follows:]
PREPARED STATEMENT OF HON. SHERWOOD BOEHLERT, CHAIRMAN, COMMITTEE ON
SCIENCE
Mr. Chairman and Members of the Committee:
Thank you for the opportunity to appear today. I think all of us in
Congress are impressed with the way the Select Committee is going about
its business, and, in particular, I want to thank your staff for being
so open and cooperative with ours. Writing this bill has been a true,
collaborative effort--as it should be.
That collaboration was a part of the Science Committee
deliberations, as well. The Science Committee's amendment to H.R. 5005
reflects work on both sides of the aisle, and it was approved by voice
vote. I'm pleased that we were able to develop such a broadly supported
approach in a very short time.
The Science Committee amendment has three main components--
strengthening research and development (R&D); improving cybersecurity;
and helping firefighting. Let me discuss each in turn.
The Science Committee felt, as did several other Committees, that
H.R. 5005 did not pay adequate attention to R&D. The bill did not spell
out the R&D responsibilities or activities of the new Department, did
not give them a central focus, and did not designate a senior official
who would be accountable for--or for that matter, have the background
to run--the Department's R&D programs. We thought that was a recipe for
failure, and we can't afford failure in this area. As I've said before,
like the Cold War, the war on terrorism will be won as much in the
laboratory as on the battlefield.
So, following the recommendations of the National Academy of
Sciences, among others, we created an Under Secretary for Science and
Technology and gave that person clear responsibilities for R&D across
the Department. As you know, Governor Ridge endorsed that approach when
he appeared before you on Monday.
Now, let me be clear, the bottom line for us is that there must be
an Under Secretary for Science and Technology with clear R&D
responsibilities, but we do not believe this has to be an additional
Under Secretary as we have proposed. If the Select Committee wanted to
meld our approach with that of some other Committees, and rename and
reorient the Under Secretary created in Title III of H.R. 5005, that
would fully accomplish our goals--assuming the appropriate language was
used.
I don't have time now to outline all the aspects of our R&D
provisions that we consider important, but let me list just a few--we
believe the Congress should have a clearer sense of how any transferred
national labs will operate before those labs are actually transferred;
we are skeptical of the need for ``Other Transactions Authority;'' we
think there needs to be an officethat can act as a single point of
entry for scientists and entrepreneurs with ideas to contribute to
improve homeland security; and we support the creation of a Homeland
Security Institute.
We also have changed the organic statutes for two agencies under
our jurisdiction, the White House Office of Science and Technology
Policy, and the National Institute of Standards and Technology, to add
homeland security as one of their explicit duties. Both already
contribute to homeland security, and I think these are non-
controversial changes.
Moving to cybersecurity, we also focused on gaps in H.R. 5005 that
drew the attention of several committees. The basic problem is that
while cybersecurity is one of our nation's greatest vulnerabilities,
H.R. 5005 never deals with it explicitly. So we added a new section 205
to make the Title II under secretary's cyber duties explicit, and those
include improving the security of federal computers and working with
private, state and local officials to improve the security of their
systems. We also create a volunteer corps to respond if and when
security fails.
For federal computers, we drew on the approach in current law and
in Mrs. Morella's H.R. 1259, which the House has already passed. Under
this approach, the National Institute of Standards and Technology, or
NIST, a federal laboratory that is trusted by industry as an honest
broker, will develop standards for federal computers, which the new
Department will then promulgate and oversee. This is a sensible
division of labor, endorsed by the high tech community.
With that division of labor in mind, the Science Committee rejected
the proposal in H.R. 5005 to move NIST's Computer Security Division to
the new Department. We believe the move would be counter-productive in
two ways. First, the move would sever the very useful links between the
Computer Security Division and the rest of NIST's researchers, on whose
work the Division depends. Second, the move would undermine the
Division's relationships with the private sector, which trusts NIST as
a neutral, scientific agency with no direct regulatory authority or
national security responsibilities.
I know that both a group of House Members led by Mr. Goodlatte and
high tech industry are in the process of sending letters to the
Committee--if they haven't arrived already--backing the Science
Committee position on this matter.
Finally, let me say a brief word about our fire provisions. Our
Committee believes that the U.S. Fire Administration, a unit of FEMA,
needs to remain a distinct entity and have its programs maintain their
separate identity, to ensure that firefighters--truly the first of
first responders--donot get lost in the shuffle within the new
Department.
Mr. Chairman, I believe the Science Committee has taken a
thoughtful, balanced, targeted, bipartisan approach to build on and
strengthen the very useful foundation that has been built by the
Administration. I would be happy to answer any questions. Thank you.
Chairman Armey. Mr. Hall, there is a great country western
song in Texas that goes around Texas that says it is a Texas
loving night, and your presence makes this that for me and I
want to welcome you tonight
STATEMENT OF THE HONORABLE RALPH M. HALL, RANKING MINORITY
MEMBER, COMMITTEE ON SCIENCE
Mr. Hall. Mr. Chairman, members of the board, I thank you.
I will remember you as a chairman. I respect you as a chairman
finally, and you have come a long way since that day over at
Homestead Hotel in Hot Springs when I introduced you as a new
member. I think I said you were so naive you didn't know that
you couldn't close some military bases.
Chairman Armey. I recall that word of encouragement from
you at the time.
Mr. Hall. And as the new chairman you are going to need a
new portrait, and a lot of us from Texas would like to be here
to hang it when it takes place.
Seriously, Mr. Chairman, and members of the Select
Committee, I am honored to testify before you today. Chairman
Boehlert ran a very good bipartisan and constructive process in
our committee. Recommendations that we present to you today
comprise a consensus product that I think greatly enhances the
bill and I am pleased to be present at the creation of the
Department of Homeland Security. I think the President deserves
a lot of credit for stepping up and accepting the idea that a
new department is called for at this time, and I am
particularly pleased that the Science Committee can present to
you an amendment that places a clear focus in the new
Department on Science and Technology.
The single most important recommendation, I think, and I
think the chairman agrees with me, was the creation of an Under
Secretary for Science and Technology, a recommendation that was
supported by both sides of the aisle and unanimously was
approved in our markup just last week. I would also note that
the President's counterterrorism strategy published just
yesterday cites Science and Technology as one of the homeland
securit's strategic four foundations. And Science and
Technology are, of course, too important to be left to chance
in the new department. They need to be planned, coordinated and
directed under a strong Under Secretary.
Lynn Woolsey and Mike Honda successfully offered--I want to
highlight some of these changes for the Select Committee. I
think Chairman Boehlert has covered them very adequately, so I
will touch base on them a little bit. I quickly want to
highlight Lynn Woolsey and Mike Honda, who successfully offered
an amendment to create a Homeland Security Institute. The
institute would be a nonprofit organization, assisting the
Secretary much in the same way that the Rand Corporation and
the MITRE Corporation assist the Secretary of Defense in
analyzing proposals, establishing test beds, assessing defense
vulnerabilities and strengths and so forth.
Also, one that the Chairman did not mention, an amendment
that Representative Joe Barton offered, an amendment that would
establish university-based centers to help meet the science and
technology needs of the new Department of Homeland Security.
The Chairman and I have probably a different approach to that
and take different positions on that, and it was a hotly
contested amendment, but I think America's leading research
universities represent a great resource to enhance our Nation's
homeland security. It creates four university regional centers,
and I encourage the select panel to retain this provision as it
works its way through the legislation.
Another, Brian Baird feels it is important to include
funding for research on how people cope with terrorist attacks
and provide tools to help repair the psychological impact to
our citizens as part of any international homeland defense
strategy. Congressman Baird is a clinical psychologist. I think
he gave good testimony and advice to the committee, and I think
it is essential that we help him as we want to help our
survivors to reduce the potentially paralyzing symptoms of
terror trauma and provide mental health professionals the tools
to provide effective treatment. We think that was a very good
amendment.
Zoe Lofgren and Vern Ehlers led the charge in blocking the
transfer of NIST Computer Division to the new department. A lot
of high tech organizations have warned that this transfer could
actually hurt national security by choking off productive
interactions between the government and the private sector on
computer security issues.
Eddie Bernice Johnson and Steve Israel successfully offered
an amendment to create an advisory committee to review and make
recommendations on general policy issues for the Under
Secretary for Science and Technology, and Lynn Rivers and David
Wu offered an amendment strengthening the channels through
which creative American inventors who otherwise might not have
access, could propose their ideas and technologies to
appropriate government officials.
Mr. Chairman, these are just some of the reason we need to
move this bill as quickly as possible, and I thank you for your
time and effort on this, and I will be pleased to answer any
questions.
Chairman Armey. Thank you. Thank you gentlemen.
[The statement of Mr. Hall follows:]
PREPARED STATEMENT OF HON. RALPH M. HALL, RANKING MINORITY MEMBER,
COMMITTEE ON SCIENCE
Mr. Chairman and members of the Select Committee, I am honored to
testify before you today with my Chairman and friend, Sherry Boehlert.
Chairman Boehlert ran a very bipartisian and constructive process and
the recommendations we present to you today comprise a consensus
product that I think greatly enhances the bill.
I am pleased to be present at the creation of the Department of
Homeland Security. The President deserves a lot of credit for stepping
up and accepting the idea that a new department is called for at this
time.
I am particularly pleased that the Science Committee can present to
you an amendment that places a clear focus in the new Department on
science and technology--two of our most important tools in fighting
terrorism. The single most important recommendation that we made was
the creation of an Under Secretary for Science and Technology, a
recommendation that was supported bi-partisanly and unanimously in our
markup last week. I would also note that the President's counter-
terrorism strategy, published just yesterday, cites science and
technology as one of the homeland security strategy's ``four
foundations--unique American strengths that cut across all of the
mission areas, across all levels of government, and across all sectors
of society''. Science and technology are too important to be left to
chance in the new Department--they need to be planned, coordinated, and
directed under a strong Under Secretariat.
Our Committee made over a dozen constructive changes to the
President's proposal in our markup last week. I will quickly highlight
four of these changes for the Select Committee:
Lynn Woolsey and Mike Honda successfully offered an
amendment to create a Homeland Security Institute. The Institute would
be a non-profit organization assisting the Secretary in much the same
way that the RAND Corporation and the MITRE Corporation assist the
Secretary of Defense in analyzing proposals, establishing test-beds,
assessing defense vulnerabilities and strengths, and so forth. The
creation of this Institute was the major recommendation of last month's
National Research Council report on terrorism R&D.
Zoe Lofgren and Vern Ehlers led the charge in blocking the
transfer of NIST's Computer Security Division to the new Department.
This Division develops information security standards, testing, and
evaluation tools for use in federal agencies and in the private sector.
Many high-tech organizations have warned that this transfer could
actually hurt national security by choking off productive interactions
between the government and the private sector on computer security
issues. Reps. Goodlatte and Boucher (and a number of other Members)
have sent the Select Committee letters on the importance of this
matter.
Eddie Bernice Johnson and Steve Israel successfully
offered an amendment to create an advisory committee to review and make
recommendations on general policy issues for the Under Secretary for
Science and Technology. Most importantly, the Committee will include
representatives of the users of the Department's research activities--
emergency responders--and of citizen groups.
Lynn Rivers and David Wu successfully offered an amendment
strengthening the channels through which creative American inventors
can propose their ideas and technologies to appropriate government
officials.
Mr. Chairman, we need to move this bill as quickly as possible.
Homeland security is too important a task to let politics, turf,
jurisdictional concerns, or struggles over credit get in our way.
Thank you for your time and efforts on this matter. I would be
pleased to answer any of your questions.
Chairman Armey. Ms. Pelosi, the chairman is tempted to
continue with his Texas theme by recognizing Mr. Frost from
Texas.
Mr. Frost. I appreciate that because actually I have a
Texas question.
Ralph, I didn't have the privilege of serving in the Texas
legislature. Of course, you did with great distinction, and in
the Texas legislature there is a practice called Bracket law,
in which you write a law that applies to only one entity or to
one city. It is a city no larger than a million 115 people, no
smaller than--you understand what I am talking about. And it
appears that the Barton law is a classic example of Bracket
law. It only applies to one school in the state of Texas.
Mr. Hall. That is the University of Texas at Arlington, I
think.
Mr. Frost. No, it does not apply to the University of
Texas. It only applies to Texas A&M where Mr. Barton went to
school.
Mr. Hall. I was joking with you.
Mr. Frost. But it applies to Texas A&M only. Here is my
question. As you know, Texas has many world class research
universities; yet the amendment adopted by your Committee
authored by my colleague from Texas, Joe Barton, would, for all
practical purposes, exclude all of those universities, except
for one, from eligibility to compete for those centers
designated. Can you comment on the Barton amendment and the 17
criteria it sets forth to establish eligibility requirements?
Is there a need to, in this legislation, exclude many
universities from this competition including the University of
Texas which is excluded from this competition?
Mr. Hall. Yes. I would be glad to. Initially the bill was
drawn and many thought it alluded only to Texas A&M University,
perhaps because Barton was the author of it, and his having
been a graduate of there. We discussed that and Congressman
Barton agreed that it should be regional and that all
universities should have a shot at it. He even offered to take
those 17 criteria away, and I think this committee could do
that if they wanted to. We want to pick the finest
universities, the greatest universities.
I mentioned Stanford, Johns Hopkins. I mentioned a lot of
others in our debate there. I think it could be any of those. I
think they are great universities. I think we ought to avail
ourselves of them.
Mr. Frost. I have the Barton amendment in front of me, and
I would like to read you several of these 17 criteria. Number
6, strong affiliations with animal and plant diagnostic
laboratories; number 7, demonstrated expertise in food safety;
number 8, affiliation with Department of Agriculture
laboratories or training centers. That appears to be bracket
law applying only to Texas A&M. I have family that went to
Texas A&M. It is a fine institution. But I think that the other
institutions in our State should have the opportunity to
compete and I think if this Committee were to include the
Barton amendment I would hope that we would eliminate the 17
criteria which seemed to tailor this for only one institution
in our home State.
Mr. Hall. I think Tarleton State University lacked that
provision. I think there are probably ten other institutions
that would have lacked it. But I think Congressman Barton is
willing to set-aside those 17.
Mr. Frost. Where I went to school at University of
Missouri, if the University of Missouri were applying for this,
it would probably be eligible because Missouri does not have an
A&M school. The Agriculture Department is right there on the
main campus in Columbia, but I would say that the majority of
the States in this country do have a separate A&M school. They
may not call it A&M, but it is an agriculturally-based school,
so that they would have the opportunity to compete, but in our
State, this would exclude an awful lot of our institutions, and
I hope we would not adopt it in its current form.
Mr. Hall. I understand that, and as I said, I think they
are willing to forego the criteria they set there; however,
there are other institutions in our State that I think
certainly would be under consideration, including the ones you
represent. I would be very pleased if it were Texas A&M or the
University of Texas or my alma mater, SMU. I think they all
ought to be considered and set the criteria aside. I am willing
to do that.
Mr. Frost. I agree with that. They ought to all be
considered. And I hope if we adopt this amendment, we will do
it in a way so that they can all compete, even including the
University, where our distinguished chairman taught prior to
being in Congress, the University of North Texas. They should
be able to compete.
Mr. Boehlert. Mr. Frost, may I respond that too? As you
probably know, if you check the record for the Committee, I did
not favor that particular amendment. I did so with sound
reasoning, I think, on my part, and I thank you for the very
perceptive question.
We avoided specificity in terms of designating specific
types of research, and Dr. Baird's contribution was very
significant but when you start outlining the number of research
areas that should be considered, the list is endless. We want
to leave it up to the experts in the new Department of Homeland
Security. And secondly, in terms of the number of centers,
while the initial proposal by Mr. Barton zeroed in on one
center, he expanded that to include four. I am not sure if they
were within a radius of so many miles of Texas A&M. That is
another question for another day, but the fact of the matter is
we think the bill very adequately directs research to
universities and we would let the experts determine where those
centers should be and what disciplines they should focus on.
Chairman Armey. The Chair just observes that the Chair
withhold judgment, until he determines whether or not a winning
football team is one of the criteria. The gentleman from Texas
and the gentleman from New York, the Chair will be looking at
that provision.
Mr. Boehlert. Knowing the Chair's fondness for music
comparisons, I would point out that the committee on both sides
of the aisle worked very well together, and some people would
say it constitutes amazing grace.
Chairman Armey. Thank you.
Mr. Hall. Mr. Chairman, our chairman, Mr. Boehlert, was on
top of the table with us. He was opposed to the centers and
took that position and it was a 17-to-15 vote. It was a close
vote, and I think the very fact that he allowed some amendments
and that some of the amendments that were sent up from the
Democratic side of the aisle passed evidences the fairness he
exhibits as a chairman and I appreciate that as we all do.
Chairman Armey. I appreciate both of you and recognize the
gentleman from Ohio, Mr. Portman.
Mr. Portman. Mr. Chairman I will be brief, first of all, to
thank our colleagues for being here and giving us the wisdom on
this. The Science and Technology piece of this is extremely
important, and one thing we have learned over the last few
weeks as we have looked at this, is there is probably nothing
more important than being sure this works, both in terms of the
private sector and the government sector.
I noticed you changed some of the language of the bill to
strengthen the Science and Technology provisions. Particularly
you changed the director, who would have been giving assistance
to all the other under and assistant secretaries to an under
secretary role. Maybe you, Chairman Boehlert and Mr. Hall,
could address that issue, and why you think that is important
structurally.
Mr. Boehlert. I think it's very important. It gives
responsibilities with a research and development focus, it
gives it accountability, it gives it intellectual heft. It
makes it possible to attract the best and the brightest from
wherever we can attract that individual to fill that important
slot. And I would like to report that while this was not in the
initial presentation from the administration, we worked very
closely with Dr. Marberger, the President's science advisor. We
worked very closely with Governor Ridge, and I am pleased to
report that Governor Ridge, on Monday in the statement before
this committee, embraced the concept of creating an under
secretary for research and development. That puts the emphasis
where we need to.
I am absolutely convinced, Mr. Portman, that this war on
terrorism is going to be won more in the laboratory than on any
battlefield. That is a very, very important aspect of modern
warfare and modern defense mechanisms, so we want the best
researchers in the Nation working on this very important
subject. We want to have one person in charge working with the
other under secretaries and Cabinet-level officers to put focus
to this very important mission.
Mr. Portman. Thank you. Mr. Hall.
Mr. Hall. It is supported by both of us, it's supported by
Governor Ridge, and I think that science is at the top of the
list and without an under secretary--if that is what your
question was, there wouldn't be anyone there with the primary
mission to coordinate the science and technology functions
necessary to guarantee our security. I know that there are some
who have some problem with another group here in D.C. They want
them out in the field and there is something to be said for
that. But I think if you take the recommendation of another
committee to eliminate an under secretary, you are back to
four. I think this is the heart of our recommendation that if
the Department is not focused on discovering, and not really
focused on developing the tools necessary to defend the
homeland, and all the other missions of the secretary are going
to be greatly compromised. Science has to be at the top of the
list.
Mr. Boehlert. Let me ask, Mr. Chairman, if it's permissible
to submit for the record a letter from the National Academies--
National Academy of Sciences, National Academy of Engineering,
and The Institute of Medicine strongly endorsing this proposal.
Chairman Armey. The record is open. Without objection, it
will be accepted. Thank you.
National Academy of Sciences
The National Academies
Washington, D.C. 20418, July 12, 2002.
Hon. Richard K. Armey
Chairman, House Select Committee on Homeland Security, The
Capitol, Washington, D.C. 20515
Hon. Nancy Pelosi
Ranking Member
Dear Chairman Armey and Chairman Pelosi:
We are writing endorse strongly the recommendation for an
Undersecretary for Science and Technology in the new Department
of Homeland Security. This recommendation was made in the
recent National Academies report Making the Nation Safer: The
Role of Science and Technology in Countering Terrorism, which
is enclosed.
As your committee and the administration move forward in
planning for the new department, we believe that you have an
important opportunity to create a structure and a culture to
harness America's strength in science and technology for
counterterrorism. In particular, an Undersecretary for Science
and Technology would provide a focal point for guiding key
research and technology development programs within the new
department and, very importantly, for building collaborative
partnerships with the major science, engineering, and medical
science departments and agencies (such as the National Science
Foundation, the National Institutes of Health, the Department
of Energy, the Department of Defense, the Department of Health
and Human Services, and the National Aeronautics and Space
Administration) that will remain outside the department. This
undersecretary would work closely with the Office of Science
and Technology Policy on coordinating multiagency projects and
their linkages to related programs throughout the government.
This person would have responsibility not only for developing
homeland security-related technology, but also for all
technical elements of the agencies that are located within the
department.
Thank you for your consideration Of this input from the
National Academies and of our report.
Please let us know if we can be of further assistance to
you.
Sincerely,
Bruce Alberts,
President, National Academy of Sciences
Wm. A. Wulf,
President, National Academy of Engineering
Harvey V. Fineberg,
President, Institute of Medicine
Mr. Portman. I appreciate the work that you all put in, and
I know going forward, your oversight will be extremely
important to make sure we can meet the promise of more
technology, more science. As Mr. Boehlert says, this will be as
important to this battle as anything that happens on the
battlefield itself. Thank you very much.
Chairman Armey. The Chair recognizes the gentleman from New
Jersey.
Mr. Menendez. Thank you, Mr. Chairman. And I want to thank
both of you for your work and your testimony here. I want to
get a sense --I asked this most of the Chairs that come before
us where there have been changes made to the President's
proposal. Were there different elements of your changes--were
they bipartisan in terms of the votes--.
Mr. Boehlert. Without any question, bipartisan, every
member's fingerprints are all over this product. We are proud
of it.
Mr. Menendez. Very good. And I know that one of those
important amendments that Mr. Hall referred to, and I certainly
am very concerned about, and I hope that the committee will
adopt it as its own--as a matter of fact, I hope the Committee
will adopt a lot of what you did in the committee in our mark
here, but certainly the NIST issue, I think we choke off
potentially the advances we can make with the private sector
and we hurt ourselves in the context of some of what we can
capture, and I am glad to see that the committee acted as it
did, and I hope we will preserve it here as well.
Mr. Boehlert. Thank you very much. We came to the same
conclusion after the same thoughtful deliberation, and I would
like to submit for the record some more statements from our
colleagues and the co-chairs of the high tech caucus, Mr.
Boucher and Mr. Goodlatte, and also letters from the whole
bunch of groups, the Business Software Alliance, American
Association for the Advancement of Science, all addressing this
very important issue. I think the computer security division of
NIST performs exceptionally well. It's a small staff, less than
50 people. A modest budget, five to $10 million, doing an
extremely important work and it has credibility in the world
outside of Washington. It is trusted, it is respected, and we
don't want to lose that trust and respect.
Mr. Menendez. I agree and I thank you for the work. Yield
back.
Chairman Armey. Without objection, we will receive those
these letters as well. The gentlelady from Connecticut.
House of Representatives,
House Committee on Science,
Washington, DC, July 9, 2002.
Hon. Sherwood Boehlert
Chairman, House Committee on Science, Rayburn House Office Building,
Washington, D.C. 20515
Dear Chairman Boehlert: As members who are concerned about
technology Issues, we are writing regarding the Administration's
proposal to move the Computer Security Division (CSD) of the National
Institute of Standards and Technology (NIST) from the Department of
Commerce to theproposed new Department of Homeland Security.
While we support the Administration's efforts to make our country
more secure in the face of terrorist threats, we are concerned that
this provision, found in Section 202 of the President's proposal, would
unravel years of collaboration between the CSD and the private sector
to enhance the level of confidence in computer security practices. We
are concerned that this reduced collaboration would be
counterproductive to the Administration's goals by reducing confidence
in American-made IT systems thereby making our critical Infrastructure
more vulnerable to terrorist attack.
The credibility and success of NIST's CSD depends on effective
independence from and appropriate collaboration with law enforcement
and national security agencies in the U.S. and abroad. We believe that
this independence could not be maintained in the new Department of
Homeland Security. In the past, it has proven to be a challenge for the
CSD to strike this balance. We have been frustrated by past indications
of inappropriate influence of law enforcement and national security in
the development of standards for ``sensitive, unclassified''
information, which delayed the development of computer security
standards. Too often, the CSD deferred to military and intelligence
agency needs to the exclusion of other vital national interests.
In one example, the CSD'S lack of responsiveness to the IT
community led to a proposed encryption standard that was overbroad and
unduly burdensome to American companies and completely unworkable.
There is a strong national interest in ensuring that strong encryption
software is available to protect our critical infrastructure from
attack. The widespread use of encryption promotes our national security
and prevents crime by ensuring the security, confidentiality and
authenticity of electronic networks, information and users. We were
pleased to finally see the announcement late last year of the new much
Improved Advanced Encryption Standard--the result of 4 long years of
public-private partnership with the CSD, the private sector, and
national security agencies.
We have serious concerns that transferring the CSD from the
Commerce Department would upset the balance that we have attempted to
achieve in protecting our sensitive information and critical
infrastructure in a way that doesn't disadvantage American industry or
limit the availability of strong encryption. Based on the demonstrated
ability of NIST to work effectively with the private sector, while
ensuring effective collaboration with other governmental agencies, we
urge that the new Department focus on continued interagency
coordination with NIST's CSD rather than taking the inevitably
counterproductive step of moving this vital office into the Department
of Homeland Security.
Sincerely,
Bob Goodlatte,
Co-Chair, Internet Caucus
Rick Boucher,
Co-Chair, Internet Caucus
[GRAPHIC] [TIFF OMITTED] T3173.009
ENVIRONMENT, TECHNOLOGY, AND STANDARDS SUBCOMMITTEE
House of Representatives,
Environment, Technology, and Standards Subcommittee
Washington, DC, July 16, 2002.
Hon. Richard K. Armey
Chairman, Select Committee on Homeland Security, The Capitol,
Washington, D.C. 20515
Hon. Nancy Pelosi
Ranking Member
Dear Chairman Armey and Chairman Pelosi: We are writing to ask that
give careful consideration to the amendments offered by the Committee
on Science, particularly the provision that strikes Section 202,
paragraph (4) from H.R. 5005. Under this paragraph, the Computer
Security Division of the National Institute of Standards and Technology
(NIST) would be transferred to the Department of Homeland Security. We
strongly oppose the proposed transfer of the Computer Security Division
and request that you retain the Science Committee's position during the
Select Committee's deliberations.
As Members of the Environment, Technology, and Standards
Subcommittee, which has jurisdiction over NIST, we gave careful
scrutiny to the provision in H.R. 5005 that would transfer the Computer
Security Division to the Department of Homeland Security. Based on
information gathered from meetings with the Administration and from the
two hearings on homeland security held by the Committee on Science, we
concluded that the Computer Security Division could more effectively
support the development and adoption of stronger information security
standards, and thereby the mission of homeland security, if it remained
in NIST.
We do not reach this conclusion as a matter of protecting the
Committee's jurisdiction, as we have carefully reviewed other proposed
transfers and have not objected to them. Our interest lies in improving
information security, avoiding duplication of effort, and preserving
functions that have worked very well within the Federal Government.
While the President's proposal does have many important aspects
protecting homeland security, the proposal to move this division would
undermine a successful partnership in improving information security
standards that the Federal government has developed with the private
sector.
One reason that Computer Security Division has been successful in
developing information security standards that are widely accepted in
the information technology community is because of NIST's close
connection to its industrial customers. This relationship works two
ways: technical experts from the private sector are involved at every
step of NIST's standards development process, and the trust developed
between NIST and the private sector facilitates adoption of the NIST
standards.
Most of the nation's critical information infrastructure is
privately owned and operated, and that which is government owned and
operated relies on commercial off-the-shelf hardware and software. In
short, in order to establish strong information security standards,
government must work closely with the private sector. The information
technology industry has been unanimous in their deep reservations about
the proposed transfer of the Computer Security Division to the
Department of Homeland Security. They do not believe that the
relationship of trust and cooperation that they enjoy with NIST will
survive the transfer of the division into the new Department. We share
their reservations.
We also oppose this transfer because it will harm work done by both
the Computer Security Division and NIST as a whole. This Division is
deeply integrated within the Information Technology Lab at NIST.
Cleaving it from the lab and moving it to the new Department would
leave a gaping hole within the IT lab. Clearly, NIST would have to
recreate this division if it were to carry out its mission, because
computer security is integrated in NIST's information technology
mission as a whole. It makes no sense to transfer this activity to the
new Department, only to have NIST scramble for funding in order to
recreate an integral part of the Information Technology lab. If
adopted, Congress would be left funding both the Computer Security
Division at the new Department, as well as its replacement at NIST.
In addition, when developing information security standards and
carrying out computer security research, the Computer Security Division
draws upon the technical expertise of many other NIST laboratories. For
example, research on advanced encryption standards benefited from Nobel
prize-winning research conducted by scientists in the Physics
Laboratory at NIST. NIST's worldwide reputation for scientific
excellence has an enormously positive impact on the work of the
individual scientists who work there. If we sever or substantially
alter this relationship, we may be ultimately undermining our goal of
improving computer security within the Federal Government.
We ask that you leave the Computer Security Division at NIST. We
believe the interests of homeland security, particularly those aspects
that relate to information security, will be best served by leaving the
division at NIST.
We wish you all the best in your important endeavor.
Sincerely,
Vernon J. Ehlers
James Barcia
Gil Gutnecht
Lynn Rivers
------------
American Association for the Advancement of Science
July 8, 2002
Hon. Nancy Pelosi
Ranking Member, Select Committee on Homeland Security, The Capitol,
Washington, D.C. 20515
Dear Ranking Member Pelosi: The American Association for the
Advancement of Science (AAAS) has been following the current debate
over the establishment of a new Department of Homeland Security with
great interest. We are particularly concerned about the role and
structure of counterterrorism research and development (R&D) in the new
department.
As Congress begins the process of defining and shaping this
department, we hope that careful consideration will be given to this
issue. We agree strongly with House Science Committee Chairman Sherwood
Boehlert that a ``clear focus on-and locus for--research'' will allow a
new Department of Homeland Security to coordinate the many diverse
scientific and technological areas essential to its functions. This
focus would be sharpened by providing for the appointment of a single
official--for example, an under secretary - with responsibility for
coordination of R&D across the entire department and with other
relevant agencies.
This idea is underlined by the recent National Academies report
which observed that the complexity and interdisciplinary nature of the
science and technology involved in fighting terrorism requires more
than just parallel investments in various areas of R&D. It calls for a
well--orchestrated and coordinated endeavor among the 26 agencies that
currently contribute to ournation's R&D enterprise.
AAAS is the world's largest general scientific society, with over
130,000 individual members and 272 affiliated societies, representing
10 million individuals in all fields of science and engineering.
Founded in 1848, AAAS is also the publisher of the journal Science, and
has long been a leader in promoting science to meet our national goals.
These comments are respectfully submitted as a means for enhancing
the dialogue between the executive and legislative branches on this
vital issue. AAAS supports a balanced approach to protecting our
national security and promoting scientific and technological
advancement and stands ready to assist you in the future.
Sincerely,
Alan I. Leshner
------------
Business Software Allaince
July 16, 2002
Hon. Richard K. Armey
Chairman, Select Committee on Homeland Security, The Capitol,
Washington, D.C. 20515
Dear Chairman Armey: The Business Software Alliance \1\ (BSA)
appreciates the opportunity to share with the Select Committee on
Homeland Security our recommendations with regard to the committee-
passed cyber security provisions of H.R. 5005 that we believe should be
included in a final, consolidated Select Committee mark.
---------------------------------------------------------------------------
\1\ BSA members include Adobe, Apple, Autodesk, Bentley Systems,
Borland, CNC Software/Mastercam, Dell, Entrust, Hewlett-Packard, IBM,
Intel, Intuit, Macromedia, Microsoft, Network Associates, Novell,
Sybase, Symantec and Unigraphics Solutions (an EDS company).
---------------------------------------------------------------------------
We commend the House of Representatives for the excellent work
undertaken by numerous committees in recent days to ensure that the
Department of Homeland Security is well equipped to protect and advance
our nation's cyber security. In examining the recommendations of these
committees as reported in their versions of H.R. 5005, several
provisions stand out as critical to America's ability to ensure the
cyber security of its citizenry, and we ask that you include these
provisions in the consolidated legislation that the House will
consider.
These provisions are as follows:
1. Federal Government Computer Security
H.R. 5005 should include the Federal Information Security
Management Act, as amended
The Committee on Government Reform adopted provisions
to require binding minimum Federal information security
standards and guidelines for government departments and
agencies. These provisions (based on H.R. 3844, the Federal
Information Security Management Act, introduced by Rep. Tom
Davis) will substantially strengthen what are currently
unacceptably low levels of computer security within the Federal
Government. Importantly, the bill adopted by the Committee on
Government Reform states that these security standards and
guidelines must be technology neutral and performance-based,
and that they must not mandate the use of any specific hardware
or software security solutions. Such flexibility is critical to
the ability ofFederal agencies to respond to fast-changing
computer security threats.
HR 5005 should create a team of public and private sector
experts to provide technical expertise on agency security.
The Committee on Energy and Commerce mark calls for
the creation of a Federal Information System Security Team to
assist Federal agencies in hardening their systems against
cyber attack. Team members would include both public and
private sector technical experts, including auditors, computer
scientists, and computer forensics analysts, who would analyze
Federal security systems and report their findings to the
Secretary and Inspector General of each Department. Strong
public-private partnerships of this nature are critical in the
field of cyber security, where the private sector owns and
operates over 90 percent of the critical infrastructure
networks in question.
2. Structure of the Department of Homeland Security
H.R. 5005 should create a specific cyber security program
within the Department of Homeland Security.
The Committee on Energy and Commerce included
provisions to create a Cyber Security Program within the
Department of Homeland Security's Office of Information
Assessment and Critical Infrastructure. In so doing, the
Committee seeks to ensure that cyber security functions receive
sustained attention and concerted resources within the context
of the Department's overall critical infrastructure protection
mission. Strengthening cyber security requires analytical and
technological capabilities that are related to, but also
distinct from, traditional intelligence gathering and physical
security functions, and we believe that these are best handled
through a dedicated office or program within DHS. Further, we
believe that the Department's ClO and Under Secretary for
Management should advance existing efforts in key Department
agencies to fund, implement and maintain the enhanced
information security necessary for sensitive data and
communications to be securely stored, transmitted, and
disseminated within the Department.
H.R. 5005 should create the position of Undersecretary for
Science and Technology.
The Committee on Science mark creates the function of
Undersecretary of Science and Technology within the Department
of Homeland Security. Given the Department's wide
responsibilities in this area, and the importance of sustained,
focused R&D to our nation's ability to develop leading security
technologies, the creation of this function is highly merited.
We believe that this function should be tasked with explicitly
establishing priorities for directing, funding and conducting
R&D to improve cyber security, and that all such research
should also be done in conjunction with private sector business
partners (examining existing models of such partnerships) in
order to maximize its effectiveness.
H.R. 5005 should maintain NIST's Computer Security Division
within NIST.
The Committee on Science included a provision to
maintain NIST's Computer Security Division (CSD) within NIST,
instead of moving its functions to the Department of Homeland
Security, as has been proposed. We strongly support the
Committee's decision in this regard. While we wholeheartedly
endorse the Administration's efforts to create the greatest
possible cohesion among security-related offices within the
Federal Government, we believe that the CSD--a standards-
setting entity--is integral to NIST's overall standards-setting
mission and that its work in this area can best be achieved in
the context of the Institutes itself. Further, we are concerned
that moving CSD to the Department of Homeland Security--an
agency that will focus primarily on law enforcement-related
issues--could result in CSD failing to adequately recognize the
technological and cost feasibility issues associated with cyber
security topics under the Department's jurisdiction. Moreover,
since the Administration has repeatedly stated that it does not
desire or envision imposing cyber security technological
mandates on the private sector, we do not see the need to
incorporate NIST's CSD within the Department.
3. Information Sharing
HR. 5005 should encourage increased information sharing about
cyber security threats--The Committee on Government Reform has
included provisions that would greatly facilitate the voluntary
sharing of information with the government and within industry.
This provision protects against the disclosure of such
information through the FOIA process and ensures that the
information cannot be used against those providing the
information in a civil suit. The measure was adopted on a
bipartisan basis by the Committee and we urge its inclusion in
H.R, 5005.
*
We believe that the provisions outlined above will form the
basis of a strong and effective cyber security strategy by the
Department of Homeland Security and the Federal Government
overall. We urge the inclusion of these provisions in the
consolidated legislation that will be considered by the full
House of Representatives, and we thank you for your
consideration of our views in this area.
Sincerely,
Robert Holleyman,
President and CEO
------------
Public and Scientific Affairs Board
American Society for Microbiology
Washington, DC, July 19, 2002.
Hon. Ralph Hall
Ranking Minority Member, Committee on Science, The Capitol Washington,
D.C. 20515
Dear Ranking Member Hall: The American Society for Microbiology
(ASM) is writing concerning issues related to the proposed Department
of Homeland Security (DHS) and the policy implications for the civilian
biodefense and infectious disease research programs. The ASM has
reviewed the Administration's Bill to establish a Department of
Homeland Security and S.2452 to establish a Department of Homeland
Security and a National Office for Combating Terrorism, introduced by
Senator Lieberman.
The ASM is the largest life science society with over 40,000
members and its principal goal is the promotion of scientific knowledge
of microbiology for the benefit of human welfare. The ASM has worked
with the Administration, the Congress and federal agencies on measures
to protect against biological weapons and bioterrorism. Most recently,
ASM provided expert advice on provisions to expand the Biological
Weapons Statute in the USA Patriot Act and on Title II of the Public
Health Security and Bioterrorism Preparedness and Response Act of 2002,
which expands controls on certain dangerous biological agents and
toxins. ASM members are involved in research and public health
initiatives aimed at eradicating the scourge of infectious diseases,
which daily end the lives of thousands of Americans and tens of
thousands around the world. Infectious diseases remain the major cause
of death in the world for those under the age of 45 and particularly
for children. They are the third leading cause of death in the United
States.
The terrorist events of September 11 and the anthrax biocrime
reveal the need and complexity of homeland defense. The ASM, therefore,
supports efforts to establish a Department of Homeland Security that
can provide oversight, coordination and leadership for biodefense
activities. Given that science and technology will play vital role in
the biodefense of the nation, the ASM supports the establishment of an
Office of Science and Technology as proposed in S 2452. This office
will provide the necessary linkage between the Secretary of Homeland
Security and all the numerous mission agencies charged with science and
technology development.
It is critical that the proposed DHS build upon existing science
and technology programs that hold promise in the defense against
bioterrorism and in the effort against deadly infectious diseases. The
ASM would like to submit the following comments to assist Congress as
it deliberates how best to achieve this goal.
Biodefense research is part of the continuum of biomedical research
aimed at protecting the nation and the world against infectious
diseases. The capability to develop countermeasures and interventions
is directly related to information generated by biomedical research on
pathogenic microbes and the host response to these microbes. Therefore,
it is critical that federal research efforts related to civilian human
health-related biological, biomedical, and infectious diseases should
be prioritized and conducted by, and at the direction of the Department
of Health and Human Services (HHS). It is important to distinguish
between oversight functions such as policy and planning guidance and
coordination, which would well be served by an Office of Science and
Tecimology within a Department of Homeland Security, and the
responsibility and authority for the direction, control and conduct of
scientific research. ASM recommends that HHS, a public health and
biomedical research agency of unparalleled success, should continue to
be responsible for the conduct and direction of scientific research.
The Administration's Bill recognizes the necessity that HHS conduct
the research and development programs related to infectious diseases.
Section 303(a)(1) of the Bill provides that the Secretary shall carry
out responsibilities related to civilian human health-related
biological, biomedical, and infectious diseases through HHS and the
Public Health Service ``under agreements with the Secretary of Health
and Human Services, and may transfer funds to him in connection with
such agreements.'' Section 30 1(2) of the Administration's Bill,
however, gives DHS primary authority and responsibility for the conduct
of national scientific research including ``directing, funding, and
conducting research and development'' related to biological threats.
Additionally, at Section 303(a)(2), the Bill provides that DHS, in
consultation with HHS, ``shall have authority to establish the research
and development program, including the setting of priorities''.
The ASM understands the role envisioned for DHS is to integrate
threat analysis and vulnerability assessments and identify priorities
for preventive and protective steps to be taken by other federal
agencies to protect the American public. The HHS, however, is best
qualified to establish biomedical research and development programs and
identify scientific opportunities and the research approaches for
ensuring that biodefense needs are met in the best way possible. The
NIAID is best able to bring together all aspects of biomedical research
and the full capability of science to ensure breakthroughs and advances
of high quality for biodefense. The proposed restructuring of program
authorities in the Administration's bill will create unpredictability
for research programs, will divert monies from research and will not be
the best approach to achieving the goal of civilian biodefense, which
requires the involvement of the best scientific minds and the support
of excellent science based on merit review.
We have already seen the ability of HHS to respond to bioterrorism.
In the months since September 11, 2001, the National Institute of
Allergy and Infectious Diseases (NIAID) within the National Institutes
of Health (NIH) has rapidly accelerated work to protect the nation
against the threat of bioterrorism. This acceleration has occurred
across the spectrum of scientific activities from basic research in
microbial biology to the development of vaccines and therapeutics to
research related to diagnostic systems. It is critical that this work
continue to develop rapidly and efficiently without delay, disruption
or loss of momentum.
ASM agrees that DHS should have an important role in developing the
nation's defenses against, and responses to biological threats. The DHS
can and should coordinate, review, and evaluate scientific and
teclmical programs related to human, animal, and plant life. However, a
scientific health agency, HHS, rather than the nonscientific, nonpublic
health DHS should have the principal authority for developing and
prioritizing scientific and health related programs.
Essentially, therefore, the ASM suggests reversing the
responsibilities identified in Section 303(a)(2) of the
Administration's Bill. HHS, in consultation and coordination with DHS,
should retain responsibility for accelerated research and development
programs, including prioritizing such projects.
The ASM is also concerned that we not create a separate public
health system for biodefense. Therefore, the ASM would leave primary
responsibility for planning for public health emergencies arising from
biological causes with the Centers for Disease Control and Prevention.
At the earliest possible moment after the outbreak of a contagion, it
is critical to determine the nature of the organism and to distinguish
between a bioterrorism attack and a natural event. Then, public
authorities must respond rapidly and appropriately to the health threat
that either one would present.
The ASM believes CDC should be charged with these tasks. Section
505(a)(2) of the Administration's Bill requires DHS to carry out these
functions under agreement with HHS. Again, the ASM believes the
important and appropriate role for DHS is to coordinate planning and
development of programs and to lend technical assistance to the
responsible agency. It is entirely appropriate for HHS to coordinate
and consult with DHS. As with the direction and control of research,
however, the primary duty and authority should remain with the
scientific agency with the existing knowledge, experience, and
expertise to fulfill the critical mission.
Because agriculture, the food supply, and the environment along
with humans are potential targets of bioterrorism, it is important to
integrate and coordinate programs related to human, animal, and plant
agents. Section 302(a) of the Administration Bill transfers to DHS the
select agent registration and enforcement programs of HHS. However, it
does not transfer the select agent registration and enforcement
programs of the Department of Agriculture to the DHS. Subtitle C of the
Public Health Security and Bioterrorism Preparedness Act of 2002
mandated coordination of activities of HHS and the Secretary of
Agriculture regarding ``overlap agents''--that is, agents that appear
on the separate lists prepared by HHS and Agriculture. Without doubt,
such coordination must occur. Bioterrorism research extends and applies
infectious disease and select agent research. The ASM believes that
integration of the select agent registration program inevitably will
assist in the creation of an efficient registration process thereby
expediting registration.
The proper administration of the select agent program is key to the
development of the nation's biodefense capability and response and must
balance the concerns for public safety with the need to not unduly
encumber legitimate scientific research and laboratory diagnostic
testing. The ASM continues to believe that HHS has the scientific and
institutional knowledge and expertise related to dangerous biological
agents, biosafety, and biosecurity in microbiological and biomedical
laboratories and that it is best qualified to achieve the goal of
protecting the public health and safety without interfering with
research, and clinical and diagnostic laboratory medicine. Transferring
this program to DHS, a nonregulatory, nonscientific department, raises
many questions with regard to the administration of this program which
must be carefully considered by Congress, which recently enacted new
legislation and additional requirements for select agents. The ASM,
therefore, requests that a review be done by an interagency group with
the involvement of scientific societies to assess the advisability of
removing the select agent program from HHS authority.
Some additional specific measures in the Administration Bill
require further consideration and comment by the ASM. The ASM continues
to study the Administration Bill to evaluate the best approach to
achieving expedited research that advances the defense against
bioterrorism but does not dilute the continuing, critical battle
against naturally occurring infectious diseases. The ASM suggests
expeditious review of the appropriateness of each transfer of a
facility or responsibility related to biological organisms from an
existing agency.
For example, as noted above, the defense against bioterrorism must
be fully integrated into the nations public health system that is led
by the Centers for Disease Control and Prevention. Currently, CDC would
use the national pharmaceutical stockpile in response to infectious
diseaseoutbreaks--both natural and intentional. Sections 501(3)(B) and
502(6) would transfer the Strategic National Stockpile to DHS. Such
transfer should be reviewed carefully during further consideration of
the Bill. HHS should be responsible for developing the materials in the
stockpile. Therefore, it seems appropriate for HHS to continue
management of the stockpile. The ASM, however, understands the
coordination and oversight function envisioned for DHS, and the final
resolution of the management of the stockpile ultimately must depend
upon the resolution of the scope and role of DHS responsibilities and
activities.
Similarly, transfer provisions relating to programs and activities
of the Department of Energy's microbial genome research appear to be
proposed although ASM cannot readily discern from the Bill the portions
of the genome program that would be transferred under Section 302(2)(A)
of the Bill.
In closing, we reaffirm ASM's commitment to work with the
Administration and Congress to achieve the most efficient and effective
system in the world for research, control, and response to the threat
posed by biological agents.
Sincerely,
Abigail Salyers, Ph.D.,
President, ASM
Ronald M. Atlas, Ph.D.,
President Elect, ASM
Gail Cassell, Ph.D.
Chair, Public and Scientific Affairs Board
Kenneth Berns, M.D., Ph. D.
Co-Chair, Task Force on Biological Weapons Control
------------
Computer & Communications Industry Association
July 8, 2002
Hon. Sherwood Boehlert
Chairman, House Committee on Science, Rayburn House Office Building,
Washington, D.C. 20515
Dear Chariman Boehlert: Congress and the Administration have
reacted swiftly and decisively to the challenge of terror in the past
year. As befits Americans in times of crisis, we have joined together
to fight a commonenemy. Thanks to our collective efforts, those who
would destroy our society are in disarray, and our nation--for now, at
least--is secure.
Yet, for all the good we have accomplished since September 11,
fundamental liberties will be at risk if we are too zealous in our
pursuit of wrongdoers. We must avoid departmental incentives that
compromise core agency missions or, worse traditional democratic
values. We believe the proposed transfer of the Computer Security
Division from the National Institute of Standards and Technology (NIST)
to the proposed Department of Homeland Security is one such action, and
one we strongly urge you to oppose. Such a transfer would transform
NIST from a civilian agency known for assisting the private sector into
one in which law-enforcement and national security concerns are
dominant.
NIST has distinguished itself through its expertise in cryptography
the creation of codes crucial to safeguarding business, government and
personal assets from unauthorized access. NIST technicians have
performed yeoman's work in establishing government security procedures,
in developing cryptographic toolkits for the public and private sectors
and, most recently, in sponsoring development of the Advanced
Encryption Standard. The AES competition, which drew on the efforts of
cryptographers around the world, is already the unchallenged benchmark
for civilian code-making excellence. Likewise, NIST's Common Criteria
computer-security initiative has won enthusiastic cooperation from the
private sector. All of this has taken place under the auspices of the
Computer Security Act of 1987, which assures that NEST will work with
business and civilian agencies alone to achieve its goals.
Not everyone agrees with the Computer Security Act, however, The
National Security Agency and the FBI, for instance compromised NEST's
traditional role during the 1990s. Despite clear requirements that NEST
serve only civilian interests, NIST succumbed to pressure from these
agencies and began promoting a series of flawed ``security''
initiatives. One such initiative, known as the Clipper Chip, would have
given national security and law enforcement guaranteed access--a back
door--to the encoded, confidential communications of US citizens as
needed.
The Clipper Chip proposal was both controversial arid
technologically flawed. lied it been implemented, the nation's
infrastructure would have been irreparably harmed, and our networks
rendered highly vulnerable to attack.
Subsequent iterations of the plan known as ``key recovery''; and
``message recovery'' only raised more questions. Those questions, in
turn, led to lengthy and critical reports from the National Academies
of Science (http://book.nap.edu/books/03090544753/html/1.html) as well
as a panel the world's most prominent cryptographers (http://cdt.org/
crypto/riks98/).
Both groups concluded that key recovery weakened overall security.
But those assertions only doubled the resolve of law enforcement. At
one point, the FBI pushed hard to outlaw all cryptography that did not
have such security-weakening back doors already built in.
Controversy swirled for nearly a decade over this and similar
initiatives. The fight pitted business and civil-liberties groups
across the political spectrum against the NSA and FBI. The topic soon
became so politically sensitive that one White House Clipper Chip
proponent declared it the--``Bosnia of technology policy.'' The last
administration ultimately abandoned its encryption-control policy more
than two years ago.
Clearly, law enforcement and national-security sectors have a
checkered past with regard to NIST and computer security, Their
interference in NIST's mission has repeatedly compromised the private
sector's confidence in the Institute and seems certain to do so in the
future if repeated. We believe the last thing our nation needs now is a
reprise of debates that were long ago settled.
As always, we remain eager to work with you and the Committee to
help address any concerns you may have about computer security and the
Department of Homeland Security.
Ed Black
President and CEO,
Computer & Communications Industry Association
------------
Information Technology Association of America (ITAA)
July 1, 2002.
Hon. Sherwood Boehlert
Chairman, House Committee on Science, Rayburn House Office Building,
Washington, D.C. 20515
Dear Chariman Boehlert: On behalf of the 500 members of the
Information Technology Association of America (ITAA), I would like to
commend you for your ongoing efforts to protect our nation's critical
infrastructure. Your work to bring more resources to bear to improve
government information security is vitally important. The creation of
the Department of Homeland Security can foster additional progress in
this area, but it needs to be structured in the right way to accomplish
that goal.
As the Committee reviews the Homeland Security Act of 2002 and
considers possible changes to the bill, ITAA strongly encourages you
and other Members of Congress to work with the Bush Administration to
highlight information security in the new Department.
Towards this end, ITAA recommends creating a separate Bureau of
Cyber Security headed by an Assistant Secretary for Cyber Security.
Under the current proposal, the components that would be merged into
DHS from other departments and agencies that focus on cyber security
(e.g. NIPC, NCS, CIAO, and Cybercorps) would be included with those
that focus on physical security. This melding would be a mistake. The
challenges in the cyber world are sufficiently different from those in
the physical world to merit a separate, focused entity headed by a
Senate-confirmed public official.
ITAA also supports specific new authorization/appropriations for
funds that facilitate the sharing of data across the new Department's
myriad of organizational units. If new funds are not made available,
then funding for the IT needed to share information will not be
forthcoming as each organizational unit will strive to hold onto its
existing appropriations for other priorities.
ITAA endorses four additional changes to the Homeland Security Act
of 2002:
Substitute existing language in Title II of the Act in
Section 204 with current language from the ``Critical Infrastructure
Information Act,'' that U.S. Representatives Tom Davis and Jim Moran
and U.S. Senator Bob Bennett and others have been working on to
eliminate legal barriers to information sharing between government and
industry.
Add the Federal Information and Security Management Act
(FISMA) or H.R. 3844 to the Act. FISMA strengthens, renews, and extends
the Government Information Security Reform Act (GISRA), and requires
all Federal agencies to implement a risk-based management approach to
developing and implementing information security measures for all
information and information systems.
Increase emphasis on Research and Development issues in
the new Department structure. We believe that the Department's research
and development functions relating to information security should be
the responsibility of the new Assistant Secretary in the cyber security
bureau.
While the Department of Homeland Security may well wish to
develop its own capabilities similar to those of the Computer Security
Division of the National Institute of Standards and Technology (NIST),
we recommend leaving the Computer Security Division in NIST, where it
is integrated with other functions of NIST's computer research
operations.
We appreciate your considering our recommendations.
Sincerely yours,
Harris N. Miller,
President
------------
Information Technology Association of America (ITAA)
July 9, 2003
Hon. Sherwood Boehlert
Chairman, House Committee on Science, Rayburn House Office Building,
Washington, D.C. 20515
RE: Comments Regarding ``Amendments to H.R. 5005''
Dear Chariman Boehlert: On behalf of the 500 members of the
Information Technology Association of America (ITAA), I would like to
commend you for your ongoing efforts to protect our nation's critical
infrastructure. Let me express our appreciation for the opportunity to
comment on a circulation by Science Committee staff of ``Amendments to
ER. 5005 Offered by Mr. Boehlert.'' Our comments in this letter are
limited to the provisions identified as ``Sec. 205. Information
Security,'' although we may have some additional comments about ``Sec.
206 NETGUARD'' later this week.
As you know from earlier correspondence, while the Department of
Homeland Security may well wish to develop its own capabilities similar
to those of the Computer Security Division of the National Institute of
Standards and Technology (NIST), we strongly recommend leaving the
Computer Security Division in NIST, where it is integrated with other
functions of NIST's computer research operations. Our comments on Sec.
205 proceed from this assumption.
As a general matter, we fully support the role NIST plays in
developing security and authentication guidelines for the Federal
Sector, its role in developing quality assessment measures, and its
consultative role with other Federal agencies in the field of computer
security. Many of our members, however, have serious concerns with
proposals for NIST to engage in conformance testing of commercial
products and certification of private sector labs to test commercially
available security products for their use in the Federal sector. First,
widely available commercial security standards already exist without
the necessity of reinventing a Federal wheel. Second, the applicability
of these provisions to virtually ALL products with security features
would mean a vast effort to create testing protocols and lab
certifications for minor features and a substantial cost for testing
with correspondingly little return in terms of the benefit to the
government. These provisions simply put represent overkill that will
not have the intended effect of benefiting the efficient and effective
deployment of security solutions in Federal agencies. They will only
add unnecessarily to the cost of government procurement of needed
security solutions.
Our members continue to study these amendments arid other
provisions of this important legislation and I look forward to
continuing our dialogue in the coming days and weeks. Again, we deeply
appreciate your commitment to leadership in the field of information
security and stand ready to assist in whatever way we can with the
creation of an effective, efficient and successful Department of
Homeland Security.
Very truly yours,
Joseph Tasker, Jr.
General Counsel & Senior Vice President Government Affairs
------------
Software and Information Industry Association
June 27, 2002
Hon. Sherwood Boehlert
Chairman, House Committee on Science, Rayburn House Office Building,
Washington, D.C. 20515
RE: Transfer of NIST's Computer Security Division to the new Department
of Homeland Security
Dear Chariman Boehlert: On behalf of the Software & Information
Industry Association (SIIA), the principal trade association of the
software code and electronic content industry, I am writing regarding
the Administration's proposal to move the Computer Security Division
(CSD) of the National Institute of Standards and Technology (NIST) out
of the Department of Commerce and merge it into the proposed new
Department of Homeland Security. SIIA 800 member high-tech companies
develop and market software and electronic content for consumers,
business, education, entertainment and the Internet.
While our Association has supported and continues to support the
Administration's efforts to make our country more secure in the face of
terrorist threats, the particular provision found in Section 202 would,
in our view, be counterproductive to the Administration's goals and
undermine the long-standing work of NIST, its Information Technology
Laboratory and the CSD in working with industry in a non-regulatory
environment to assure greater confidence in IT systems in both the
public and private sectors. In short, moving the Computer Security
Division into the new Department will, in all likelihood, reduce the
ability of NIST to continue its important role and provide technical
expertise to promote more confidence in IT security.
NIST's CSD has played an meaningful role in working with the
private sector (both for-profit and not-for-profit) in a non-law
enforcement, non-regulatory setting with direct benefits for enhancing
the level of confidence in computer security practices that have
benefited both government and commercial IT systems. Hundreds of
companies have utilized CSD's world-class testing modules and voluntary
standards and protocols, and we were pleased to see the announcement
late last year of the new Advanced Encryption Standard (AES)--the
result of 4 long years of public-private partnership.
The inclusion of NIST's CSD in the Administration's proposal comes
as some surprise, as it was not included in the White Paper, ``The
Department of Homeland Security'', released earlier this month. As
Section 202 requires the transfer of functions, personnel, assets, and
liabilities of the following entities [including]... ``(4) the Computer
Security Division of the National Institute of Standards and
Technology, including the functions of the Secretary of Commerce
relating thereto,'' we are concerned that no analysis has been provided
of how the transfer of the CSD our of NIST fits into and supports the
operational role that is inherent to the new Department. The work of
this one unit of NIST's Information Technology Laboratory (ITL) depends
on and is integral to NIST's on-going collaboration with the private
sector based on science, research and innovation in promoting U.S. IT
in global markets.
The credibility and success of NIST's CSD has depended on effective
independence from and appropriate collaboration with law enforcement
and national security agencies in the U.S. and abroad. This
effectiveness has not come without substantial effort over the last 10
years. In the 1980's and early 1990's, there were indications of
inappropriate influence of law enforcement and national security in the
development of standards for ``sensitive, unclassified'' information,
and this delayed the development of computer security standards.\1\ In
fact, in creating NIST's responsibilities for developing federal
computer systems security standards and guidelines for sensitive but
unclassified information, the Congress recognized that absent specific
directions, these activities could favor military and intelligence
agency needs to the exclusion of other vital national interests.\2\
This independence could not be maintained in the new Department of
Homeland Security.
---------------------------------------------------------------------------
\1\ Whitfield Diffie and Susan Landau, Cryptography's Role in
Protecting the Information Society, National Research Council Press,
1996, P. 139.
\2\ See Conference Report, ``Computer Security Act of 1987'' P.L.
100-235 at p. 26.)
---------------------------------------------------------------------------
With its $10.2 million budget--just 0.027 percent of the proposed
Department's $37.45 billion in expenditures--the CSD would simply be
emasculated by the larger agencies and missions that will become part
of the new Department of Homeland Security. In this context, the CSD
would simply become a secondary concern--which is not the situation in
its current status at the Department of Commerce.
As the Administration indicated in its blueprint released earlier
this month, ``Homeland security will continue to require interagency
coordination.'' \3\ We completely agree with this conclusion. Based on
the demonstrated ability of NIST to work effectively with the private
sector, while ensuring effective collaboration with other governmental
agencies, we urge that the new Department focus on continued
interagency coordination with NIST's CSD rather than taking the
inevitably counterproductive step of folding this small, but vital,
office into a new government agency.
---------------------------------------------------------------------------
\3\ White House Office of Homeland Security, ``The Department of
Homeland Security'', June 2002, p. 8. Found at http://
www.whitehouse.gov/deptofhomeland/book.pdf.
---------------------------------------------------------------------------
We appreciate the opportunity to convey our views on this proposal.
Please do not hesitate to contact me if I can provide additional
information or answer any questions.
Sincerely,
Ken Wasch,
President
Ms. DeLauro. Thank you, Mr. Chairman, and thank both of you
for your testimony and for your great work. I have two
questions. The first question is, and help me with this, are we
talking about transferring all the labs, Energy, Commerce, Ag,
Defense, to a new entity?
Mr. Boehlert. There is not going to be a transferring of
all labs. There is going to be a transferring of some portion
of Lawrence Livermore and some portion of the DOE labs, but we
specify in our proposal that there be a 60-day advance
notification of any plan to transfer and outline in specific
terms of who is going to do what under what circumstances, what
is going to happen to the infrastructure, what is going to
happen to the employees. In other words, we are not opposed to
the transfer of laboratory responsibilities to the new
Department of Homeland Security, but we want a well thought-out
plan.
The administration plan is a little bit sketchy on that. I
am confident that it will be well thought-out once it is
presented, but we think we should have some advance
notification of that so we could have an opportunity
collectively--.
Ms. DeLauro. But there are different procurement system in
various places and to meld all of that is seemingly--.
Mr. Boehlert. It is a challenge and a half, but so is this
very daunting assignment.
Ms. DeLauro. Let me just ask, because I think the way you
proceeded is the right way to proceed, with strong emphasis on
science and technology--. This is really again, like we have
talked about, the NIH and the CDC and those pieces of our
health infrastructure, the whole effort in science and
technology, this is truly part of our existing infrastructure
and we shouldn't dissipate the ability that we currently have
or give it less of an opportunity to play the role that it
should play. Now, you have recommended that there be an under
secretary to handle this area. Also the National Research
Council, I was reading their materials, has said there ought to
be an under secretary.
Let me just ask you whether or not in the final product
here if a decision would be not to have a new under secretary
to handle this information? What do you think is the result for
Science and Technology for the future and where would that
leave both of you in term of this overall proposal on the
Department of homeland security?
Mr. Boehlert. My view is it would send exactly the wrong
signal to the Congress and the American people. The American
public is very sophisticated. They know the great advances that
have been made possible by the proper Federal investment and in
many instances a partnership with the private sector and the
university-based research centers. The great wave of the past
10 years, a decade of unprecedented growth in our economy was
largely made possible by our investments in research and
development.
So if we downplay rather than focus proper attention on
research and development, I think a lot of people will question
the seriousness of our intent. Bottom line, we want to
demonstrate to the American people that above everything else,
homeland security is number one, and the greatest weapon we
have in our arsenal to advance our cause is research and
development properly directed.
Ms. DeLauro. Mr. Hall.
Mr. Hall. I think that was well said. That was the opinion
of almost everyone. I think that was a voice vote--.
Mr. Boehlert. We didn't have any opposition to that because
we thought it through and, once again, our committee, and I can
only speak for our committee, but we spent a lot of time in
preliminary work and discussions before we got to the actual
sessions.
So Mr. Hall and every single Democrat on the committee felt
they had every opportunity to present their point of view, and
the Chair was not arbitrary. I lost a couple of amendments, the
Barton amendment referred to by Mr. Frost, by a very narrow
vote. The Chair has a lot of advantages in a hearing like this,
and I don't think we are dealing with all equals. The Chair is
the first among equals. I accepted that loss. I didn't agree
with it, and I am appealing to the wisdom of this committee to
reexamine that and not be so specific in its direction to this
new department that we say this is a specific type of research
you have to fund, this is a specific center, and here is the
location of that center. I think we are making a big mistake if
we interpose our views on this new department. I think we have
got to be very supportive and give them the resources they need
and the flexibility to do the job.
Ms. DeLauro. I will ask a question that Mr. Frost would
usually ask in these hearings, that if the final product does
not have a new under secretary, would you be offering an
amendment on the floor--.
Mr. Boehlert. We will have to know the rules of engagement
as we get to the floor, but let me tell you the final product
doesn't have to represent what I agree with 100 percent or what
Mr. Hall agrees with 100 percent. The final product has to give
some assurance to the American people that we are serious in
this effort, we are putting our best minds to the task and we
have come up with something that we are probably identifying
with every single member of this Congress. And the final
product will not have 100 percent of what any one of us want.
But it will demonstrate to the American people the seriousness
of our purpose.
Ms. DeLauro. Thank you very much to both of you and for
your great work.
Chairman Armey. Thank you. The Chair now recognizes the
gentlelady from California, Ms. Pelosi.
Ms. Pelosi. Thank you, Mr. Chairman. I want to join you in
thanking our distinguished witnesses for their excellent
testimony and great work in approving the product that is this
bill, and I hope our chairman will be receptive in his mark to
your suggestions. I want to ask one question on the subject of
NIST--the committee's removal of the proposed transfer of the
computer science division of NIST has been discussed. Is it
correct to understand that your manager's amendment containing
this provision passed unanimously?
Mr. Boehlert. That is correct.
Ms. Pelosi. So it was unanimous opinion of the Science
Committee that this be removed?
Mr. Boehlert. It is.
Ms. Pelosi. I appreciate that. As you know, Congresswoman
Lofgren has been our advocate--.
Mr. Boehlert. She provided leadership on this area and I
provided followership because she had a good idea and it
deserves support.
Ms. Pelosi. I think your comment just now is indicative of
the testimony of both you and Mr. Hall. You have been very
generous in acknowledging the work of the members of your
committee. No wonder you have been so successful in putting
this together. Thank you, Mr. Hall.
Chairman Armey. Gentlemen, let me say, first of all, that
one of the actions taken by your committee I would like to
applaud is the treatment of NIST. I think it is exactly the
correct understanding, and I am pleased to see that it was
unanimous understanding in your committee. I find that very
encouraging. I have found in all my academic areas that
international students, international scholars have always been
a great asset to all of our universities. There is clearly now,
in America today, an incentive to be, should I say, more
rigorous in scrutinizing people. I can't resist pointing out
Einstein came to this country as a refugee from foreign
despotism. So many of our great scholars have come to this
Nation seeking freedom.
Have you addressed this question of how do we manage to
maintain the security of our great research institutions, while
at the same time, retain the access to the world intellect that
this Nation has so thoroughly well enjoyed throughout all of
its existence? Have you addressed that at all in your bill? Is
there some provision I should look at or is there something you
might want to see me include in our mark?
Mr. Boehlert. Quite frankly we have met with Dr. Marburger,
the President's White House science advisor and director of The
Office of Science and Technology Policy, because he is chairing
an effort on the part of the administration to address this
very subject. Let me just say that I think this Nation has been
greatly enriched by those who have come here from abroad, but
under the current circumstances, we are oftentimes challenged;
so that is an assignment outside the jurisdiction of our
committee. We have got to be very rigorous in examining very
carefully those who seek to come to the United States, but we
would be making the biggest mistake ever if we denied the
intellectual capital that so many of these people bring to the
research and development enterprise. We have noted in our
report that we think as much of the research as possible should
be unclassified, but we are very sensitive, and as a member of
the House Permanent Select Committee on Intelligence, I am very
mindful of national security needs and those should not be
ignored.
But the fact of the matter is I think we have got the right
approach to this.
Chairman Armey. Thank you.
Mr. Hall. I think, Mr. Chairman, that the Woolsey amendment
in creation of the Homeland Security Institute that gives some
flexibility to us on matters of importance that perhaps no one
with the Homeland Security could quite fathom themselves. It
creates a flexible organization that can tap experts as they
are needed to give advice on that very subject. That is one of
many that they can give and it relieves the department from
having full-time people, expensive people, people that really
would be more needed in some other thrust and specialized
fields that might be needed for only a short time, and the
Woolsey amendment gives us that benefit. It is kind of a think
tank to advise the under secretary in specific matters, such as
the one you inquired about.
Chairman Armey. Thank you. I will make it a point to look
at that tonight. I want to thank both of you. We will, for the
next 30 days or so, perhaps be in touch with you for matters of
the official record, but in the meantime, thank you for your
good work in your committee. Thank you for your testimony.
Mr. Boehlert. Thank you, Mr. Chairman. I want to thank this
Committee for taking on this important assignment. It is very
demanding and time consuming, but it is very necessary.
Chairman Armey. The Chair recognizes both the chairman and
the ranking member of the Transportation Committee, and the
Chair would invite you both to come to the dais. You don't want
to. I might mention as you make your way to the table that it
is the practice of this committee to put your formal statements
in the record and to invite you each to in your turn give your
opening statement and then we would proceed by asking
questions. The Chair cannot help but recognize that Chairman
Young is always the contrarian, has rearranged the seating
order. And the Chair recognizes Chairman Young.
STATEMENT OF THE HONORABLE DON YOUNG, CHAIRMAN, COMMITTEE ON
TRANSPORTATION AND INFRASTRUCTURE
Mr. Young of Alaska. Thank you, Mr. Chairman and Madam
Chairman. I can tell you, I am to the right and my good ranking
member is to the left, but we are in this together and I want
everybody to understand that on the committee. On July 11, as
directed by leadership we passed out of the committee by
unanimous vote our recommendations to this committee. We did
recommend that we transfer TSA, and I believe the government
buildings to the new homeland security. We did not recommend,
however, we transfer the Coast Guard and FEMA. We sent you a
lengthy report. I hope you had time and will have time, your
staff has time, to read it, for the reasons stated, we did not
believe that is a wise thing to do and we very frankly think
that you have great responsibility. We also have a
responsibility.
I have spoken to you personally, Mr. Armey about the time
schedule, what we want to get done, can we do it and should we
do it right. I think we should do it right and can we do it in
that short period of time? That is yet to be seen. I am
concerned in my own way, about especially the Coast Guard and
FEMA as I mentioned, and what will happen to them if they are
transferred over to a new department. What will be their
direction? So consequently, what we recommended to you because
these two agencies are actually the only two agencies to
interface with constituencies, yours and mine, 365 days of the
year, 24 hours a day.
More so than the Army, the Navy, the Air Force or Marine
Corps or the FBI, the CIA or anything else, these two agencies
are there on demand, on call every hour of the day. Be it an
earthquake, a flood, forest fire, some other catastrophe, even
a terrorist attack. That is FEMA. It is the Coast Guard, it is
search and rescue, a lost sailor, fisherman, boater, child,
wife, husband and uncle, grandma and grandpa. They are on
demand there immediately.
Maybe it is interceding with foreign fleets that invade our
waters and take our fish and destroy our environment. They are
there immediately. Maybe it is navigational aids that make our
ships avoid the catastrophe that happened in my State in an oil
spill. They are there immediately putting those navigational
aids in. Maybe they are there to not only prevent the oil spill
but to clean it up. They have the responsibility to do that
today.
Maybe it is the smuggling of drugs that enter the coast of
California, Florida, Texas, Alaska or any other State that has
oceans on it's shores, or maybe it just might be interdiction
of those refugees that are coming in illegally, but they are
there all the time. They are there all the time and they have
done that job outstandingly without the money that we should
have been giving them.
And I will give the President credit. This is the first
year that the Coast Guard has been funded adequately, even
before 9-11, and we saw the response in the New York Harbor. As
I told the President, and you were there Mr. Armey, and I will
tell the public, I believe that the responsibility of the Coast
Guard should be maintained as a unit. That if they continue
those missions which we have drafted in this legislation as we
proposed to you, and in the report, we still give the President
the flexibility financially. You have a chart in front of you,
I think you have it, but for the major missions we, in fact,
keep the funding at that level. Yet 50 percent of the money he
can redirect, do what he wants to do, because 22 percent of
that 50 percent is already in port security. So what I am
asking this committee as you structure your bill is, to
consider the words I have given you about FEMA and about the
Coast Guard and about the immediate interfacing.
I understand why the President has been asked to do this
and what you have been charged to do, and that is to try to
make this run more efficiently. And I hope that will be the
result. If I can sound a little bit of a warning, Mr. Oberstar
and I passed TSA with great intentions, and we had some
estimates and thoughts, and every time you turn around, it gets
bigger and bigger and less efficient and less efficient, and
that concerns me a great deal. We don't want that to happen in
Homeland Security.
But if we do create this agency, if we do have a
department, a cabinet member, a secretary, if we do, and I
think it is correct if we do have to, and I don't recommend it
in my legislation, to transfer either one of the agencies of
Coast Guard or FEMA, that their mission is left intact and is
not diminished in any way, shape or form.
That is what I am asking this committee to do. If you don't
do it, then we have some long discussions ahead of us, because
I believe I am absolutely on target for what I have just said,
not because of me, but because the action that has taken place
in my State by both of these agencies and what they do and how
they do it, the professionalism, the results they give us. All
I ask you to do as you listen carefully as you meditate and
draw this bill together, heed some of the words I have just
given you. Thank you very much.
[The statement of Mr. Young follows:]
PREPARED STATEMENT OF HON. DON YOUNG, CHAIRMAN, COMMITTEE ON
TRANSPORTATION AND INFRASTRUCTURE
On July 11, 2002, the Committee on Transportation and
Infrastructure met to consider H.R. 5005, the Homeland Security Act.
The Committee by voice vote adopted a bipartisan amendment that
recommends the transfer of the Transportation Security Administration
(TSA) and the Federal Protective Service to the Homeland Security
Department. Both of these transfers were requested by the President and
we have honored that request.
However, the Committee recommended against transferring the Coast
Guard and the Federal Emergency Management Agency (FEAM). The Committee
has sent to you a lengthy report to accompany their legislative
recommendation which details the very good reasons for our
recommendation.
There is no doubt that after the events of September 11th, the
President must be given the resources to protect this country from all
attacks, whether terrorist or otherwise. However, my committee has
expressed its collective view that the bill as introduced simply goes
too far and covers too many agencies.
There is a tremendous concern that the bill as introduced will
create a great deal of bureaucratic chaos and inaction. There is also
some concern that the bill gives the Secretary of Homeland Security
unprecedented power with few checks and balances.
I want to make it clear that we do not object to the creation of a
Department of Homeland Security however, the bill as introduced raises
many concerns which this Congress has a responsibility to address.
The Transportation Committee agrees that it is appropriate to
transfer the TSA and the Federal Protective Services to the Department
of Homeland Security because both of those agencies have as their
primary mission securing against acts of terrorism or violence. They
are both security agencies. However, both the Coast Guard and FEMA
provide a broad array of services to average citizens and have had
limited responsibility in the area of security. While maritime security
is an extremely important function of the Coast Guard which should
never be minimized, they have other functions which are also vital to
the wellbeing of the American people.
The Coast Guard also provides for search and rescue of boaters,
they keep our waterways open to navigation through their ice breaking
efforts and they maintain critical aids to navigation. They protect our
environment and fisheries resources, they keep passengers safe on
commercial vessels of all types, and interdict both drugs and illegal
immigrants.
We've given the Coast Guard a great deal of work to do and they
have always carried out their duties with distinction.
The same can be said of FEMA which responds to both natural and man
made disasters. FEAM has many other responsibilities as well. They are
important not only in responding to disasters but in preventing and
preparing for disasters of all types. They play a key role in training
fire fighters. They prepare flood plain maps and operate the flood
insurance program.
If the Secretary of Homeland Security wants to commit his entire
effort to preventing terrorist attacks, under the bill as introduced,
he can reduce the resources of the Coast Guard and FEMA for these other
missions and direct those resources entirely to security.
I have grave concerns about giving the secretary that kind of
power. If the Select Committee overrules our 75 member committee, I
would strongly recommend that at a minimum, the missions of the Coast
Guard and FEMA be mandated to insure they are funded and carried out
consistent with the will of Congress.
Our Committee also made recommendations with regard to the manner
in which the new department will acquire land and office space. We
believe that the GSA is the proper agency to act on behalf of the
department to acquire and manage any space needed for offices. It will
be a massive job to develop the headquarters space and office space for
all the many agencies affected by this bill.
The Agencies identified by the Administration to be consolidated in
the new department occupy roughly 4.9 million square feet of GSA
assigned space in either leased or owned buildings. If the new
Department of Homeland Security were consolidated in the Washington, DC
area, it would require a building almost the size of The Pentagon,
which is at least 5 million square feet of space.
GSA has the experience and expertise to serve the new department's
real estate needs. We have included provisions in the bill to expedite
the acquisition of a new headquarters for the DHS.
Our committee worked on a bipartisan basis to develop our
recommendations. We believe they are the best recommendations we can
make within such a short time period.
I would urge you to give great deference to the committee that has
the longest history of dealing with these issues and understands the
impacts of transferring these agencies.
When this bill is signed into law by the president, I hope that we
can all be sure that the Department of Homeland Security can indeed
keep our country secure from terrorist attacks, while preserving all
the important missions that these many agencies carry out each day.
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Chairman Armey. Mr. Oberstar.
STATEMENT OF THE HONORABLE JAMES L. OBERSTAR, A REPRESENTATIVE
IN CONGRESS FROM THE STATE OF MINNESOTA
Mr. Oberstar. Thank you, Mr. Chairman. Chairman Young has
stated the case on the Coast Guard with great feeling and
passion, and I hope persuasiveness, certainly persuasive to me
and to the 73 other members of our Committee on Transportation
and Infrastructure. We come to you with more than a half
century of experience in transportation between the two of us,
and for myself, I would say I have served this body both as a
member and previously as a staff member for my predecessor John
Blatnik, who chaired the subcommittee that created the
Department of Transportation. I participated in that staff work
from January 24, 1966, until its enactment, its signature into
law, by President Johnson on October 15 of that same year. We
spent ten months working in very close cooperation with the
White House, the White House staff, weekly meetings and
sometimes daily meetings, with total cooperation between the
executive branch and the legislative branch, which has not been
the case with this proposal for Homeland Security.
As Chairman Young suggested, look carefully at our
committee report on the agencies under the responsibility of
our committee or the jurisdiction of our committee. We have
authority over 56 percent of the personnel and nearly an equal
amount of the budget that will be the basis of this new
Homeland Security Department. Coast Guard, Federal Emergency
Management Administration, FEMA, the Transportation Security
Administration, and the Federal Protective Service. This is a
huge undertaking that you are charged with and that the
President has set forth--22 agencies, 169,000 staffing, and
some $38 billion in funding. But our objective, as we proceeded
to undertake our role in this, was not to look at shifting
boxes, but to look at achieving the mission, and as the
chairman said, we want to get that mission right. We want to
get those issues of transportation security right.
And I want to address the matter of the Transportation
Security Administration. That was the major concern of this
entire country, of the President and of this Congress
immediately after the attack on September 11. First was to make
New York whole and address the other needs of security in this
country with an immediate appropriation. The next was to
strengthen aviation security and security in other modes of
transportation might be vulnerable. I was the author in 1990 of
the first Aviation Security Act in the aftermath of Pan Am 103.
It was at the request of then President Bush that I crafted the
legislation to establish a commission, the President's
Commission on Aviation Security and Terrorism, and I served on
that Commission along with John Paul Hammerschmidt from the
House, and Senators D'Amato and Lautenberg in the other body
and three public members.
We spent ten months inquiring into the tragedy of Pan Am
103, and we set forth recommendations that were crafted into
legislation, signed into the law by the President, but
regrettably not fully implemented. Airlines resisted, airports
resisted, other forces resisted the full implementation of
those provisions. Now we have a law that goes even further
than, the Aviation Security Act of 1990, with tough deadlines,
strong provisions, and I don't want to see any of those
undermined.
Never again do I want to stand at an abyss as we did in
Lockerbee and look into a hole that was 14 feet deep, 150 feet
long, a trench filled with water where an apartment building
had stood and where the fuselage of Pan Am 103 exploded and
incinerated people. We vowed that never again will this happen.
But it did happen because we weren't vigilant enough because
the patience of the public wore thin; because the forces who
lobbied against criminal background checks for airport security
screeners prevailed rather than the provisions of law. I don't
want to see that happen with the Transportation Security
Administration that we have crafted and that the Congress
passed by an overwhelming vote once again.
We have said in this legislation that the Transportation
Security Administration may well indeed be transferred to the
new department of homeland security provided certain steps are
taken first, that the key positions are filled. The Secretary,
the Secretary for Homeland Security, the Under Secretary for
Border and Transportation Security, the Assistant Secretaries
for Transportation Security are filled, that the Secretary of
Transportation has certified that explosive detection systems
are deployed at all U.S. Airports as we provided for in this
law and that these systems are, in fact, operating to screen
all checked luggage, that the Secretary of Transportation has
certified that there are a sufficient number of Federal
screeners, security managers, security personnel, and law
enforcement officers deployed at all airports where screening
is required under the law.
If you don't do that, if, in fact, this agency is
transferred to the new Department and is then subject to the
endless bureaucratic wrangling and tangling that will happen,
and believe me it will happen, I know, I've seen it, then we
will have undermined the very cornerstone of aviation security
and of transportation security.
So leave it as it is. Secretary Mineta said we will meet
all those deadlines. He said we are going to meet all those
deadlines. What we are offering you in this bill that we have
reported from Committee is an insurance policy against the
failure of the transfers and of the deadlines to be met. And
those deadlines were not afterthoughts. They were not slipped
into the bill undercover of darkness. They were openly debated
in committee, on the floor, in conference. The American public
said we want this done, we want it done yesterday. People
weren't boarding airplanes because the fares were too high.
They weren't boarding airplanes because their anxiety level was
too high and they wanted these tougher measures of security.
We have provided it. This Department of Transportation
under Secretary Mineta and Deputy Secretary Jackson and Under
Secretary Magaw couldn't work hard, couldn't be working faster
to achieve those goals. Norm Mineta is putting 17 hours a day
and Michael Jackson is putting in 18-hour days, 7 days a week,
but those deadlines have to be met and if you do anything to
disrupt it and something happens, that would be terrible.
We have, for example, asked now the administration for
information. We couldn't get it. We got no responses to our
requests from both sides of the aisle together for basic
factual information, are explosive detection systems being
purchased with facilities and equipment funding, from airport
and airways trust fund, or from what other fund? Is the civil
penalty authority of DOT going to be transferred to the new
department, or will it remain with the existing Department of
Transportation?
Will Homeland Security agencies that are now in leased or
government-owned space going to be transferred in those same
conditions or will they be government-owned space? What will be
the condition? We couldn't get answers to those simple factual
questions. So we moved ahead with legislation.
There is also wrangling over deadlines and I have heard
that there may be a measure to stretch out the deadline for
compliance with the security provisions of the Transportation
Security Act. I urge you not to put any such extraneous
language in this Homeland Security Department. Stick with the
law. There is flexibility in the law to meet those deadlines,
but don't try to undermine the law.
Chairman Armey. Thank you.
[The statement of Mr. Oberstar follows:]
PREPARED STATEMENT OF HON. JAMES L. OBERSTAR, RANKING MINORITY MEMBER,
COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE
Mr. Chairman, Congresswoman Pelosi, and Members of the
Committee, thank you for the opportunity to testify before the
Select Committee on the bipartisan homeland security
recommendations of the Transportation and Infrastructure
Committee. Our Committee has worked on transportation security
and safety issues for decades and, between us, Chairman Young
and I come to you with more than a half-century of experience
in transportation issues. As you develop your recommendations,
I urge you to consider our Committee's expertise in determining
how the Coast Guard, the Federal Emergency Management Agency,
the Transportation Security Administration (TSA), and the
Federal Protective Service best fit within a plan for homeland
security and how they can best contribute to the welfare of
this Nation.
As we consider this issue, we all must appreciate the
magnitude of what we are considering--a proposal that, as Norm
Ornstein points out, is arguably the largest governmental
reorganization in history. The President's proposal envisions
consolidating parts of 22 different agencies--including more
than 100 governmental entities with more than 169,000 employees
that are employed in 4.8 million square feet of space all
across this Nation--with many different missions, cultures, and
histories. As we create a Department of Homeland Security, we
cannot focus on shifting boxes; we must focus on achieving the
mission--to prevent terrorist attacks, reduce vulnerabilities,
and, in the tragic event of an attack, to minimize damage and
begin the process of recovery. Moreover, we must ensure that we
get it right!
Today, I would like to focus on our Committee's bipartisan
recommendation to getting transportation security right. Like
the Administration's bill, the Committee-reported bill
authorizes the transfer of the TSA to the Department of
Homeland Security but, unlike the Administration's bill, the
Committee makes clear that the transfer will not jeopardize
TSA's security mandate. Under the Committee-reported bill, no
transfer will occur until:
key positions are filled, including the Secretary
of Homeland Security, as well as the Under Secretary for Border
and Transportation Security, and the Assistant Secretary for
Transportation Security;
the Secretary of Transportation certifies that
explosive detection systems are deployed at all U.S. airports
required under the Aviation and Transportation Security Act and
that these systems are screening all checked baggage; and
the Secretary of Transportation has certified that
a sufficient number of federal screeners, security managers,
security personnel and law enforcement officers have been
deployed at all airports where screening is required under the
Aviation and Transportation Security Act.
Achieving these security mandates prior to transferring TSA
is essential because, again, the purpose of this legislation is
to prevent terrorist attacks, not move agencies. TSA must not
be distracted by the uncertainties of an organization change
while it is fully occupied with the demanding tasks of hiring
tens of thousands of employees, and purchasing and installing
several thousand pieces of explosive detection equipment.
Moreover, at yesterday's Select Committee hearing, Secretary of
Transportation Norm Mineta made crystal clear that the
Administration will meet all statutorily mandated deadlines
included in the Aviation Security Act. Given the
Administration's commitment, the President will be able to
transfer TSA on January 1, 2003, as his proposal provides. Our
provision is a simple insurance policy.
I would also like to comment on the aviation security
deadlines imposed by Congress last November in the Aviation
Security Act, which the House adopted by a vote of 410-9.
During our Committee consideration of the Homeland Security
bill, Congressman Mica offered and withdrew an amendment to
extend the December 31, 2002 deadline for airports to deploy
explosive detection systems and ensure that these airports are
screening all checked baggage. There have been press reports
that there will be efforts to include an extension in the bill
you are considering. I, and many of my colleagues, would
strongly oppose an extension at this time. Yesterday, in
testimony before you, the Administration made very clear that
it will meet the deadline. It would be wholly inappropriate for
Congress to weaken this requirement when the Administration has
made clear that the mandate is within reach. Moreover, the idea
that the ``Homeland Security'' bill would include a provision
that would enable a terrorist to more easily get a bomb on a
plane is directly contrary to everything we are trying to do
here today.
Finally, I would like to express my sincere hope that
Congress will develop a bipartisan homeland security proposal,
working hand-in-hand with the Administration. To date, I have
been deeply disappointed in the appalling lack of cooperation
from the Administration on this legislation. The White House
has muzzled the agencies and insisted that all contact with
Congress be cleared through it. As a result, our Committee did
not receive responses to bipartisan requests for basic, factual
information--such as whether explosive detection systems are
purchased with Facilities and Equipment funding from the
Airport and Airways Trust Fund; whether the DOT's civil penalty
authority transferred to the new department; or whether the
proposed Department of Homeland Security agencies are currently
located in leased or government-owned space--until after the
Committee reported the bill. I am hopeful that as we move
forward the Administration will stop stonewalling and expecting
a rubber stamp, and begin to work with us to try to create the
Department that best achieves our common goal.
Mr. Chairman, I am also hopeful that the House Republican
Leadership will bring this bill to the Floor under an open
rule. These issues of homeland security, and protecting our
constituents, are too important to each and every Member of
this Body to limit an opportunity for a free and open debate of
these issues. Let the ``House of the People'' work its will.
Chairman Armey. The Chair will advise you I am being
advised that we may expect votes on the floor within the next
15 minutes. So with that in mind, and out of respect for this
panel's patience getting to the dais, let us try to proceed
with dispatch, and the Chair recognizes the gentleman from
Ohio.
Mr. Portman. I thank the Chair and I want to thank my
colleagues for their testimony, but more important, for the
work they put into this, not just over the last couple of weeks
but over the last several years. And you are right, you have
got about 56 percent of the people and about 56 percent of the
budget of the proposed transfer, and obviously your continued
oversight is going to be critical if this is ever going to
work, the issue provided for the Transportation Security
Administration.
I have a couple of questions. One is with regard to the
Coast Guard, and Chairman Young, I know you feel very strongly
about this agency and have worked closely with them over the
years. My question is if--and you may not want to answer
hypotheticals--but if the Coast Guard were to have its so-
called homeland security functions transferred over to this new
Homeland Security Department, and the other functions were to
be left behind, would that be preferable to you as opposed to
keeping the Coast Guard intact and moving it over to the
Department of Homeland Security?
Mr. Young of Alaska. No. In my testimony, Mr. Portman, I
believe I said that the Coast Guard has to remain intact, and I
will stress. It is my preference it stays where it is at, but
if it has to be moved, it has to be moved intact. I would also
like to suggest, and I say this as a constructive suggestion,
(It is not in my testimony). I was deeply concerned about the
flow chart the President sent to us. No way will I support the
Coast Guard reporting to the Under Secretary of Border Patrol.
I don't know where that came from. If anything, they cannot be
diminished. They have right now the right and the duty to
report to the Secretary straight on, the commandant does, and
at the least that has to occur. And I would also suggest that
as I have said, and I will say again, what we have done in this
legislation is to write the mission, and that is really what,
and my ranking member I hope will agree with me, has to be a
crucial part of your legislation.
Again, if you will look at this chart I gave you, the
funding aspect of it is just for the operating part, not for
capital improvement. We retain search and rescue, which is 12
percent of the budget and Marine safety which is 5 percent. We
retain drug interdiction, which is huge. We retain living
marine resources and make migrant interception and marine
environmental protection. Search and rescue as I mentioned. But
we also leave ports, waterways and coastal security, which is
part of their job and we leave defense readiness which is part
of their job. So if we move something, it has to be moved
intact. I am a realist. I have said before I think it is wrong,
but if you decide to do so, at least recognize what I am
asking--mission definition written by myself and other people
that know the Coast Guard and then making sure that the
missions they are historically involved in are fully funded and
they can still interface with their constituency and my
constituency.
Mr. Portman. I appreciate that. You indicated earlier that
you take some comfort in the fact that this President has
increased funding for the Coast Guard. For the first time in a
long time, the Coast Guard is getting the kind of resources it
needs. I am sure you would like to see them get even more, but
there is a substantial increase in funding, and I think
everything we are hearing from the White House is that they
understand the importance of this role.
Mr. Menendez and others have talked a lot about the
maintenance of existing nonhomeland security functions, and I
think having that mission laid out is extremely important to
being sure that in this legislation we aren't giving short
shrift to any of the existing functions, whether it is cleaning
up oil spills or search and rescue efforts.
So I appreciate the time you have put into this and the
help you have given us to be able to get to a point where this
can work well together with other border and port authorities.
Mr. Oberstar on TSA, I know you have spent an enormous
amount of time on this, you have laid out your strong view that
we ought to be sure these deadlines are met first before we
move so we don't have any disruption in what is already a very
difficult process. Some have argued that maybe we should, in
this legislation, alter some of these deadlines. They have
said, for instance, that the technology coming on board to be
able to screen baggage that would be in the belly of a plane is
going to improve in the next couple of years: and many
airports, in any case, even if we had better technology, can't
meet the deadlines.
You testified this afternoon that you believe that is
inaccurate, that we need to keep their feet to the fire, keep
these deadlines in place. Can you expand on that a little bit
in response, specifically to the suggestion that perhaps if we
did postpone some of these deadlines, new technology will
become available, smaller and more accurate machines, for
instance, can be installed--.
Chairman Armey. May I encourage Mr.Oberstar to do so
succinctly because we have others who would like to get the
questions in before we must vote.
Mr. Oberstar. I would like to, first of all, support
Chairman Young's statement about the position of Under
Secretary for the Coast Guard, that is this critically
important to the operation and communication. Secondly, on
deadlines, there is authority in existing law for alternative
means to be used if explosive detection systems cannot be
deployed in time to meet the December 31, 2002, deadline or in
the event that explosive trace detection systems cannot be
certified to meet the standard of detecting all types of
explosives.
Furthermore, as to the question of extending deadlines to
wait for new technology, let me just give you my experience as
Chair of the Aviation Subcommittee, when we were proposing that
the FAA by rule adopt the TCAS, the collision avoidance systems
for aircraft aloft, the FAA resisted, the airlines resisted,
wait for TCAS II, wait for TCAS III, it is a better system.
TCAS II will give you only vertical authority, TCAS III will
give you information to move laterally in response to an
aircraft entering your five hundred foot space.
Mr. Oberstar. They waited and they delayed and, you know,
three mid-air collisions resulted, killing hundreds of people.
This Congress enacted legislation requiring the establishment
of a rule to adopt TCAS II, with authority to move on and adopt
better technology as it comes along. But let us not let the
perfect be the enemy of the good.
Mr. Portman. Thank you.
Chairman Armey. Thank you, gentlemen.
The gentlelady from California. We have just about adopted
you to our home State in Texas.
Ms. Pelosi. Well, three grandchildren I have in Texas.
Thank the chairman.
I thank the distinguished witnesses for their wonderful
testimony, their great leadership for our country and their
wonderful proposal to this committee which I know in your mark
you will take under great consideration. I am now speaking for
him, right?
Anyway, here is what I would like to say, because I know
the hour is late and you have been patient in waiting and you
have made such a comprehensive presentation. I did want to just
call to the attention of the committee a document that Mr.
Oberstar related to me in our joint inquiry, and that is the
report on the Aviation Commission in relationship to the
Aviation Act of 1989, and I think if the members read that they
would see how prescient it was. It really laid out the steps
that we should take to protect our aviation system and our
airports specifically in relationship to terrorism.
Of course, I have been lobbying for strengthening the
Office of Homeland Security in the White House to making it
statutory instead of just existing under executive order; and I
would hope that that adviser to the President would have the
FAA strongly under his or her--in the jurisdiction that that
person coordinates in the interest of fighting terrorism.
I will share my copy, but if you have more, Mr. Oberstar, I
think it would be very instructive as we go into the markup to
see some of the documentation that you provide. It was useful
to me in the joint inquiry. I thank you for it.
Mr. Young, I thank you for your always convincing and
spoken-with-conviction testimony, and thank you both.
I have no questions. Thank you, Mr. Chairman.
Mr. Oberstar. I will be happy to provide that section of
the report for all of the members. It relates to a
recommendation the Commission made that there be established
within the intelligence community of the United States a single
unit whose role would be to gather information from all U.S.
and foreign intelligence sources and to be prospective, to
enter into the mind of the terrorist, to think ahead rather
than simply react to the last terrorist action. It was strong
recommendation by all of the members of the President's
commission that such a unit be established within the
intelligence community of the United States to be anticipatory
rather than reactive. That was never done.
Ms. Pelosi. If I may, Mr. Chairman, just to continue on
that, and we didn't go into that in our comments here, but you
have hit the nail on the head. Plans and intentions, we can do
all of the mitigation and protecting all the rest that we want,
and that is very important to reduce risk, but until we can get
into the minds of and understand the plans and intentions, we
cannot give any guarantees to the American people. Thank you
for making that point.
Chairman Armey. Thank you.
The gentleman from New Jersey.
Mr. Menendez. Thank you, Mr. Chairman.
As a member of the Transportation Committee, it has been
privilege to work with both of these gentlemen and,
notwithstanding Mr. Young's wild Alaskan wilderness reputation,
it has really been a pleasure. The committee has continued to
act in its tradition with what I consider our treasure trove of
transportation information, Mr. Oberstar, in a bipartisan way,
and I want to salute them.
Just as I have asked every other Chair and ranking
Democrat, the votes that were taken in the committee were
bipartisan on what you reported out?
Mr. Oberstar. A voice vote.
Mr. Young. Voice vote. No discussion. No dissent. It was
well done.
Mr. Menendez. In reference to the Coast Guard, the
Commandant appeared and said that about 80-some-odd percent of
the Coast Guard's missions were nonsecurity related. Secretary
Mineta came here and said it was about 60 percent. In either
case, it is well over 50 percent of their missions are
nonsecurity related.
Chairman Young, how do you see--if this committee does put
the Coast Guard as an entity into Homeland Security, how do you
see the nonsecurity missions that you so eloquently spoke about
being preserved?
Mr. Young. I would like to have, with your cooperation, the
chairman, the committee-- a role in writing the mission and
have it in the law so there is no question about what the
mission is. I mention in the chart, again, they are involved in
a great deal of security already. I believe it is about--you
know, I would say nonhome security is closer to 85 percent, but
we even cut the slack in the sense, because the White House
requested it, that we took care of those nonsecurity missions
and tried to make them whole.
I would like to suggest that what this committee should do
also--and it doesn't deter from the home security aspect of it.
In fact, it probably will add to it. It gives them some
flexibility, but it will not take away from those things that
are so crucial to our commerce and to our people. And I know
people have told me this--we will do. In all due respect, my
friends, I would prefer it in the law so there is no question
that what they will be able to do in the past, they will be
able to do in the future, and they will be funded for it.
Mr. Oberstar. And that latter point is absolutely critical.
Over the last 20 years, the Congress has designated 19 new
missions for the U.S. Coast Guard to carry out but has never
provided adequate funding for those new missions. So the Coast
Guard has continued from the time I was elected to Congress in
1974 with 39,000 personnel, and there are only a thousand or
two above that today.
They have added--we have added all these missions, kept
them at the same level. Their budget has not increased. In
fact, the Coast Guard interdicts drugs whose street value is
greater than the budget of the Coast Guard.
So if you are going to ignore the recommendation of our
committee, then be sure in transferring that you increase the
personnel to handle whatever the homeland security role is
envisioned to be for the Coast Guard and recommend an increased
budget to handle that additional role as well. If they are
going to board merchant vessels 24 hours before they arrive at
the U.S. port because they are vessels of concern, that they
need additional people to do that, because the Coast Guard
shifted about a third of it people from search and rescue where
they save 3,000 lives a year to boarding vessels and monitoring
vessels of concern.
Mr. Menendez. I think, Mr. Oberstar, you and the chairman
give us some insights into the concerns of the committee. This
is not about turf that some would like to suggest that it is.
This is about some very serious missions that already have
suffered because of the nature of the obligations the Coast
Guard has now more significantly undertaken.
Secretary Mineta sat here before us. I asked him a yes-or-
no question. Has the Coast Guard been doing a bad job of
securing the United States in the territorial war? He said, no.
I said has he been doing a good job? He said, yes.
So it is been doing the job, but it is clearly diminished
in terms of its capacity, considering all of the functions. I
think that is what the committee's significant concern is
about.
Lastly, before my time runs out, Mr. Oberstar, TSA, as I
understand the committee's amendment, it basically says we are
not stopping the transfer of TSA. We are trying to ensure that
TSA, as an infant agency, will succeed by making sure that the
senior leadership of this new homeland department exists in
place, that in fact screeners are deployed and, lastly, that
the detection devices are employed.
I asked Secretary Mineta, well, why would the
administration not accept that, because it--and he said they
are going to meet all the deadlines, period, was his point.
Without reservation. If that is true, can you see any reason
why this committee should not accept the amendment of the
Transportation Committee as it relates to the transfer of TSA?
Mr. Oberstar. You have understood the legislation of our
committee brilliantly.
Chairman Armey. The chairman must call the gentleman from
New Jersey and--.
Mr. Young. If I could make one comment, Mr. Menendez.
Chairman Armey. One short comment.
Mr. Young. One of the other things I mentioned in my
statement, I still suggest under the President's chart to make
sure that those missions can be accomplished, that the
Commandant reports directly to the new Secretary if it is to be
transferred and not to the Under Secretary of Border Patrol.
Chairman Armey. Thank you.
The gentlelady from Connecticut.
Ms. DeLauro. Thank you very much, Mr. Chairman.
Let me say thank you to my colleagues for your vast
knowledge in this area and your thoughtful process in going
through this. Mr. Oberstar, your historical perspective is
always awesome; and, Mr. Young, I have had the opportunity just
recently, as you know, to visit the wildlands of Alaska and
your state is truly beautiful.
Let me ask a question with regard to FEMA. You have
recommended keeping FEMA as a separate agency but it would
coordinate with DHS in the event of a terrorist attack. How do
you think that moving FEMA into the Department of Homeland
Security would affect our ability to respond to hurricanes, and
other natural disasters, and how do you envision the FEMA-DHS
coordination being carried out?
Mr. Young. Well, it is our opinion FEMA is very parallel to
the Coast Guard. They have a lot of characteristics as far as
their mission, and if the mission is properly spelled out in
law, I don't think there will be that much difficulty and I do
think they will cooperate. FEMA has responded immensely well in
the last 8 months to floods and actually the World Trade
Towers, et cetera.
I just worry again about them being absorbed into a new
agency and being swallowed in and redirected into supposedly
what is the mission of the homeland security and not what we
originally intended them to do. I do think they can coordinate.
I do think they will cooperate, and I still think they could be
able to respond immediately to the disasters that occur every
day. If they are not able to do that and they are redirected
over here to watch out for bole weevils coming out of some
other country close by that has been imported by a terrorist,
then I think we have got some problems.
Mr. Oberstar. If I might supplement the chairman's splendid
response, FEMA started out as the Civil Defense Agency and then
moved into--as the Cold War wound down, assuming a broader
responsibility as our Nation's premiere disaster assistance and
response agency. To move it into this new Department of
Homeland Security without a clearly defined homeland security
role is, in my judgment, a mistake.
We have not seen a delineation of what is homeland security
compared to response to floods, hurricane, blizzards,
earthquakes, tornados. You know, when your home is under water
up to the eaves, are you going to wonder, where is FEMA? Are
they on some mission looking for terrorists, or are they going
to be on a mission looking for your lost children and rescuing
you from the rooftop of your home?
Ms. DeLauro. Let me ask two very quick questions. With
regard to TSA, if they did meet all of their deadlines, are you
confident that moving TSA to the new Department will enhance
our homeland security?
Last question is, if your recommendations are not included
in the bill that is reported out, would you expect to have the
opportunity to amend this legislation on the floor?
Mr. Young. I am hoping that this committee does what I
think is correct and listen to every chairman and draw a bill
that we can all possibly support. I have told people publicly
and privately that if what we suggest is not in the bill, then
we expect to be able to offer amendments to make that part of--
and I would suggest respectfully my leadership knows this, that
I do not take this task lightly, nor do you. We are going to
try to do what I think is right for homeland security but also
make sure that we are able to be involved all of the way
through the construction of this legislation, especially in the
definitions and writing of the mission.
Mr. Chairman, before I finish, I would like to suggest one
other thing. In my written testimony, please remember about the
purchasing of property and setting up property for this agency.
Under our recommendation, GSA, we believe, is the proper agency
to do so, but it is transferred over to Homeland Security. But
right now you don't have a place to put this agency. There is a
recommendation Mr. Oberstar has. I believe it is St. Elizabeth
property there. But don't let this get bogged down, and if this
becomes a reality--it was a part of the testimony I didn't--.
Mr. Oberstar. I concur with the chairman. We ought to be
able to offer an amendment. The amendment should be made in
order under the rule if you do not concur in our committee's
recommendations to offer an amendment on the floor to propose
and let the House work its will on our proposal.
Secondly, you do have to have a place for these agencies.
You can't have them under a tent on the mall somewhere, and
one-third of the cost of establishing a new department is the
land cost. The government already owns the St. Elizabeth's land
which already has the appropriate setbacks, 131 acres, and you
can easily establish the new facility right there.
Ms. DeLauro. If it meets the deadline for TSA.
Mr. Oberstar. And it is already in Federal ownership, in
GSA's ownership.
Ms. DeLauro. The last part of my question was, if TSA meets
all of its deadlines, should--in your view, will moving that
agency to the new Department enhance our security?
Mr. Oberstar. Well, I don't know if it is going to enhance
security. Let us hope it won't--.
Ms. DeLauro. Suppose if the corporations can plead the
fifth--.
Chairman Armey. Let me recognize myself, and let me just
advise the committee we will soon complete our work with this
panel, and the committee will recess until 5 minutes following
the close of the last vote in a series of votes. It is the hope
and the intention of the chairman that we would complete our
work with all of our witnesses invited for this day before we
conclude tonight. So we will come back and hope to drive to a
conclusion.
Now, having made that point, let us, gentlemen, see if
there are a few things we have, I believe, universal agreement
on.
Irrespective of whether the Coast Guard stays where it is
or is moved, we all agree that Coast Guard should not be broken
up. There is no question in anybody's mind. All of the
functions carried out by the Coast Guard are carried out by
personnel and materiel specifically trained and designed for
the versatility that is required for it to fulfill all its
missions, oftentimes by just moving smoothly and seamlessly
from one assignment to another as the need arises, and we all
agree on that.
I think we have fairly clear agreement that we should
respect the enormous opportunity, especially where real
property is concerned, to use the services, the expertise of
the GSA. I think there is universal agreement.
The other points that I would make would be points that
relate to a debate between us regarding our differences, and I
am confident there will be ample time to have that debate, a
better opportunity for that debate. So why don't I just defer
now and look forward to that greater opportunity to debate
these fine points where we can all display our rhetorical and
debate skills at a time when indeed it makes the difference.
Mr. Young. I thank the chairman, Madam Chairman.
Chairman Armey. The committee stands adjourned until 5
minutes following the close of the last vote in a series of
votes on the floor. Without objection.
[Recess.]
Chairman Armey. The committee will come to order.
The chairman sees the distinguished chairman of Ways and
Means, and I have been advised that the ranking member, Mr.
Rangel, will be unable to be here today. So, Mr. Chairman,
without objection, Mr. Rangel's statement will be included in
the record.
Chairman Armey. We will open with your statement. We will
put your formal statement in the record, and whatever comments
you would like to make before the committee, and then we will
follow that with questioning under the 5-minute rule.
STATEMENT OF THE HONORABLE WILLIAM THOMAS, CHAIRMAN, COMMITTEE
ON WAYS AND MEANS
Mr. Thomas. I thank you very much, Mr. Chairman.
It is true the change in the homeland security provision
that is in the jurisdiction of the Ways and Means Committee
passed the committee 34 to 3; and given the lateness of the
hour and the other commitments, Mr. Rangel indicated to me that
he was perfectly satisfied with me representing the committee
on this question.
One of the things that the Ways and Means Committee
attempted to do in looking at those provisions of homeland
security under our jurisdiction is to take note of the fact
that only the Ways and Means Committee has the initiating
capability on the question of revenue; and to underscore how
long the Ways and Means has been dealing with Customs, we had
before us presented by the Library of Congress the fifth bill
ever passed by the first Congress. That was to create the
Customs Bureau. The fifth bill creating the Customs Bureau
implemented the first bill ever passed by the United States
Congress, the Tariff Bill of 1789. Since that time, the line of
control and jurisdiction has been in the Treasury Department to
the Committee on Ways and Means.
Oftentimes people are not aware of the level of activity
and the relationship between the Ways and Means Committee and
Customs. In the 107th Congress, for example, up to this time
more than 578 bills dealing with Customs have been introduced.
We understand the importance of creating a seamless
presentation at the border, one of the fundamental goals of the
homeland security approach. We understand the difficulty with
the myriad jobs associated with the border.
My previous committee assignment when I first came to
Congress was on the Agriculture Committee. As a member from
California, I spent a great deal of time working with the
Animal Plant Health Inspection Service, It is a monumental
task.
The Ways and Means Committee does not want to be an
obstacle in making sure that to the best of our ability we can
create a seamless organization. We do, however, feel very
strongly about not moving the entire Customs structure--because
we are willing to move the entire Customs structure, and
should, into Homeland Security--but for that portion which is
about 25 percent of the current total number in Customs who
deal directly with trade and revenue, a very specialized niche,
if you will, we would very much like to see those, as our
legislation indicates, still tied to the Treasury Department.
That the Commissioner of Customs be Senate approved, but,
understanding the difficulty in dealing with that, we did in
the legislation say that Treasury could delegate to Homeland
Security the coordination of that, about 25 percent of the
staff, to create that larger seamless structure.
So what we did was say, yes, the entire Customs Service can
be transferred. We identified those only very narrowly dealing
with trade and revenue, the jurisdictional scope of the Ways
and Means Committee, to maintain that traditional tie through
Treasury, but we did say that Treasury could delegate
significant work-related or other aspects to Homeland Security.
And that one final provision, since we are down the road in
a long and difficult process of creating a computerized system
that will maximize our commercial commerce capabilities, a
computer system called ACE, in which the Customs merchandising
and processing fee would be directed to paying for that system.
I understand the difficulty in creating a system which
blends all of the Homeland Security Departments in place, but
this has been a project that is very near completion. It is a
quality program. It has been paid for by private sector
dollars, and we believe in a bipartisan way it would be a shame
try to move in a different direction. So that was one area we
wanted to see a completion of the funding process over; and in
testimony not in front of the committee but in discussions with
Governor Ridge on a bipartisan basis, they indicated that it
was likely that the cornerstone of the new Department's
architecture on computers would, in fact, be the ACE system.
That is the sum and substance of the modifications we
propose to make, maintain a historical and important
relationship in the area of trade and revenue.
Chairman Armey. I want to thank the chairman.
[The statement of Mr. Thomas follows:]
PREPARED STATEMENT OF HON. BILL THOMAS, CHAIRMAN, COMMITTEE ON WAYS AND
MEANS
Mr. Chairman, thank you for the opportunity to testify before you
and the Select Committee today. Let me begin by recognizing the work of
President Bush and the importance of this legislation to the safety of
the American public.
For more than 200 years, the U.S. Customs Service has been on the
frontline supporting and defending our nation. The requirement to
generate revenue for this country through Customs duties, which was the
very first Act of Congress, was the primary reason Customs was
established in the fifth Act of Congress as the first Federal agency of
the new Republic. This function is still important today as
demonstrated by the fact that Customs collects over $20 billion of
revenue.
Today, under the authority of the Department of the Treasury,
Customs enforces well over 400 provisions of law for at least 40
agencies. In addition to collecting revenue, Customs safeguards
American agriculture, business, public health, and consumer safety and
ensures that all imports and exports comply with U.S. laws and
regulations. Unlike other agencies that are being transferred, the
Customs Service has several unique characteristics:
1. The Customs Service is a revenue-collecting agency with
significant trade facilitation functions--the only revenue
collector proposed by the Administration to be moved to the new
Department.
2. A significant portion of the Customs Service's budget is
funded from user fees paid by importers that by domestic and
international law must be used only for specific commercial
operations.
3. Substantial portions of the Customs Service's trade work are
very technical. The work requires professionals with legal and
regulatory skills that are unlike border security skills.
For these reasons, the Ways and Means Committee, by a strong
bipartisan vote of 34-3, recommends that the Select Committee on
Homeland Security recognize the unique mission of the Customs Service
and adopt its amendment to H,R, 5005. The Ways and Means Committee
agrees with the fundamental basis of the President's proposal to
transfer Customs assets and personnel in their entirety to the new
Department and rejects the option of carving up the Customs Service
into commercial and non-commercial elements. Instead the Committee
seeks to identify and prevent further reorganization or reductions in a
closely defined core group that performs trade facilitation and
revenue-collection functions. The overarching goal of the Committee is
to give the new Department the tools it needs to protect our borders
while at the same time ensure that revenue continues to be collected
and that goods keep moving across the border with little delay. The
Ways and Means Committee is confident that the proposed changes do not
interfere with the new Department's missions but will enhance its
effectiveness, Our bipartisan amendment:
1. Transfers the Customs Service in its entirety to the
Department of Homeland Security Division for Border and
Transportation Security.
2. Identifies revenue-related offices and functions within
Customs (about 25% of the agency) and prohibits reorganization
or decrease in their funding or staff or reductions to Title V
pay and benefits levels.
3. Requires that adequate staffing of customs revenue services
be maintained, and requires notice to Congress of actions that
would reduce such service.
4. Maintains the Commissioner of Customs as Senate-confirmed.
5. Transfers all authority exercised by Customs to Homeland
Security with the exception of revenue collecting authority,
which would remain at the Treasury Department. Treasury may
delegate this authority to Homeland Security.
6. Specifies that a portion of the Customs Merchandise
Processing Fee must go to build the new Customs computer, which
Governor Ridge has told us will likely be the cornerstone of
the new Department's architecture.
Chairman Armey. At this time, the Chair recognizes the
gentleman from Ohio.
Mr. Portman. Thank you, Mr. Chairman.
It is like deja view all over again since we have been
through this already in a very thoughtful and I think
appropriate process through the Ways and Means Committee where
we brought the Customs Service in, brought Treasury in, and
talked to people from the outside.
I appreciate, Mr. Chairman, working with David Kavanaugh,
who has been great, and your other staff to come up with what I
think is a good way to combine these two needs. One is to
assure that we have the most effective border security possible
which must, in my view, include the Customs Service working
seamlessly with these other agencies we have talked about
earlier today, but, second, respecting and acknowledging the
unique function of Customs to collect revenue and to ensure
that we have efficient trade flow which is important to our
economy.
So I think the solution works, and I would really not have
any questions for the chairman, except to commend him for
working through this and spending the time necessary to come up
with what I think is a good solution.
Mr. Thomas. I thank the gentleman.
Chairman Armey. The gentlelady from Connecticut.
Ms. DeLauro. Thank you very much, Mr. Chairman.
Thank you very much, Mr. Thomas and Mr. Chairman, for being
here.
My understanding is that what the committee has agreed to
is to take Customs to the new Department. Treasury would retain
a statutory authority over collecting revenue and Trade Act
enforcement. Also my understanding--and correct me if I am
wrong--currently, Customs is only able to screen than 2 to 3
percent of the large cargo containers that enter the United
States, and that leaves us vulnerable to the importation of a
number of threats from abroad.
Is it your view that moving Customs into the new Department
will improve performance, and do you think that Customs has
adequate resources to inspect products coming into the United
States? And, if not, what further recommendations would you
make to help Customs execute their mission?
Mr. Thomas. There is always a question of do you have
adequate resources to do the job. The problem is that over the
years in defining these various jobs, because they have been in
separate areas, there is a significant degree of duplication.
If I told you there were Customs officers in airplanes
flying over Peru for interdiction of drugs, you would say, wait
a minute, that is not Customs. But in fact there are folk who
do that, so I do think there is this synergy that is very
positive by pulling together in this new agency all of these
border activities.
As we said, 75 percent of the employees aren't directly
involved in the narrow area that we are most concerned about.
Our hope is that, as we preserve the hours and wages, title V
aspects of these particular individuals and we get the computer
up and running, we can be far more productive in what we have
been doing, but that it will always be a fight, frankly, to get
adequate revenue to do a good job at our ports.
It is one of those areas I am sure the gentlewoman from
Connecticut is familiar with, in which as long as nothing
happens they are invisible, and the only time they really get
publicized is when there is a mistake.
It is hard to keep attention on how important that trade
aspect is. For example, on September 11th, very few people
realized the volume of, quote, unquote, just-in-time automobile
parts that come from Canada to the United States until they
shut the bridge down. And our concern is that those trade and
revenue functions are maintained harmoniously with the
security, and that if you place security over those, security
would trump trade every time.
We always need more resources. We are continuing to fight,
but one of the ways you can get more with the same amount or
slightly more is to integrate, be more productive. That is what
we are really advocating. Move it over there, but give them the
modern computerized capability of not slogging through
paperwork but by structuring it in a way that we can use modern
computers to do more.
Ms. DeLauro. Let me just quote, if I might, Mr. Chairman,
Protecting the American Homeland. This was a recent study that
was done by the Brookings Institution.
They are concerned with the high-risk containers and the
Customs inability to screen more than 2 to 3 percent of large
cargo containers, and they took the threats seriously enough to
warn--and this is a quote--``a doomsday scenario attack on the
maritime industry using nuclear devices concealed in a shipping
container could cause damage and destruction costing the
economy as much as $1 trillion.''
Let me just get your, impressions of that and your response
to that effort.
Mr. Thomas. One of the things we can do by integrating
certain portions of Customs with Homeland Security is to focus
on security. Now here I have just--sounds like I am
contradicting myself, so let me finish the statement.
By focusing on security, you would be able to get money
that you wouldn't be able to get if you were focusing on trade
only. But what we have, for example, new devices coming along
which allow us on these large cargo containers, trucks and
others to take an x-ray--not just an old-fashioned x-ray but a
very detailed x-ray in which, for example, some of the models
that I saw showed that behind the cargo, when you opened the
back of the doors, it looked like cargo. Up front there was a
stolen car. But not only from this quick scanning could you see
there was a car. You could see what was in the trunk of the
car, which was additional stolen items that had been loaded
conveniently in the car.
The capability of screening these rapidly for security
reasons allows us also to facilitate much more effectively the
trade aspect. So, in that area, we want full utilization. But,
as I said, 578 bills in this Congress alone dealing with
tariffs, trade and that narrow group who have the expertise to
assess, in our opinion, really does need to have that continued
tie to Treasury, notwithstanding the delegation at the border.
So those of us who have been fighting to get some money for
Customs and others actually like the idea that we are now using
security, because people will lay a dollar on the table to
create an x-ray machine for security purposes they would never
do for trade. So I do think there is some positive synergy by
putting these together. We are only asking that you do it in a
thoughtful and understanding way for that small group of
specialists who do hang onto the trade and revenue function.
Ms. DeLauro. Thank you very much, Mr. Chairman.
Chairman Armey. Thank you.
The chairman is taking great pleasure in realizing, having
had an earlier Texas moment for the committee, we should now
have a California moment by recognizing Ms. Pelosi.
Ms. Pelosi. Thank you very much, Mr. Chairman.
Thank you, Mr. Chairman, for being here and for your
testimony.
When the Secretary of the Treasury was here and we were
talking about the cost of establishing this Department, he
thought it didn't have to cost too much. He said, for example,
in terms of the Customs, there is no reason I could not still
be Custom's landlord and just change the sign on the door, or
words to that effect. Do you agree with that? Do you think that
that is sufficient in terms of bringing Customs under the
jurisdiction of the committee?
Mr. Thomas. I do, and let me say that I do enjoy this
California moment. Given the makeup of the Select Committee, we
can only do it very seldom, as opposed to how many times you
can share a Texas moment.
Ms. Pelosi. Oh. I am surrounded with Mr. DeLay, Mr. Frost,
and then we have Mr. Hall.
Mr. Thomas. Because we are only talking about roughly
currently one-quarter of the personnel who are involved in what
we believe to be these critical areas, we have asked that the
pay and the work conditions that we have outlined under title V
be carried with these folk. There is no reason to jerk them
around on the pay scale structure or anything else.
It is the core function of Customs, but because so much has
been expanded, it in part even is ignored under the current
structure.
Another thing is our desire to have the Customs
Commissioner approved by the Senate. That gives them some
ability when there is this inevitable decision between security
and trade to have standing to be able to make the argument that
there should be doubt.
Since they are already doing it anyway and we are moving
all of those other functions over to Homeland Security and they
would be assigned under the Homeland Security, all they are
doing is changing dotted lines on a flowchart; and whatever
that cost is, basically, what it is that we would be doing,
because we do retain that authority that has been there since
the beginning of the Republic in 1789.
So I agree completely with the Secretary. There shouldn't
be any real costs involved. There may be some physical moving
costs, but those go on all the time.
Ms. Pelosi. Since you brought up the subject, I want to
pursue your distinction between the 25 percent of the Customs
workers and others.
When the Secretary was here, he couldn't stay very long, so
we had to submit some questions for the record. One of the ones
that I did was to say that you all, the Ways and Means
Committee, reported out a bill that protected the pay and
benefits of a select group of Customs employees--revenue
experts, attorneys, et cetera. These employees represent about
25 percent--I assume it is the 25 percent you are talking
about--of Customs workers. But the select Customs employees'
benefits still do not enjoy assurances that their title V
rights and protections--the right to bargain collectively,
whistle-blower, anti-discrimination, pensions--will continue.
Can you clarify on that, Mr. Chairman? Are they included
under--.
Mr. Thomas. What we tried to do on the Ways and Means
Committee was stay within the committee's jurisdiction. We
found that we are very pleased with our jurisdiction, and if
everybody stays within their jurisdiction, we will stay
pleased. If we try to go outside our jurisdiction, others then
will try to go outside their jurisdiction. And although we were
borderline in getting outside of our jurisdiction on the pay
conditions that we outlined that are under title V, had we gone
on and added collective bargaining and all of those other
areas, not to say that we didn't kind of by implication say
that maybe they should be left alone, but we clearly would have
been outside our jurisdiction, and we could have been called
down by other committees quite properly.
So what we tried to do was to convey the idea that the 25
percent that we think ties to trade and revenue should be
retained, and not just the personnel but the working conditions
and the environment that they find themselves in today should
be retained as well. But had we--repeat myself. Had we moved to
the title V point by point, we clearly would have exceeded our
jurisdiction.
One of the things that I think gave us a 34 to 3 vote in
the committee was basically that we decided to be very prudent,
very cautious and deal with solving our problem and not
throwing ourselves around and saying this is as good as
anything and it should be moved over wholesale. If all the
committees did that, what you would have would be a
compartmentalized new Department that would never provide the
kinds of seamless structure we are looking for. But we felt
strongly enough in this particular area.
Ms. Pelosi. Well, I appreciate your doing that in your
bill; and your testimony here today then is to infer from your
remarks, that the conditions and climate in which they worked
would have included title V benefits.
Mr. Thomas. Well, we included those that we thought were
appropriate, and obviously the committee is going to make that
decision. It seems to me if we want to keep these people
preserved as much as possible that we should leave them as they
are as much as possible.
Ms. Pelosi. Further, the remaining 75 percent of Customs
employees do not have any assurances that their pay benefits,
rights and protections that they currently enjoy will remain
with them. Can you speak to that point?
Mr. Thomas. Had we done that, what we would have been
saying was, okay, you can move Customs from Treasury to
Homeland, but you can't rearrange, restructure or do anything
with them. And that really then I think defeats the purpose of
what we are trying to do, because there are many of those
Customs officials--I don't know if you were here when I
responded, that there are people who do jobs you would never
guess they are in Customs.
Ms. Pelosi. I was.
Mr. Thomas. Based on the core of what we do and for us to
say that those people can't reasonably be integrated into a new
structure I believe, one, it is not true because I think they
can, given the jobs they are doing; and then, two, if we said
you can't touch them in any way on any reorganization, we are
defeating the purpose of what we are trying to do.
So to strengthen the committee's ability--and we had this
discussion in committee, and I think the 34 to 3 vote--you need
to know that nothing has ever passed unanimously out of Ways
and Means. So I keep emphasizing 34 to 3, and people say, gee,
there were three dissents. That is very, very good for us.
The point that I am making is, to maximize the chance to do
what we think was most essential, we had to narrow the scope of
the kind of dictatorial legislation that we would send to this
committee.
Now, if you ask me, do I think they are hard-working people
who ought to retain their current privileges? Yes, I think they
should. But as you create this new structure, other people are
coming from other areas of the government who have a lot of
those title V or all of the title V protections as well, and
you are going to get a restructuring for those employees. It
isn't that we want to dump all that out. We just didn't think
in dictating that we would have made a stronger message about
how important we believe it is to keep those core functions
together.
Ms. Pelosi. I appreciate that. My time has expired. I will
just say that we are talking here not about their job
responsibilities but their pay, benefits, rights and
protections and--.
Mr. Thomas. I agree with you that all of that should be
looked at, but were we to make those statements about those
people we didn't include as the core, I think we would have
been making a statement that would have been less defensible
than the one I am making to you now.
Ms. Pelosi. Thank you very much, Mr. Chairman.
Thank you, Mr. Chairman.
Chairman Armey. I thank the gentlelady.
The Chair recognizes--I guess the Chair recognizes himself.
The gentlelady from Ohio was here a minute ago.
Mr. Chairman, it is my understanding that you and the
Secretary of Treasury, working in consultation with the White
House, have come to a fairly complete agreement on this and
that that agreement was pretty much endorsed by your committee,
as you said, with a near unanimous vote.
Mr. Thomas. There are some areas where the administration
would prefer that we approach our solution differently. We
continue to work with them.
For example, they don't believe that the Customs
Commissioner should retain Senate approval. If they simply
become a line officer, notwithstanding the tie to Treasury,
they don't have the ability to point out the ability--the
reasonableness of treating trade equally with security in
particular areas. We think that is important.
In other areas, for example, we currently have a
requirement where changes are made that we retain oversight. If
you are going to have the ability, you need oversight.
They want to shrink the 180 days to 30 days and only deal
with permanent changes. If in fact you have nonpermanent and
permanent, you know as well as I do that there will be no
permanent changes. There will only be nonpermanent changes. And
if they shrink the review period to 30 days, all we are doing
is being told what changes are being made.
If you are serious in trying to retain this 200-plus-year
relationship, you need to have the oversight capability. We
want to retain the 180 days on not permanent and permanent so
we can carry out our oversight function.
Those are the kinds of discussions that we continue to
have. It seems to me those are on the margin, and they become,
to a certain extent, stylistic. If the core structure is agreed
to, i.e., trade and revenue retaining its relationship with
Treasury, we feel quite strongly on a bipartisan basis.
Just let me say one area that also would be complicated if
you didn't do that, it has to do with committee jurisdiction.
It wasn't the reason we did it, but it could cause real
problems if you simply moved it over. It is hard enough with
one committee having the revenue jurisdiction. If you create
two or three committees that now believe they have a pot that
they can legislate in for revenue purposes, that is something
that will be very hard to put back in the bottle.
Chairman Armey. I appreciate the gentleman's point there
and the tradition, the constitutional requirements regarding
revenues raised--and origin of such measures in the House is
something that this House protects, and this committee will
honor that need to protect that constitutional requirement.
Mr. Thomas. In the House, it is the Ways and Means
Committee that has had it for 200-plus years, and we would just
kind of like you to continue the comment of continuing the--.
Chairman Armey. The--.
Ms. Pelosi. Will the gentleman yield?
Chairman Armey. Oh, sure, be happy to.
Ms. Pelosi. I am reminded of a question. Chairman Tauzin
and Ranking Member Dingell spent a good deal of their time on a
regulatory provision that they recommended that they had in
their committee report to us, and basically I think of it as
sort of like Amendment 10 of the Constitution in terms of any
regulatory functions that are not specifically moved with their
encompassing duties to the Homeland Security Department are
retained by the original Department. Is that something--.
Mr. Thomas. I don't feel as strongly about that as perhaps
they did. Because in our careful analysis of how we would deal
with what were the core functions of Customs, we feel fairly
comfortable that in the bipartisan analysis, the way we have
structured it, we are content with moving everything else. If
we retain the structure that we have asked for--now if you
alter that structure, we would have to go back and reexamine,
but we are looking only at the narrow technical trade and
revenue tie, keep it to Treasury.
Treasury can delegate to Homeland Security where there
seems to be a potential conflict--the Customs Commissioner
approved by the Senate--and that that tie is through Treasury
to the Ways and Means Committee.
The other 75 percent can very easily be merged with clearly
their rights and responsibilities as employees under the
Federal Government into a much better, seamless structure and
not cost that much more, if any at all, in the benefits gained
by doing that.
Ms. Pelosi. I am sure the chairman will be pleased to know
that they only made this recommendation for those agencies
under the jurisdiction of their committee but said we might
suggest it for others, but they were only speaking to those
under their jurisdiction.
Mr. Thomas. I appreciate the gentlewoman, but that means
there is, without fully understanding it, some commitment of a
vestigial tie that you are not quite clear of, that when you
try and do something it comes up and bites you, because
somebody says, remember the reserve clause, and that is, if we
didn't mention it specifically, it is prohibited. I think
oftentimes in these kinds of line-item relationships, we
shouldn't use the constitutional model. That is, if it isn't
mentioned, it isn't covered. I prefer the other one, that if
you don't mention it, it is covered the other way, because
otherwise you have an endless list that you have to make sure
you find. So to make a choice, I prefer the Ways and Means
model.
Ms. Pelosi. That was not their analogy. That was mine. So
don't let me mischaracterize the thrust of that. I will take
that admonition as my own and not theirs.
Thank you, Mr. Chairman.
Thank you, Mr. Chairman.
Chairman Armey. Mr. Chairman, we want to thank you again.
Thank your committee for your good work. Outstanding as usual
for your committee.
And this committee is happy to dismiss the witness.
Mr. Thomas. Thank you very much, and all we ask is that, if
you look at what we offered, we believe it was appropriate,
reasonably circumscribed and that it in fact does enhance the
overall ability of the new agency to function without
diminishing the historical and important ties that we have in
this area.
Chairman Armey. Thank you. Very well put.
Mr. Thomas. Thank you very much.
Chairman Armey. The Chair recognizes the Comptroller, Mr.
David Walker, Comptroller General.
Mr. Walker, without any objection by the committee, we
would put your written statement in the record. We would invite
you, Mr. Walker, to give your statement to the committee; and
then we would proceed to questions under the 5-minute rule.
I might just say, Mr. Walker, every good team knows that it
saves its best hitter for cleanup; and we are here to welcome
you here tonight as our cleanup hitter.
STATEMENT OF THE HONORABLE DAVID WALKER, COMPTROLLER GENERAL OF
THE UNITED STATES, GENERAL ACCOUNTING OFFICE
Mr. Walker. Mr. Chairman, Ranking Member Pelosi, Mr.
Portman and other members of the committee, thank you for the
opportunity. I realize that I am the cleanup hitter, and I am
probably standing between you and dinner, so I am going to try
to summarize this in about 5 minutes and then open it up for Q
and A, if that is all right.
It really is a pleasure to be here to talk about this
incredibly important topic at this time in our country. We at
GAO believe that in creating any new department, special
attention needs to be given to the strategy, criteria and
priorities that are critical to this Nation's efforts to defend
and protect against terrorism.
As you know, Mr. Chairman, the President's national
homeland security strategy does provide for a proposed
definition of homeland security, which should help the
government to more effectively administer, fund and coordinate
activities both inside and outside the new Department and to
assure that all parties are focused on the same goals and
objectives. We believe it is critically important that the
Congress and the administration, reach agreement on an
appropriate definition for homeland security, because that is
fundamental to everything else that will have to be done in
this area.
Congress may want to provide also a statutory basis for the
Office of Homeland Security in order to effectively coordinate
activities beyond the scope of the proposed Department of
Homeland Security and to assure that reasonable congressional
oversight can be conducted.
Often, as it has in prior years when the government has
consolidated a number of areas, it has taken years to
ultimately achieve the objective. As you know, Mr. Chairman,
when the Defense Department was created in 1947, the Congress
subsequently in 1949, 1953, 1958 and 1986 made a number of
adjustments to that statute in order to make necessary
improvements over time.
At the same point in time, we all recognize when you are
creating a department of this size, you try to get it as good
as you can coming out but it won't be perfect. You may have to
make adjustments down the road, but it is going to be a major
undertaking and it may take years to effectively achieve. In
fact, over 50 years after the Department of Defense was
created, DOD has 8 of 24 high-risk areas on GAO's high-risk
list.
So we believe it is important for you to try to balance,
which I know you are trying to do, the urge to do it quickly
and the related sense of urgency with the need to do it right.
In that regard, GAO has developed a framework that
hopefully will help this committee and the Congress to be able
to make the decisions about what should be in, what should be
out, but, more importantly, whatever you decide to be part of
this new Department of Homeland Security, how to effectively
implement it. The key to success will be the leadership and
effective implementation.
On Page 7 of my statement we outline the major criteria and
I am not going to cover them here, Mr. Chairman. The ultimate
effectiveness of the new Department will be dependent upon
successfully addressing a range of key implementation and
transition issues. Clearly, the right leadership will be key,
and it is not only leadership from a policy standpoint. It is
operational and management leadership as well. The
transformation and transition challenges associated with this
new Department will be huge, and we cannot ignore, the key
management challenges.
My experience in the public and private sector, Mr.
Chairman, has shown, that to effectuate a major merger,
transition and transformation will take, on average, to make it
work and to get it to stick, 5 to 10 years. Therefore, we
believe it is critically important that Congress consider
creating a Deputy for Management, a chief operating officer who
would have the primary responsibility for focusing on those
critical transition and transformation efforts that are
important irrespective of who the President is, irrespective of
who the Secretary is, and irrespective of who the other key
policymakers are.
I note that the Government Reform Committee has suggested
the elevation of what the administration proposed as an Under
Secretary of Management to the Deputy Secretary for Management.
In other words, there would be two deputies. We would
respectfully suggest that, in addition to that, the Congress
would want to consider making that position a term appointment
for 5 to 7 years because of this need for continuity and
consistency; and, in addition, you may want to consider
subjecting that individual to a performance contract to try to
achieve specific results. This is a concept that has been used
in other countries such as New Zealand with some success, and
we think it may have particular application here.
We also suggest Congress may want to make sure that the new
department is subject to the basic management reforms, such as
the Government Performance and Results Act, and the CFO Act. I
know, Mr. Chairman, you championed a number of these acts; and
I think it is important that the new department be subject to
these as a baseline of accountability and transparency for the
Congress and for the American people.
The President's proposal does include a set of human
capital and management flexibilities for the new Department.
GAO does believe that it is reasonable for certain flexibility
to be granted to the new Department in such areas as human
capital, provided that they are accompanied by adequate
transparency and accountability mechanisms to safeguard against
abuse.
In that regard, Congress in some cases may not decide to
provide all of the flexibilities that the administration seeks.
We believe that some are appropriate, but if Congress decides
not for some reason to provide some of these flexibilities,
Congress may want to consider a mechanism by which it would
give expedited consideration to flexibilities that the
administration may seek in the future if you don't provide them
up front.
The administration has suggested that it needs a special
grant of budget flexibility for the Department of Homeland
Security. GAO believes the Congress should be careful to
distinguish between those flexibilities that will solely
enhance the operations of DHS versus those that might
simultaneously raise other concerns, including concerns about
constitutional responsibilities and prerogatives of the
legislative branch.
The creation of this Department will clearly be the largest
reorganization that has been undertaken in over 50 years. A
comprehensive transition plan is critical. We need a plan of
action to be able to guide this. That is critically important;
and we need to be able to use that as a basis for Congress to
engage in periodic oversight, because Congress will have a
critically important role to play in order to help to assure
the success and the successful implementation of this effort.
Clearly, there will be some increased cost that we believe
will be incurred as a result of this transition and
transformation. As Secretary O'Neil has testified, over time I
think it is clearly reasonable to expect that there will be
economies, efficiencies and effectiveness enhancements that
will and should be achieved through this merger, through this
consolidation, through this transformation. But, realistically,
that is going to take time; and there will be incremental costs
and risks that will be incurred in order to make this a
reality.
In summary, Mr. Chairman, as I discussed, this is a major
undertaking of critical importance to our country. The single
most important element for successful reorganization is the
sustained commitment of top leaders at the top and to make sure
that we focus on the people strategy. People are the key to
successful transformation. We need to have modern, effective,
and credible human capital strategies, reasonable flexibilities
with the appropriate safeguards. That will make the difference
between success and failure, because, in the end, it is
implementation that counts.
Thank you, Mr. Chairman.
Chairman Armey. Thank you, Mr. Comptroller general.
[The statement of Mr. Walker follows:]
PREPARED STATEMENT OF HON. DAVID A. WALKER, COMPTROLLER GENERAL OF THE
UNITED STATES, GENERAL ACCOUNTING OFFICE
Mr. Chairman and Members of the Select Committee:
Thank you for the opportunity to appear before this Select
Committee today to discuss one of the most important issues of our
time, the reorganization of government agencies and the reorientation
of their missions to improve our nation's ability to better protect our
homeland. It is important to recognize that this transition to a more
effective homeland security approach is part of a larger transformation
effort that our government must make to address emerging security,
economic, demographic, scientific, technological, fiscal and other
challenges of the 21st century and to meet the expectations of the
American people for timely, quality and cost-effective public services.
In the months since the horrible events of September 11th, the
President and the Congress have responded with important and aggressive
actions to protect the nation, including creating an Office of Homeland
Security (OHS), passing new laws such as the USA Patriot Act and an
initial emergency supplemental spending bill, establishing a new agency
to improve transportation security, and working with unprecedented
collaboration with federal, state, and local governments, private
sector entities, non-governmental organizations, and other countries to
prevent future terrorist acts and to bring to justice those individuals
responsible for such terrible acts.
More recently, the Congress and the President have sought to remedy
long-standing issues and concerns in the government's homeland security
functions by proposing greater consolidation and coordination of
various agencies and activities. On June 6th, the President announced a
proposal to establish a Department of Homeland Security (DHS) and on
June 18th he transmitted draft legislation to the Congress for its
consideration. Both the House and the Senate have worked diligently on
these issues and this Select Committee is now deliberating on a variety
of proposals and issues raised by House committees and subcommittees.
In my testimony today, I will focus on two major issues that we
believe the Congress should consider in its deliberations on creating a
new cabinet department principally dedicated to homeland security: (1)
the national strategy and criteria needed to guide any reorganization
of homeland security activities and to help evaluate which agencies and
missions should be included in or left out of the new DHS; and (2) key
issues related to the successful implementation of, and transition to,
a new department, including leadership, cost and phasing, and other
management challenges. Our testimony is based largely on our previous
and ongoing work on national preparedness issues\1\, as well as a
review of the proposed legislation.
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\1\ See ``Related GAO Products'' at the end of this testimony.
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In response to global challenges the government faces in the coming
years, we have a unique opportunity to create an extremely effective
and performance-based organization that can strengthen the nation's
ability to protect its borders and citizens against terrorism. There is
likely to be considerable benefit over time from restructuring some of
the homeland security functions, including reducing risk and improving
the economy, efficiency, and effectiveness of these consolidated
agencies and programs. Sorting out those programs and agencies that
would most benefit from consolidation versus those in which dual
missions must be balanced in order to achieve a more effective fit in
DHS is a difficult but critical task. Moreover, the magnitude of the
challenges that the new department faces will clearly require
substantial time and effort, and will take institutional continuity and
additional resources to make it fully effective. Numerous complicated
issues will need to be resolved in the short term, including a
harmonization of the communication systems, information technology
systems, human capital systems, the physical location of people and
other assets, and many other factors. Implementation of the new
department will be an extremely complex task and will ultimately take
years to achieve. Given the magnitude of the endeavor, not everything
can be achieved at the same time and a deliberate phasing of some
operations will be necessary. As a result, it will be important for the
new department to focus on: articulating a clear overarching mission
and core values; establishing a short list of initial critical
priorities; assuring effective communication and information systems;
and developing an overall implementation plan for the new national
strategy and related reorganization. Further, effective performance and
risk management systems must be established, and work must be completed
on threat and vulnerability assessments.
homeland security strategy, criteria and reorganization
Congress, in its deliberations on creating a new department, should
pay special attention to strategy, criteria and priorities for
reorganization critical to the nation's efforts to protect the nation
from terrorism.
Homeland Security Strategy
In recent testimony before the Congress, GAO urged that the
proposal for establishing DHS should not be considered a substitute
for, nor should it supplant, the timely issuance of a national homeland
security strategy.\2\ Based on our prior work, GAO believes that the
consolidation of some homeland security functions makes sense and will,
if properly organized and implemented, over time lead to more
efficient, effective, and coordinated programs; better intelligence
sharing; and a more robust protection of our people, borders, and
critical infrastructure. At the same time, the proposed cabinet
department, even with its multiple missions, will still be just one of
many players with important roles and responsibilities for ensuring
homeland security. At the federal level, homeland security missions
will require the involvement of the Central Intelligence Agency (CIA),
Federal Bureau of Investigation (FBI), the U.S. Marshals Service, the
Department of Defense (DOD), and a myriad of other agencies. In
addition, state and local governments, including law enforcement and
first responder personnel, and the private sector also have critical
roles to play.
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\2\ U.S. General Accounting Office, Homeland Security: Proposal for
Cabinet Agency Has Merit, But Implementation Will Be Pivotal to
Success, GAO-02-886T (Washington, D.C.: June 25, 2002).
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If anything, the multiplicity of players only reinforces the
recommendations that GAO has made in the past regarding the urgent need
for a comprehensive threat, risk, and vulnerability assessment and a
national homeland security strategy that can provide direction and
utility at all levels of government and across all sectors of the
country.\3\
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\3\ U.S. General Accounting Office, Combating Terrorism: Selected
Challenges and Recommendations, GAO-01-822 (Washington, D.C.:
Septemeber 20, 2001).
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We are pleased that the Administration has just released the
national homeland security strategy and GAO stands ready to work with
the Congress and the Administration to ensure that a sound and strong
strategy can be effectively implemented to protect the country against
terrorism. Although GAO has not had time to thoroughly analyze the
strategy yet, we previously suggested that certain key elements be
incorporated in the homeland security strategy.\4\ We have indicated
that a national homeland security strategy should: 1) clearly define
and establish the need for homeland security and its operational
components, 2) clarify the appropriate roles and responsibilities of
federal, state, and local entities and build a framework for
partnerships for coordination, communication, and collaboration, and 3)
create specific expectations for performance and accountability,
including establishing goals and performance indicators. In addition,
GAO has said the national strategy development and implementation
should include 1) a regular update of a national-level threat and risk
assessment effort, 2) formulate realistic budget and resource plans to
eliminate gaps, avoid duplicate effort, avoid ``hitchhiker'' spending,
and protect against federal funds being used to substitute for funding
that would have occurred anyway, 3) coordinate the strategy for
combating terrorism with efforts to prevent, detect, and respond to
computer-based attacks, 4) coordinate agency implementation by
reviewing agency and interagency programs to accomplish the national
strategy, and 5) carefully choose the most appropriate policy tools of
government to best implement the national strategy and achieve national
goals.
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\4\ GAO-02-886T
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Based on our preliminary review, some of these elements have been
addressed in the national strategy. In the past, the absence of a
broad-based homeland security definition or the ad hoc creation of a
definition by individual government departments suggest that a
consistent and transparent definition be applied to help create a more
integrated approach and unified purpose. The President's national
homeland security strategy does provide for a proposed definition of
homeland security, which should help the government to more effectively
administer, fund and coordinate activities both inside and outside a
new department and to ensure that all parties are focused on the same
goals and objectives, results and outcomes. It is critically important
that the Congress and the Administration agree on a definition since it
serves as the foundation for a number of key organizational,
operational and funding decisions. Finally, I would also note that, in
the past, we have suggested that a central focal point such as OHS be
established statutorily in order to coordinate and oversee homeland
security policy within a national framework.\5\ Today, we re-emphasize
the need for OHS to be established statutorily in order to effectively
coordinate activities beyond the scope of the proposed DHS and to
assure reasonable congressional oversight.
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\5\ U.S. General Accounting Office, Homeland Security:
Responsibility and Accountability For Achieving National Goals, GAO-02-
627T (Washington, D.C.: April 11, 2002).
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Need for Criteria and Reorganization
Often it has taken years for the consolidated functions in new
departments to effectively build on their combined strengths, and it is
not uncommon for these structures to remain as management challenges
for decades. It is instructive to note that the 1947 legislation
creating DOD was further changed by the Congress in 1949, 1953, 1958,
and 1986. Despite these and other changes made by DOD, GAO has
consistently reported over the years that the department--more than 50
years after the reorganization--continues to face a number of serious
management challenges. In fact, DOD has 8 of 23 high-risk areas based
on GAO's latest list.\6\ This note of caution is not intended to
dissuade the Congress from seeking logical and important consolidations
in government agencies and programs in order to improve homeland
security missions. Rather, it is meant to suggest that reorganizations
of government agencies frequently encounter start-up problems and
unanticipated consequences that result from the consolidations are
unlikely to fully overcome obstacles and challenges, and may require
additional modifications in the future to effectively achieve our
collective goals for defending the country against terrorism.\7\
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\6\ U.S. General Accounting Office, High-Risk Series: An Update,
GAO-01-263 (Washington, D.C.: January 2001).
\7\ U.S. General Accounting Office, Implementation: The Missing
Link In Planning Reorganizations, GGD-81-57 (Washington, D.C.: March
20, 1981).
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The Congress faces a challenging and complex job in its
consideration of DHS. On the one hand, there exists a certain urgency
to move rapidly in order to remedy known problems relating to
intelligence and information sharing and leveraging like activities
that have in the past and even today prevent the United States from
exercising as strong a homeland defense as emerging and potential
threats warrant. Simultaneously, that same urgency of purpose would
suggest that the Congress be extremely careful and deliberate in how it
creates a new department for defending the country against terrorism.
The urge to ``do it quickly'' must be balanced by an equal need to ``do
it right.'' This is necessary to ensure a consensus on identified
problems and needs, and to be sure that the solutions our government
legislates and implements can effectively remedy the problems we face
in a timely manner. It is clear that fixing the wrong problems, or even
worse, fixing the right problems poorly, could cause more harm than
good in our efforts to defend our country against terrorism.
GAO has previously suggested that reorganizations should emphasize
an integrated approach; that reorganization plans should be designed to
achieve specific, identifiable goals; and that careful attention to
fundamental public sector management practices and principles, such as
strong financial, technology, and human capital management, are
critical to the successful implementation of government
reorganizations.\8\ Similarly, GAO has also suggested that
reorganizations may be warranted based on the significance of the
problems requiring resolution, as well as the extent and level of
coordination and interaction necessary with other entities in order to
resolve problems or achieve overall objectives.\9\
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\8\ U.S. General Accounting Office, Government Reorganization:
Issues and Principles, GAO/T-GGD/AIMD-95-166 (Washington, D.C.: May 17,
1995).
\9\ U.S. General Accounting Office, Environmental Protection:
Observations on Elevating the Environmental Protection Agency to
Cabinet Status, GAO-02-552T (Washington, D.C.: March 21, 2002).
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GAO, based on its own work as well as a review of other applicable
studies of approaches to the organization and structure of entities,
has concluded that the Congress should consider utilizing specific
criteria as a guide to creating and implementing the new department.
Specifically, GAO has developed a framework that will help the Congress
and the Administration create and implement a strong and effective new
cabinet department by establishing criteria to be considered for
constructing the department itself, determining which agencies should
be included and excluded, and leveraging numerous key management and
policy elements that, after completion of the revised organizational
structure, will be critical to the department's success. Figure 1
depicts the proposed framework:
[GRAPHIC] [TIFF OMITTED] T3173.008
With respect to criteria that the Congress should consider for
constructing the department itself, the following questions about the
overall purpose and structure of the organization should be evaluated:
Definition: Is there a clear and consistently applied
definition of homeland security that will be used as a basis for
organizing and managing the new department?
Statutory Basis: Are the authorities of the new department
clear and complete in how they articulate roles and responsibilities
and do they sufficiently describe the department's relationship with
other parties?
Clear Mission: What will the primary missions of the new
DHS be and how will it define success?
Performance-based Organization: Does the new department
have the structure (e.g., Chief Operating Officer (COO), etc.) and
statutory authorities (e.g., human capital, sourcing) necessary to meet
performance expectations, be held accountable for results, and leverage
effective management approaches for achieving its mission on a national
basis?
Congress should also consider several very specific criteria in its
evaluation of whether individual agencies or programs should be
included or excluded from the proposed department. Those criteria
include the following:
Mission Relevancy: Is homeland security a major part of
the agency or program mission? Is it the primary mission of the agency
or program?
Similar Goals and Objectives: Does the agency or program
being considered for the new department share primary goals and
objectives with the other agencies or programs being consolidated?
Leverage Effectiveness: Does the agency or program being
considered for the new department create synergy and help to leverage
the effectiveness of other agencies and programs or the new department
as a whole? In other words, is the whole greater than the sum of the
parts?
Gains Through Consolidation: Does the agency or program
being considered for the new department improve the efficiency and
effectiveness of homeland security missions through eliminating
duplications and overlaps, closing gaps, and aligning or merging common
roles and responsibilities?
Integrated Information Sharing/Coordination: Does the
agency or program being considered for the new department contribute to
or leverage the ability of the new department to enhance the sharing of
critical information or otherwise improve the coordination of missions
and activities related to homeland security?
Compatible Cultures: Can the organizational culture of the
agency or program being considered for the new department effectively
meld with the other entities that will be consolidated? Field
structures and approaches to achieving missions vary considerably
between agencies.
Impact on Excluded Agencies: What is the impact on
departments losing components to DHS? What is the impact on agencies
with homeland security missions left out of DHS?
In addition to the above criteria that the Congress should consider
when evaluating what to include and exclude from the proposed DHS,
there are certain critical success factors the new department should
emphasize in its initial implementation phase. Over the years, GAO has
made observations and recommendations about many of these success
factors, based on effective management of people, technology,
financial, and other issues, especially in its biannual Performance and
Accountability Series on major government departments.\10\ These
factors include the following:
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\10\ U.S. General Accounting Office, Major Management Challenges
and Program Risks: A Governmentwide Perspective, GAO-01-241
(Washington, D.C.: January 2001).
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Strategic Planning: Leading results-oriented organizations
focus on the process of strategic planning that includes involvement of
stakeholders, assessment of internal and external environments, and an
alignment of activities, core processes and resources to support
mission-related outcomes.
Organizational Alignment: The organization of the new
department should be aligned to be consistent with the goals and
objectives established in the strategic plan.
Communication: Effective communication strategies are key
to any major consolidation or transformation effort.
Building Partnerships: One of the key challenges of this
new department will be the development and maintenance of homeland
security partners at all levels of the government and the private
sector, both in the United States and overseas.
Performance Management: An effective performance
management system fosters institutional, unit and individual
accountability.
Human Capital Strategy: The new department must ensure
that its homeland security missions are not adversely impacted by the
government's pending human capital crisis, and that it can recruit,
retain, and reward a talented and motivated workforce, which has
required core competencies, to achieve its mission and objectives. The
people factor is a critical element in any major consolidation or
transformation.
Information Management and Technology: The new department
should leverage state-of-the art enabling technology to enhance its
ability to transform capabilities and capacities to share and act upon
timely, quality information about terrorist threats.
Knowledge Management: The new department must ensure it
makes maximum use of the collective body of knowledge that will be
brought together in the consolidation.
Financial Management: The new department has a stewardship
obligation to prevent fraud, waste and abuse; to use tax dollars
appropriately; and to ensure financial accountability to the President,
the Congress, and the American people.
Acquisition Management: Anticipated as one of the largest
federal departments, the proposed DHS will potentially have some of the
most extensive acquisition government needs. Early attention to strong
systems and controls for acquisition and related business processes
will be critical both to ensuring success and maintaining integrity and
accountability.
Risk Management: The new department must be able to
maintain and enhance current states of homeland security readiness
while transitioning and transforming itself into a more effective and
efficient structural unit. The proposed DHS will also need to
immediately improve the government's overall ability to perform risk
management activities that can help to prevent, defend against, and
respond to terrorist acts.
Change Management: Assembling a new organization out of
separate pieces and reorienting all of its processes and assets to
deliver the desired results while managing related risks will take an
organized, systematic approach to change. The new department will
require both an executive and operational capability to encourage and
manage change.
Homeland Security Reorganization and Missions
The President's proposal for the new department indicates that DHS,
in addition to its homeland security responsibilities, will also be
responsible for carrying out all other functions of the agencies and
programs that are transferred to it. In fact, quite a number of the
agencies proposed to be transferred to DHS have multiple functions.
Agencies or programs that balance multiple missions present the
Congress with significant issues that must be evaluated in order to
determine how best to achieve all of the goals and objectives for which
the entity was created. While we have not found any missions that would
appear to be in fundamental conflict with the department's primary
mission of homeland security, as presented in the President's proposal,
the Congress will need to consider whether many of the non-homeland
security missions of those agencies transferred to DHS will receive
adequate funding, attention, visibility, and support when subsumed into
a department that will be under tremendous pressure to succeed in its
primary mission. As important and vital as the homeland security
mission is to our nation's future, the other non-homeland security
missions transferred to DHS for the most part are not small or trivial
responsibilities. Rather, they represent extremely important functions
executed by the federal government that, absent sufficient attention,
could have serious implications for their effective delivery and
consequences for sectors of our economy, health and safety, research
programs and other significant government functions. Some of these
responsibilities include:
maritime safety and drug interdiction by the Coast Guard,
collection of commercial tariffs by the Customs Service,
public health research by the Department of Health and
Human Services,
advanced energy and environmental research by the Lawrence
Livermore and Environmental Measurements labs,
responding to floods and other natural disasters by the
Federal Emergency Management Agency (FEMA), and
authority over processing visas by the State Department's
consular officers.
These examples reveal that many non-homeland security missions
could be integrated into a cabinet department overwhelmingly dedicated
to protecting the nation from terrorism. Congress may wish to consider
whether the new department, as proposed, will dedicate sufficient
management capacity and accountability to ensure the execution of non-
homeland security missions, as well as consider potential alternatives
to the current framework for handling these important functions. One
alternative might be to create a special accountability track that
ensures that non-homeland security functions are well supported and
executed in DHS, including milestones for monitoring performance.
Conversely, the Congress might separate out some of these functions. In
doing so, the Congress will still need to hold agencies accountable for
the homeland security missions that are not incorporated in the new
department. In making these decisions, Congress should consider the
criteria presented earlier in my testimony, especially those related to
agency transitions, such as mission relevancy, similar goals and
objectives, leveraging effectiveness, and creating gains through
consolidation. There are clearly advantages and disadvantages to all of
the decisions about placing agencies or programs with multiple missions
in DHS and Congress must carefully weigh numerous important factors
related to performance and accountability in crafting the legislation.
For example, we have indicated in recent testimony that DHS could
serve to improve biomedical research and development coordination
because of the current fragmented state of disparate activities. Yet,
we remain concerned that the proposed transfer of control and priority
setting for research from the organizations where the research would be
conducted could be disruptive to dual-purpose programs, which have
important synergies for public health programs that need to be
maintained.\11\ Similarly, we have testified that the President's
proposal, in tasking the new department with developing national policy
for and coordinating the federal government's research and development
efforts for responding to chemical, biological, radiological, and
nuclear weapons threats, also transfers some of the civilian research
programs of the Department of Energy.\12\ Again, there may be
implications for research synergy.
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\11\ U.S. General Accounting Office, Homeland Security: New
Department Could Improve Biomedical R&D Coordination but May Disrupt
Dual-Purpose Efforts, GAO-02-924T (Washington, D.C.: July 9, 2002).
\12\ U.S. General Accounting Office, Homeland Security: Title III
of the Homeland Security Act of 2002, GAO-02-927T (Washington, D.C.:
July 9, 2002).
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Congress may also craft compromises that strengthen homeland
security while reducing concerns of program disruption or unanticipated
consequences. One such example is seen in recent deliberations about
the appropriate location for visa processing. Congressional debate has
focused on two of our criteria, mission relevancy and gains through
consolidation. The visa function attempts to facilitate legitimate
travel while at the same time denying entry to the United States of
certain individuals, including potential terrorists. Some have argued
that the mission of the visa function is primarily related to homeland
security and that therefore the function should be located within the
proposed department. Others have advocated that the Department of State
(State) should retain the visa function because they believe that there
would be no gains from consolidation. They point out that State has an
established field structure and that it may be impractical to create a
similar field structure in the proposed department. The compromise
position of several committees has been to transfer responsibility for
visa policy to the proposed department, while retaining the cadre of
overseas visa officers within State.
As part of these deliberations, the Congress should consider not
only the mission and role that agencies fulfill today, but the mission
and role that they should fulfill in the coming years. Thus, while it
may be accurate that large portions of the missions engaged in by the
Coast Guard or FEMA today do not relate primarily to homeland security,
it is wholly appropriate for Congress to determine whether the future
missions of such agencies should focus principally on homeland
security. Such decisions, of course, would require the Congress to
determine the best approach for carrying out a range of the
government's missions and operations, in order to see that non-homeland
security activities of these departments are still achieved. In fact,
given the key trends identified in GAO's recent strategic plan for
supporting the Congress and our long range fiscal challenges, it is
appropriate to ask three key questions: (1) what should the federal
government do in the 21st century? (2) how should the federal
government do business in the 21st century? and (3) who should do the
federal government's business in the 21st century? These questions are
relevant for DHS and every other federal agency and activity.
As the proposal to create DHS demonstrates, the terrorist events of
last fall have provided an impetus for the government to look at the
larger picture of how it provides homeland security and how it can best
accomplish associated missions. Yet, even for those agencies that are
not being integrated into DHS, there remains a very real need and
possibly a unique opportunity to rethink approaches and priorities to
enable them to better target their resources to address our most urgent
needs. In some cases, the new emphasis on homeland security has
prompted attention to long-standing problems that have suddenly become
more pressing. For example, we've mentioned in previous testimony the
overlapping and duplicative food safety programs in the federal
government.\13\ While such overlap and duplication has been responsible
for poor coordination and inefficient allocation of resources, these
issues assume a new, and potentially more foreboding, meaning after
September 11th given the threat from bio-terrorism. In another example,
we have recommended combining the Department of Justice's Office For
Domestic Preparedness with FEMA to improve coordination.\14\ A
consolidated approach to many of these issues can facilitate a
concerted and effective response to new threats and mission
performance.
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\13\ U.S. General Accounting Office, Food Safety and Security:
Fundamental Changes Needed to Ensure Safe Food, GAO-02-47T (Washington,
D.C.: October 10, 2001).
\14\ GAO-01-822.
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Similarly, we have conducted a number of reviews of State's visa
function over the years and, based on our work, we believe that there
are a number of areas in which the visa function can be strengthened.
For example, the U.S. government needs to ensure that there are
sufficient staff at overseas posts with the right training and
experience to make good decisions about who should and who should not
receive a visa. In addition, we are currently looking at ways that the
visa function can be strengthened as a screen against potential
terrorists and we expect to make recommendations later this fiscal
year. These recommendations will apply regardless of decisions about
the respective roles of the State Department and the proposed
Department of Homeland Security regarding visa functions.
homeland security implementation and transition issues
The ultimate effectiveness of the new department will be dependent
on successfully addressing implementation and transition issues.
Picking the right leadership for these critical positions in the new
department will be crucial to its success. If you don't have the right
leadership team in key policy, operational and management positions,
the department will be at risk. In addition providing the new
department with some reasoned and reasonable, human capital, management
and budget flexibilities combined with appropriate safeguards to
protect the Congress' constitutional authorities and to prevent abuse
can also help contribute to a successful transition. Both the Congress
and the Executive Branch have critical roles to play in achieving
desired outcomes for the American people.
Key Success Factors, Leadership and Accountability
Among the most important elements for effectively implementing the
new cabinet department will be close adherence to the key success
factors. Strategic planning, building partnerships, human capital
strategies, financial management and other critical factors will make
the difference between a department that can quickly rise to the
challenge of its mission and one that might otherwise become mired in
major problems and obstacles that hamper efforts to protect the nation
from terrorism.
The quality and continuity of the new department's leadership is
critical to building and sustaining the long-term effectiveness of DHS
and homeland security goals and objectives. The experiences of
organizations that have undertaken transformational change efforts
along the lines that will be necessary for the new department to be
fully effective suggest that this process can take up to 5 to 10 years
to provide meaningful and sustainable results. Given the scope and
nature of challenges facing the new department, the critical question
is how can we ensure that the essential transformation and management
issues receive the sustained, top-level attention that they require.
The nation can ill-afford to have the secretary or deputy secretary
being side-tracked by administrative and operational details--the
mission of the department requires their undivided attention.
As a result, it is important for the Congress to give serious
consideration to creating a deputy secretary for management/chief
operating officer (COO) position within the department to provide the
sustained management attention essential for addressing key
infrastructure and stewardship issues while helping to facilitate the
transition and transformation process. Recent legislative language
adopted by the House Committee on Government Reform suggests elevating
the undersecretary for management to a deputy secretary, equivalent to
the deputy position provided for in the Administration's proposal. We
believe that is an important first step to ensuring that transformation
and management issues receive the top-level attention they require.
Raising the organizational profile of transformation and management
issues is important to ensure that the individual has the authority
needed to successfully lead department-wide initiatives. We are not
convinced that an under secretary for management, on par with the other
under secretaries, would necessarily have sufficient authority.
To provide further leadership and accountability for management,
Congress may wish to consider several points:
First, Congress should consider making the deputy
secretary for management/COO a term appointment of up to 7 years,
subject to Senate confirmation. A term appointment would provide
continuity that spans the tenure of the political leadership and
thereby help to ensure that long-term stewardship issues are addressed
and change management initiatives are successfully completed.
Second, to further clarify accountability, the COO should
be subject to a clearly defined, results-oriented performance contract
with appropriate incentive, reward and accountability mechanisms. The
COO would be selected without regard to political affiliation based on
(1) demonstrated leadership skills in managing large and complex
organizations, and (2) experience achieving results in connection with
``good government'' responsibilities and initiatives. Requiring that
both the performance contract and the subsequent performance evaluation
be made available to the Congress would provide additional
accountability and transparency.
In addition to providing top-level leadership and accountability,
the department will need to develop employee performance management
systems that can serve as a key tool for aligning institutional, unit,
and employee performance; achieving results; accelerating change;
managing the organization on a day-to-day basis; and facilitating
communication throughout the year so that discussions about individual
and organizational performance are integrated and ongoing.\15\ A
cascading set of results-oriented performance agreements is one
mechanism in a performance management system that creates a ``line of
sight'' showing how individual employees can contribute to overall
organizational goals.\16\
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\15\ U.S. General Accounting Office, Human Capital: Key Principles
From Nine Private Sector Organizations, GAO/GGD-00-28 (Washington,
D.C.: Jan. 31, 2000).
\16\ U.S. General Accounting Office, Managing for Results: Emerging
Benefits From Selected Agencies' Use of Performance Agreements, GAO-01-
115 (Washington, D.C.: Oct. 30, 2000).
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Further accountability can be achieved by ensuring that all
relevant management laws are applied to the new department (e.g,
Government Performance and Results Act (GPRA), Chief Financial Officers
Act, Clinger-Cohen Act, etc.). These laws provide a foundation for the
management structure of the new department and a basis for ensuring
appropriate transparency and accountability.
Request for Increased Human Capital and Management Flexibilities
The President's proposal includes a set of human capital and
management flexibilities for the new department. GAO believes that it
is reasonable for certain flexibilities to be granted to the new
department in such areas as human capital, provided that they are
accompanied by adequate transparency and accountability safeguards
designed to prevent abuse. Human capital and management flexibility
will help the new department to reorganize, realign and transform
itself to achieve its important missions. Appropriate safeguards can
help to prevent abuse of federal employees and provide adequate
monitoring mechanisms to gauge performance. For instance, the Congress
may wish to provide the new department with ``early out'' and ``buy
out'' authority in order to help quickly realign the component entities
and provide for future flexibility. DHS might consider new scientific
and technical personnel tracks to encourage recruitment, retention and
rewarding of individuals with critical knowledge, or Congress may wish
to provide the new department with some limited term appointment
authority. These and other suggested flexibilities for DHS should be
viewed in the context of how similar flexibilities have been exercised
by other agencies with similar missions, such as the Transportation
Security Administration (TSA), the DOD, the FBI, and the CIA. Congress
should also note that, as GAO has indicated in the past, agencies are
already accorded in law significant flexibilities, especially with
respect to human capital issues, but for a variety of reasons they do
not always take advantage of them.\17\ DHS should use these existing
flexibilities and be given others in areas where Congress has done so
with other agencies (e.g., TSA, Internal Revenue Service, DOD).
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\17\ U.S. General Accounting Office, Managing For Results: Using
Strategic Human Capital Management to Drive Transformational Change,
GAO-02-940T (Washington, D.C.: July 15, 2002).
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In requesting human capital flexibilities, questions have been
raised about whether they would result in eroding merit principles,
veterans' preferences, whistleblower protections, collective bargaining
and other basic civil service provisions. Recent testimony to the
Congress by Governor Ridge has clarified the Administration's
commitment to these provisions.\18\ The final legislation should
clearly reflect the applicability of these tenets to the new
department.
---------------------------------------------------------------------------
\18\ Statement of Governor Tom Ridge on the Department of Homeland
Security to the House Select Committee on Homeland Security, July 15,
2002.
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Other flexibilities, such as ones for acquisitions and contracting,
are included in the President's proposal. Careful analysis is needed to
determine the need for additional flexibilities. Congress may want to
consider not expressly providing certain flexibilities in the initial
legislation, but rather providing a mechanism for expedited
consideration of flexibilities should the new department request them
in the future. For example, the Congress might wish to agree on rules
specifying procedures for consideration of proposed changes, time
limits on debate, or requirements that any amendments to future
legislation be strictly related to DHS. This would not be the blanket
grant of authority envisioned in the original Freedom to Manage
proposal, but it would permit both the executive branch and the
Congress to feel confident that proposed changes would receive timely
consideration.
Request for Increased Budget Flexibility
The Administration has suggested that it needs a special grant of
budget flexibility for the Department of Homeland Security. GAO
believes that Congress should be careful to distinguish between those
flexibilities that will solely enhance the operations of DHS and those
that might simultaneously raise other concerns, including concerns
about the constitutional responsibilities and prerogatives of the
legislative branch. For instance, the President's proposal permits the
Secretary to allocate funds as he sees fit, without regard to the
original purpose of the appropriations. Moreover, there must be a
system to identify homeland security funds across the wide range of
existing budget accounts and program activities. This is necessary not
only for the budget resolution and appropriations process, but also for
tracking budget execution and for accountability to Congress. The
Congress, through its appropriations subcommittees, has proven quite
adept at creating and granting the kind of flexibility it sees as
appropriate to any given agency. Congress gives agencies flexibility
over the timing of spending by varying the period of fund availability:
agencies may receive one-year, multi-year and no-year [permanent]
funds. Congress has granted agencies varying degrees of transfer or
reprogramming authority. These flexibilities are generally provided as
part of the appropriations process and consider the balance between
accountability and flexibility to ensure that Congress is a partner in
the spending of taxpayer funds.
Over the longer term the creation of the new Department may also be
an opportune time to review the account structure of the Department's
component entities. Should the orientation of budget accounts be
shifted toward the strategic goals defined in plans? Such a
reorientation might facilitate the process of linking resource
allocation to results consistent with GPRA. Efforts designed to
rationalize the number of budget accounts within the new department can
serve to provide flexibility while ensuring accountability.
DHS Transition Issues
The creation of the Department of Homeland Security will be one of
the largest reorganizations ever undertaken and the difficulty of this
task should not be underestimated. Under the President's proposal, 22
existing agencies and programs and 170,000 people would be integrated
into the new department in order to strengthen the country's defense
against terrorism. With an estimated budget authority of the component
parts of the new department of $37.45 billion, successfully
transitioning the government in an endeavor of this scale will take
considerable time and money.\19\ Careful and thorough planning will be
critical to the successful creation of the new department. While
national needs suggest a rapid reorganization of homeland security
functions, the transition of agencies and programs into the new
department is likely to take time to achieve. At the same time, the
need for speed to get the new department up and running must be
balanced with the need to maintain readiness for new and existing
threats during the transition period. Moreover, the organizational
transition of the various components will simply be the starting
point--as implementation challenges beyond the first year should be
expected in building a fully integrated department. As I stated
earlier, it could take 5 to 10 years to fully implement this
reorganization in an effective and sustainable manner.
---------------------------------------------------------------------------
\19\ The President's proposal entitled The Department of Homeland
Security, President George W. Bush, June 2002.
---------------------------------------------------------------------------
A comprehensive transition plan needs to be developed. The
transition plan should establish a time table for the orderly migration
of each component agency or program to the new department, identify key
objectives to be achieved during the first year following the transfer,
and describe the strategy for achieving an orderly transition and
sustaining mission performance. More detailed implementation plans also
will be necessary to address business system, processes, and resource
issues. The President has taken an important first step by establishing
a transition office within the Office of Management and Budget.
Congress has an important oversight role to play in helping to
ensure the effective implementation of the new department. In addition
to the transition plans, Congress should consider requiring DHS to
submit regular progress reports on implementation from the department
and should also conduct periodic oversight hearings to assess progress
and performance. In this regard, GAO stands ready to assist the
Congress in conducting its oversight role.
Increased cost must also be considered with regard to the
President's proposal. It is likely that over time consolidation of
functions within DHS may reduce costs below what otherwise would have
been the case if these functions continued to operate separately. This,
however, is unlikely to happen quickly. Moreover, we should expect that
any reorganization would incur start up costs as well as require some
funding for redundant activities to maintain continuity of effort
during the transition period. The Congressional Budget Office (CBO) has
estimated that the costs of implementing the new department would be
about $3 billion over the next five years with an annual estimate of
$150 million in FY2003 and $225 million thereafter. However, there are
other transition costs that CBO acknowledges are not included in their
estimates beyond the cost to hire, house, and equip key personnel. The
CBO estimate assumes continuation of the existing multi-pay and
retirement systems--however unlikely-- and does not address the
potential need to cross-train existing personnel. Although the purchase
of new computer equipment, supplies and compatible information
management systems are included, no estimates are provided for the cost
to correct existing computer system deficiencies nor the resources to
support some system redundancy for a period of time. Finally, CBO did
not attempt to price the relocation of personnel to a central location.
The Administration has argued that CBO's estimates are inflated. In
fact, CBO estimates that 1 percent of the total annual spending will be
for administrative costs, but that a proportionate share of the costs
to currently administer these agencies will be transferred. Depending
on the decision to co-locate personnel and the flexibilities ultimately
provided to the Administration in legislation--in particular a broad
grant of transfer authority and the ability to staff through non-
reimbursable agreements with other agencies-- these estimates may well
change. More important than a precise cost estimate of the transition,
however, is the recognition that there will be short-term transition
costs and that these costs need to be made transparent. To fully
recognize the transition costs, in fact, Congress should consider
appropriating for them separately.
In summary, I have discussed the reorganization of homeland
security functions and some critical factors for success. However, the
single most important element of a successful reorganization is the
sustained commitment of top leaders to modern, effective and credible
human capital strategies and to setting clear goals and appropriate
accountability mechanisms. Top leadership involvement and clear lines
of accountability for making management improvements are critical to
overcoming an organization's natural resistance to change, marshalling
the resources needed to improve management, and building and
maintaining organization-wide commitment to new ways of doing business.
Organizational cultures will not be transformed, and new visions and
ways of doing business will not take root without strong and sustained
leadership. Strong and visionary leadership will be vital to creating a
unified, focused organization, as opposed to a group of separate units
under a single roof. Modern human capital strategies, including
implementing a credible, effective and equitable performance management
system that links institutional, unit, team and individual performance
measurement and reward systems to the department's strategic plan, core
values and desired outcomes will be critical to success.
Mr. Chairman, this concludes my written testimony. I would be
pleased to respond to any questions that you or members of the Select
Committee may have at this time.
Related GAO Products
Homeland Security
Homeland Security: New Department Could Improve Coordination but
Transferring Control of Certain Public Health Programs Raises Concerns
(GAO-02-954T, July 16, 2002).
Homeland Security: New Department Could Improve Biomedical R&D
Coordination but May Disrupt Dual-Purpose Efforts (GAO-02-924T, July 9,
2002).
Homeland Security: Title III of the Homeland Security Act of 2002
(GAO-02-927T, July 9, 2002)
Homeland Security: Intergovernmental Coordination and Partnership
Will Be Critical to Success (GAO-02-899T, July 1, 2002).
Homeland Security: New Department Could Improve Coordination but
May Complicate Priority Setting (GAO-02-893T, June 28, 2002).
Homeland Security: New Department Could Improve Coordination but
May Complicate Public Health Priority Setting (GAO-02-883T, June 25,
2002).
Homeland Security: Proposal for Cabinet Agency Has Merit, But
Implementation Will be Pivotal to Success (GAO-02-886T, June 25, 2002).
Homeland Security: Key Elements to Unify Efforts Are Underway but
Uncertainty Remains (GAO-02-610, June 7, 2002).
National Preparedness: Integrating New and Existing Technology and
Information Sharing into an Effective Homeland Security Strategy (GAO-
02-811T, June 7, 2002).
Homeland Security: Responsibility And Accountability For Achieving
National Goals (GAO-02-627T, April 11, 2002).
National Preparedness: Integration of Federal, State, Local, and
Private Sector Efforts Is Critical to an Effective National Strategy
for Homeland Security (GAO-02-621T, April 11, 2002).
Homeland Security: Progress Made; More Direction and Partnership
Sought (GAO-02-490T, March 12, 2002).
Homeland Security: Challenges and Strategies in Addressing Short-
and Long-Term National Needs (GAO-02-160T, November 7, 2001).Homeland
Security: A Risk Management Approach Can Guide Preparedness Efforts
(GAO-02-208T, October 31, 2001).
Homeland Security: Need to Consider VA's Role in Strengthening
Federal Preparedness (GAO-02-145T, October 15, 2001).
Homeland Security: Key Elements of a Risk Management Approach (GAO-
02-150T, October 12, 2001).
Homeland Security: A Framework for Addressing the Nation's Efforts
(GAO-01-1158T, September 21, 2001).
Combating Terrorism
Combating Terrorism: Intergovernmental Cooperation in the
Development of a National Strategy to Enhance State and Local
Preparedness (GAO-02-550T, April 2, 2002).
Combating Terrorism: Enhancing Partnerships Through a National
Preparedness Strategy (GAO-02-549T, March 28, 2002).
Combating Terrorism: Critical Components of a National Strategy to
Enhance State and Local Preparedness (GAO-02-548T, March 25, 2002).
Combating Terrorism: Intergovernmental Partnership in a National
Strategy to Enhance State and Local Preparedness (GAO-02-547T, March
22, 2002).
Combating Terrorism: Key Aspects of a National Strategy to Enhance
State and Local Preparedness (GAO-02-473T, March 1, 2002).
Combating Terrorism: Considerations For Investing Resources in
Chemical and Biological Preparedness (GAO-02-162T, October 17, 2001).
Combating Terrorism: Selected Challenges and Related
Recommendations (GAO-01-822, September 20, 2001).
Combating Terrorism: Actions Needed to Improve DOD's Antiterrorism
Program Implementation and Management (GAO-01-909, September 19, 2001).
Combating Terrorism: Comments on H.R. 525 to Create a President's
Council on Domestic Terrorism Preparedness (GAO-01-555T, May 9, 2001).
Combating Terrorism: Observations on Options to Improve the Federal
Response (GAO-01-660T, April 24, 2001).
Combating Terrorism: Comments on Counterterrorism Leadership and
National Strategy (GAO-01-556T, March 27, 2001).
Combating Terrorism: FEMA Continues to Make Progress in
Coordinating Preparedness and Response (GAO-01-15, March 20, 2001).
Combating Terrorism: Federal Response Teams Provide Varied
Capabilities; Opportunities Remain to Improve Coordination (GAO-01-14,
November 30, 2000).
Combating Terrorism: Issues in Managing Counterterrorist Programs
(GAO/T-NSIAD-00-145, April 6, 2000).
Combating Terrorism: Need to Eliminate Duplicate Federal Weapons of
Mass Destruction Training (GAO/NSIAD-00-64, March 21, 2000).
Combating Terrorism: Observations on the Threat of Chemical and
Biological Terrorism (GAO/T-NSIAD-00-50, October 20, 1999).
Combating Terrorism: Need for Comprehensive Threat and Risk
Assessments of Chemical and Biological Attacks (GAO/NSIAD-99-163,
September 14, 1999).
Combating Terrorism: Observations on Growth in Federal Programs
(GAO/T-NSIAD-99-181, June 9, 1999).
Combating Terrorism: Analysis of Potential Emergency Response
Equipment and Sustainment Costs (GAO/NSIAD-99-151, June 9, 1999).
Combating Terrorism: Use of National Guard Response Teams Is
Unclear (GAO/NSIAD-99-110, May 21, 1999).
Combating Terrorism: Issues to Be Resolved to Improve
Counterterrorism Operations (GAO/NSIAD-99-135, May 13, 1999).
Combating Terrorism: Observations on Federal Spending to Combat
Terrorism (GAO/T-NSIAD/GGD-99-107, March 11, 1999).
Combating Terrorism: Opportunities to Improve Domestic Preparedness
Program Focus and Efficiency (GAO/NSIAD-99-3, November 12, 1998).
Combating Terrorism: Observations on the Nunn-Lugar-Domenici
Domestic Preparedness Program (GAO/T-NSIAD-99-16, October 2, 1998).
Combating Terrorism: Threat and Risk Assessments Can Help
Prioritize and Target Program Investments (GAO/NSIAD-98-74, April 9,
1998).
Combating Terrorism: Spending on Governmentwide Programs Requires
Better Management and Coordination (GAO/NSIAD-98-39, December 1, 1997).
Public Health
Bioterrorism: The Centers for Disease Control and Prevention's Role
in Public Health Protection (GAO-02-235T, November 15, 2001).
Bioterrorism: Public Health and Medical Preparedness (GAO-02-141T,
October 10, 2001).
Bioterrorism: Review of Public Health Preparedness Programs (GAO-
02-149T, October 9, 2001). Food Safety and Security: Fundamental
Changes Needed to Ensure Safe Food (GAO-02-47T, October 10, 2001).
Bioterrorism: Coordination and Preparedness (GAO-02-129T, October
5, 2001).
Bioterrorism: Federal Research and Preparedness Activities (GAO-01-
915, September 28, 2001).
Chemical and Biological Defense: Improved Risk Assessments and
Inventory Management Are Needed (GAO-01-667, September 28, 2001). West
Nile Virus Outbreak: Lessons for Public Health Preparedness (GAO/HEHS-
00-180, September 11, 2000).
Need for Comprehensive Threat and Risk Assessments of Chemical and
Biological Attacks (GAO/NSIAD-99-163, September 14, 1999).Chemical and
Biological Defense: Program Planning and Evaluation Should Follow
Results Act Framework (GAO/NSIAD-99-159, August 16, 1999).
Combating Terrorism: Observations on Biological Terrorism and
Public Health Initiatives (GAO/T-NSIAD-99-112, March 16, 1999).
Aviation Security
Aviation Security: Vulnerabilities in, and Alternatives for,
Preboard Screening Security Operations (GAO-01-1171T, September 25,
2001).
Aviation Security: Weaknesses in Airport Security and Options for
Assigning Screening Responsibilities (GAO-01-1165T, September 21,
2001).
Aviation Security: Terrorist Acts Illustrate Severe Weaknesses in
Aviation Security (GAO-01-1166T, September 20, 2001).
Aviation Security: Terrorist Acts Demonstrate Urgent Need to
Improve Security at the Nation's Airports (GAO-01-1162T, September 20,
2001).
Aviation Security: Long-Standing Problems Impair Airport Screeners'
Performance (GAO/RCED-00-75, June 28, 2000).
Aviation Security: Slow Progress in Addressing Long-Standing
Screener Performance Problems (GAO/T-RCED-00-125, March 16, 2000).
Aviation Security: Progress Being Made, but Long-term Attention Is
Needed (GAO/T-RCED-98-190, May 14, 1998).
Aviation Security: FAA's Procurement of Explosives Detection
Devices (GAO/RCED-97-111R, May 1, 1997).
Aviation Security: Commercially Available Advanced Explosives
Detection Devices (GAO/RCED-97-119R, April 24, 1997).
Aviation Security: Technology's Role in Addressing Vulnerabilities
(GAO/T-RCED/NSIAD-96-262, September 19, 1996).
Aviation Security: Urgent Issues Need to Be Addressed (T-RCED/
NSIAD-96-251, September 11, 1996).
Aviation Security: Immediate Action Needed to Improve Security
(GAO/T-RCED/NSIAD-96-237, August 1, 1996).
Critical Infrastructure Protection
Critical Infrastructure Protection: Significant Homeland Security
Challenges Need to Be Addressed (GAO-02-918T, July 9, 2002).
Critical Infrastructure Protection: Significant Challenges in
Safeguarding Government and Privately Controlled Systems from Computer-
Based Attacks (GAO-01-1168T, September 26, 2001).
Critical Infrastructure Protection: Significant Challenges in
Protecting Federal Systems and Developing Analysis and Warning
Capabilities (GAO-01-1132T, September 12, 2001).
Critical Infrastructure Protection: Significant Challenges in
Developing Analysis, Warning, and Response Capabilities (GAO-01-1005T,
July 25, 2001).
Critical Infrastructure Protection: Significant Challenges in
Developing Analysis, Warning, and Response Capabilities (GAO-01-769T,
May 22, 2001).
Critical Infrastructure Protection: Significant Challenges in
Developing National Capabilities (GAO-01-323, April 25, 2001).
Critical Infrastructure Protection: Challenges to Building a
Comprehensive Strategy for Information Sharing and Coordination (GAO/T-
AIMD-00-268, July 26, 2000).
Critical Infrastructure Protection: Comments on the Proposed Cyber
Security Information Act of 2000 (GAO/T-AIMD-00-229, June 22, 2000).
Critical Infrastructure Protection: National Plan for Information
Systems Protection (GAO/AIMD-00-90R, February 11, 2000).
Critical Infrastructure Protection: Comments on the National Plan
for Information Systems Protection (GAO/T-AIMD-00-72, February 1,
2000).
Critical Infrastructure Protection: Fundamental Improvements Needed
to Assure Security of Federal Operations (GAO/T-AIMD-00-7, October 6,
1999).
Critical Infrastructure Protection: Comprehensive Strategy Can Draw
on Year 2000 Experiences (GAO/AIMD-00-1, October 1, 1999).
Disaster Assistance
Disaster Assistance: Improvement Needed in Disaster Declaration
Criteria and Eligibility Assurance Procedures (GAO-01-837, August 31,
2001).
Chemical Weapons: FEMA and Army Must Be Proactive in Preparing
States for Emergencies (GAO-01-850, August 13, 2001). Federal Emergency
Management Agency: Status of Achieving Key Outcomes and Addressing
Major Management Challenges (GAO-01-832, July 9, 2001).Budget and
Management
Results-Oriented Budget Practices in Federal Agencies (GAO-01-
1084SP, August 2001).
Managing for Results: Federal Managers' Views on Key Management
Issues Vary Widely Across Agencies (GAO-01-592, May 2001).
Determining Performance and Accountability Challenges and High
Risks (GAO-01-159SP, November 2000).
Managing for Results: Using the Results Act to Address Mission
Fragmentation and Program Overlap (GAO/AIMD-97-146, August 29,
1997).Government Restructuring: Identifying Potential Duplication in
Federal Missions and Approaches (GAO/T-AIMD-95-161, June 7,
1995).Government Reorganization: Issues and Principals (GAO/T-GGD/AIMD-
95-166, May 17, 1995).
Reorganization
FBI Reorganization: Initial Steps Encouraging but Broad
Transformation Needed (GAO-02-865T, June 21, 2002). Environmental
Protection: Observations on Elevating the Environmental Protection
Agency to Cabinet Status (GAO-02-552T, March 21, 2002).Implementation:
The Missing Link in Planning Reorganizations (GGD-81-57, March 20,
1981).
Grant Design
Grant Programs: Design Features Shape Flexibility, Accountability,
and Performance Information (GAO/GGD-98-137, June 22, 1998).Federal
Grants: Design Improvements Could Help Federal Resources Go Further
(GAO/AIMD-97-7, December 18, 1996).
Block Grants: Issues in Designing Accountability Provisions (GAO/
AIMD-95-226, September 1, 1995).
Management
Managing for Results: Using Strategic Human Capital Management to
Drive Transformational Change (GAO-02-940T, July 15, 2002).Managing for
Results: Building on the Momentum for Strategic Human Capital Reform
(GAO-02-528T, March 18, 2002).A Model of Strategic Human Capital
Management (GAO-02-373SP, March 15, 2002).
High-Risk Series: An Update (GAO-01-263, January 2001). Major
Management Challenges and Program Risks: A Governmentwide Perspective
(GAO-01-241, January 1, 2001).
Chairman Armey. Let me just say, the quality of your
presentation is an object lesson in the points you have just
made.
I want to compliment the GAO on the outstanding work that
they have done. Now we have had the pleasure of working
together on so many occasions, and I have always found the
quality of the work good. I now see the reason why, and I want
to thank you for that.
Mr. Walker. Thank you, Mr. Chairman. We have outstanding
people, and a lot of them are with me today. Thank you.
Chairman Armey. But at this point I would like to recognize
the gentlelady from Ohio.
Ms. Pryce. Thank you very much, Mr. Chairman; and thank
you, Mr. Walker. Your testimony is very enlightening and very
helpful as well.
The GAO has said in its reports all along that utilization
of grants and tax incentives can help strengthen this whole
homeland security endeavor by encouraging certain types of
behavior and activities. That has already intrigued me, and I
wonder if you can give us some examples of how that might work.
What types of things were they referring to?
Mr. Walker. Well, there are a number of areas where
potentially they could have application. Obviously, to the
extent you are dealing with homeland security, it is clearly
not just a Federal responsibility. It is a national endeavor,
and therefore you need to engage the cooperation of State and
local government agencies. There would be opportunities and
appropriate mechanisms to consider grants in that regard.
Over 70 percent of the critical infrastructure in this
Nation is owned by the private sector. Obviously, we are not
going to typically give grants to the private sector, but you
could provide certain types of incentives potentially for them
to be able to take certain actions, in addition to possibly
mandating that they have to take certain types of actions that
are in the best interest of the public.
So those would be a couple of examples that I would give.
Ms. Pryce. Thank you very much. I will yield back.
Chairman Armey. Thank you.
Let me recognize the gentleman from New Jersey.
Mr. Menendez. Well, thank you, Mr. Chairman; and thank you,
Mr. Walker. I have been reading throughout the day your
testimony. So I was not here for your oral presentation. I have
been reading this. Let me ask you some questions.
The comments you make on page 2 of your written submission
are I think of great importance, where you said, toward the end
of that page, it will be important for the new Department to
focus on: articulating a clear overarching mission and core
values; establishing a short list of initial critical
priorities; assuring effective communication and information
systems; developing an overall implementation plan for the new
national strategy.
In that regard, I had hoped that the President's strategy
document would have been available earlier in this process.
Because it would seem to me to be the process by which we
dictate how do we respond to that strategy which is, in
essence, what this committee is doing in part through the
creation of this Department.
Have you had an opportunity to look at that strategy
document and reflect upon it as it relates to your observations
here how the Department will have to focus? Do you think that
it provides the right risk assessment and then response?
Mr. Walker. We are still in the process of reviewing the
strategy, as you might imagine, as it was just issued
yesterday. I agree ideally it would have been nice to have that
first and then the proposal afterwards.
I will note and my testimony contains some information that
we had made a number of recommendations to the White House on
elements that should be considered as part of a strategy. We
are in the process of looking to determine whether and to what
extent they adopted those recommendations. Based upon our
preliminary review, it appears as if they did adopt a number of
them, but, again, we are in the early stages; and I will be
happy when we are completed with that review to provide it to
you and this committee.
Mr. Menendez. Have you, during the course of the committees
of jurisdictions' work, had your people review what they have
done? Do you have any sense of that at all?
Mr. Walker. Review--.
Mr. Menendez. The committee reviews that made amendments to
the President's proposal, have you had an opportunity to look
at those?
Mr. Walker. I am familiar with some of them, and we have
reviewed some of them, yes.
Mr. Menendez. Do you have any conclusions as it relates to
any of those amendments made by those committees?
Mr. Walker. As you might imagine, Mr. Menendez, I have no
hesitation to be able to be specific and to make
recommendations when you are dealing with operational issues,
but many of these recommendations deal with inherently policy
issues that I think only elected officials can--address.
Mr. Menendez. Well, let me deal with one of the operational
issues, then; and that is, how do you guarantee in a newly
created department that has agencies transferred to it with
multiple functions, some of which are not security related,
that those other functions will be preserved and enhanced?
Mr. Walker. I think there are several ways that the
Congress historically has looked at that. One of the ways that
the Congress has looked at it is to try to make sure that, in
critically important areas, that you might have a presidential
appointee with Senate confirmation responsible for the
function, who you can call up to testify before the House and
the Senate.
In addition to that, from time to time there can be things
done through the appropriations process whereby there is some
kind of guidance that is given to make sure that at least a
certain amount of funds are spent for certain types of
activities.
So there are ways the Congress historically has been able
to do that.
I also believe that it is can be done through making this
new Department subject to the Government Performance and
Results Act, through making sure that it has a strategic plan,
that it has performance goals, that it is reporting annually on
its results that these reports are is made available to the
Congress and the American people. It is something that is
important to make sure they are doing what they should be
doing.
I would strongly recommend that you consider using GAO to
periodically review the implementation efforts and to assess
whether or not this is having an adverse effect on any
particular missions that the Congress is concerned about.
So I think there are a lot of ways where you can--.
Mr. Menendez. So you believe that we can have some
mechanisms--do you believe that some mechanisms should be
established in the legislation to try to ensure that those
functions that are nonsecurity continue to be preserved?
Mr. Walker. I think one of the ways to do that is to make
sure that they are subject to the basic management provisions
such as the Government Performance and Results Act. I think
another way to do that is to make sure that GAO conducts a
periodic review and reports back to the Congress with regard to
this implementation plan and particular areas where Congress
may have a concern to make sure that there is not an
inappropriate diminution of emphasis or activities. I think
those types of approaches might help--.
Mr. Menendez. Lastly, in your--at the same time, on Page 3,
you say, at the same time that this Department is created, even
with its multiple missions, it will still be just one of many
players with important roles. In that context, do you not
believe it is important to have a White House structure that is
still coordinating all of these functions? And if so, do you
have any opinion on how the nature of that structure should
take place?
Mr. Walker. As you probably recall, the GAO recommended the
establishment of the Office of Homeland Security and, in fact,
consideration of a Department of Homeland Security before
September 11th of last year; and the President acted on it very
quickly in the case of the Office of Homeland Security.
Clearly, you are going to need to have something there. There
are over a hundred departments and agencies involved in, quote,
unquote, homeland security. The President is proposing to
consolidate about 22. That leaves a number which will require,
coordination and planning.
There is going to be a need and the President recognizes
there is going to be a need for an overall coordinator. We
think the Congress needs to consider whether or not that
overall coordinator is provided on a statutory basis in order
to make sure that you have the ability to conduct reasonable
oversight in areas that aren't going to be included within the
Department of Homeland Security.
Mr. Menendez. Thank you, Mr. Chairman.
Chairman Armey. The Chair would like to advise the
committee and our witness that I anticipate being called to the
floor for final votes of the evening within the next 5 minutes.
So, that being the case, we would have approximately 15 to 20
minutes to complete our work, if we were to complete and not
have to return. So I would just advise you and hope that we can
meet that deadline so we could all go to dinner after these
votes.
In that regard, I believe, Mr. Portman, the Chair
recognizes you.
Mr. Portman. I think Nancy and I can do this in 20 minutes.
I did wish we had that much time, because this is a very
important part of the overall project here, and that is making
sure that we have the performance measurements in place and the
21st century kind of approach to government ought to include
that. You have been great in working with us on the Internal
Revenue Service and on other management challenges that we have
had, Mr. Walker, and your team at GAO; and we appreciate that.
You are going to be needed in terms of follow-up. No matter
what happens out of this process in Congress, there will need
to be oversight by Congress; and your reports and, frankly, the
pressure that GAO applies by going through the analysis helps
to keep it on track.
I do have a couple of questions for you. One is on page 10
of your written statement. You talk about the people factor
being so critical, and you restated that in your oral testimony
too, being sure that it can recruit, retrain and reward a
talented and motivated work force which has the core
confidences required to achieve the mission. I think that is
our biggest single challenge, and this is why I believe
strongly in some flexibility.
Can you talk a little more about what you mean by
flexibility? Are you talking about pay banding so that you
could have some sort of performance pay or are you talking
about specific performance bonuses that are tied to a
performance measurement of some kind? We obviously need to
provide again in this new modern agency some kind of
flexibility to be able to attract and reattract and retain the
best people.
Mr. Walker. Several ideas, Mr. Portman. First, I know the
Congress has already provided certain flexibility to various
departments and agencies in the past, whether it be the
Internal Revenue Service, whether it be the new Transportation
Security Administration or whether it be the GAO, and so this
is not something that the Congress has not done before. Areas
that you may want to consider would be areas such as the
ability to hire a certain number of people for term
appointments without having to go through the competitive
process, again term appointments, a limited number, having a
specialist and scientific career track, having broad banding
authority, not only for classification but pay. Having
realignment authority, having the ability to offer voluntary
early outs and voluntary buyouts side in order to be able to
realign the work force rather than to downsize the work force.
Moving towards a structure whereby individuals are getting
compensated more based upon their skills, knowledge and
performance rather than the passage of time and rate of
inflation.
These would be a few examples that I would give.
Mr. Portman. I think it is very important and we have
talked a lot with Kay James, the Office of Personal Management
Director who was here yesterday, about some of these issues and
the administration proposed initially some very general
language, basically asking us to allow them to put together a
personnel policy which would provide for some of that
flexibility, and I think we have gotten to the point where
probably that language is too general and we need to specify
further and if you could work with us in the next 24 hours to
help with that it would be helpful because I think some members
on both sides of the aisle are interested in being sure that
this is again a 21st century approach to personnel management,
but that we retain some of the basic civil service protections.
I think, I know we can do both. I know we must if we are going
to achieve the results we all want.
Why is it not subject to GPRA anyway? You mentioned it
should be subject to Government Performance Results Act. I
assume that GPRA would cover--.
Mr. Walker. I think it needs to be express. It wasn't
express in the President's proposal. I am not aware he was
trying to circumvent that. It just wasn't express. But clearly
this is going to be one of the top five agencies in government.
I believe third in number of personnel and fourth or fifth in
budget dollars.
Chairman Armey. If I might interject, it is difficult for
me to imagine that the chairman of this committee would forget
that.
Mr. Walker. I think it would be.
Mr. Portman. I think it would be covered anyway because the
chairman will be sure it is covered. As for a second Deputy
Secretary, I understand what you are getting at. We need to
focus on management and some of these, too, but I have a
concern because I think it is to have that the Deputy
Secretary, provided, in the proposal and I think the Committee
on Government Reform also suggested a Deputy Secretary should
have that function; in other words, rather than having a
Secretary and a Deputy Secretary who functions more on the
program side and not on management, it seems to me that deputy
from management might be left out of some of the crucial
decisions and rather you want it to be aligned with the
leadership of the department. How do you feel about that?
Mr. Walker. I think this is critically important. I have
run three agencies in the Federal Government, two in the
executive branch, one in the legislative branch, and in every
agency I have run I have found that having a triumvirate at the
top was critically important and I got it done on my own. It
wasn't a statutory requirement. I got it done on my own and
basically what I found was you have the agency head, which is
the CEO and therefore is focused more externally, more on
policy, more on trying to do what the President wants, and
obviously they have their own agenda consistent with the
President's. You have the Deputy Secretary, the traditional
Deputy Secretary who tends to be more policy oriented, who
tends to serve more as the alter ego of the Secretary, who
tends to be focused appropriately on getting the President's
agenda adopted, typically more policy and operational mission
oriented, and getting the Secretary's agenda adopted. The
problem is that many of the Deputy Secretaries don't
necessarily have a management background, they are not
necessarily familiar with a lot of these important issues that
are the key between success and failure.
The other thing is that when you are dealing with strategic
planning, financial management, information technology, human
capital strategy, knowledge management, change management,
those are inherently good government issues, they are not
partisan issues, they take years to get it right and they are
critical parts of a department's basic infrastructure that you
have to get done. My experience has been those don't get
handled adequately, and the result of that is it inures to the
detriment of achieving success and inures to the detriment of
every administration, Republican or Democrat, because of
failure to adequately address those issues.
Mr. Portman. My time has expired and I appreciate the
indulgence, Mr. Chairman. I would hope that the Deputy would
focus on that. This is a relatively less political agency and
if we could in our legislation, I think, express that, I think
it would be appropriate just to say that we would hope the
Deputy would be someone who would focus on change management
and information technology and managing the operation, and with
that I yield back.
Mr. Walker. One last thing, I would just respectfully
suggest that given the huge undertaking this is going to take,
you are going to need a deputy for policy/operations and a
deputy for management. I really believe that. This is a huge
undertaking, and I believe if you don't have both you will
significantly increase the risk.
Chairman Armey. Thank you for that point. The gentlelady
from California.
Ms. Pelosi. Thank you very much, Mr. Chairman, I have many
questions for you, Mr. Walker, so we are going to whip right
through them. I am referencing many of the things you have said
in your presentation, and I agree with the chairman, you
managed your presentation very well and it was very clear and
it raised some questions.
You talked in here--you spoke about the importance of
congressional oversight to this new department and all and I
have found, and maybe it is from my perspective as an
appropriator, that one of the most eloquent forms of oversight
is from the standpoint of the purse strings. One of the
concerns we have here, expressed very well by the chairman and
the ranking member of the Appropriations Committee this
morning, was that there was an abdication of the congressional
purse string weighing in in this legislation that the President
presented to the point of upsetting the balance of power and
separation, checks and balances and separation of power that
our Founding Fathers intended. That it was indeed, to quote the
chairman of the committee--I don't know if I have it right
here, but he said if we were to diminish, he talked about two
things, if we were to take away our constitutional balance we
are almost as bad as those who would take them away by
terrorism. That was Chairman Young, a slight paraphrase but
almost an exact quote. Could you comment on that briefly?
Mr. Walker. First, make it very clear I am in the
legislative branch so I come down on Congress' side on
separation of powers. Secondly, I do think that you need to
make sure you don't do anything that undercuts your
constitutional prerogatives. I think there are opportunities to
work through the appropriations process, and Congress has done
that, to determine what is the nature of the accounts that you
ought to have, what are the number of accounts you ought to
have, to what extent you want to provide no year money, to what
extent might you want to consider other things. That has been
done and I think some flexibility ought to be provided, but I
think you ought to be careful not to undercut your
constitutional prerogatives.
Ms. Pelosi. I appreciate that and that was similar to what
the distinguished chairman had documented for us earlier today.
I was concerned about some of the references you made about
some of the laws that would apply here that our distinguished
chairman had participated in supporting.
For example, Clinger-Cohen Act, the President's bill
creates a CIO but does not apply the Clinger-Cohen Act, so none
of the information management requirements of that law such as
assuring the security of information system would apply.
Similarly, the President's bill creates a Chief Financial
Officer but does not apply the provisions of the Chief
Financial Officer Act. As a result, the CFO would not be Senate
confirmed and none of the financial management requirements of
that law such as annual independent audits would apply to the
new department. Section 904 of the committee print applies the
CFO act. That is a recommendation. Can you--.
Mr. Walker. I would hope that was an unintended omission
because I think it is important that these major acts do apply
to this department. It will be the third largest department in
terms of personnel and top five in terms of budget dollars.
Ms. Pelosi. Well, I hope that you are right and that they
are unintended omissions that our distinguished chairman would
intentionally include back into the legislation. I appreciate
your discussion of how the increased cost for this was going to
evolve in and your admonition against moving too quickly rather
than doing it right, and we hope we are not acting with haste
as we try to act with speed because this is an emergency. We
have to reduce risk. It is not like any other consolidation of
government before in the 5 to 10 years--is almost scary to hear
you say that but you are the voice of reality and I appreciate
what you are saying. But for those reasons I would have liked
to have seen a much leaner--my colleagues are tired of hearing
me say this--a very strong Office in the White House of
Homeland Security with statutory authority rather than just by
executive order, a much leaner operation here because it's
going to take 5 to 10 years to implement our goal to reduce
risk, to protect the American people best is not served by
something that is effective 10 years down the road. So leaner
to start and then let it grow if we decide that it needs to
grow. It will take its own direction.
Could you comment on that?
Mr. Walker. I think you need to pursue a phased
implementation. You need to decide which entities need to be in
this. The separate issue is, is it all or part of them? In what
order do you end up implementing them? So when I talk about the
5 to 10 years, what I mean is by the time you get all the parts
together, by the time you end up harmonizing the many different
systems that you have to harmonize, the financial management
systems, the human capital systems, the information technology
systems, the communication systems, and the performance
management systems, by the time you design it, implement it, to
get it to the point where it will stick beyond whoever the
current leader is, that takes 5 to 10 years. It is hard work.
Ms. Pelosi. If the chairman would indulge me, therefore I
am hoping that the distinguished chairman will include in his
mark a strong Office of Homeland Security in the White House,
which I think is necessary anyway, but certainly to tide us
over, an office that oversees all of the agencies of
government, not only those addressed in this department, and to
give it statutory basis rather than just its existence
springing from an executive order.
Thank you, Mr. Chairman. Thank you, Mr. Walker.
Chairman Armey. Thank you, Mr. Walker, and thank the
committee. If I may make a couple of observations. First of
all, I want to thank the committee and the committee's staff
for a very long, hard day. I want to thank the witness and the
witnesses' staff for your patience and again, as I have come to
expect, the thoroughness and quality of your work and your
presentation was outstanding.
If I might make the observation, we will work and produce a
chairman's mark on this legislation. It will be distributed to
the members of this committee by, as early as possible, perhaps
I can say with some certainty no later than the beginning of
business tomorrow morning, earlier if possible, and we will of
course be marking that on Friday. Now, between Friday and next
Wednesday we will be going to the floor.
Ms. Pelosi. Chairman, may I seek clarification? Could you
repeat that timetable because I think it is a little different
from my understanding? Perhaps I misunderstood.
Chairman Armey. What I have been saying is as soon as
possible at the conclusion of these hearings, but certainly by
8 o'clock in the morning.
Ms. Pelosi. So there is no need to wait around this evening
for a mark.
Chairman Armey. I would have your staff check with my
staff. The best way for us is to continue to stay in touch.
Ms. Pelosi. Then when we would meet again?
Chairman Armey. We want to get it in your hands as quickly
as we can.
Ms. Pelosi. Would we just meet 9:30 the next morning or--.
Chairman Armey. We might get a chance to talk together
tomorrow evening.
This of course is committee business, Mr. Walker. You don't
necessarily need to be here, but Mr. Walker--.
Mr. Walker. I don't need to make a point. I would just say
that I am more than willing to provide whatever assistance GAO
canthat could be of help to this committee.
Chairman Armey. If I may complete my thought, Mr. Walker,
clearly by Wednesday of next week insofar as we as the
committee find errors or omissions, things that we cannot
correct in our own markup on Friday, we would have an
opportunity, I would presume, under the rule for a manager's
amendment and I should just like to advise you that this
committee would probably feel very comforted to know that we
could draw on you for any assistance we might have, especially
with respect to some of these very important aspects such as
the performance results statement and things of this nature for
technical drafting assistance.
Ms. Pelosi. I just want to thank you, Mr. Chairman. We look
forward to receiving the mark and getting down to work and--.
Mr. Menendez. If I may, I thought--.
Chairman Armey. If I may, we can certainly give Mr. Walker
his leave. But go ahead.
Mr. Menendez. Inquiry as to the process for Friday. The
chairman has said that at some point early tomorrow he will
have this mark. What is the chairman's intention as to process
on Friday in terms of the markup itself? Are amendments going
to be in order by title? Is the bill going to be open as a
whole? Are we going to proceed under the 5-minute rule for
amendments that are offered? I am just trying to get a sense
of--.
Chairman Armey. I appreciate that. Let me just say it is
the chairman's intention to follow such procedure that will be
as inviting and as inclusive as is possible for members from
both sides of the aisle. We are caught between the constraint
of not wanting to start putting final details and completeness
to the mark until we have had the benefit of today's hearings,
which I think were well worth our time with respect to all the
hearings of the day, and the desire to have it in our hands as
members of committee in time to massage it with respect to our
desire to amend it. So the chairman will be in no hurry on
Friday to rush us through our day's work, will invite full
participation. I believe I would intend to follow the 5-minute
rule as closely as we can so that we have the opportunity to
fully discuss amendments that would be presented and to see to
it that every member has a chance to have every opportunity for
amendment.
Mr. Menendez. I thank the chairman for his response, and I
would just hope tomorrow in addition to--and I know this is the
chairman's intent to proceed in such a fashion as he has
proceeded in these hearings, and I want to commend him in that
regard, that whatever process you finalize in your mind the
sooner we know so that we can be prepared. If you are going to
do it by title I want to be here--I intend to be here for all
of it, but I want to make sure I have a title here that is open
to amendment and if it is going to be open as a whole that is
fine, but whatever your process you decide we would like to
know it as soon as possible.
Chairman Armey. Let me say to the gentleman your point is
well taken. I will be sorting through that tonight. My guiding
interest in determining the process that I will recommend we
follow would be the two points, as inviting and as inclusive as
possible. We will all be wanting Friday to finish our work with
whatever dispatch we can, but we will not sacrifice
thoroughness and respect for one another to that end.
Ms. Pelosi. If the chairman would yield, I believe there is
a good deal of interest on the part of the chairs and the
ranking members, as they suggested today, that if the mark did
not contain what they had that they sort of have at it again to
see if they could have their moment. Obviously the amendment
process through the committee is the way to do that, but I
think that as soon as we get that mark tomorrow morning, 8
o'clock, there is going to be a great deal of interest in it
beyond the nine of us.
Chairman Armey. Again, it is my desire to get it to you as
soon as I can, but I don't want to over promise.
The gentlelady from Connecticut.
Ms. DeLauro. I have one question. May I ask one question?
Chairman Armey. Of the witness.
Ms. DeLauro. Of the witness.
Chairman Armey. The witness has made himself available--.
Ms. DeLauro. I will be brief and I apologize to my--.
Chairman Armey. And I promised to unchain, and then I
promise to unchain you from your desk again. Go ahead, the
gentlelady from Connecticut.
Ms. DeLauro. This is about the transfer of the CDC's public
health activities. Your testimony at GAO where there was
concern expressed that the transferring of these programs, and
I will quote, ``had the potential to disrupt some programs that
are critical to basic public health responsibilities.'' let me
just say that your concern is shared at the local level.
Dr. Bob England, Director of the Milford, Connecticut
Public Health Department, he wrote to me saying, quote, ``The
system needed to identify a bioterrorist attack is the very,
very same one already employed by the public health system.''.
My question, couldn't we get the job done simply by
strengthening the tools we already have in place in our public
health system and by ensuring coordination between DHS, the
Department of Homeland Security, and CDC ?
Mr. Walker. I assume you are referring to a report or
testimony?
Ms. DeLauro. Right, the GAO report on this issue and on
health and about--.
Mr. Walker. I will be honest to tell you I am not
personally familiar with that report, but I will tell you this:
Whatever we said in that report you can take it to the bank, we
stand behind it.
Ms. DeLauro. This is, by the way, and quite honestly if
there is somebody--.
Mr. Walker. It is the testimony from Jan Heinrich, and one
of the things we talked about was our concern about a potential
loss of synergy that could be associated with splitting these
entities. Now, there are ways to address that, some that we
have laid out, but we do think it needs to be addressed in
order to make sure that it does not have an unintended
consequence, which I think is what Mr. Menendez was talking
about when he was talking about certain functions, how are they
going to be handled if they are transferred out.
Ms. DeLauro. If there is any further information on that or
Jan Heinrich has any information, obviously immediately we need
to move on it. That would be helpful.
Thank you, Mr. Chairman. Thank you, my colleagues.
Chairman Armey. Thank you again, Mr. Walker, and your staff
for their patience. Thank you, ladies and gentlemen. This
committee is now adjourned.
[The following material was submitted for the record:]
STATEMENT OF THE HONORABLE MICHAEL G. OXLEY, CHAIRMAN, COMMITTEE ON
FINANCIAL SERVICES
Chairman Armey, Ranking Member Pelosi and Members of the
Select Committee on Homeland Security, thank you for the
opportunity to testify before this panel on the President's
Homeland Security proposal. I am a co-sponsor of this
legislation and believe that it is critical that Congress work
quickly to ensure that the President has the tools necessary to
protect our citizens from the evil acts perpetrated by
terrorist who hate our free and open society. While the
Financial Services Committee waived its referral of H.R. 5005,
I believe that it is important to highlight for the Members the
critical role this Committee has played and will continue to
play in the war against terrorism.
Within one month of the terrorist attacks in New York,
Washington and Pennsylvania, the Financial Services Committee
reported three bills critical to the protection of our homeland
and the stability of our capital markets. The Financial Anti-
Terrorism Act of 2001, H.R. 3004, the Terrorist Risk Protection
Act, H.R. 3210, and the Emergency Securities Response Act, H.R.
3060 were the first comprehensive legislative actions taken by
this Congress to combat the threat of terrorism.
The Financial Anti-Terrorism Act provided banks, businesses
and federal law enforcement agencies with sweeping powers to
detect and disrupt terrorist funding and combat financial
crimes. This provision was eventually incorporated into the USA
PATRIOT Act and was signed into law by President Bush in
October of 2001. The Committee plans to closely monitor the
enforcement of this legislation in hearings over the next
several months.
The Committee also crafted and approved the Terrorist Risk
Protection Act, H.R. 3210, in mid October of last year. This
measure, which was passed by the House, provides a federal
backstop in order to guarantee that commercial terrorism
insurance is available to individuals and businesses in the
event of a terrorist attack, while at the same time ensuring
that the U.S. taxpayers are not left with the bill. It is
critical that insurance against terrorist attacks be available
in order to maintain economic stability and promote
development. I hope that the House and Senate will resolve
their differences over this legislation soon so that we can
protect the property of millions of Americans from and future
catastrophic losses.
The Emergency Securities Response Act, the Committee
empowered the Securities and Exchange Commission to extend some
emergency orders for up to 90 days and widened the scope of
emergency relief to all federal securities laws. This provision
granted the markets the ability to recover quickly from the
attacks on the U.S. financial infrastructure.
The President's proposal to create a Department of Homeland
Security is a logical and necessary one. As you know, there are
over 100 different federal agencies which are charged with
protection of our borders. It makes sense to consolidate them
into one agency in order to eliminate duplication of efforts
and conserve resources.
The Financial Services Committee has jurisdiction over
three programs within the Federal Emergency Management Agency
that would become the responsibility of the new department.
These programs are: the National Flood Insurance Programs, the
Defense Production Act and the Emergency Food and Shelter
Program. FEMA's mission is to prevent, prepare for, respond to,
and recover from disasters of all types. The Committee believes
that FEMA's expertise in consequence management is critical to
the function of the proposed Office of Homeland Security and
that all of these programs should remain within FEMA at this
time.
The Federal Insurance and Mitigation Administration within
FEMA manages the National Flood Insurance Program and has
expertise in risk assessment, mitigation and insurance. Efforts
such as resident education and flood mapping enable FEMA to
reach out to residents in flood prone regions and protect
against preventable losses. These services work in conjunction
with the National Flood Insurance Program and have proven
successful in building relationships and resources in areas
where floods are a threat to property and lives. In order to
ensure smooth operation of the National Flood Insurance
Program, the Committee believes that it should remain within
FEMA at this time.
The Defense Production Act was established to ensure that
the United States has the ability to mobilize industrial and
civilian resources when there is a threat to national security.
The DPA allows the government to employ economic tools to
provide uninterrupted supplies of industrial resources in times
of military crisis and civil emergency. These functions are
critical to maintaining civil emergency preparedness and
military readiness for the protection of the United States. The
DPA will be a valuable resource within the new department of
Homeland Security.
It can be argued that FEMA's Emergency Food and Shelter
Program has little to do with the protection of the United
States from terrorist activities. However, it is a critical in
supplying food and shelter to needy people in emergency
situations. In order to ensure that this program continues to
be effective and functional, the Committee recommends that it
remain within FEMA at this time. In the future this program
could be moved to another federal agency in order to ensure
effective allocation of Federal resources to aid those in need.
The Committee may examine the viability of such a move in the
future.
Finally, I commend the President for his proposal to move
the United States Secret Service to the new Department and
maintain it as a ``distinct entity'' outside the four major
jurisdictional cylinders established under the new Secretary.
The long dual-role history of the Service--investigative and
protective--combined with its more recently developed expertise
in preventing and investigating cyber crimes and its core
mission of protecting the financial system of the United
States, make the Secret Service uniquely suited to draw from
and augment the work of the other component agencies of the new
Department.
I would like to thank the Members of the Committee for the
opportunity to testify today. The creation of this new
department will be reflected in the history of our nation as
occurring at a time when Americans joined together in a unified
fight against terrorism and against those who seek to suppress
freedom. While the Financial Services Committee waives its
referral of H.R. 5005, its Members stand ready to assist in the
structuring of the envisioned Department of Homeland Security
if such assistance is requested. Thank you very much.
[Whereupon, at 8:38 p.m., the committee was adjourned.]
APPENDIX: RECOMMENDATIONS OF THE STANDING COMMITTEES
----------
COMMITTEE ON AGRICULTURE
House of Representatives,
Committee on Agriculture,
Washington, DC, July 11, 2002.
Hon. Richard K. Armey
Chairman, House Select Committee on Homeland Security, The
Capitol, Washington, D.C.
Dear Mr. Chairman: I am transmitting herewith the results
of the Committee on Agriculutre's consideration recommendations
with respect to H.R. 5005, the ``Homeland Security Act of
2002''.
The instructions to this Committee contained in H.Res. 449,
as passed by the House of Representatives on June 19, 2002
related to changes in laws within the Committee on
Agriculture's jurisdiction that dealt largely with moving the
Animal Plant and Health Inspection Service (APHIS) to the new
Department of Homeland Security.
The enclosed recommendations adopted by this Committee in a
business meeting on this date, in the presence of a majority
quorum, comply with those instructions. Also submitted for
inclusion are additional views by Members of this Committee.
Sincerely,
Larry Combest,
Chairman.
------
[Committee on Agriculture Recommendations Regarding
H.R. 5005]
(As Adopted July, 11, 2002)
Strike section 302(4), relating to the Plum Island Animal Disease
Center.
At the end of title III, insert the following new section:
SEC. 3__. TRANSFER OF PLUM ISLAND ANIMAL DISEASE CENTER, DEPARTMENT OF
AGRICULTURE.
(a) Transfer Required.--In accordance with title VIII, 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.--Upon the transfer
of the Plum Island Animal Disease Center, the Secretary of Homeland
Security and the Secretary of Agriculture shall enter into an agreement
to ensure Department of Agriculture access to the center for research,
diagnostic, and other activities of the Department of Agriculture.
In section 401, relating to the Under Secretary for Border and
Transportation Security, redesignate paragraph (5) as paragraph (6) and
insert before such paragraph the following new paragraph:
(5) conducting the inspection and related administrative
functions of the Department of Agriculture transferred to the
Secretary of Homeland Security under section 4__.
Strike section 402(3), relating to the Animal and Plant Health
Inspection Service.
At the end of title IV, insert the following new section:
SEC. 4__. 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 of Homeland
Security 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 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 of Homeland Security 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 of Homeland Security
whenever the Secretary of Agriculture prescribes regulations,
policies, or procedures for administering the laws specified in
subsection (b) at the locations referred to in subsection (a).
(3) Effective administration.--The Secretary of Homeland
Security, 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 801(2), the Secretary
of Agriculture and the Secretary of Homeland Security shall
enter into an agreement to effectuate the transfer of functions
required by subsection (a). The Secretary of Agriculture and
the Secretary of Homeland Security 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 of
Homeland Security to carry out the functions
transferred pursuant to subsection (a).
(B) The transfer of funds to the Secretary of
Homeland Security under subsection (f).
(3) Cooperation and reciprocity.--The Secretary of
Agriculture and the Secretary of Homeland Security may include
as part of the agreement the following:
(A) Authority for the Secretary of Homeland
Security 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 of Homeland Security 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 of Homeland Security funds for activities
carried out by the Secretary of Homeland Security for which
such fees were collected.
(2) Limitation.--The proportion of fees collected pursuant
to such sections that are transferred to the Secretary of
Homeland Security under this subsection may not exceed the
proportion of the costs incurred by the Secretary of Homeland
Security to all costs incurred to carry out activities funded
by such fees.
(g) Transfer of Department of Agriculture Employees.--During the
transition period, the Secretary of Agriculture shall transfer to the
Secretary of Homeland Security 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.''.
Section-by-Section Analysis of House Committee on Agriculture
Recommendations to H.R. 5005
The Committee on Agriculture Recommendation to H.R. 5005
strikes section 302(4) and adds a new section 3__ to the end of
title III.
Sec. 3__. Transfer of Plum Island Animal Disease Center, Department of
Agriculture.
Transfers the Plum Island Animal Disease Center from the
Department of Agriculture to the Department of Homeland
Security and requires the Secretary of Agriculture and the
Secretary of Homeland Security, upon completion of the
transfer, to enter into an agreement providing for continued
access by USDA for research, diagnostic and other programs.
The Committee recognizes the critical importance of the
Plum Island Animal Disease Center to the safety and security of
animal agriculture in the United States. The Committee expects
that the transfer of this foreign animal disease facility to
the Department of Homeland Security shall be completed in a
manner that minimizes any disruption of agricultural research,
diagnostic or other Department of Agriculture activities.
Likewise, the Committee expects that funds that have and
continue to be appropriated for the maintenance, upgrade, or
replacement of agricultural research, diagnostic and training
facilities at the Plum Island Animal Disease Center shall
continue to be expended for those purposes.
The Committee shares the goal of expanding the capabilities
of the Plum Island Animal Disease Center. Likewise, the
Committee supports the accompanying goal of building agro-
terrorism prevention capabilities within the Department of
Homeland Security. With this in mind, the Committee fully
expects that in the absence of alternative facilities for
current Department of Agriculture activities, the Secretary of
Homeland Security shall make every possible effort to expand
and enhance agricultural activities related to foreign animal
diseases at the Plum Island Animal Disease Center.
The Recommendations adds a reference to the inspection
functions of the Department of Agriculture to the list of
responsibilities of the Under Secretary for Border and
Transportation Security in section 401.
The Recommendation to H.R. 5005 strikes section 402(3) and
adds a new section 4__ to the end of title IV.
Sec. 4__. Transfer of Certain Agricultural Inspection Functions of the
Department of Agriculture.
(a) Transfers to the Secretary of Homeland Security the
functions of the Secretary of Agriculture relating to
agricultural import and entry inspection activities.
The Committee is aware that the Agricultural Quarantine and
Inspection Program of the Department of Agriculture's Animal
and Plant Health Inspection Service conducts numerous
activities with respect to both domestic and international
commerce in order to protect the health of agriculturally
important animals and plants within the United States. Within
the Department of Homeland Security will be created a mission
area of Border and Transportation Security. In order that the
new streamlined border security program operates efficiently,
the Committee has transferred to the Department of Homeland
Security the responsibility for certain agricultural import and
entry inspection activities of the Department of Agriculture
conducted at points of entry. This transfer will include the
inspection of arriving passengers, luggage, cargo and means of
conveyance into the United States to the Under Secretary for
Border and Transportation Security. In addition to inspections
at points of entry into the United States, responsibility for
inspections of passengers, luggage and their means of
conveyance, at points of departure outside the United States,
where agreements exist for such purposes, shall be the
responsibility of the Secretary of Homeland Security. The
provision allows the Secretary of Homeland Security to exercise
authorities related to import and entry inspection functions
transferred including conducting warrantless inspections at the
border, collecting samples, holding and seizing articles that
are imported into the United States in violation of applicable
laws and regulations, and assessing and collecting civil
penalties at the border. The Committee intends that the
Department of Agriculture will retain the responsibility for
all other activities of the Agricultural Quarantine and
Inspection Program regarding imports including pre-clearance of
commodities, trade protocol verification activities, fumigation
activities, quarantine, diagnosis, eradication and
indemnification, as well as other sanitary and phytosanitary
measures. All functions regarding exports, interstate and
intrastate activities will remain at the Department of
Agriculture.
(b) Delineates the laws governing agricultural import and
entry inspection activities that are covered by the transfer of
authorities.
The Committee is aware that the authority to inspect
passengers, cargo, and their means of conveyance coming into
the United States is derived from numerous statutes that date
back, in some cases, more than 100 years. The Committee does
not intend that the reference to these statutes should be
construed to provide any authority to the Secretary of Homeland
Security beyond the responsibility to carry out inspections
(including pre-clearance inspections of passengers, luggage and
their means of conveyance in such countries where agreements
exist for such purposes) and enforce the regulations of the
Department of Agriculture at points of entry into the United
States.
(c) Excludes quarantine activities from the term
``functions'' as defined by this Act for the purposes of this
section.
While agricultural inspection functions, as well as those
related administrative and enforcement functions, shall be
transferred and become the responsibility of the Secretary of
Homeland Security, the legislation retains all functions
related to quarantine activities and quarantine facilities
within the Department of Agriculture. Although the Committee
has excluded quarantine activities from those functions
transferred to the Department of Homeland Security, the
Committee does not intend to preclude the Secretary of Homeland
Security from taking actions related to inspection functions
such as seizure or holding of plant or animal materials
entering the United States. These authorities fall within the
purview of inspection related enforcement functions that shall
be transferred to the Secretary of Homeland Security.
(d) Requires that the authority transferred to the
Secretary of Homeland Security shall be exercised in accordance
with the regulations, policies and procedures issued by
Secretary of Agriculture; requires the Secretary of Agriculture
to coordinate with the Secretary of Homeland Security whenever
the Secretary of Agriculture prescribes regulations, policies,
or procedures for administering the covered laws related to the
functions transferred under subsection (a); provides that the
Secretary of Homeland Security, in consultation with the
Secretary of Agriculture, may issue guidelines and directives
to ensure the effective use of personnel of the Department of
Homeland Security to carry out the transferred functions.
One intention of this legislation is to create a
streamlined Border and Transportation Security program at
points of entry into the United States. With regard to the
protection of animal and plant health, the Committee does not
intend or expect the Department of Homeland Security to make
the determination of what animals, plants, animal or plant
products, soils, or other biological materials present an
unacceptable risk to the agriculture of the United States.
Policies and procedures regarding actions necessary to detect
and prevent such unacceptable risks shall remain the
responsibility of the Secretary of Agriculture. Likewise,
policies and regulations defining restrictions on movement into
the United States of substances that would pose a threat to
agriculture shall continue to be the responsibility of the
Secretary of Agriculture.
The Committee has provided authority for the Secretary of
Homeland Security to issue directives and guidelines in
consultation with the Secretary of Agriculture in order to
efficiently manage inspection resources. When exercising this
authority, the Committee expects that the agricultural
inspection function at points of entry into the United States
shall not be diminished, and as a result, the Committee expects
that Secretary of Homeland Security shall ensure that necessary
resources are dedicated to carrying out the agricultural
inspection functions transferred from the Department of
Agriculture.
(e) Requires the Secretary of Agriculture and the Secretary
of Homeland Security to enter into an agreement to effectuate
the transfer of functions. The agreement must address the
training of employees and the transfer of funds. In addition
the agreement may include authority for the Secretary of
Homeland Security to perform functions delegated to APHIS for
the protection of domestic livestock and plants, as well as
authority for the Secretary of Agriculture to use employees of
the Department of Homeland Security to carry out APHIS
functions.
The Committee is aware of the unique nature and the
specialized training necessary for effective and efficient
border inspection activities carried out by the Agricultural
Quarantine and Inspection Program. The Committee expects that
the training of personnel and detector dogs for this highly
specialized function will continue to be supervised by the
Department of Agriculture.
While a large proportion of the personnel employed by the
Agricultural Quarantine and Inspection Program are permanently
stationed at one of 186 points of entry into the United States,
the Committee is aware that the Secretary of Agriculture
commonly re-deploys up to 20 percent of the border inspection
force in order to manage agricultural pests and diseases
throughout the United States. In completing the transfer of
Agricultural Quarantine and Inspection Program border
inspectors to the Department of Homeland Security, the
Committee expects that the Secretary of Agriculture and the
Secretary of Homeland Security will enter into an agreement
whereby inspection resources, where possible, would continue to
be made available to the Secretary of Agriculture in response
to domestic agricultural needs.
(f) Provides that the Secretary of Agriculture shall
transfer funds collected by fee authorities to the Secretary of
Homeland Security so long as the funds do not exceed the
proportion of the costs incurred by the Secretary of Homeland
Security in carrying out activities funded by such fees.
Beginning in fiscal year 2003, the unobligated balance of
the Agricultural Quarantine and Inspection Fund will be
transferred to other accounts within the Department of
Agriculture and will be used to carry out import and domestic
inspection activities, as well as animal and plant health
quarantine activities, without additional appropriations. Fees
for inspection services shall continue to be collected and
deposited into these accounts in the manner prescribed by
regulations issued by the Secretary of Agriculture. In
effectuating the transfer of agricultural import inspection
activities at points of entry into the United States, the
Committee intends that funds from these accounts shall be
transferred to the Department of Homeland Security in order to
reimburse the Department of Homeland Security for the actual
inspections carried out by the Department. The Committee
expects that the Secretary of Agriculture shall continue to
manage these accounts in a manner that ensures the availability
of funds necessary to carry out domestic inspection and
quarantine programs.
(g) Provides that during the transition period, the
Secretary of Agriculture shall transfer to the Secretary of
Homeland Security up to 3,200 full-time equivalent positions of
the Department of Agriculture.
(h) Makes conforming amendments to Title V of the
Agricultural Risk Protection Act of 2000 related to the
protection of inspection animals.
Committee Consideration
I. Hearings
The Committee on Agriculture held a hearing on June 26,
2002 to review the Administration's proposed legislation on
creating a Department of Homeland Security. Witnesses
representing State agencies and the agricultural community
testified before the Committee.
II. Full Committee Consideration
The Committee on Agriculture met in open session pursuant
to notice on July 11, 2002 and by a voice vote adopted the
recommendations set forth.
Reporting the Bill--Roll Call Votes
In compliance with clause 3(b) of Rule XIII of the House of
Representatives, the Committee on Agriculture's recommendation
to H.R. 5005 was reported by voice vote with a majority quorum
present. There was no request for a recorded vote.
Budget Act Compliance (Sections 308, 402, and 423)
The provisions of clause 3(c)(2) of Rule XIII of the Rules
of the House of Representatives and section 308(a)(1) of the
Congressional Budget Act of 1974 (relating to estimates of new
budget authority, new spending authority, new credit authority,
or increased or decreased revenues or tax expenditures) are not
considered applicable. The estimate and comparison required to
be prepared by the Director of the Congressional Budget Office
under clause 3(c)(3) of Rule XIII of the Rules of the House of
Representatives and sections 402 and 423 of the Congressional
Budget Act of 1974 were not received by the Committee on
Agriculture prior to submitting its recommendation to the
Select Committee on Homeland Security. However the Committee
was notified that this language would not create any new, or
affect any existing, mandatory spending since this
recommendation would only transfer employees and functions.
Changes in Existing Law
In compliance with clause 3(e) of Rule XIII of the Rules of
the House of Representatives changes in existing law made by
the recommendation of the Committee on Agriculture will be
provided by Legislative Counsel to the Select Committee on
Homeland Security.
Additional Views of the Honorable John Elias Baldacci
House of Representatives,
Select Committee on Homeland Security,
Washington, DC, July 11, 2002.
Hon. Richard K. Armey
Chairman, House Select Committee on Homeland Security, The
Capitol, Washington, D.C. 20515
Dear Chairman Armey: I am writing to add my opinions to
those of my colleagues on the House Agriculture Committee with
regards to the creation of a new Department of Homeland
Security. I appreciate your attention to my comments.
The Agriculture Committee has received numerous, pointed
comments from agriculture groups across the Nation who are
concerned that the Animal and Plant Health Inspection Service's
(APHIS) primary mission to prevent and eradicate plant and
animal diseases may be lost if the entire agency were to be
moved out of the purview of the US Department of Agriculture
(USDA). Indeed, many in my home state, including the relevant
officials in the Maine Department of Agriculture, have
expressed similar concerns.
In this process, I feel our first responsibility should be
to protect the interests of Americans on all fronts. I was
pleased with the Agriculture Committee's recommendation to
transfer only the agricultural import and inspection activities
of APHIS to the Department of Homeland Security. By leaving
other activities of APHIS within the jurisdiction of USDA, the
high quality performance of traditional functions such as plant
and animal disease research, oversight of animal welfare,
certification of US agricultural products for export, and
quarantine activities will be maintained.
Furthermore, the levels of cooperation between the
Secretaries of Agriculture and Homeland Security recommended by
the Agriculture Committee will be an important element of any
future activities to control the vast numbers of imported
agricultural goods into our country. I applaud the efforts of
Congress not only in this effort to establish a new Department
of Homeland Security, but also in earlier actions to boost the
number of inspectors at US border crossings and points of
entry.
My state has one of the longest coastlines in the nation,
in addition to a significant border with Canada stretching from
Quebec in our west and New Brunswick in the east. Following the
horrific events of September 11, imports into the State of
Maine from Canada were severely delayed due to a lack of
qualified border inspectors. These delays impacted both the
economy of my State and, by extension the rest of the nation. I
would ask that during this reorganization period, that
additional APHIS inspectors be assigned to border crossings and
ports in Maine in order to better facilitate the passage of
agricultural goods into the State and the nation.
Again, I commend Congress and the Administration on this
concerted effort to establish a more responsive mechanism to
address our homeland security needs. I have appreciated the
opportunity to work with my colleagues on the House Agriculture
Committee to make responsible recommendations to ensure that
our nation's food supplies are safe from both terrorist attacks
and non-terrorism related agricultural disasters. I thank you
for your attention to my concerns.
Sincerely,
John E. Baldacci
Member of Congress
Additional Views of the Honorable Nick Smith
House of Representatives,
Select Committee on Homeland Security
Washington, DC, July 11, 2002.
Hon. Richard K. Armey
Chairman, House Select Committee on Homeland Security, The
Capitol, Washington, D.C. 20515
Dear Chairman Armey: It is important that your committee
consider the attached Amendment to H.R. 5005 that would
authorize establishment of a National Center for Plant Disease
Research and Control. The virtual center would utilize existing
facilities of the Department of Homeland Security, U.S.
Department of Agriculture and state universities to provide
coordination of a much-needed first line of defense against
possible acts of bioterrorism directed at the nation's food
supply.
Please review the supporting comments from the American
Phytopathological Society (APS), the world's largest
organization of plant health scientists, and the National
Academy of Sciences.
The APS and the National Academy of Sciences state that
while there are many scientists with expertise on the subject,
there is no established network for coordinating their efforts
and no standardized methods and procedures for detecting such
events or preventing them from occurring. Using the Centers for
Disease Control as a model, the amendment would direct the
Secretary of Homeland Security to evaluate the need for a
National Center for Plant Disease Research and Control and
authorize the Secretary to establish the Center if it is
determined that a need exists. Under the legislation, the
center would bring together a network of existing laboratories
and experts for the purposes of detecting and controlling
diseases that might result from bioterrorist activities. The
Center would coordinate a rapid response team, develop a high-
capacity communication network, oversee continual monitoring
and risk assessment of potential threats, support the
development of new tools for rapid detection and diagnosis of
plant diseases and expand research on genomics and plant
biotechnology.
This amendment is much needed to protect our nation's food
supply, and the formation of such a center is the effective way
to coordinate such an effort through scientists and experts. I
appreciate your consideration of our amendment.
Sincerely,
Nick Smith,
Member of Congress
------------
Committee on Science and Technology for
Countering Terrorism, National Research
Council, National Academy of Sciences,
Washington, DC.
Recommendation 5: ... create an agency for control and prevention
of plant disease. This agency should have the capabilities necessary to
deal effectively with biothreats.
For animal disease, USDA operates several laboratories - Plum
Island and Ames among them - that perform diagnoses, carry out
research, and provide training for veterinarian. CDC is the central
agency for the control and prevention of communicable human disease,
but no center currently exists to serve the same function for plant
disease. Such a center is desperately needed. Departments of plant
pathology at various state universities, APHIS, and a wide variety of
other agencies, all of which often depend on outside experts, currently
deal with new and unusual plant pathogens as best they can.
A major research, development, and training center is called for
that would address fungal, bacterial, and viral diseases of plants.
Programs would focus on genomics and proteomics, databasing and
informatics, forensics, pathogenesis, host-parasite interactions,
diagnostics, sensors, food safety, analytical methods, epidemiology,
modeling of disease outbreaks, intervention, and management. Other
efforts could include outreach, technology transfer, collections of
pathogens, and epidemiological intelligence and response. Close
linkages could be established with other federal and state agencies, as
well as with academic institutions, international agencies with
responsibilities for surveillance of plant diseases and bioterrorism,
and industrial, extension, and professional organizations. These
collaborators could, among other functions, provide advice on
containment and control procedures. Reprinted from: National Academy of
Sciences: National Research Council ``Making the Nation Safer: The role
of Science and Technology in Countering Terrorism'' (National Academy
Press: Washington D.C. 2002) pg.3-ll to 3-12
------------
Department of Entomology and Plant Pathology
Oklahoma State University, Stillwater, OK 74078
Washington, DC, March 14, 2002
Dear Congressman Smith: I am writing as President-Elect of the
American Phytopathological Society, the professional scientific society
representing the plant pathologists of America and the world's largest
professional society concerned with the diffusion of knowledge of plant
diseases and their control. Members of the American Phytopathological
Society promote the practice of plant pathology for the welfare of the
environment plants, animals and human kind. However, with U.S. and
global vulnerability to agricultural bioterrorism. the nation's
research and education infrastructure must now work also to protect our
gains, continue consumer confidence in the safely of our food, and
assure sustainable growth in the production of food and fiber products
produced from plants.Part of the vulnerability of our crops and food
reserves is due to gaps in the nation's infrastructure that are needed
to detect, diagnose, and limit or recover from such an attack. Whether
or not an attack should ever materialize, this infrastructure is still
needed as part of the continuing improvements in this nation's ability
to produce high quality food in competitive and sustainable production
systems.
We believe that the United States needs a national center that can
provide many of the same services and national leadership currently
provided for human diseases by the Centers for Disease Control and
Prevention. The center could be termed the ``Center for Plant Disease
Control,--or alternatively, the ``National Plant Disease Center.'' I am
enclosing a brief description of some activities and responsibilities
that could be performed by such a center.
We strongly urge you to support the establishment and activities of
such a center. We recognize that the planning stages must involve input
and participation from the various Federal and State agencies whose
missions include aspects of plant food production and safety. The APS
stands ready to work with you and others in the development of this
critical national resource.
Thank you for your consideration and assistance. Please let us know
how the APS can assist further in this process.
Sincerely yours,
Jacqueline Fletcher,
President-Elect,
The American Phytopathological Society
AMENDMENT
OFFERED BY MR. SMITH OF MICHIGAN
At the end of title IV, insert the following new section:
SEC. __.INFORMATION COLLECTION AND NATIONAL CENTER FOR PLANT DISEASE
RESEARCH AND CONTROL.
(a) INFORMATION COLLECTION AND INVESTIGATIVE AUTHORITY.--
The Secretary of Homeland Security may gather and compile
information and conduct any investigations the Secretary
considers necessary for the administration and enforcement of
the agricultural import and entry inspection functions
transferred to Secretary under section 4 (a)
(b) EVALUATION OF NEED FOR NATIONAL CENTER.--The Secretary
of Homeland Security shall evaluate the feasibility and
desirability of establishing a National Center for Plant
Disease Research and Control in the Department of Homeland
Security (in this section referred to as the ``Center'') that;
(1) would facilitate the gathering and compiling of
information and the conducting of basic research and
investigations related to plant pests and pathogens
that can directly or indirectly injure, cause damage
to, or cause disease in plants or plant products; and
(2) could act as a first responder in the event of an
accidental or deliberate introduction or use of a plant
pest or pathogen.
(c) ESTABLISHMENT OF CENTER.--If the results of the
evaluation conducted under subsection (b) support the need for
a Center, the Secretary of Homeland Security may establish the
Center and ass to it the specific functions referred to
subsections (b) and (d) and such other duties as the Secretary
considers appropriate. The Secretary shall utilize existing
facilities of the Department of Homeland Security and land-
grant colleges and universities to establish the Center.
(d) CENTER FUNCTIONS.--The Center, if established by the
Secretary of Homeland Security, may be used to perform and
support the following activities:
(1) Development of new tools for rapid detection and
diagnosis of plant diseases, including by remote
sensing.
(2) Expansion of research on genomics and plant
biotechnology as the foundation for more rapid and
effective development of crop plants with resistance to
pathogens that are potential threat agents.
(3) Expansion of research on genomics and plant
biotechnology that can be used for detection of,
forensics related to, or recovery from a bioterrorist
attack on plants or plant products.
(4) Development and maintenance of a data base for the
identification of known or potential plant pests and
pathogens and for the collection of risk assessments
regarding the threat such plant pests and pathogens
pose to plants and plant products.
(5) Coordination of new or acquired collections of
foreign and domestic pathogens and development of
methods for their characterization and rapid diagnosis.
(e) COORDINATI0N.--The Secretary of Homeland Security shall
coordinate the activities of the Center with other Federal and
State agencies and appropriate experts in the area of plant
pest control at public and private research institutions.
(f) FUNDING.There is authorized to be appropriated for each
fiscal year $5,000,000 to support the activities of the Center.
COMMITTEE ON APPROPRIATIONS
July 11, 2002
[RECOMMENDATIONS TO THE SELECT COMMITTEE ON HOMELAND SECURITY]
[concerning h.r. 5005]
The Committee on Appropriations, to whom was referred the
bill (H.R. 5005) to establish the Department of Homeland
Security, and for other purposes, having considered the same,
report thereon with its recommendations and views on the bill.
In this opinion, the Committee has limited its specific textual
recommendations to matters within the jurisdiction of the
Committee on Appropriations, and for other matters, the
Committee remains descriptive in those matters in which the
Committee has expertise to lend.
The Committee believes that the enactment of H.R. 5005, as
introduced, would constitute a major erosion of the separation
of powers as established in the United States Constitution,
abrogating the central role of the Congress--the direction and
oversight of public expenditures. The bill would provide the
Secretary of the Department of Homeland Security with
extraordinary and unprecedented powers that would in effect be
both legislative and executive in nature and undermine the
fundamental precept of the founding fathers, ``checks and
balances.''
The Committee has been in the forefront of strengthening
the nation's capacity to identify, find and destroy terrorist
organizations and to enhance our nation's defenses and capacity
to respond to terrorist attacks. We strongly support efforts to
streamline, centralize and improve the management and
efficiency of the nation's counter-terrorism and homeland
security activities. The importance of attaining these goals,
however, need not involve sacrificing the constitutional
processes that have remained intact for more than two centuries
and have served the nation well during foreign invasions, civil
war and two world wars. In fact, the current administrative
morass troubling a number of key homeland security agencies
would argue for even more intense Congressional scrutiny and
oversight.
For those matters within the jurisdiction of the Committee
on Appropriations, the Committee recommends that the bill, H.R.
5005, be amended, with an amendment as follows:
Page 38, strike lines 19 through 22 and insert the following:
``(4) shall deposit the proceeds of any exercise of the authority
granted by this subsection into the miscellaneous receipts of the
Treasury in accordance with section 3302(b) of title 31, United States
Code.''.
Page 39, strike lines 5 through 14.
Page 39, line 15, strike ``; TRANSFER''.
Page 39, line 16, strike ``(a) Allocation of Functions.--''.
Page 40, strike lines 6 through 13.
Page 42, beginning on line 12, strike ``or non-reimbursable''.
Page 42, strike lines 15 through 22.
Page 42, line 23, strike ``(d)'' and insert ``(c)''.
Page 43, line 20, strike ``(e)'' and insert ``(d)''.
Page 44, beginning on line 2, strike ``and'' the second place it
appears and all that follows through ``Code'' on line 4.
Page 44, after line 10, insert the following new subsections:
``(e) Use of Transferred Funds.--Except as may be provided in an
appropriation Act pursuant to subsection (g), balances of
appropriations and any other funds transferred pursuant to this Act
shall--
``(1) be available only for the purposes for which they were
originally available; and
``(2) remain subject to the same conditions and limitations
provided by the law originally appropriating or otherwise
making available the amount, including limitations and
notification requirements related to the reprogramming of
appropriated funds.
``(f) Notification Regarding Transfers.--The President shall notify
Congress at least 15 days in advance of any transfer of appropriations
balances or other funds pursuant to this Act.
``(g) Additional Uses of Funds During Transition.--During the
transition period and provided that the Committees on Appropriations
are notified at least 15 days in advance, amounts transferred to or
otherwise made available to the Department may be used for purposes in
addition to those for which they were originally available (including
by transfer among accounts of the Department), but only to the extent
such transfer or use is specifically permitted in advance in an
appropriation Act and only under the conditions and for the purposes
specified in such appropriation Act.''.
Page 47, strike lines 12 through 19.
Committee Perspective on Provisions of H.R. 5005 Within the
Jurisdication of the Committee on Appropriations
H.R. 5005 was referred to the Select Committee on Homeland
Security, and in addition to several permanent committees,
including the Committee on Appropriations, in each case for
consideration of such matters as fall within the jurisdiction
of the committee concerned. For the Committee on
Appropriations, the matters within its jurisdiction are
transfers of certain authorities and appropriations and
unobligated and unexpended balances of previous appropriations.
Specifically, H.R. 5005 includes:
1. the general transfer of several agencies, such as the
Coast Guard, Secret Service, the Federal Emergency Management
Agency, etc., to the new department and calls for the transfer
of ``functions, personnel, assets and liabilities''. The
legislation defines ``assets'' to include (among other items)
``unobligated or unexpended balances of appropriations, and
other funds and resources''.
2. broad powers to help finance the operations of the new
department. Subsections (d) through (f) of section 732
authorize the Secretary of Homeland Security to acquire real
estate and sell or exchange assets owned by the Department, and
to raise funds by leasing or subleasing property owned or
leased by the Department. The proceeds raised through these
arrangements would be available for any purpose of the
Department, without the need for appropriation or other
congressional action. These amounts could be substantial, as
the Department would acquire control over considerable property
when it absorbs agencies such as the Coast Guard, the Animal
and Plant Health Inspection Service, and various laboratories.
The broad authorities granted are contrary to longstanding
principles of existing law which requires governmental receipts
to be deposited in the Treasury and spent only pursuant to
appropriations--except where Congress has authorized specific
uses.
3. section 733(b) which provides the Secretary of the new
department the permanent authority to transfer up to five
percent of any appropriation available to the secretary in any
fiscal year to any other appropriation (on 15 days' notice to
the Appropriations Committees). No Congressional approval is
required. This provision could allow transfers of $2 billion or
more.
4. authority in section 803(c) which allows the President
to transfer to the new department up to five percent of the
unobligated balances available to any agency being moved to the
new department before the move takes place. The amounts
transferred would then be available to finance any of the
purposes of the new department, without regard to the purposes
for which they were originally appropriated. In other words,
the new department could start its operations with initial
funding of $1 billion or more, provided not through an
appropriation for that purpose, but rather through a five
percent surcharge against appropriations made for agencies such
as the Coast Guard, the Customs Service, and the Federal
Emergency Management Agency. Again, no Congressional approval
is required.
5. section 803(e), a provision that provides that upon the
transfer of an agency to the new Department, the personnel,
assets and liabilities of the agency shall be transferred to
the Secretary for appropriate allocation, subject only to the
approval of the Director of the Office of Management and
Budget. This section would expressly override the provision of
permanent law (31 U.S.C. 1531(a)(2)) that requires funds
transferred under such circumstances (that is in connection
with transfers of functions) be used only for the purposes for
which the appropriation was originally available.
6. section 806, which authorizes the director of the Office
of Management and Budget to make additional and incidental
dispositions of personnel, assets, and liabilities in
connection with the functions transferred in the Act, as he
determines appropriate.
These transfer provisions are overly broad and sweeping. If
enacted, they could have a serious impact on the appropriations
process, hinder Congress in the exercise of its constitutional
duty to direct the expenditure of public funds, and erode the
role of Congress as established under Article I of the
Constitution. They would have the effect of vitiating and
rendering as irrelevant annual appropriations levels
established by Congress for specific individual programs and
would undermine Congressionally-imposed restrictions and
program allocations. As a matter of fact, H.R. 5005 would
provide the Secretary of the new department the ability to
unilaterally rewrite fiscal year 2003 and perhaps some of
fiscal year 2004 appropriations relating to both homeland
security and to all other functions (such as other missions of
the Coast Guard) that he wishes to shift to the new department.
This would amount to giving the Secretary of Homeland Security
an unrestricted lump-sum appropriation in an amount that could
exceed $30 billion. Moreover, this transfer authority would be
available in perpetuity.
Explanation of the Proposed Amendment
The Committee recommends that the bill, H.R. 5005, be
amended as follows:
Page 38, strike lines 19 through 22 and insert the following:
``(4) shall deposit the proceeds of any exercise of the authority
granted by this subsection into the miscellaneous receipts of the
Treasury in accordance with section 3302(b) of title 31, United States
Code.''.
Page 39, strike lines 5 through 14.
Page 39, line 15, strike ``; TRANSFER''.
Page 39, line 16, strike ``(a) Allocation of Functions.--''.
Page 40, strike lines 6 through 13.
Page 42, beginning on line 12, strike ``or non-reimbursable''.
Page 42, strike lines 15 through 22.
Page 42, line 23, strike ``(d)'' and insert ``(c)''.
Page 43, line 20, strike ``(e)'' and insert ``(d)''.
Page 44, beginning on line 2, strike ``and'' the second place it
appears and all that follows through ``Code'' on line 4.
Page 44, after line 10, insert the following new subsections:
``(e) Use of Transferred Funds.--Except as may be provided in an
appropriation Act pursuant to subsection (g), balances of
appropriations and any other funds transferred pursuant to this Act
shall--
``(1) be available only for the purposes for which they were
originally available; and
``(2) remain subject to the same conditions and limitations
provided by the law originally appropriating or otherwise
making available the amount, including limitations and
notification requirements related to the reprogramming of
appropriated funds.
``(f) Notification Regarding Transfers.--The President shall notify
Congress at least 15 days in advance of any transfer of appropriations
balances or other funds pursuant to this Act.
``(g) Additional Uses of Funds During Transition.--During the
transition period and provided that the Committees on Appropriations
are notified at least 15 days in advance, amounts transferred to or
otherwise made available to the Department may be used for purposes in
addition to those for which they were originally available (including
by transfer among accounts of the Department), but only to the extent
such transfer or use is specifically permitted in advance in an
appropriation Act and only under the conditions and for the purposes
specified in such appropriation Act.''.
Page 47, strike lines 12 through 19.
The amendments recommended by the Committee remove the
various extraordinary transfer authorities and budgetary powers
that would be conferred on the executive branch by the bill as
introduced. Instead, the Committee recommends relying on more
traditional procedures, which allow funds to be transferred
along with the organizations they finance but which require the
executive to propose and obtain congressional approval to
increase funding levels or change the uses of appropriated
funds.
The Committee's amendments leave intact the various
provisions of the introduced bill (such as section 202) that
provide for transfer to the Department of Homeland Security of
the assets of the various federal entities being moved to the
new department, and that define those assets as including
unobligated or unexpended balances of appropriations.
Similarly, the amendments leave in place the basic structure of
section 803(e), which clarifies that the transfer of
appropriations balances and other assets occurs at the time an
organization is transferred to the Department of Homeland
Security and that these balances are transferred to the
Secretary of Homeland Security for appropriate allocation.
However, the Committee amendments strike the provision of
the bill that expressly overrides provisions of permanent law
requiring that funds transferred under such circumstances be
used only for the purposes for which they were originally
appropriated. Instead, the amendments specifically apply the
basic principles found in sections 1531 and 1532 of title 31,
United States Code, that transferred funds are available only
for the same purposes and subject to the same limitations as
applied prior to the transfer.
Thus, under the Committee amendments, when an organization
such as the Immigration and Naturalization Service or the
Secret Service is moved to the Department of Homeland Security,
it would bring along its own funding in the form of the
unobligated and unexpended balances of its appropriations.
However, such appropriations would not normally be available to
finance other operations of the new Department. The Committee
expects the Administration to prepare and propose to Congress a
specific plan for financing those operations and needs of the
Department of Homeland Security that do not represent simply
the continuation of functions for which appropriations are
already available. Such a plan could consist of any combination
of appropriations transfers, new appropriations, rescissions
and other measures as the Administration considers advisable.
The Committee would expect to act expeditiously on any such
proposal.
The process that would be established by H.R. 5005 as
amended by the Committee is very similar to the process used
when the Department of Energy was created in 1977 and when the
Department of Education was created in 1979. In both cases,
legislation establishing the new departments provided for
transfer of appropriations balances along with the functions
being transferred--but only for the purposes for which the
funds were originally appropriated. In both cases, further
transfers were allowed only to the extent specifically
authorized in appropriations legislation.
The Committee understands the language contained in the
bill (as amended) transferring appropriations balances and
other assets to the Department of Homeland Security as applying
only to the assets of the federal entities specifically
transferred by sections 202, 302, 402, 502, and 720. Thus,
nothing in the bill authorizes transfer of any portion of the
appropriations balances of any agency, such as the National
Institutes of Health or the Federal Aviation Administration,
that is not transferred to the Department of Homeland Security
in whole or in part by the bill. If the Administration wishes
to shift to the Department of Homeland Security any part of the
funds appropriated to an agency not being transferred, the
Administration should propose the necessary specific
appropriations legislation to Congress.
Specifically, the amendment recommended by the Committee:
(1) eliminates provisions of section 732 authorizing the
Secretary to use, without appropriation, the proceeds from sale
or lease of Department property. Instead, the Committee
alternative requires any such proceeds to be deposited in the
Treasury, where they will be available for spending only by
appropriation. The Committee also notes, that the General
Services Administration already possesses authority to recover
the direct and indirect costs of such sales under 40 U.S.C.
485, which may be available to the Secretary of Homeland
Security under section 732(e) of the bill (requiring delegation
of some GSA authorities to the Secretary). Thus, the Committee
amendment should not unduly hamper any effort to dispose of the
Department's surplus property.
(2) deletes section 733(b) which provides that not to
exceed five percent of any appropriation available to the
Secretary of Homeland Security in any fiscal year may be
transferred between appropriations provided that at least 15
days' notice is given the Appropriations Committees prior to
the transfer. The Committee strongly believes that whether and
in what amounts to grant sweeping transfer authority and the
restrictions that should apply are matters that should and can
be addressed through the annual appropriations process, rather
than through a permanent blanket of general authority.
(3) amends section 803(b), which allows agencies to provide
services or detail personnel on a reimbursable or non-
reimbursable basis to assist the transition. The Committee
amendment deletes the authority to enter into non-reimbursable
agreements.
(4) deletes section 803(c) which provides that, prior to
the actual transfer of an agency to the Department within the
twelve-month transition period, the President is authorized to
transfer to the Secretary of Homeland Security not to exceed
five percent of the unobligated balance of any appropriation
available to such agency, to fund the purposes authorized in
the bill, provided that at least 15 days' notice is given the
Appropriations Committee prior to the transfer. Additional uses
of funds are addressed in a new subsection (g) to section 803.
(5) amends section 803(e) which provides that transfers of
personnel, assets, liabilities, and functions to the Department
shall be available for activities of the new department. The
amendment strikes language that would override permanent law
(31 U.S.C. 1531(a)(2)) which requires executive agencies to
obligate funds only for the purposes for which they were
appropriated.
(6) includes new subsections (e) through (g) to section 803
regarding the use and notification of appropriations and other
funds transferred pursuant to provisions of this Act. These new
provisions allow the limited transfer of appropriations and
other funds when expressly provided in an annual appropriations
Act. Such transfers are currently requested, contemplated and
contained in such Acts. In addition, the new provisions provide
that amounts transferred to or otherwise made available to the
new department may be used for purposes in addition to those
for which they were originally available, but only to the
extent such transfer or use is expressly permitted in an
appropriation Act.
(7) deletes section 806 which provides the Director of the
Office of Management and Budget the authority to transfer
``incidental'' assets and personnel as he may deem appropriate.
Matters Which Less Directly Affect the Committee's Jurisdiction
Coordination and Resource Requirements for Counter-Terrorism Activities
The Committee is also concerned that at least some of the
proposed reorganization of administrative authority expressed
in H.R. 5005 will not improve the efficiency, coordination or
effectiveness of the nation's counter-terrorism and homeland
security efforts. We would encourage the committees of
jurisdiction to weigh carefully the following three principles:
First, does a proposed transfer of an agency or activity to
the new department increase the focus and coordination of
government counter-terrorism activities?
The organization chart of current government efforts in
counter-terrorism that accompanied the Administration's
announcement of plans to create a new department indicates that
there are approximately 133 programs and offices involved in
the effort. H.R. 5005 would move less than two-dozen of these
into the new department. This leaves the overwhelming majority
of such agencies and activities outside the proposed
department--including some of the most critical government
counter-terrorism efforts such as the FBI and the CIA. The
question that must be asked in each instance is whether or not
the inclusion of an activity within the department will not
only improve departmental coordination of counter-terrorism but
government-wide coordination.
By the same token, some proposed changes might give the new
secretary such an unwieldy portfolio as to create serious
distractions from the underlying mission. H.R. 5005 would place
functions such as oil spill cleanups, pet store licensing,
international adoptions, tariff collection and boll weevils
eradication under the responsibility of the Secretary of
Homeland Security. While the inclusion of some extraneous
activities may be unavoidable given the variety of functions
that many of the agencies proposed for the new department
perform, having responsibilities as far ranging as those
proposed in H.R. 5005 would likely increase administrative
requirements, increase overhead expenditures and make it
difficult for the leadership of the department to maintain a
clear focus on security issues.
Second, will the structure proposed for managing the
department create a demand for administrative resources that
will reduce funds available for frontline activities such as
container inspections or the identification, apprehension and
deportation of illegal entrants that pose a possible terrorist
threat?
In the defense community this question is referred to as
the relationship between the tooth and the tail. It is easily
possible to organize government activities in such a way that
the cost of coordinating the activities becomes more expensive
than the activities themselves. There is ample reason to be
concerned that H.R. 5005 could seriously erode resources needed
to sharpen the tooth.
This is particularly true if the administration maintains
its stated intention to fund all activities of the department
within the existing budgets for those activities. If that
policy is followed, it will mean that most of the resources
necessary to fund the activities of the Secretary, Deputy
Secretary, five proposed Under Secretaries, as many as sixteen
proposed Assistant Secretaries and six other proposed sub-
cabinet positions will have to be met through cuts in border
inspectors, immigration enforcement and first responders.
Thirdly, will the reorganization disrupt highly sensitive
security functions during critical threat periods?
There is a reason that the Executive Reorganization Act of
1947 took place in 1947 and not 1944. The consolidation of the
War Department and the Navy may have created more efficiency
and better coordination of defense activities in the long term
but it certainly had significant short-term costs with respect
to both of these goals. Similar disruptions are inevitable in
any reorganization.
The severity of such disruptions and time lost resulting
from reorganization will vary based on the amount of
administrative change envisaged for a particular program or
activity. Simply changing the chain of command involves a
relatively small loss of work effort. Changing network servers
and phone systems and phone numbers adds to the loss in terms
of short-term performance. Relocating facilities, restructuring
personnel assignments and lines of authority often entail
dislocations that can take months or even years to fully
recover from. If there is a clear case for greater focus and
long term efficiency these costs may be acceptable so long as
they do not reduce performance during periods of potential
threat.
Any reorganization should carefully weigh these factors
with respect to both the entities to be transferred to the new
department and the timing of that transfer.
Fiscal Year 2004 Budget Presentation
The Committee expects that the President's fiscal year 2004
budget submission will reflect the newly created department of
homeland security and its component agencies, consistent with
statements made by the Administration. Budget estimates and
accompanying justification materials shall be prepared and
submitted in the same manner and level of detail as provided
previously to the Committee on Appropriations for the
department's component agencies, programs and activities.
Expression of Views on Other Matters Outside the Appropriations
Committee's Jurisdiction
Sec. 733(a) of the bill authorizes the Secretary to
``establish, consolidate, alter, or discontinue'' any
organizational units of the Department. The provision expressly
allows consolidating or abolishing organizations and entities
established by statute, provided only that 90 days advance
notice is given to Congress. Though the bill does prohibit the
use of its section 733(a) authority to eliminate specific
agencies (e.g., the Coast Guard and the Secret Service), there
is no such prohibition on abolishing various other agencies
transferred to the Department, such as the Animal and Plant
Health Inspection Service and the Customs Service, thereby
allowing the Secretary to unilaterally overturn longstanding
policies set in law. Congress should not authorize the
Executive Branch to establish, consolidate, alter, or
discontinue any agency of government that was established by
statute. To do so would be tantamount to allowing the executive
branch to unilaterally amend existing laws, and therefore
contrary to the constitutional principles that vest legislative
power in Congress rather than the President.
Recorded Votes in Committee
During consideration of the Committee's recommendations and
views on H.R. 5005, there were no recorded votes taken in the
Committee.
Constitutional Authority Statement
Pursuant to clause 3(d)(2) of rule XIII of the Rules of the
House of Representatives, the Committee finds the
Constitutional authority for this legislation in Article I,
clause 8, section 18, that grants Congress the power to make
all laws necessary and proper for carrying out the powers
vested by Congress in the Government of the United States or in
department or officer thereof.
Oversight Statement
No summary of oversight findings and recommendations made
by the Committee on Government Reform, as provided for in
clause 3(c)(4) of rule XIII of the Rules of the House of
Representatives, was available to the Committee with reference
to the subject matter specifically addressed in the Committee
amendment proposed to H.R. 5005.
Committee Oversight Findings
Pursuant to clause 3(c)(1) of rule XIII of the Rules of the
House of Representatives, the Committee on Appropriations'
oversight findings and recommendations are reflected in the
body of this report.
Advisory Committee Statement
No advisory committee within the meaning of section 5(b) of
the Federal Advisory Committee Act will be created by the
amendment recommended by the Committee on this legislation.
Applicability to the Legislative Branch
The Committee finds that the recommended amendment to the
legislation does not relate to the terms and conditions of
employment or access to public services or accommodations
within the meaning of section 102(b)(3) of the Congressional
Accountability Act (Public Law 104-1).
Federal Mandates Statement
The amendment recommended by the Committee on this
legislation contains no unfunded mandates.
Changes in Existing Law
The amendment recommended by the Committee on this
legislation would make no change in existing law.
Congressional Budget Act
With respect to the requirement of clause 3(c)(2) of rule
XIII of the Rules of the House of Representatives, and section
308(a) of the Congressional Budget Act of 1974, the Committee
amendment would not result in the provision of any new budget
authority.
COMMITTEE ON ARMED SERVICES
House of Representatives,
Committee on Armed Services,
Washington, DC, July 12, 2002.
Hon. Richard K. Armey
Chairman, House Select Committee on Homeland Security, The
Capitol, Washington, D.C.
Dear Mr. Chairman: Pursuant to Section 6 of House
Resolution 449, I hereby forward to the Select Committee on
Homeland Security the recommendations of the Committee on Armed
Services to the bill H.R. 5005, the Homeland Security Act of
2002.
On July 10, 2002, the Committee on Armed Services held a
mark-up on those portions of H.R. 5005 within its jurisdiction
and reported out favorably recommendations to the bill by voice
vote.
The committee devoted considerable attention and effort in
reviewing the President's proposal and offers recommendations
that are fully consistent with the important objectives
inherent in H.R. 5005. I trust that the Select Committee will
give these recommendations due consideration and stand ready to
work with you and other members of the Select Committee in
moving this process forward.
Sincerely,
Bob Stump,
Chairman.
------
Amendments
Amendments to H.R. 5005
Adopted by the Committee on Armed Services
Section 2(2) is amended to read as follows:
(2) The term ``assets'' includes contracts, leases, grants,
cooperative and other agreements and other transactions,
facilities, property, records, unobligated or unexpended
balances of appropriations, and other funds or resources (other
than personnel).
Insert after section 2(10) the following new paragraph (and
redesignate the subsequent paragraph accordingly):
(11) The term ``State'' has the meaning given in section
102(4) of the Robert T. Stafford Disaster Relief and Emergency
Assistance Act (Public Law 93-288; 42 U.S.C. 5122(4)).
Section 101(b)(2) is amended by inserting the following new
subparagraph after subparagraph (D) (and redesignating the subsequent
subparagraph accordingly):
(E) research, development, test, and evaluation in support
of such mission;
Amend section 202(5) to read as follows:
(5) the Energy Security and Assurance Program of the
Department of Energy, including the National Infrastructure
Simulation and Analysis Center and the functions of the
Secretary of Energy relating thereto; and
Section 203 is amended by inserting the following new paragraph
after paragraph (2) (and redesignating the subsequent paragraph
accordingly):
(3) the Secretary shall have full access and input with
respect to information from any national collaborative
information analysis capability (as referred to in section 924
of the National Defense Authorization Act for Fiscal Year 2002
(Public Law 107-107; 115 Stat. 1199) established jointly by the
Secretary of Defense and the Director of Central Intelligence;
and
Amend section 301 to read as follows:
SEC. 301. UNDER SECRETARY FOR CHEMICAL, BIOLOGICAL, RADIOLOGICAL, AND
NUCLEAR COUNTERMEASURES.
In assisting the Secretary with the responsibilities specified in
section 101(b)(2)(B), the primary responsibilities of the Under
Secretary for Chemical, Biological, Radiological, and Nuclear
Countermeasures shall include--
(1) securing the people, infrastructures, property,
resources, and systems in the United States from acts of
terrorism involving chemical, biological, radiological, or
nuclear weapons, explosives and explosive materials, and other
emerging threats;
(2) conducting a national scientific research, development,
test, and evaluation program to support the mission of the
Department, including developing national policy for and
coordinating the Federal Government's civilian efforts to
identify, devise, and implement scientific, technological, and
other countermeasures to chemical, biological, radiological,
nuclear, and other emerging terrorist threats, including
directing, funding, and conducting research, development, test,
and evaluation relating to the same;
(3) establishing priorities for, directing, funding, and
conducting national research, development, and procurement of
technology and systems--
(A) for preventing the importation of--
(i) chemical, biological, radiological,
nuclear, and related weapons and explosives and
explosive materials; and
(ii) materials, technology, and equipment
intended for the illicit research, development,
production, or use of chemical, biological,
radiological, nuclear, and related weapons and
related devices, and explosives and explosive
materials, in the United States; and
(B) for detecting, preventing, protecting against,
and responding to terrorist attacks in the United
States that involve such weapons or material;
(4) establishing guidelines for State and local government
efforts to develop and implement countermeasures to threats of
chemical, biological, radiological, and nuclear terrorism, and
other terrorist threats; and
(5) establishing an intelligence analysis capability to
support chemical, biological, radiological, and nuclear
counterterrorism in the United States.
Amend section 302 to read as follows:
SEC. 302. FUNCTIONS TRANSFERRED.
In accordance with title VIII, there shall be transferred to the
Secretary the functions, personnel, assets, and liabilities of the
following entities--
(1) the select agent registration enforcement programs and
activities of the Department of Health and Human Services,
including the functions of the Secretary of Health and Human
Services relating thereto;
(2) 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
directly relating to the mission of the National Nuclear
Security Administration, as specified in section 3211 of the
National Nuclear Security Administration Act (Pub. Law 106-65;
113 Stat. 957; 50 U.S.C. 2401):
(A) the programs and activities relating to
chemical and biological national security, and
supporting programs and activities directly related to
homeland security, of the non-proliferation and
verification research and development program;
(B) the programs and activities relating to nuclear
smuggling, and other programs and activities directly
related to homeland security, within the proliferation
detection program of the non-proliferation and
verification research and development program;
(C) those aspects of the nuclear assessment program
and activities of the assessment, detection, and
cooperation program of the international materials
protection and cooperation program that are directly
related to homeland security;
(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; and
(F) the advanced scientific computing research
program and activities at Lawrence Livermore National
Laboratory;
(3) the homeland security projects within the Chemical
Biological Defense Program of the Department of Defense known
as the Biological Defense Homeland Security Support Program and
the Biological Counter-Terrorism Research Program; and
(4) the Plum Island Animal Disease Center of the Department
of Agriculture, including the functions of the Secretary of
Agriculture relating thereto.
Strike section 304.
Title III of the bill is amended by adding at the end the following
new section:
SEC. 305. ADMINISTRATION OF PROGRAMS AND ACTIVITIES TRANSFERRED FROM
THE DEPARTMENT OF ENERGY.
(a) Homeland Security Center at National Laboratory.--(1) The
Secretary shall establish at a national security laboratory of the
National Nuclear Security Administration selected by the Secretary, a
center to serve as the primary location for carrying out research,
development, test, and evaluation activities of the Department in
support of the mission described in section 101. The Secretary shall
establish, in concurrence with the Secretary of Energy, such additional
centers at one or more national laboratories of the Department of
Energy as the Secretary considers appropriate to serve as secondary
locations for carrying out such activities.
(2) Each center established under paragraph (1) shall be composed
of such facilities and assets as are required for the performance of
such activities. The particular facilities and assets shall be
designated by the Secretary of Energy with the concurrence of the
Secretary.
(3) Facilities and assets designated under paragraph (2) shall be
transferred to the Department and, with the concurrence of the
Secretary and the Secretary of Energy, may be so transferred in place
of facilities and assets otherwise required to be transferred from the
Department of Energy under this Act.
(4) For each center established at a laboratory under this
subsection, every effort shall be made to consolidate Department
facilities and assets within existing infrastructure of that
laboratory.
(b) Separate Contracting.--To the extent programs and activities
transferred from the Department of Energy or carried out through
authorities provided under this Act are carried out through contracts,
the Secretary, and the Secretary of Energy, shall ensure that such
contracts are separate from contracts of the Department of Energy.
(c) Indirect Costs.--In the case of an activity carried out by a
national laboratory of the Department of Energy but paid for by the
Department on a reimbursable basis, funds for such activity shall be
provided through a method under which the Secretary of Energy waives
any requirement for the Department 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 laboratory and paid for by the Department of
Energy.
(d) 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 mission of the Department described in section 101.
(e) 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.
(f) Transition.--(1) Subject to paragraph (2), the transfer of
functions, personnel, assets, and liabilities required to be
transferred from the Department of Energy to the Department under this
Act shall be carried out pursuant to a schedule to be prescribed by the
Secretary of Energy with the concurrence of the Secretary.
(2) Transfers referred to in paragraph (1)--
(A) shall commence not later than January 1, 2003; and
(B) shall be completed not later than September 30, 2003.
Amend section 501(2) to read as follows:
(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, evaluating performance,
and certifying when standards have been met; and
(B) providing funds to the Department of Energy and
the Environmental Protection Agency, as appropriate,
for homeland security planning and conducting joint and
other exercises and training;
At the end of section 502(1) insert the following before the
semicolon ``, and the Integrated Hazard Information System of the
Department of Defense''.
Amend section 503 to read as follows:
SEC. 503. NUCLEAR INCIDENT RESPONSE.
(a) Nuclear Incident Response Team.--At the direction of the
Secretary (in connection with an actual or threatened terrorist attack,
major disaster, or other emergency within 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) Construction.--Nothing in this Act shall be construed to affect
the 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.
(c) Indemnification of Contractors During Transition Period.--(1)
To the extent the Department of Energy has a duty under a covered
contract to indemnify an element of the Nuclear Incident Response Team,
the Department and the Department of Energy shall each have that duty,
whether or not the Nuclear Incident Response Team is operating as an
organizational element of the Department.
(2) Paragraph (1) applies only to a contract in effect on the date
of the enactment of this Act, and not to any extension or renewal of
such contract carried out after the date of the enactment of this Act.
Amend section 735 to read as follows:
SEC. 735. 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.
In section 802, insert ``pursuant to this Act'' after ``The
transfer of an agency''.
In section 803, strike ``shall provide'' (page 42, line 6) and
insert ``may provide''.
Strike section 904(b) and insert the following new subsections (and
redesignate the subsequent subsection accordingly):
(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),
12731(a)(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 2664(a) of such title is amended [Note, not sure how to
address the references to Secretary of Transportation in this
section]. deg.
(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(b) 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) 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 Public Law 107-110 (20 U.S.C. 6671(5)(D))
is amended by striking ``of Transportation'' and inserting ``of
Homeland Security''.
(9) Section 2307(a) of Public Law 107-110 (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''.
Strike section 907.9/12/2002 10:06:19 AM -
F:\V7\091202\091202.027 Created by: VLCirks deg.
Purpose and Background
The purpose of H.R. 5005, the Homeland Security Act of
2002, is to implement the President's proposal to create a new
Department of Homeland Security (DHS). Several portions of this
bill affect the Department of Defense (DOD) and the defense-
related activities of the Department of Energy (DOE)--both of
which are under the jurisdictional responsibility of the
Committee on Armed Services. These sections of H.R. 5005 were
reviewed and studied by the committee, which subsequently
amended the legislation on July 10, 2002 to provide the
President and the new Secretary of Homeland Security the
necessary authority, organizations, and resources needed to
accomplish the homeland security mission, while ensuring that
DOD's and DOE's national security, warfighting, and military
missions are not diminished.
The new Department of Homeland Security would be created
through a sweeping re-organization of the federal government
that would involve over a half dozen departments, multiple
agencies, and nearly 170,000 people. The mission of this new
department would be to prevent terrorist attacks within the
United States, reduce America's vulnerability to terrorism, and
minimize the damage and recover from attacks that do occur.
Under the introduced version of this legislation, the
Department of Homeland Security would have four organizational
components, each led by an Under Secretary: Border and
Transportation Security; Emergency Preparedness and Response;
Chemical, Biological, Radiological, and Nuclear
Countermeasures; and, Information Analysis and Infrastructure
Protection.
Compared to other departments of the federal government,
the impact of this initiative on the Department of Defense and
the defense-related activities of the Department of Energy is
limited. While establishment of the DHS involves transferring
organizations and people from DOD and DOE to the Department of
Homeland Security, collectively these moves represent less than
1 percent of new department's total projected end strength, and
less than 2 percent of its projected annual budget authority.
The committee amendment was developed in keeping with the
following principles:
Provide the President and the new Secretary of
Homeland Security the necessary authority, organizations, and
personnel needed to accomplish the homeland security mission;
Ensure that DOD's and DOE's national security,
warfighting, and military missions are not diminished;
Allow the new Secretary of Homeland Security
sufficient latitude and flexibility to efficiently implement
the provisions of H.R. 5005;
Ensure the new department will have a sufficient
research, development, testing, and evaluation (RDT&E)
capability to meet its mission needs; and
Prevent the creation of duplicative, impaired, or
unnecessary organizations and activities.
Based on these principles, the committee held a number of
meetings with the Departments of Defense and Energy, and the
White House beginning in late June 2002. A full committee
hearing was also held on June 26, 2002, with senior officials
from the Department of Defense and Department of Energy
appearing as witnesses. These meetings and the hearing
highlighted several elements of H.R. 5005 that required further
refinement, and were incorporated into a comprehensive
committee amendment.
Most of the provisions contained in the committee amendment
made no change to the President's fundamental proposal. Rather,
they simply clarified and fine tuned ``what'' entities and
activities will be transferred from DOD and DOE to the
Department of Homeland Security; ``how'' they will be
transferred; ``where'' they will be located within the new
department; and what their new role, mission, and authorities
will be within the new department. Some of these provisions,
however, clarify the future relationship (authority,
limitations, and conditions) between the Department of Energy's
national laboratories and the Department of Homeland Security
on matters ranging from contracting and accounting, to research
and development and control of Nuclear Incident Response Teams.
Further, these provisions ensure that the Department of
Homeland Security receives from DOD and DOE only those entities
and activities directly related to homeland security, that ``no
harm'' will come to DOD and DOE and their activities as a
result of this reorganization, and that the Secretary of
Homeland Security has the tools and resources he needs to
accomplish the homeland security mission.
The few provisions in the amended bill that substantively
deviate from the Administration's legislative proposal are
designed to maximize organizational effectiveness at the new
Department of Homeland Security, or to preserve essential
capabilities and activities at the Department of Energy that
have a broader national security mission. These changes
include:
Transferring the entire Energy Security and
Awareness program to the Department of Homeland Security Under
Secretary for Information Analysis and Infrastructure
Protection, rather than separating the program between the
above office and the Department of Homeland Security Under
Secretary for Chemical, Biological, Radiological, and Nuclear
(CBRN) Countermeasures;
Expanding the responsibilities of the Under
Secretary for Chemical, Biological, Radiological, and Nuclear
Countermeasures to include explosives and explosive materials;
Giving the Secretary of Homeland Security the
responsibility and authority to conduct research, development,
testing and evaluation in support of the Department of Homeland
Security's mission; and,
Granting authority to the Department of Homeland
Security's Under Secretary for CBRN Countermeasures to
establish an intelligence and analysis capability within DHS
rather than transferring this organization/activity (as the
Administration proposed) out of DOE, where it currently
performs a critical national security mission.
In conclusion, the provisions contained in H.R. 5005, as
amended by the Committee on Armed Services, will improve the
effectiveness of the new Department of Homeland Security, while
ensuring that the Department of Defense and the Department of
Energy retain the ability to fully conduct their warfighting
and military missions so critical to our national security.
Legislative History
H.R. 5005 was introduced on June 24, 2002 and was referred
to the Select Committee on Homeland Security. The bill was also
referred jointly and sequentially to the Committee on
Agriculture; Committee on Appropriations; Committee on Armed
Services; Committee on Energy and Commerce; Committee on
Financial Services; Committee on Government Reform; House
Select Committee on Intelligence; Committee on International
Relations; Committee on Judiciary; Committee on Science;
Committee on Transportation and Infrastructure; and the
Committee on Ways and Means, on June 24, 2002.
On July 10, 2002 the Committee on Armed Services held a
mark-up session to consider H.R. 5005. The committee adopted
the bill with amendments and reported the same favorably by
voice vote.
Section-by-Section Analysis
The following is a section-by-section analysis of those
sections of H.R. 5005 amended by the Committee on Armed
Services.
Section 2. Definitions
This section, as amended, would expand the definition of
the term ``assets'' to include ``leases, grants, cooperative
and other agreements and other transactions* * *'' and also
added a definition of the term ``state''. This latter change
conforms the definition of the term ``state'' used in this bill
with that already in existing law in section 102(4) of the
Robert T. Stafford Disaster Relief and Emergency Assistance Act
(Public Law 93-288). The effect of this change is to include
not only the states of the United States, but also the District
of Columbia, Puerto Rico, the Virgin Islands, Guam, American
Samoa, and the Commonwealth of the Northern Mariana Islands
within the defined term ``state''.
Section 101. Executive Department; Mission
As amended, subsection 101(b)(2) would specify the conduct
of research, development, test, and evaluation in support of
homeland security as an additional mission of the Department of
Homeland Security.
Section 202. Functions Transferred
As amended, the committee endorses the transfer of the
National Communication Systems (NCS) in this section to the
Department of Homeland Security with the understanding that the
Department of Defense's mission will not be adversely affected
or degraded. The committee also expects that, in light of DOD's
unique telecommunication requirements, DOD will continue to be
a key member of the NCS and receive priority recognition when
appropriate.
In addition, the committee believes the NCS should maintain
its mission to advise the President on protecting critical
communications assets across all infrastructures. To
successfully fulfill this mission, the NCS should receive high
visibility and attention from the Secretary of Homeland
Security.
This section, as amended, would also transfer the entire
Energy Security and Assurance program of the Department of
Energy, including the National Infrastructure Simulation and
Analysis Center (NISAC), and related functions, to the Under
Secretary for Information Analysis and Infrastructure
Protection.
In the fiscal year 2003 budget request, the Energy Security
and Assurance program of the Department of Energy includes
NISAC as the primary component. The President's legislative
proposal would place NISAC under the Under Secretary for
Information Analysis and Infrastructure Protection, but
transfer the balance of the program to the Under Secretary for
Chemical, Biological, Radiological, and Nuclear
Countermeasures. Broadly, the functions of the Energy Security
and Assurance program are coordination activities to ensure a
secure flow of energy, analysis of energy infrastructure
vulnerabilities and interdependencies, and planning for
response and recovery to disruptions of the supply of energy.
The program also includes critical infrastructure protection
functions. The committee believes that all such functions
properly belong with the Under Secretary for Information
Analysis and Infrastructure Protection, and are only indirectly
related to CBRN Countermeasures. Consequently, the committee
recommends the transfer of the entire program to the Under
Secretary for Information Analysis and Infrastructure
Protection.
Section 203. Participation In National Collaborative Intelligence
Analysis Capability
As amended, this section would ensure that the Secretary of
Homeland Security shall have full access, as a full
participant, to information from any national collaborative
information analysis capability, and is authorized to provide
inputs to the same. The committee notes the Administration's
increased demand for a national-level capability to analyze
information and intelligence data from all government agencies
and other sources. Such a capability would dramatically improve
the United States' efforts to detect and identify threats to
the nation's security. As such, the committee included
supportive language in committee report 107-436 accompanying
H.R. 4546, the Bob Stump National Defense Authorization Act for
fiscal year 2003, which endorsed the DOD proposal that this new
development effort be conducted by the Defense Advanced
Research Projects Agency (DARPA). The committee also notes that
the DARPA development initiative is consistent with the
provision contained in the National Defense Authorization Act
for Fiscal Year 2002 (Public Law 107-107) that directed the
Secretary of Defense and the Director of Central Intelligence
to jointly develop an architecture for a national collaborative
environment that would enable national-level data-mining of
intelligence and other information.
In 1998, the committee identified advances in computer-
based analysis technology that enabled recognition of
previously undetectable associations and patterns resident
within large volumes of data compiled from various sources. The
committee recognized that this capability, commonly known as
data mining, offered the potential for early detection of
existing and emerging asymmetric terrorist threats to our
nation. The committee supported research and development of a
capability to collect, fuse, and analyze disparate data from
multiple agencies. The purpose of this capability would be to
assist policymakers as they decide the actions necessary to
prevent, preempt, or counter a variety of threats, including
terrorism, weapons proliferation, espionage, and information
warfare. Having the ability to better understand the trends and
relationships between individuals, groups, and actions is
considered critical to detecting, predicting and preventing
acts of terrorism. The committee's efforts resulted in the
eventual increase of $7.0 million for the Army Intelligence
Command Land Information Warfare Activity in fiscal year 2000.
After several years of continuous support for research and
development of the requisite technologies, and successful
demonstration of this capability, this effort encountered
another obstacle. Effective data-mining can only occur if it is
part of a national capability that integrated some 33 separate
departments, agencies, and other entities into an architecture
that overcomes the historical stove-piped nature of the
intelligence community. The committee further recognized that
full support by all involved agencies for a national
collaborative intelligence capability would be dependent upon
the active participation of the administration.
Therefore, in order to determine the most appropriate
architecture, the National Defense Authorization Act for Fiscal
Year 2001 (Public Law 106-398) requires the Secretary of
Defense, jointly with the Director of Central Intelligence, to
assess and recommend the best architecture for a multi-agency
national collaborative information analysis capability (NCIAC).
The National Defense Authorization Act for Fiscal Year 2002
(Public Law 107-107) expanded the previous report requirement
to include a requirement for draft legislation necessary to
establish such a capability, and identification of any
legislative or regulatory changes that would be needed to
implement the preferred architecture.
The events of September 11, 2001 have added urgency to the
requirement to establish a national collaborative intelligence
analysis capability. The committee believes that the Secretary
of Homeland Security should be a full participant in both
providing data to a NCIAC and having access to its analyses.
The committee also believes that the Secretary of Defense and
the Director of Central Intelligence must, as rapidly as
possible, determine the best NCIAC architecture, and recommend
a plan to develop such a capability. The committee believes
that this capability will transform intelligence analyses, and
provide a fundamentally new capability to defend our nation
against both internal and external threats.
Section 301. Under Secretary For Chemical, Biological, Radiological,
And Nuclear Countermeasures
As amended, Section 301 would expand the scope of threats
for which the Under Secretary for Chemical, Biological,
Radiological, and Nuclear Countermeasures is responsible by
including explosives and explosive materials. Additionally,
subsection 301(3)(A) would clarify that the Under Secretary is
not only responsible for preventing the importation of CBRN
weapons, related weapons, and explosives and explosive
materials, but also the materials, technologies, and equipment
intended for the illicit research, development, production, or
use of these weapons and devices.
The committee recognizes that some weapons of mass
destruction require explosives in order to be activated or
disseminated, and that sufficient amounts of explosives or
explosive materials can be used by terrorists to inflict mass
casualties or damage. Additionally, there is sufficient
likelihood that terrorists could not only attempt to covertly
bring complete CBRN weapons into the country, but that they
could also import a weapon's key items (goods, technologies,
and material) into the United States, use these items to
construct a weapon of mass destruction, and then deliver it to
their intended target. Therefore, the committee considered it
imperative that the Under Secretary for CBRN Countermeasures
not only be responsible for preventing the importation of whole
weapons, but also the weapons' components.
The committee recognizes the paramount role intelligence
will play in preventing future acts of terrorism against the
United States. This role is particularly heightened by the fact
that, in the future, terrorists may employ CBRN weapons that
could prove far more catastrophic than the attacks of September
11. The committee declined to adopt the Administration's
proposal to transfer the intelligence program and activities of
Lawrence Livermore National Laboratory (LLNL) to the Department
of Homeland Security. The committee is concerned that the
intelligence effort undertaken by LLNL for the Department of
Energy is a small part of a much larger program, and questions
whether that portion is separable without adversely affecting
Department of Energy nonproliferation programs, as well as
support for other Federal agencies. Accordingly, as amended,
subsection 301(5) would authorize the Under Secretary to
establish a separate intelligence analysis capability to
support CBRN counterterrorism in the United States.
Section 302. Functions Transferred
As amended, subsection 302(2) would specifically exclude
from transfer to the Department of Homeland Security those
programs and functions of the Department of Energy that are
directly related to the mission of the National Nuclear
Security Administration, as specified in section 3211 of the
National Nuclear Security Administration Act (Public Law 106-
65).
Subsection 302(2)(A), as amended, would further specify
that only those supporting activities of the Nonproliferation
and Verification Research and Development program directly
related to homeland security, as described in the fiscal year
2003 budget request, shall be transferred to the Department of
Homeland Security. A similar condition would be incorporated
into subsections 302(2)(B) and 302(2)(C) of the bill regarding
transfer of nuclear smuggling activities of the Proliferation
Detection Program and the Nuclear Assessment Program,
respectively.
Finally, as discussed above, the committee declined to
adopt the part of subsection 302(2)(F) that would have
transferred the existing intelligence programs at Lawrence
Livermore National Laboratory to the Department of Homeland
Security.
Section 304. Military Activities
As amended, section 304 was renumbered as section 735. The
amended section clarifies that nothing in this Act would grant
authority to the Secretary of Homeland Security to engage in
warfighting, the military defense of the Untied States, or
other military activities. This section would further clarify
that nothing in this Act limits 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.
Section 305. Administration of Programs and Activities Transferred from
the Department of Energy
As amended, Section 305 would specify how certain homeland
security-related research, development, test, and evaluation
(RDT&E) activities would be conducted.
Subsection 305(a) requires the Secretary of Homeland
Security to establish a primary center for carrying out the
RDT&E activities of the Department of Homeland Security at a
national laboratory of the National Nuclear Security
Administration. This subsection would also provide for the
establishment of secondary centers at one or more national
laboratories of the Department of Energy.
While the committee amendment does not specify which
laboratory will serve as this center, the committee understands
that the Administration initially proposed Lawrence Livermore
National Laboratory as the preferred site for this activity.
Secondary centers would be established at the discretion of the
Secretary of Homeland Security with the concurrence of the
Secretary of Energy.
This subsection would further provide for the transfer from
the Department of Energy of facilities and assets required to
execute the research and development mission of the Department
of Homeland Security. The Secretary of Energy would designate
the facilities and assets to be transferred, with the
concurrence of the Secretary of Homeland Security. The
facilities and assets transferred under this subsection by the
Department of Energy could, with the concurrence of the
Secretary of Homeland Security, substitute for the specific
transfers of assets required in Titles II and III, provided
that substitute facilities and assets were substantively
equivalent.
It is the intent of the committee to give the Secretary of
Homeland Security and the Secretary of Energy the flexibility
to organize and consolidate facilities and assets in a manner
that is advantageous to the execution of their respective
missions, consistent with the transfer of functions described
in this Act. The committee expects this consolidation to occur
within the existing infrastructure of the national
laboratories, and for nothing in this section to be construed
as authorization for new construction.
The committee wishes to convey special intent with the
choice of the word ``center''. The committee believes that
there is great value for the Department of Homeland Security in
establishing and physically consolidating, within the national
laboratories, a critical mass of talent and technology whose
primary focus and application is homeland security. At the same
time, the committee recognizes that, due to the unique nature
of some facilities, it will not be possible in all cases to
achieve such a consolidation.
Consistent with the committee's intent to consolidate and
establish a unique identity for homeland security efforts at
the Department of Energy national laboratories, subsection
305(b) would require execution of homeland security programs
under separate contracts with the Department of Homeland
Security. The committee believes that separate contracts will
ensure proper focus on the Secretary of Homeland Security's
unique priorities. The committee expects the Department of
Homeland Security to take advantage of the unique opportunity
to stand up a new organizational structure and establish a
streamlined process for managing these contracts, with clearly
defined responsibilities and accountability. A small
headquarters organization can focus on policy, budgeting,
technical objectives, and strategic planning for research and
development, with responsibility for day-to-day oversight of
contract activities delegated to site offices. The committee
sees no need for intermediate levels of federal management; nor
does it see a need for the Department of Homeland Security to
generate detailed guidance for its contractors on how to
conduct RDT&E activities.
The committee recognizes that certain activities the
Department of Homeland Security may wish to conduct at a
Department of Energy national laboratory might be of limited
scope or duration. In such cases, it may be more advantageous
for the Department of Homeland Security to conduct those
activities on a reimbursable ``work-for-others'' basis, rather
than through a separate contract. In such a circumstance,
subsection 305(c) would waive the Department of Energy ``added
factor'' for pass through of funds from the Department of
Homeland Security to the national laboratory. It would further
stipulate that personnel costs charged to the program for
laboratory contractors could not exceed those that the
Secretary of Energy authorizes for Department of Energy
programs at that same laboratory. In other words, this
subsection would prevent higher personnel costs or pass through
charges, as is common practice, for future work performed by
the Department of Energy for the Department of Homeland
Security on a work-for-others basis.
The committee understands the value of laboratory-directed
research and development, but believes that funds should be
expended for the purpose for which they are authorized and
appropriated by Congress. Subsection 305(d) would require that
any laboratory-directed research and development projects
undertaken at a national laboratory of the Department of
Energy, with funds derived from the Department of Homeland
Security, shall support the mission of the Department of
Homeland Security. This subsection would prevent the use of
Department of Homeland Security funds for self-directed
research that is not relevant to homeland security.
Subsection 305(e) would require the Secretary of Energy to
coordinate with the Secretary of Homeland Security to ensure
that homeland security-related RDT&E activities undertaken by
the Department of Energy are not duplicative of Department of
Homeland Security efforts. Specifically, the committee cautions
the Department of Energy against requesting funds in future
budget submissions for functions that have been assumed by the
Department of Homeland Security.
Subsection 305(f) would require the Secretary of Energy,
with the concurrence of the Secretary of Homeland Security, to
develop a schedule for transfer of assets from the Department
of Energy to the Department of Homeland Security. The transfer
could begin upon enactment of this Act, and must be completed
by the end of fiscal year 2003.
Section 501. Under Secretary For Emergency Preparedness And Response
As amended, this section would clarify the role and
responsibilities of the Under Secretary for Emergency
Preparedness and Response with regard to the training of
nuclear incident response teams.
The committee understands that, regardless of homeland
security needs, the Secretary of Energy has a requirement to
respond to nuclear incidents and emergencies. Accordingly, the
committee believes that the Secretary of Energy should retain
primary responsibility for organizing, training, and equipping
nuclear incident response teams to conduct Department of Energy
missions, as described in subsection 503(b). Thus, it is the
committee's intent that the Department of Homeland Security
should bear the incremental cost of joint planning and training
for the homeland security missions that exceed the scope of
capabilities required of the nuclear incident response teams by
the Secretary of Energy.
Section 502. Functions Transferred
As amended, this section would transfer the Integrated
Hazard Information System (not including personnel) of the
Department of Defense to the Department of Homeland Security so
that the latter would have a near real-time capability to
detect wild fires in North America.
Section 503. Nuclear Incident Response
As amended, this section would limit the circumstances
under which the Secretary of Homeland Security may assume
operational control of nuclear incident response teams to
respond to incidents occurring within the United States. This
section was also amended to ensure that current indemnity
provisions applicable to these nuclear incident response teams
remains in place when these teams are activated by the
Department of Homeland Security.
Section 735. Authorization Of Appropriations
As amended, this section would strike the original
provision in the underlying bill that would have provided a
permanent authorization of appropriations for the new
Department of Homeland Security. This section would be replaced
with an amended version of section 304 of the underlying bill,
which addresses limits placed on the military activities of the
Department of Homeland Security.
Section 904. Coast Guard
This section, as amended, would modify certain provisions
of the United States Code relevant to the potential transfer of
the Coast Guard from the Department of Transportation to the
Department of Homeland Security. This section would accomplish
this task by replacing references to the Department of
Transportation and the Secretary of Transportation with
references to the new Department and Secretary of Homeland
Security. The committee did not address the merits of
transferring the Coast Guard to the Department of Homeland
Security; consideration of that matter is properly vested in
the committee with the primary jurisdiction over the Coast
Guard. Should the decision be made by the Congress, however, to
transfer the Coast Guard to the Department of Homeland
Security, the changes made by this section would assure that
all pay, benefits, and other privileges afforded to the
uniformed members of the Coast Guard remain in effect.
Section 907. Transfer Of Department Of Defense Chemical Biological
Defense Program Homeland Security Projects
As amended, this section would strike the requirement for
the Department of Defense to establish a National Bio-weapons
Defense Analysis Center, as provided for in the underlying
bill. After the establishment of the Center in the Department
of Defense, section 302(3) of H.R. 5005, as introduced, would
have transferred the Center to the Department of Homeland
Security. Instead of the original proposal, the amended
subsection 302(3) would transfer two homeland security projects
from the Department of Defense chemical-biological defense
program to the Department of Homeland Security: the biological
counter-terrorism research program and the biological defense
homeland security support program.
The President's fiscal year 2003 budget request for the
Department of Defense contained a total of $420 million for two
homeland security initiatives, both of which were added to the
Department of Homeland Security's initial fiscal year 2003
budget request. These initiatives would strengthen the federal
government's chemical and biological defense and response
capabilities. The request included $118 million ($113 million
in research and development and $5 million in military
construction funds) for a biological counter-terrorism research
program that would focus on assessment of the traditional and
emerging threats from the perspective of counterterrorism, and
would include the establishment of a Center for Biological
Counterterrorism Research at Fort Detrick, Maryland.
The request also included $272 million in research and
development, and $30 million in procurement, for the biological
defense homeland security support program to: initiate a
comprehensive program to build a National Biological Defense
System; and, provide an integrated homeland security capability
to detect, mitigate, and respond to biological-related
incidents.
Items of Special Interest
Transfer of Work-for-Others Activities
The committee is aware that ``work-for-others'' activities
compose a significant fraction of the programmatic activities
of the national laboratories of the National Nuclear Security
Administration. It is the committee's expectation that work-
for-others activities related to homeland security, and
specifically those related to functions transferred from the
Department of Energy, will also move to the Department of
Homeland Security where feasible.
Prioritization of Homeland Security Investments
The committee believes, as the Department of Homeland
Security embarks upon its important mission, that it should
first conduct a thorough and critical analysis of the nation's
homeland security needs. This assessment would not only help
the department accomplish its current mission, but also allow
the Secretary to conduct long-term planning and direct future
investments. Such analysis should also extend beyond a
prioritization of research and development efforts, and examine
homeland security on the basis of a system of systems. For
example, one might consider the relative national security
costs and benefits of acquiring additional agents for the
Border Patrol, as compared to procuring imaging equipment to
scan cargo containers at ports of entry. The committee believes
that the earlier such investments are made in these areas, the
more quickly homeland security can be enhanced and savings
realized. The committee thus recommends that the Department of
Homeland Security formalize a process to provide an initial
assessment, and continuous reassessments, of benefits versus
costs studies of the nation's homeland security needs.
Department of Homeland Security use of existing counterterrorism
capabilities
The committee notes that, independent of the establishment
of the new Department of Homeland Security, a variety of
federal, state and local initiatives have been undertaken in
recent years that may contribute to an improved ability to
prevent or help respond to terrorist activities against the
United States. For example, civilian bioterrorism medical
response centers already exist. Although not specifically
incorporated into the new Department of Homeland Security by
H.R. 5005, such centers and others focused on various aspects
of domestic counterterrorism have the potential to enhance the
capabilities of both the Departments of Defense and Homeland
Security to better prepare for and respond to the terrorist
threat. Accordingly, the committee encourages the Secretary of
Homeland Security and the Secretary of Defense to take full
advantage of these centers as they devise plans for how best to
respond to this pressing threat.
Homeland security research and development program
The committee believes that one of the Secretary of
Homeland Security's primary responsibilities and capabilities
should be to conduct research and development in support of the
homeland security mission.
The committee notes that the National Research Council's
recent report, ``Making the Nation Safer--the Role of Science
and Technology in Countering Terrorism,'' recommends
establishment of an Under Secretary for Technology in the
Department of Homeland Security to provide a focal point for
guiding key research and technology development programs across
the Department of Homeland Security. This Under Secretary would
also coordinate the Department of Homeland Security's research
and development programs with those of the major science,
engineering, and medical science agencies outside the
Department of Homeland Security.
The committee also notes that the council report recommends
the establishment of a Homeland Security Institute: a
dedicated, contracted, not-for-profit organization, which would
provide technical analysis and support to the Department of
Homeland Security and the Office of Homeland Security.
The committee recommends the designation of an individual,
within the secretariat of the Department of Homeland Security,
who would be responsible for the department's research and
development (R&D) program. This individual's duties should
include the integration of the R&D programs and activities of
each organizational element within the Department of Homeland
Security, as well as the coordination of the department's R&D
programs with those of other federal agencies.
Committee Position
On July 10, 2002, the Committee on Armed Services ordered
H.R. 5005, as amended, reported to the House with a favorable
recommendation by voice vote, a quorum being present.
Additional Views Of Congressman John Spratt
Soon after Pearl Harbor, President Roosevelt appointed
James F. Byrnes as head of a War Mobilization Office, and
vested him with a broad, powerful charter: to marshal the
nation for war. Byrnes became known as the ``Assistant
President,''and with the President's proxy and his own personal
ability, Byrnes made the War Mobilization Office work. I think
that model is worth remembering and trying in the wake of
September 11, but I recognize that it is not the only way to
deal with the threat of terrorism, and not the route we now
seem bent upon taking. So, I support this legislation and
accept the need for Congress to act expeditiously. But the bill
reported by the committee is far from perfect. Efforts to
improve this bill need to continue in the House Select
Committee, on the House floor, in conference with the Senate,
and in the years to come. Merging many organizations, most with
purposes other than homeland security, into a new department is
not likely to be done right on the first try, particularly when
done at a fast clip. In this vein, I want to highlight areas of
the legislation that I believe could be problematic and that
warrant continued attention.
Section 301 of the bill as amended by our committee
requires the Under Secretary for Chemical, Biological,
Radiological, and Nuclear (CBRN) Countermeasures to be
responsible for intelligence analysis of CBRN threats. This
seems reasonable, but elsewhere the legislation establishes an
Under Secretary for Information Analysis and Infrastructure
Protection. I believe placing the CBRN intelligence analysis
function outside the Under Secretary for Information Analysis
and Infrastructure Protection may detract from the
Administration's attempt to establish one threat analysis
center within the new department. It may also confuse the lines
of accountability, blurring who is responsible for analyzing
CBRN threats. I think these provisions need further attention.
Section 301 also charges the Secretary of CBRN with
``developing national policy for and coordinating the Federal
Government's civilian efforts'' for ``identifying, preventing,
and responding to'' CRBN attacks. To the extent that all such
federal efforts are located within DHS, this may be workable,
but I am skeptical that this will be the case. If not, I do not
believe that an under secretary in one department will be able
to develop and coordinate a federal strategy that will be
binding on other agencies. Such an interagency process is
probably better chaired and handled by the Executive Office of
the President.
Section 302 of the bill transfers parts of the Department
of Energy (DOE) and National Nuclear Security Administration
(NNSA) to the new Department of Homeland Security (DHS). The
Chairman and Ranking Member have tried to revise the
Administration's original bill and narrow the scope and clarify
the purpose of these transfers. DOE and NNSA will continue to
conduct critical national security missions--most notably
stockpile stewardship of the nation's nuclear arsenal and non-
proliferation programs. These roles will not be part of the DHS
mission. The committee made several important changes to
emphasize that only those programs and activities directly
related to homeland security, and not part of DOE and NNSA's
other important national security missions, are to be
transferred. But most of the scientists in DOE and NNSA wear
several hats and work multiple projects. Singling out those who
work only on homeland security and do nothing else related to
other national security will be virtually impossible.
I commend the committee's approach to this matter, but I am
concerned that the bill language could lead to the transfer of
more programs and activities than the committee intends, either
because the Administration interprets the legislation
differently or because it changes the names or scopes of the
programs identified in Section 302. The legislation is silent
on the definition of ``homeland security,'' complicating the
task of identifying those programs ``directly related to
homeland security.'' It does not specify what should occur
should the Secretary of Energy and the Secretary of DHS
disagree on a transfer, an easily foreseeable circumstance. In
addition, the legislation contains no reporting requirements to
Congress during the transition phase, which will make it
difficult for Congress to oversee the transition and intervene
if it strongly objects to a particular transition proposal.
In addition, setting a deadline of September 30, 2003 for
completion of the transition phase when the Administration's
proposed legislation set no such date may create undue pressure
that will complicate rather than ease the arduous task of
merging different entities into one. I hope our committee will
continue to assess these issues throughout the legislative
process and will closely monitor the transfers from DOE and
NNSA throughout the transition phase.
Section 305 of the bill requires the Secretary of DHS to
establish a ``center of excellence'' for homeland security at
one of the three national security laboratories, Lawrence
Livermore, Los Alamos, or Sandia. This may be wise, but many
federal labs and the private sector can be useful in developing
needed homeland security technology, and the center should not
become a monopoly that stifles competition. One of the reasons
for the Manhattan Project's success was that Oppenheimer
staunchly opposed the compartmentalization that General Groves
insisted upon. Care must also be taken to ensure that DOE and
NNSA personnel at this ``center of excellence'' working on
other critical national security missions--particularly
stockpile stewardship and non-proliferation--are not absorbed
with homeland security assignments to the detriment of other
missions. I understand that the committee is continuing to
consider this issue, and commend it for doing so.
Finally, I would sound a cautionary note on cost. It is
difficult to believe the Bush Administration's assertions that
DHS will be budget-neutral. The Congressional Budget Office
estimates that H.R. 5005 as introduced will cost $3 billion
more over 2003--2007 than we are currently spending. The CBO
estimate assumes extremely limited transition costs, does not
assume that the majority of this agency will at some point have
a central headquarters or use a consistent information
technology system, and it assumes that the DHS will not require
increases above 2002 levels of spending to enhance homeland
security. Given the large, sustained budget deficits that are
forecast, the unacknowledged costs of homeland security, the
ambitious ramp-up in defense spending, and the advent of the
Baby Boom retirement era, Congress and the Administration must
become much more candid in considering budgetary trade-offs. As
meritorious as homeland security may be, this bill is
indicative of a recent and disturbing trend toward committing
the government to an undertaking without frankly considering
how we will pay for it.
This is not a perfect bill, but the committee has made a
good-faith effort in a short period of time to improve the
Administration's proposal, and despite my concerns, I support
it, though I do believe that the work of the committee in this
area is not ending, but just beginning.
John Spratt
Dissenting Views Of Congresswoman Heather Wilson
The Committee added to this bill Section 305,
Administration of Programs and Activities Transferred From the
Department of Energy. This section directs the Secretary of
Homeland Security to establish at a national security
laboratory of the National Nuclear Security Administration a
center to serve as the primary location for carrying out
research, development, test, and evaluation activities for the
Department.
I offered an amendment, which in part would have removed
this section. I withdrew the amendment with the consensus of
the Committee to further develop and submit my concepts
relating to strengthening the role and ability of the
Department to conduct and deploy research and technology that
will be a critical strategic element for securing our homeland.
Those provisions have been incorporated into the bill reported
by the Energy and Commerce Committee.
The Committee discussed whether any laboratory should be
designated. We did not discuss which laboratory should be
designated, and intentionally left that undecided. The
committee made no recommendation at all in that regard nor
would I have consented to such an approach.
I believe that creating a Center for Homeland Security at
one of our national laboratories without giving the Department
a stronger overall mission in the R&D area could undermine the
ability of the Department to acquire the best available
research and technology from wherever it may be available.
The Department should develop its research and technology
priorities and employ the capabilities throughout the country
whether at universities, in industry, at national laboratories,
or in other federal agencies to best meet its objectives based
on considerations of technical merit and demonstrated
performance.
I want to be clear that I strongly support the use of the
national laboratories, which have made and will continue making
vital contributions to homeland security.
Heather Wilson
COMMITTEE ON ENERGY AND COMMERCE
House of Representatives,
Committee on Energy and Commerce,
Washington, DC, July 12, 2002.
Hon. Richard K. Armey
Chairman, House Select Committee on Homeland Security, The
Capitol, Washington, D.C.
Dear Majority Leader Armey: We take pride in transmitting
to you herewith the recommendations of the Committee on Energy
and Commerce with respect to H.R. 5005, the Homeland Security
Act of 2002.
Please find enclosed (1) a Committee Print of the
Committee's specific legislative recommendations, and (2) a
Report on those recommendations.
The Committee on Energy and Commerce looks forward to
working closely with the Select Committee on H.R. 5005. Please
do not hesitate to contact us or have your staff contact Mr.
David V. Marventano, the Staff Director, or Mr. Reid Stuntz,
the Minority Staff Director, if we can be of assistance.
Sincerely,
W.J. ``Billy'' Tauzin,
Chairman,
John D. Dingell,
Ranking Member.
------
Committee Print
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--CYBERSECURITY, INFORMATION ANALYSIS, AND INFRASTRUCTURE
PROTECTION
Sec. 201. Under Secretary for Cybersecurity, Information Analysis, and
Infrastructure Protection.
Sec. 202. Functions transferred.
Sec. 203. Access to information.
Sec. 204. Information voluntarily provided.
Sec. 205. Federal cybersecurity program.
TITLE III--RESEARCH, DEVELOPMENT AND TECHNOLOGY SYSTEMS
Sec. 301. Under Secretary for Research, Development, and Technology
Systems.
Sec. 302. Functions transferred.
Sec. 303. Conduct of certain public health-related activities.
Sec. 304. Security at Federal research laboratories.
TITLE IV--BORDER AND TRANSPORTATION SECURITY
Sec. 401. Under Secretary for Border and Transportation Security.
Sec. 402. Functions transferred.
Sec. 403. Visa issuance.
TITLE V--EMERGENCY PREPAREDNESS AND RESPONSE
Sec. 501. Under Secretary for Emergency Preparedness and Response.
Sec. 502. Functions transferred.
Sec. 503. Nuclear incident response.
Sec. 504. Definition.
TITLE VI--MANAGEMENT
Sec. 601. Under Secretary for Management.
Sec. 602. Chief Financial Officer.
Sec. 603. Chief Information Officer.
TITLE VII--COORDINATION WITH NON-FEDERAL ENTITIES; INSPECTOR GENERAL;
UNITED STATES SECRET SERVICE; GENERAL PROVISIONS
Subtitle B--Inspector General
Sec. 710. Authority of the Secretary.
Subtitle C--United States Secret Service
Sec. 720. Functions transferred.
Subtitle D--General Provisions
Sec. 730. Establishment of human resources management system.
Sec. 731. Advisory committees.
Sec. 732. Acquisitions; property.
Sec. 733. Reorganization; transfer.
Sec. 734. Miscellaneous provisions.
Sec. 735. Authorization of appropriations.
Sec. 736. Military activities.
Sec. 737. Rule of construction regarding regulatory authority.
Sec. 738. Provisions regarding transfers from Department of Energy.
TITLE VIII--TRANSITION
Sec. 801. Definitions.
Sec. 802. Transfer of agencies.
Sec. 803. Transitional authorities.
Sec. 804. Savings provisions.
Sec. 805. Terminations.
Sec. 806. Incidental transfers.
TITLE IX--CONFORMING AND TECHNICAL AMENDMENTS
Sec. 901. Inspector General Act.
Sec. 902. Executive schedule.
Sec. 903. United States Secret Service.
Sec. 904. Coast Guard.
Sec. 905. Strategic national stockpile and smallpox vaccine
development.
Sec. 906. Biological agents; Public Health Service Act.
Sec. 907. National Bio-Weapons Defense Analysis Center.
SEC. 2. DEFINITIONS.
The following shall apply for purposes of this Act:
(1) The term ``American homeland'' or ``homeland'' means
the United States, in a geographic sense.
(2) The term ``assets'' includes contracts, facilities,
property, records, unobligated or unexpended balances of
appropriations, and other funds or resources (other than
personnel).
(3) The term ``Department'' means the Department of
Homeland Security.
(4) The term ``emergency response providers'' includes
Federal, State, and local emergency public safety, law
enforcement, emergency response, emergency medical, and related
personnel, agencies, and authorities.
(5) 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.
(6) The term ``functions'' includes authorities, powers,
rights, privileges, immunities, programs, projects, activities,
duties, responsibilities, and obligations.
(7) The term ``local government'' has the meaning given in
section 102(6) of the Robert T. Stafford Disaster Relief and
Emergency Assistance Act (Public Law 93-288).
(8) The term ``major disaster'' has the meaning given in
section 102(2) of the Robert T. Stafford Disaster Relief and
Emergency Assistance Act (Public Law 93-288).
(9) The term ``personnel'' means officers and employees.
(10) The term ``Secretary'' means the Secretary of Homeland
Security.
(11) The term ``United States'', when used in a geographic
sense, means any State (within the meaning of section 102(4) of
the Robert T. Stafford Disaster Relief and Emergency Assistance
Act (Public Law 93-288)), any possession of the United States,
and any waters within the jurisdiction of the United States.
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 thirty days after the date of enactment
or, if enacted within thirty days before January 1, 2003, on January 1,
2003.
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) 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; and
(C) minimize the damage, and assist in the recovery, from
terrorist attacks that occur within the United States.
(2) The Secretary shall also be responsible for carrying out the
functions of entities transferred to the Department as provided by law.
SEC. 102. SECRETARY; FUNCTIONS.
(a) Secretary.--(1) There is a Secretary of Homeland Security,
appointed by the President, by and with the advice and consent of the
Senate.
(2) The Secretary is the head of the Department and shall have
direction, authority, and control over it.
(3) All functions of all officers, employees, and organizational
units of the Department are vested in the Secretary.
(b) Functions.--The Secretary--
(1) may delegate any of his functions to any officer,
employee, or organizational unit of the Department;
(2) may promulgate regulations as provided in section 301
of title 5, United States Code; and
(3) 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
his responsibilities under this Act or otherwise provided by
law.
SEC. 103. OTHER OFFICERS.
(a) Deputy Secretary; Under Secretaries.--To assist the Secretary
in the performance of his functions, 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 chapter 33,
subchapter 3, of title 5, United States Code.
(2) An Under Secretary for Cybersecurity, Information
Analysis, and Infrastructure Protection.
(3) An Under Secretary for Research, Development, and
Technology Systems.
(4) An Under Secretary for Border and Transportation
Security.
(5) An Under Secretary for Emergency Preparedness and
Response.
(6) An Under Secretary for Management.
(7) Not more than six Assistant Secretaries.
(b) Inspector General.--To assist the Secretary in the performance
of his functions, 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 his functions, there is a Commandant of the Coast Guard,
who shall be appointed as provided in section 44 of title 14, United
States Code.
(d) Other Officers.--To assist the Secretary in the performance of
his functions, there are the following officers, appointed by the
President:
(1) A General Counsel, who shall be the chief legal officer
of the Department.
(2) Not more than ten Assistant Secretaries.
(3) A Director of the Secret Service.
(4) A Chief Financial Officer.
(5) A Chief Information Officer.
(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 his office or prescribed by the
Secretary.
TITLE II--CYBERSECURITY, INFORMATION ANALYSIS, AND INFRASTRUCTURE
PROTECTION
SEC. 201. UNDER SECRETARY FOR CYBERSECURITY, INFORMATION ANALYSIS, AND
INFRASTRUCTURE PROTECTION.
The Secretary, acting through the Under Secretary for
Cybersecurity, Information Analysis, and Infrastructure Protection ,
shall have responsibility for--
(1) taking (with respect to those functions established
under another Act and transferred to the Secretary by this Act)
or seeking to effect necessary measures to protect the key
resources and critical infrastructures in the United States, in
coordination with other executive agencies and in cooperation
with State and local government personnel, agencies, and
authorities, the private sector, and other entities;
(2) receiving and analyzing law enforcement information,
intelligence, and other information in order to understand the
nature and scope of the terrorist threat to the American
homeland and to detect and identify potential threats of
terrorism within the United States;
(3) comprehensively assessing (in addition to, and not in
lieu of, assessments collected, possessed, or prepared by other
executive agencies) the vulnerabilities of the key resources
and critical infrastructures in the United States to a
terrorist attack or other intentional act intended to
substantially disrupt the functioning of such resources and
infrastructures;
(4) integrating relevant information, intelligence
analyses, and vulnerability assessments (whether such
information, analyses, or assessments are provided or produced
by the Department or others) to identify protective priorities
and to support protective measures by the Department (with
respect to those functions established under another Act and
transferred to the Secretary by this Act), by other executive
agencies, by State and local government personnel, agencies,
and authorities, by the private sector, and by other entities;
(5) developing a comprehensive national plan for securing
the key resources and critical infrastructures in the United
States to a terrorist attack or other intentional act intended
to substantially disrupt the functioning of such resources and
infrastructure;
(6) administering the Homeland Security Advisory System,
exercising primary responsibility for public advisories
relating to terrorist threats, and (in coordination with other
executive agencies) providing specific warning information to
State and local government personnel, agencies, and
authorities, the private sector, other entities, and the
public, as well as advice about appropriate protective actions
and countermeasures; and
(7) reviewing, analyzing, and making recommendations for
improvements in the policies and procedures governing the
sharing of law enforcement, intelligence, and other information
relating to homeland security within the Federal Government and
between such government and State and local government
personnel, agencies, and authorities.
SEC. 202. FUNCTIONS TRANSFERRED.
In accordance with title VIII, there shall be transferred to the
Secretary 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 Computer Security Division of the National
Institute of Standards and Technology, including the functions
of the Secretary of Commerce relating thereto.
(5) The energy security and assurance program and
activities of the Department of Energy (including the National
Infrastructure Simulation and Analysis Center), including the
functions of the Secretary of Energy relating thereto.
(6) The Federal Computer Incident Response Center of the
General Services Administration, including the functions of the
Administrator of General Services relating thereto.
SEC. 203. ACCESS TO INFORMATION.
The Secretary shall have access to all reports, assessments, and
analytical information relating to threats of terrorism in the United
States, and to all information concerning the vulnerabilities of key
resources and critical infrastructures, 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
executive agency, except as otherwise directed by the President. The
Secretary shall also have access to other information relating to the
foregoing matters that may be collected, possessed, or prepared by an
executive agency, as the President may further provide. With respect to
the material to which the Secretary has access under this section--
(1) the Secretary may obtain such material by request, and
may enter into cooperative arrangements with other executive
agencies to share such material on a regular or routine basis,
including requests or arrangements involving broad categories
of material;
(2) regardless of whether the Secretary has made any
request or entered into any cooperative arrangement pursuant to
paragraph (1), all executive agencies promptly shall provide to
the Secretary--
(A) all intelligence reports, assessments, and
analytical information relating to threats of terrorism
in the United States;
(B) all information relating to significant and
credible threats of terrorism in the United States,
whether or not such information has been analyzed, if
the President has provided that the Secretary shall
have access to such information; and
(C) such other material as the President may
further provide; and
(3) the Secretary shall ensure that--
(A) material to which the Secretary has access
under this section is protected from disclosure to the
extent provided under Federal laws other than this Act,
and is handled and used only for the performance of
official duties;
(B) such material that is intelligence information
is transmitted, retained, and disseminated consistent
with the authority of the Director of Central
Intelligence to protect intelligence sources and
methods under the National Security Act and related
procedures; and
(C) such material that is sensitive law enforcement
information is transmitted, retained, and disseminated
consistent with the authority of the Attorney General
under applicable law.
SEC. 204. INFORMATION VOLUNTARILY PROVIDED.
[Omitted from Committee consideration]
SEC. 205. FEDERAL CYBERSECURITY PROGRAM.
(a) In General.--The Secretary, acting through the Under Secretary
for Cybersecurity, Information Analysis, and Infrastructure Protection,
shall establish and manage a program to improve the security of Federal
critical information systems, including carrying out responsibilities
under paragraphs (2) and (3) of section 201 that relate to such
systems.
(b) Duties.--The duties of the Secretary under subsection (a) are--
(1) to evaluate the increased use by civilian executive
agencies of techniques and tools to enhance the security of
Federal critical information systems, including, as
appropriate, consideration of cryptography;
(2) to provide assistance to civilian executive agencies in
protecting the security of Federal critical information
systems, including identification of significant risks to such
systems; and
(3) to coordinate research and development for critical
information systems relating to supervisory control and data
acquisition systems, including, as appropriate, the
establishment of a test bed.
(c) Federal Information System Security Team.--
(1) In general.--In carrying out subsection (b)(2), the
Secretary shall establish, manage, and support a Federal
information system security team whose purpose is to provide
technical expertise to civilian executive agencies to assist
such agencies in securing Federal critical information systems
by conducting information security audits of such systems,
including conducting tests of the effectiveness of information
security control techniques and performing logical access
control tests of interconnected computer systems and networks,
and related vulnerability assessment techniques.
(2) Team members.--The Secretary shall ensure that the team
under paragraph (1) includes technical experts and auditors,
computer scientists, and computer forensics analysts whose
technical competence enables the team to conduct audits under
such paragraph.
(3) Agency agreements regarding audits.--Each civilian
executive agency may enter into an agreement with the team
under paragraph (1) for the conduct of audits under such
paragraph of the Federal critical information systems of the
agency. Such agreement shall establish the terms of the audit
and shall include provisions to minimize the extent to which
the audit disrupts the operations of the agency.
(4) Reports.--Promptly after completing an audit under
paragraph (1) of a civilian executive agency, the team under
such paragraph shall prepare a report summarizing the findings
of the audit and making recommendations for corrective action.
Such report shall be submitted to the Secretary, the head of
such agency, and the Inspector General of the agency (if any),
and upon request of any congressional committee with
jurisdiction over such agency, to such committee.
(d) Definition.--For purposes of this section, the term ``Federal
critical information system'' means an ``information system'' as
defined in section 3502 of title 44, United States Code, that--
(1) is, or is a component of, a key resource or critical
infrastructure;
(2) is used or operated by a civilian executive agency or
by a contractor of such an agency; and
(3) does not include any national security system as
defined in section 5142 of the Clinger-Cohen Act of 1996.
TITLE III--RESEARCH, DEVELOPMENT AND TECHNOLOGY SYSTEMS
SEC. 301. UNDER SECRETARY FOR RESEARCH, DEVELOPMENT AND TECHNOLOGY
SYSTEMS.
The Secretary, acting through the Under Secretary for Research,
Development, and Technology Systems, shall have responsibility for--
(1) conducting and supporting a national scientific
research and development program to support the mission of the
Department, except that such responsibility does not extend to
human health-related research and development activities;
(2) establishing long-term research and development needs
and capabilities for all elements of the Department;
(3) integrating similar research and development needs
between the operating elements of the Department;
(4) aligning research and development programs with other
executive agencies to reduce duplication and identify unmet
needs;
(5) in consultation with other appropriate executive
agencies, developing a national policy and strategic plan for,
identifying priorities for, and coordinating the Federal
Government's civilian efforts to identify and develop
countermeasures to chemical, biological, radiological, nuclear,
and other emerging terrorist threats;
(6) establishing priorities for, conducting, and supporting
national research, development, demonstration, and, as
appropriate, transitional operation of technology and systems--
(A) for preventing the importation of chemical,
biological, radiological, nuclear weapons and related
material;
(B) for detecting, preventing, and protecting
against terrorist attacks that involve such weapons or
related material; and
(C) for interoperability of communications systems
for emergency response providers;
(7) establishing a central Federal repository for
information relating to technologies and systems described in
paragraph (6) for dissemination to Federal, State and local
government and private sector personnel, agencies and
authorities; and
(8) developing nonmandatory and technology-neutral
standards, and providing 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 and systems described in subparagraphs
(A) and (B) of paragraph (6).
SEC. 302. FUNCTIONS TRANSFERRED.
In accordance with title VIII, there shall be transferred to the
Secretary the functions, personnel, assets, and liabilities of the
following:
(1) The program under section 351A of the Public Health
Service Act, and functions thereof, including the functions of
the Secretary of Health and Human Services relating thereto,
subject to the amendments made by section 906(3), except that
such transfer shall not occur unless the program under section
212 of the Agricultural Bioterrorism Protection Act of 2002
(subtitle B of title II of Public Law 107-188), and functions
thereof, including the functions of the Secretary of
Agriculture relating thereto, subject to the amendments made by
section 907, is transferred to the Department.
(2) Such aspects of programs and activities of the
Department of Energy as relate to homeland security, 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), as follows:
(A) The chemical and biological national security
and supporting programs and activities of the non-
proliferation and verification research and development
program.
(B) The nuclear smuggling programs and activities,
and other programs and activities, within the
proliferation detection program of the non-
proliferation and verification research and development
program, except that 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 for transfer to the
Department by the President.
(E) The Environmental Measurements Laboratory.
(F) The advanced scientific computing research
program and activities, and the intelligence program
and activities, at Lawrence Livermore National
Laboratory.
(3) The National Bio-Weapons Defense Analysis Center of the
Department of Defense, including the functions of the Secretary
of Defense related thereto.
(4) The Plum Island Animal Disease Center of the Department
of Agriculture, including the functions of the Secretary of
Agriculture relating thereto.
SEC. 303. CONDUCT OF CERTAIN PUBLIC HEALTH-RELATED ACTIVITIES.
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 for such activities in
collaboration with the Secretary of the Department of Homeland
Security.
SEC. 304. SECURITY AT FEDERAL RESEARCH LABORATORIES.
[Former section 304 transferred to title VII]
The Secretary, in consultation with the Attorney General, shall
have authority to establish standards for security at Federal civilian
facilities, other than facilities of the Department of Energy, that
conduct research and development to identify and develop
countermeasures to chemical, biological, radiological, nuclear, and
other emerging terrorist threats.
TITLE IV--BORDER AND TRANSPORTATION SECURITY
[Omitted from Committee consideration]
TITLE V--EMERGENCY PREPAREDNESS AND RESPONSE
SEC. 501. UNDER SECRETARY FOR EMERGENCY PREPAREDNESS AND RESPONSE.
The Secretary, acting through the Under Secretary for Emergency
Preparedness and Response, shall have responsibility for--
(1) assisting in the preparedness of emergency response
providers for terrorist attacks, major disasters, and other
emergencies;
(2) with respect to Federal emergency response providers,
conducting joint and other exercises and training and
evaluating performance in consultation with the heads of the
relevant executive agencies;
(3) with respect to emergency response functions
transferred to the Secretary by this Act, providing the Federal
Government's response to terrorist attacks and major disasters;
(4) coordinating other Federal response resources in the
event of a terrorist attack or major disaster;
(5) assisting in the recovery from terrorist attacks and
major disasters;
(6) building a comprehensive national incident management
system with Federal, State, and local government personnel,
agencies, and authorities, to respond to such attacks and
disasters;
(7) consolidating existing Federal Government emergency
response plans into a single, coordinated national response
plan; and
(8) with respect to Federal programs that provide
assistance to emergency response providers to enhance
preparedness and response for terrorist attacks or major
disasters--
(A) identifying preparedness priorities;
(B) evaluating the effectiveness of, and
coordination among, such programs; and
(C) making recommendations to enhance the
effectiveness of such programs, and to minimize
inconsistencies and duplication among such programs.
SEC. 502. FUNCTIONS TRANSFERRED.
In accordance with title VIII, there shall be transferred to the
Secretary the functions, personnel, assets, and liabilities of the
following:
(1) The Federal Emergency Management Agency, including the
functions of the Director of the Federal Emergency Management
Agency relating thereto.
(2) The Office for Domestic Preparedness of the Office of
Justice Programs, including the functions of the Attorney
General relating thereto.
(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) To the extent provided pursuant to the amendments made
by section 905, the Strategic National Stockpile of the
Department of Health and Human Services.
SEC. 503. NUCLEAR INCIDENT RESPONSE.
(a) Nuclear Incident Response Team.--At the direction of the
Secretary (in connection with an actual or threatened terrorist attack
or major disaster), 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) Construction.--Nothing in this title limits the authority of
the Secretary of Energy or the Administrator of the Environmental
Protection Agency to organize, train, equip, or utilize their
respective entities in the Nuclear Incident Response Team, or to
exercise direction, authority, and control of their respective entities
when the entities are not operating as a unit of the Department.
SEC. 504. DEFINITION.
For purposes of this title, ``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 Oak Ridge National
Laboratory, radiological assistance functions, and related
functions; and
(2) those entities of the Environmental Protection Agency
that perform radiological emergency response and support
functions.
[SEC. 505. CONDUCT OF CERTAIN PUBLIC HEALTH-RELATED ACTIVITIES.]
[The Committee Print strikes section 505.]
TITLE VI--MANAGEMENT
[Omitted from Committee consideration]
TITLE VII--COORDINATION WITH NON-FEDERAL ENTITIES; INSPECTOR GENERAL;
UNITED STATES SECRET SERVICE; GENERAL PROVISIONS
[Omitted from Committee consideration, except section 701; 733; the
addition of a section 736 (transferred from title III of the bill); and
the addition of new sections 737 and 738.]
[SEC. 701. RESPONSIBILITIES.]
[The Committee Print strikes section 701.]
SEC. 733. REORGANIZATION; TRANSFER.
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 after
the expiration of 90 days after providing notice of such action to the
Congress, which shall include an explanation of the rationale for the
action. Authority under this section does not extend to the abolition
of any entity established or required to be maintained as a distinct
entity by this Act, or to any entity or function transferred to the
Department by this Act and established by statute.
SEC. 736. MILITARY ACTIVITIES.
[Formerly was section 304]
Except as specifically provided in this Act, nothing in this Act
shall confer upon the Secretary any authority to engage in warfighting,
the military defense of the United States, or other traditional
military activities.
SEC. 737. RULE OF CONSTRUCTION REGARDING TRANSFER OF AUTHORITY.
(a) Regulatory Authority.--With respect to regulatory authority
(whether applying by order, by regulation, or by direct operation of
law), this Act may not be construed as--
(1) establishing such authority for the Secretary, except
to the extent that a function transferred to the Secretary by
section 202, 302, 402, 403, 502, or 720 includes such
authority; or
(2) altering or diminishing such authority of any other
executive agency, except to the extent that a function of such
agency that includes such authority is transferred to the
Secretary by a section specified in paragraph (1).
(b) Other Authority.--With respect to authority that is not
regulatory authority, this Act may not be construed as--
(1) transferring to the Secretary such authority of another
executive agency, except to the extent that a function
transferred to the Secretary by a section specified in
subsection (a)(1) includes such authority; or
(2) altering or diminishing such authority of any other
executive agency, except to the extent that--
(A) a function of such agency that includes such
authority is transferred to the Secretary by a section
specified in subsection (a)(1); or
(B) with respect to functions not so transferred to
the Secretary, such agency is required by this Act to
coordinate or collaborate with the Secretary, or to
provide information or documents to the Secretary.
SEC. 738. PROVISIONS REGARDING TRANSFERS FROM DEPARTMENT OF ENERGY.
(a) 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 contracts
with the operator of a national laboratory of the Department of Energy,
the Secretary of Homeland Security and the Secretary of Energy shall
ensure that contracts for such programs and activities between the
Department of Homeland Security and such operator are separate from the
contracts of the Department of Energy with such operator.
(b) Reimbursement of Costs.--In the case of an activity carried out
by the operator of a national laboratory of the Department of Energy
but under contract with the Department of Homeland Security, 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.
TITLE VIII--TRANSITION
[Omitted from Committee consideration]
TITLE IX--CONFORMING AND TECHNICAL AMENDMENTS
[Sections 901 through 904 omitted from Committee consideration]
SEC. 905. STRATEGIC NATIONAL STOCKPILE AND SMALLPOX VACCINE
DEVELOPMENT.
(a) In General.--The Public Health Security and Bioterrorism
Preparedness and Response Act of 2002 is amended--
(1) in section 121(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 121(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. 906. BIOLOGICAL AGENT REGISTRATION; PUBLIC HEALTH SERVICE ACT.
(a) Public Health Service Act.--The Public Health Service Act is
amended--
(1) in section 351A(a)(1)(A), by inserting ``(as defined in
subsection (l)(9))'' after ``Secretary'';
(2) in section 351A(h)(2)(A), by inserting ``Department of
Homeland Security, the'' before ``Department of Health and
Human Services''; and
(3) in section 351A(l), by inserting after paragraph (8) a
new paragraph as follows:
``(9) The term `Secretary' means the Secretary of Homeland
Security, in consultation with the Secretary of Health and
Human Services.''.
(b) Public Health Security and Bioterrorism Preparedness and
Response Act of 2002.--Section 201(b) of the Public Health Security and
Bioterrorism Preparedness and Response Act of 2002 is amended by
striking ``Secretary of Health and Human Services'' and inserting
``Secretary of Homeland Security''.
(c) Effective Date.--The amendments made by this section shall take
effect on the date of transfer of the select agent registration
enforcement programs and activities of the Department of Health and
Human Services to the Department.
SEC. 907. NATIONAL BIO-WEAPONS DEFENSE ANALYSIS CENTER.
[Omitted from Committee consideration]
the recommendations of the committee on energy and commerce to the
select committee on homeland security concerning h.r. 5005, the
homeland security act of 2002
Background and Need for Legislation
The events of September 11, 2001, and other acts of
terrorism since then, have highlighted the need for a stronger
emphasis on homeland security. President Bush recognized this
need by mobilizing, upgrading, and coordinating Federal
resources, and by appointing Governor Tom Ridge as the Director
of a newly created Office of Homeland Security to lead the
effort in enhancing the security of our country and its
citizens.On June 18, 2002, President Bush sent to Congress a
proposed bill to establish a Department of Homeland Security.
Majority Leader Dick Armey introduced the President's bill on
June 24, 2002, as H.R. 5005, the Homeland Security Act of 2002.
The bill would consolidate a number of Federal agencies,
offices, programs, and functions in a new Department in an
effort to streamline and enhance homeland security efforts, and
to apply increased direction, coordination, and focus to
homeland security issues. The general concept of creating such
a Cabinet-level department has been supported on a bipartisan
basis. The Committee on Energy and Commerce has direct
jurisdiction over much of H.R. 5005, including issues contained
in Title II on cybersecurity, information analysis, and
infrastructure protection; Title III on research and
development programs within the Department of Energy (DOE) and
the Department of Health and Human Services (HHS), and on the
selection, safety and security of dangerous biological agents;
Title V on emergency preparedness and response; and related
provisions elsewhere in the bill.
Given the Committee's decades of experience dealing with
complex public health and energy-related policy issues, and its
aggressive oversight of Federal agencies in these same areas,
the Committee has the primary expertise to ensure that programs
within DOE and HHS are coordinated with, or transferred to,
programs in the new Department of Homeland Security in a manner
that best effectuates the dual goals of increasing homeland
security and preserving other national priorities in the health
and energy areas. Indeed, on June 12, 2002, the President
signed into law the Public Health Security and Bioterrorism
Preparedness and Response Act of 2002 (Public Law 107-188), on
which this Committee spent months of careful work and
thoughtful deliberation. This critical legislation will greatly
enhance the structure, coordination, and effectiveness of
Federal programs for bioterrorism and other public health
emergency preparedness and response by building up the Nation's
public health infrastructure. This Act also takes important
steps to improve the safety, security, and tracking of
dangerous biological agents and toxins, as well as the
protection of our food and drinking water supplies.
In the area of critical infrastructure protection
(including cyber security)--addressed in Title II of H.R.
5005--the Committee also has extensive expertise, as the
Committee is responsible for policy and oversight of the
Nation's key critical infrastructures. These include the energy
and telecommunications systems, chemical, oil and gas, and
nuclear facilities, and the food and drinking water supplies.
The Committee has used its expertise in this area, as well as
the other areas discussed above, to craft a strongly bipartisan
Committee Print to enhance homeland security, and to ensure the
most effective approach with respect to the new Department of
Homeland Security.
Hearings
On Tuesday, June 25, 2002, the Subcommittee on Oversight
and Investigations held a hearing on ``Creating the Department
of Homeland Security: Consideration of the Administration's
Proposal,'' focusing on the emergency preparedness and response
functions proposed for transfer to the new Department. The
Subcommittee received testimony from: The Honorable Tom Ridge,
The White House; The Honorable Claude Allen, Deputy Secretary,
Department of Health and Human Services; General John A.
Gordon, Administrator, National Nuclear Security
Administration; Ms. Jan Heinrich, Director, Health Care and
Public Health Issues, U.S. General Accounting Office; Dr. Harry
C. Vantine, Program Leader, Counterterrorism and Incident
Response, Lawrence Livermore National Laboratory; Mr. David
Nokes, Director, Systems Assessment and Research Center, Sandia
National Laboratories; Dr. Donald D. Cobb, Associate Director
for Threat Reduction, Los Alamos National Laboratory; Dr. Lew
Stringer, Medical Director, Division of Emergency Management,
North Carolina Department of Crime Control and Public Safety;
Mr. Edward P. Plaugher, Chief, Arlington County Fire
Department, Executive Agent for the Washington Area National
Medical Response Team; Mr. Philip Anderson, Senior Fellow,
Center for Strategic and International Studies; Dr. Ronald
Atlas, President-Elect, American Society for Microbiology; and
Dr. Tara O'Toole, Director, Center for Civilian Biodefense
Studies, Johns Hopkins University.
On Tuesday, July 9, 2002, the Subcommittee on Oversight and
Investigations continued its hearing on ``Creating the
Department of Homeland Security: Consideration of the
Administration's Proposal,'' focusing on the research and
development and critical infrastructure activities proposed for
transfer to the new Department. The Subcommittee received
testimony from: Mr. Jerome Hauer, Director, Office of Public
Health Emergency Preparedness, Department of Health and Human
Services; Ms. Jan Heinrich, Director, Health Care and Public
Health Issues, U.S. General Accounting Office; Dr. Gail
Cassell, Vice President, Scientific Affairs, Distinguished
Lilly Research Scholar for Infectious Diseases, Eli Lilly and
Company; Dr. Margaret Hamburg, Vice President, Biological
Programs, Nuclear Threat Initiative; Mr. John S. Tritak,
Director, Critical Infrastructure Assurance Office, Department
of Commerce; Mr. James McDonnell, Director, Energy Security and
Assurance Program, Department of Energy; Dr. Samuel G. Varnado,
Director, Infrastructure and Information Systems Center, Sandia
National Laboratories; Dr. Donald D. Cobb, Associate Director
for Threat Reduction, Los Alamos National Laboratory; Mr.
Robert F. Dacey, Director, Information Security Issues, U.S.
General Accounting Office; Mr. William Smith, Executive Vice
President, Network Operations, BellSouth; Mr. Guy Copeland,
Vice President, Information Infrastructure Advisory Programs,
Federal Sector, Computer Sciences Corporation, on behalf of the
Information Technology Association of America; Ms. Lynn P.
Costantini, Director, Online Services, North American Electric
Reliability Council; Mr. John P. Sullivan, Jr., President and
Chief Engineer, Boston Water and Sewer Commission, on behalf of
the Association of Metropolitan Water Agencies; Mr. Kenneth C.
Watson, President, Partnership for Critical Infrastructure
Security, Cisco Systems, Inc.; Mr. Jeremiah Baumann,
Environmental Health Advocate, U.S. Public Interest Research
Group; Mr. David L. Sobel, General Counsel, Electronic Privacy
Information Center; Mr. Jason Ahearn, Assistant Commissioner,
Field Operations, United States Customs Service; Ambassador
Linton Brooks, Acting Administrator, National Nuclear Security
Administration; Ms. Gary Jones, Director, Natural Resources and
Environment Issues, U.S. General Accounting Office; Mr. Frank
Panico, Manager, International Networks and Transportation,
United States Postal Service; Mr. David Nokes, Director,
Systems Assessment and Research Center, Sandia National
Laboratories; Dr. Wayne J. Shotts, Associate Director for
Nonproliferation, Arms Control and International Security,
Lawrence Livermore National Laboratory; Mr. Steven W. Martin,
Director, Homeland Security Programs, Pacific Northwest
National Laboratory; Mr. Robert A. Bryden, Vice President,
Corporate Security, FedEx Corporation; Mr. Jim Holsen, Vice
President, Engineering, United Parcel Service, Inc.; and Mr.
Barry Howe, Vice President, Thermo Electron Corporation.
Committee Consideration
On Thursday, July 11, 2002, the Full Committee met in open
markup session for the consideration of a Committee Print to
provide recommendations to the Select Committee on Homeland
Security with respect to H.R. 5005, and approved the Committee
Print, without amendment, by voice vote.
Section-by-Section Analysis of the Legislation
Section 1. Short Title; Table of Contents.
Section 1 of H.R. 5005 sets forth the title and table of
contents of this Act. The Committee Print makes only technical
and conforming changes to this section.
Section 2. Definitions.
Section 2 of H.R. 5005 sets forth the definitions for
certain terms used in this Act. The Committee Print makes a
change to the definition of the term ``emergency response
providers'' to ensure that non-governmental personnel are
included within the definition used in this Act.
Section 3. Construction; Severability.
Section 3 of H.R. 5005 sets forth a rule of construction
regarding severability of the Act's provisions. The Committee
Print does not make any changes to this section.
Section 4. Effective Date.
Section 4 of H.R. 5005 sets forth the effective date of the
Act. The Committee Print does not make any changes to this
section.
title i--department of homeland security
Section 101. Executive Department; Mission.
Section 101 of H.R. 5005 establishes the Department of
Homeland Security and sets forth its primary mission and
responsibilities. The Committee Print alters this section of
H.R. 5005 by striking subsection (b)(2)--which sets forth
primary responsibilities of the Department using different
language than that which is contained in subsequent titles of
the bill--in order to avoid potential confusion or
misinterpretation of the specific responsibilities provided to
the new Department.
Section 102. Secretary; Functions.
Section 102 of H.R. 5005 establishes a Secretary for the
new Department and sets forth the Secretary's functions and
authorities. The Committee Print alters subsection (b)(2)--
which authorizes the promulgation of regulations by the
Secretary--by adding the phrase ``as provided in section 301 of
title 5, United States Code.'' The intent of this change is to
ensure that the regulatory authority granted to the Secretary
in this section is circumscribed to administrative matters
relating to the organization and functioning of the Department.
Section 103. Other Officers.
Section 103 of H.R. 5005 sets forth other officers of the
Department, including a Deputy Secretary and five Under
Secretaries. The Committee Print makes only technical and
conforming changes to this section.
title ii--cybersecurity, information analysis and infrastructure
protection
Section 201. Undersecretary for Cybersecurity, Information Analysis and
Infrastructure Protection.
Section 201 of H.R. 5005 establishes an Undersecretary for
Information Analysis and Infrastructure Protection, whose
responsibilities include: receiving and analyzing law
enforcement, intelligence, and other information regarding
terrorist threats; comprehensively assessing the
vulnerabilities of key resources and critical infrastructures
in the United States; integrating relevant information,
intelligence analyses, and vulnerability assessments;
developing a comprehensive national plan for securing key
resources and critical infrastructures in the United States;
taking or seeking to effect necessary measures to protect key
resources and critical infrastructures in the United States;
administering the Homeland Security Advisory System; and making
recommendations for improvements in the policies and procedures
for sharing of law enforcement, intelligence and other
information.
The Committee Print makes six changes to this section as
introduced. First, the Committee Print clarifies that the
Secretary's responsibility to comprehensively assess critical
infrastructure vulnerabilities is a function that is in
addition to, and not in lieu of, assessments collected,
possessed, or prepared by other executive agencies. Second, the
Committee Print clarifies that the responsibilities of the
Secretary in this section to assess critical infrastructure
vulnerabilities and to develop a national plan for securing
those infrastructures are related to threats to those
infrastructures posed by ``a terrorist attack or other
intentional act intended to substantially disrupt the
functioning of such resources and infrastructures.'' Third, the
Committee Print clarifies that the Secretary's responsibility
for public advisories is limited to those relating to terrorist
threats. Fourth, the Committee Print renames the Undersecretary
for Information Analysis and Infrastructure Protection, as
proposed in H.R. 5005, to the ``Undersecretary for
Cybersecurity, Information Analysis and Infrastructure
Protection,'' in order to emphasize the role of the Department
relating to cybersecurity.
Fifth, by striking the word ``primary'' before
``responsibility''in the first sentence of this section as
introduced, the Committee Print makes clear that the
Secretary's responsibilities do not alter or diminish the
authority of another executive agency, except to the extent
that a function of such agency that includes such authority is
transferred to the Department under this Act. Finally, in
sections 201(1) and 201(4), the Committee Print clarifies that
the Secretary's authority to ``take'' necessary measures and to
``support protective measures by the Department'' is limited to
those functions established under another Act and transferred
to the Department by this Act.
Section 202. Functions Transferred.
Section 202 of H.R. 5005 transfers to the Department the
following functions or programs of other executive agencies:
the National Infrastructure Protection Center of the Federal
Bureau of Investigation (FBI) (other than the Computer
Investigations and Operations Section); the National
Communications System at the Department of Defense (DOD); the
Critical Infrastructure Assurance Office of the Department of
Commerce (DOC); the Computer Security Division of the National
Institute of Standards and Technology (NIST); the National
Infrastructure Simulation and Analysis Center (NISAC) of the
Department of Energy (DOE); and the Federal Computer Incident
Response Center of the General Services Administration (GSA).
The Committee Print makes one change to this section from
H.R. 5005, as introduced. The Committee Print includes the
transfer of the DOE energy security and assurance program in
section 202, moving it from section 303 of H.R. 5005. The
Committee recognizes that the NISAC, which is operated jointly
by Sandia National Laboratories and Los Alamos National
Laboratory, has been established as part of the energy security
and assurance program at DOE. Rather than transferring the
NISAC and its functions to the Undersecretary for
Cybersecurity, Information Analysis and Infrastructure
Protection, and also separately transferring the energy
assurance and security program to the Undersecretary for
Research, Development and Technology Systems, the Committee
Prints consolidates the transfer of both programs in section
202.
Section 203. Access to Information
Section 203 of H.R. 5005 provides the Secretary with access
to all reports, assessments, and analytical information
relating to threats of terrorism in the United States, and to
information concerning the vulnerabilities of key resources and
critical infrastructures, or other vulnerabilities, of the
United States to terrorism that may be collected, possessed, or
prepared by any executive agency. In addition, this section
requires all executive agencies to promptly provide, regardless
of whether the Secretary has requested, all intelligence
reports, assessments and analytical information relating to
threats of terrorism in the United States, all information
concerning infrastructure and other vulnerabilities, and all
information relating to significant and credible threats of
terrorism in the United States, whether or not such information
has been analyzed. Section 203 also requires the Secretary to
ensure that such information is protected from unauthorized
disclosure.
The Committee Print makes two changes to section 203 of
H.R. 5005, as introduced. First, it changes section 203 by
eliminating the requirement for all executive agencies to
provide, regardless of whether requested, all information
concerning infrastructure and other vulnerabilities of the
United States to terrorism. The Committee is concerned that the
phrase ``all information concerning infrastructure'' included
in section 203(2)(B) of H.R. 5005 is overly broad in scope, and
that requiring all such information to be submitted to the
Secretary automatically, including in situations where the
Secretary has not requested such information, could inundate
the Secretary with information and make it more difficult to
identify the most significant vulnerabilities to terrorism of
critical infrastructures in the United States. As a result, the
Committee strikes the provision from the bill requiring the
delivery of such information regardless of whether the
Secretary has requested it; however, the Secretary retains the
authority to request such information. Second, the Committee
Print clarifies that the Secretary's obligation to protect from
unauthorized disclosure information to which the Secretary has
access under this section means that the Secretary shall ensure
that such information is protected from disclosure to the
extent provided under Federal laws other than this Act.
Section 204 Omitted from Committee consideration.
Section 205. Federal Cybersecurity Program.
There is no comparable provision in H.R. 5005. Section 205
of the Committee Print creates a new Federal cybersecurity
program. Section 205 directs the Secretary to establish and
manage a program to improve the security of Federal critical
information systems. It establishes three duties for the
Secretary. First, the Secretary is responsible for evaluating
the increased use by civilian executive agencies of techniques
and tools to enhance the security of Federal critical systems,
including, as appropriate, consideration of cryptography.
Second, the Secretary is responsible for providing assistance
to civilian executive agencies in protecting the security of
Federal critical information systems, including identification
of significant risks to such systems. Third, the Secretary is
responsible for coordinating research and development to
enhance the security of critical information systems, including
supervisory control and data acquisition systems, including, as
appropriate, the establishment of a test bed.
Section 205 also establishes, as part of the program to
improve security of Federal critical information systems, a
Federal Information System Security Team to provide technical
expertise to civilian executive agencies by conducting
cybersecurity audits of civilian executive agency information
systems (other than national security systems), in accordance
with agreements between the Secretary and the head of such
agencies. This team will be comprised of computer security
technical experts who will conduct tests of the effectiveness
of logical access controls of interconnected computer systems
and networks of civilian executive agencies and contractors,
including penetration tests and other vulnerability assessment
techniques on Federal critical information systems.
The Committee includes section 205 in the Committee Print
because greater emphasis is needed on information security of
Federal critical information systems, and on research and
development to enhance security of the Nation's critical
information systems. Over the past several years, the Committee
has conducted a series of investigations, including information
security reviews at HHS, DOE, the Department of Commerce (DOC),
and the Environmental Protection Agency (EPA). The U.S. General
Accounting Office (GAO) has performed many of the information
security audits for the Committee, and has documented the
results of its penetration testing in a series of reports that
found pervasive computer security weaknesses.
Moreover, many of the Nation's critical infrastructures are
controlled and maintained using process control, operations,
and maintenance technologies, called supervisory access control
and data acquisition (SCADA) systems. These are information
systems and computer networks that serve command and control
functions for such critical infrastructures as electric power
distribution and drinking water systems. The Committee supports
the transfer of the National Infrastructure Simulation and
Analysis Center to the Department of Homeland Security and
recognizes the work of Sandia and Los Alamos National
Laboratories in the area of SCADA systems. As part of its
cybersecurity program under section 205, the Committee
encourages the Secretary to develop a program to identify and
address potential vulnerabilities of SCADA systems.
title iii--research, development, and technology systems
Section 301. Under Secretary for Research, Development and Technology
Systems.
Section 301 of H.R. 5005 creates an Under Secretary for
Chemical, Biological, Radiological and Nuclear Countermeasures,
whose principal responsibilities include: conducting a national
research and development program to support the mission of the
Department; coordinating Federal civilian efforts to identify,
develop, and demonstrate countermeasures and technologies to
protect against chemical, biological, radiological, and nuclear
terrorist threats; and establishing guidelines for state and
local government efforts to implement such countermeasures.
The Committee Print makes several significant changes to
section 301. First, it changes the title of this officer to the
Under Secretary for Research, Development and Technology
Systems in order to reflect the principal responsibilities
assigned to the Under Secretary, and to emphasize the critical
role of research, development, and technology in the new
Department. Second, the Committee Print clarifies that the
Department will not conduct human health-related research and
development activities (for reasons more fully described in
section 303), but will nonetheless play an important role in
identifying priorities and developing national policy and a
strategic plan for such research as it pertains to the threats
of biological, chemical, radiological, and nuclear terrorism.
The Committee notes that other executive agencies shall
continue to carry out their similar responsibilities under
existing authorities, and the new Department shall consult
closely with such agencies in carrying out its planning and
coordination roles. Third, the Committee Print adds additional
responsibilities to the Secretary with respect to research and
development within and for the Department, and among its
various elements.
Moreover, the Committee Print directs the Secretary to
establish, acting through the Under Secretary, a central
Federal repository to receive and, as appropriate, review
solicited and unsolicited submissions relating to homeland
security-relevant technologies and systems developed by the
Department, universities and other academic institutions, other
governmental agencies, and the private sector. The purpose of
this repository is to serve as a centralized clearinghouse for
commercial, governmental, and other technology developers, and
for the dissemination of information about available
technologies and systems to appropriate Federal, state and
local governments, emergency response providers, and private
sector users of such technologies and systems. The Under
Secretary shall also recommend to the Secretary changes
necessary to improve policies relating to the acquisition of
information about governmental, commercial, and other homeland
security technologies, and regarding the procurement of those
technologies. Finally, the Committee Print gives the Secretary
responsibility for developing nonmandatory and technology-
neutral standards, and providing recommendations and technical
assistance as appropriate, to assist the government and private
sector in evaluating and implementing the use of such
technologies.
Section 302. Functions Transferred.
Section 302 of H.R. 5005 transfers specific functions and
programs from other executive agencies to the new Department,
specifically (1) the select agent program of HHS for the
possession and transfer of dangerous biological agents and
toxins; (2) various DOE research, development, and assessment
programs relating to chemical, biological, radiological and
nuclear agents; and, (3) two other research centers from DOD
and the Department of Agriculture (USDA).The Committee Print
amends the transfer of the HHS select agent program by making
it conditional upon the transfer of the overlapping select
agent program of USDA to the new Department, as well as upon a
continuing consultation role for the Secretary of HHS in all
aspects of the program. While the Committee recognizes the
disadvantages to transferring the HHS select agent program from
a scientific, research-oriented agency to a department whose
focus is combating terrorism, the Committee believes that, on
balance, the advantages of transferring the program will
outweigh the disadvantages, provided that the companion program
currently at USDA is transferred as well. If both programs are
transferred to a single department, it will enhance the
coordination and joint registration and regulatory system
required under the Public Heath Security and Bioterrorism
Preparedness and Response Act of 2002. However, if the
agricultural select agent program remains at USDA, then the
Committee views the transfer of the HHS program to the new
Department as only exacerbating the existing coordination
problems by involving yet a third government agency (since the
HHS consultation role will and must continue).
With respect to the DOE programs, the Committee Print
modifies this category of transfers to the new Department by
emphasizing that only those aspects of these programs that are
related to homeland security would be transferred to the new
Department. The Committee recognizes that many of these
programs serve vital interests and responsibilities of the
Department of Energy, and thus care must be taken to ensure
that DOE is not left without critical abilities and resources,
and that unrelated programs are not transferred.
Section 303. Conduct of Certain Public Health-Related Activities.
Section 303 of H.R. 5005 provides that, except as the
President otherwise may direct, the Secretary shall carry out
his responsibilities for civilian, human health-related
biological, biomedical, and infectious disease defense research
and development through HHS, under agreements with the HHS
Secretary; may transfer funds to the HHS Secretary for carrying
out such research; and has the authority to establish the
research and development program and set its priorities, in
consultation with the HHS Secretary. It also permits similar
arrangements between the new Department and other executive
agencies.
The Committee Print revises section 303 in accordance with
amendments made to section 301, which clarify that the new
Department will not have authority to conduct human health-
related research and development. In recognition of the fact
that the new Department will have important intelligence,
threat, and vulnerability-related information necessary for the
identification of certain research priorities, the Committee
Print provides that the Secretary of HHS shall set priorities
in collaboration with the Secretary of the Department of
Homeland Security with respect to human health-related research
and development activities on countermeasures for chemical,
biological, radiological, and nuclear terrorist threats. The
Committee Print also eliminates the transfer of funds provision
in this section.
The reasons for these changes are substantial. The
Committee understands, based on testimony from Governor Ridge,
that it was not the intent behind the Administration's proposal
in this area to grant the new Secretary authority to conduct or
unilaterally direct the research and development programs
carried out by HHS through the National Institutes of Health
(NIH) and the Centers for Disease Control and Prevention (CDC).
However, the original statutory language of section 303 appears
to grant such authority. The Committee's amendments seek to
ensure that the primary responsibility for such research
remains with HHS, while requiring that the HHS Secretary
collaborate with the Secretary of Homeland Security with
respect to setting priorities for research activities involving
countermeasures for chemical, biological, radiological, or
nuclear terrorism. As experts with GAO emphasized in testimony
before the Committee on H.R. 5005, much of the terrorism-
related research currently being performed by HHS, through NIH
and CDC, is dual-purpose in nature, and the Committee believes
it would be counter-productive to separate such purposes, even
if it could be done. Accordingly, the Committee believes it
would be inappropriate for the Homeland Security Department to
control this research agenda. Similar concerns have been
expressed by a wide range of national, state, and local health
and research-related associations. The approach adopted by the
Committee Print responds to such concerns.
The Committee also believes it would be unwise,
unnecessary, and administratively cumbersome for the funds for
such activities to be appropriated in the first instance to the
new Department, only to be ``contracted'' back to HHS for
further distribution to NIH, CDC, and the hundreds of grant
recipients conducting such research. The Committee understands
the need and desire of the Administration to improve the
coordination of funding on such research activities across the
Federal government. But the Committee believes that such
coordination can occur without the control of HHS funds that
H.R. 5005 contemplates, by providing in section 301 an explicit
grant of authority to the new Secretary to coordinate all
Federal civilian research efforts in this area. Indeed, under
the original Administration proposal, the new Secretary would
not receive control over the substantial research funds of
other agencies that conduct research activities similar to
those of HHS, including the Departments of Defense, Veterans'
Affairs, and Agriculture, the Central Intelligence Agency, and
others. Given that fact, the Committee does not believe that
budgetary control is necessary with respect to HHS research
dollars in order to ensure such coordination.
Section 304. Security at Federal Research Laboratories.
The Committee Print moves section 304 of H.R. 5005,
entitled ``Military Activities,'' to section 736 of this Act
without further change, and creates a new section 304 regarding
security at Federal civilian research laboratories. The
Committee Print adopts the concept for this section from
section 505(a)(1) of H.R. 5005, which the Committee understands
to grant certain authorities to the new Secretary with respect
to security-related enhancements to certain HHS research
facilities. The Committee Print revises the language to ensure
that the scope of the new Secretary's authority is broadened to
include all Federal civilian research facilities (except for
those of the Department of Energy), but appropriately limits
such authority to setting standards for the security of
facilities conducting research to identify and develop
countermeasures to chemical, biological, radiological, or
nuclear terrorism.
title iv--border and transportation security
Title IV was omitted from Committee consideration.
title v--emergency preparedness and response
Section 501. Under Secretary for Emergency Preparedness and Response.
Section 501 of H.R. 5005 creates an Under Secretary for
Emergency Preparedness and Response, whose principal
responsibilities include enhancing the preparedness of
emergency response providers at the Federal, state and local
levels for terrorist attacks, major disasters, and other
emergencies; managing the Federal government's response to
terrorist attacks and major disasters, including directing
certain response assets under the Department's control and
coordinating other Federal response resources; assisting in the
recovery from such attacks or disasters; establishing standards
and conducting joint and other exercises and training for the
Federal nuclear incident response teams; and developing and
promoting acquisition of interoperable communications
technology for emergency response providers.
The Committee Print makes modifications to section 501 of
H.R. 5005, including adding a new paragraph (8) that provides
the Secretary with additional responsibilities with respect to
Federal assistance programs to enhance the preparedness of
state and local emergency response providers for terrorist
attacks. Specifically, the Secretary will have the
responsibility to identify preparedness priorities for all such
programs (including those run by HHS), to evaluate the
effectiveness and coordination of such programs to eliminate
inconsistencies and duplication, and to make recommendations to
enhance the effectiveness of such programs.
Through amendments to sections 501(3) and (4), the
Committee Print ensures that the new Homeland Security
Department will have the responsibility for coordinating all
Federal response resources in the event of a terrorist attack
or major disaster. Importantly, however, the Committee Print
eliminates any suggestion that the new Department will itself
direct programs that are under the jurisdiction of other
executive agencies. The Committee believes such language could
supercede authorizations, duties, and responsibilities under
other laws, such as the Public Health Service Act, which
provide specific responsibilities and duties to other executive
agencies and their officers. The Committee believes that such
responsibilities should remain with such agencies and
officials, unless those duties are expressly and specifically
transferred to the new Department.
Section 502. Functions Transferred.
Section 502 of H.R. 5005 transfers specific functions and
programs from other executive agencies to the new Department,
including the Federal Emergency Management Agency (FEMA), and
other emergency preparedness and response functions from the
Departments of Justice and Health and Human Services. The
latter category includes, from HHS, the Office of the Assistant
Secretary for Public Health Emergency Preparedness, the Office
of Emergency Preparedness, the National Disaster Medical
System, the National Strategic Stockpile, and the Metropolitan
Medical Response System.
The Committee Print transfers all of the offices and
programs transferred in H.R. 5005, as introduced, with certain
modifications. Subsection 502(5) of the Committee Print
provides for a more limited transfer of authorities from HHS,
by retaining at HHS the coordination, liaison, and other
functions of the Office of the Assistant Secretary for Public
Health Emergency Preparedness. The specific functions of the
Office of Emergency Preparedness, the National Disaster Medical
System, and the Metropolitan Medical Response System are
transferred, along with the responsibilities of the Secretary
and Assistant Secretary relating thereto. Nothing in this
section should otherwise reduce the responsibilities of the HHS
Secretary or the Assistant Secretary for Public Health
Emergency Preparedness. HHS retains primary responsibility for
public health emergency preparedness. Moreover, all provisions
of the Public Health Service Act continue to apply to officials
at HHS, except for any provisions that specifically apply
directly to the Office of Emergency Preparedness, the National
Disaster Medical System, or the Metropolitan Medical Response
System.
Section 503. Nuclear Incident Response.
Section 503 of H.R. 5005 provides that the Secretary may
call into action certain nuclear incident response elements of
DOE and EPA, in response to a terrorist attack, major disaster,
or other emergency.The Committee Print provides clarifications
concerning the nuclear incident response team and the new
working relationship among the Department of Homeland Security,
DOE, and EPA. Except as specifically directed by the Secretary
of Homeland Security in connection with an actual or threatened
terrorist attack or major disaster, the EPA Administrator and
the DOE Secretary will continue to exercise control of their
respective entities in the Nuclear Incident Response Team for
responding to emergencies and other incidents. For example, the
radiological and emergency response team at EPA has previously
responded to emergencies at the Hanford Nuclear Reservation in
Washington, and in Los Alamos, New Mexico. Similarly, DOE's
radiological assistance teams often deploy at the request of
state or local officials to investigate potential radiation
exposures or contamination events. The Committee intends for
DOE and EPA to continue to exercise their responsibilities to
respond to emergencies and other incidents as in the past,
without the need for direction by the Secretary of Homeland
Security.
Section 504. Definition.
Section 504 of H.R. 5005 defines the term ``nuclear
incident response team'' as used in section 503. The Committee
Print makes minor clarifications to this section.
Section 505. Conduct of Certain Public Health-Related Activities.
Section 505 of H.R. 5005 provides that the new Secretary
shall carry out certain responsibilities through HHS, under
agreements with the HHS Secretary, including (1) preparedness-
related construction, renovation and enhancement of security
for research and development or other facilities owned or
occupied by HHS, and (2) public health-related activities
carried out by HHS to assist state and local governments and
other non-Federal public and private health care and
educational entities to plan or prepare for chemical,
biological, radiological, and nuclear events and other public
health emergencies.
Section 505, as introduced, was eliminated in the Committee
Print. The Committee found this provision, as introduced,
highly problematic. While it is not unusual to have statutory
provisions requiring a Cabinet-level official to have
responsibilities that flow through certain offices within the
jurisdiction of that Cabinet-level official, section 505 gave
broad legal responsibilities to the new Secretary of Homeland
Security to operate through the Secretary of HHS--a co-equal
Cabinet-level official. Moreover, section 505, as introduced,
states that the new Secretary of Homeland Security ``shall have
authority to establish the preparedness and response program,
including the setting of priorities.'' The Committee is unclear
how this provision would impact the duties and authorities of
the Secretary of HHS with respect to public health emergency
preparedness and response, including grants and contracting.
Those responsibilities are specifically spelled out under the
Public Health Service Act, and the Committee believes that they
should not be superceded unless there are direct amendments to
that Act.
The Committee also is concerned because the language in
section 505 is unclear in several other respects: would the new
Secretary have the authority to exercise discretion under the
provisions of the Public Health Services Act, or even supercede
or modify those provisions with respect to ``the emergency
preparedness and response program''? What would be the power to
``establish'' the program? Would this include the authority to
declare public health emergencies? If grants were issued, would
they need approval from both the Secretary of Homeland Security
and the Secretary of HHS? The uncertainty created by this
approach is substantial, and could cause damage to a recently
implemented HHS preparedness program that has been winning
praise from States, local governments, and public health and
emergency response communities across the Nation.
The Committee does not believe it is feasible to separate
legal responsibilities from the statutes that authorize those
responsibilities. Nor is it feasible to separate the officials
charged with administering those responsibilities from the
personnel required to do so. The Committee believes these
activities are properly authorized under the Public Health
Service Act and administered by the Secretary of HHS. Neither a
wholesale transfer of these responsibilities, nor some unusual
splitting of responsibilities in this area, is warranted.
It also has become clear during the Committee's months of
deliberation on bioterrorism legislation that many public
health emergency preparedness programs serve dual roles that
cannot easily be separated from core public health activities.
The approach of the Committee Print on this issue is amply
supported in hearings reviewing this legislation. At a hearing
on June 25, 2002, Dr. Tara O'Toole, M.D., Director, Center for
Civilian Biodefense Studies, Johns Hopkins University, stated:
Instead of consolidating similar programs, the proposed
agency would split bioterrorism preparedness programs
from the related but more encompassing mission of
public health protection which is DHHS' main objective
* * * [T]he country would be forced to create parallel
workforces: one in Homeland Security for bioterrorism
preparedness and another in DHSS for `normal' public
health functions.
The same argument was made by Ms. Janet Heinrich, Director,
Health Care Issues, at GAO:
Although the HHS programs are important for homeland
security, they are just as important to the day-to-day
needs of public health agencies and hospitals, such as
reporting on disease outbreaks and providing alerts to
the medical community. The current proposal does not
clearly provide a structure that ensures that both the
goals of homeland security and public health will be
met.
The Committee Print provides an overall coordination role
for the new Secretary of Homeland Security, applying to all
executive agencies, with respect to Federal response resources
in the event of a terrorist attack or major disaster. The
Committee believes, however, that the Secretary of HHS must
maintain the primary role in public health preparedness. Both
Secretaries, of course, report to the President, and executive
authority to create task forces or issue executive orders,
consistent with other provisions of law, remain as the
traditional way to ensure coordination, cooperation, and
collaboration among Cabinet officials.
The Committee also questions why funding authority for
certain research facilities at HHS should be transferred to the
new Department. Obviously, there are many Federal research
facilities and a need for increased security in many areas. As
discussed above, the Committee Print provides a role for the
new Department in establishing standards for security at
certain Federal civilian research facilities. The assignment to
the new Department of specific responsibilities for
construction, renovation and enhancement of certain HHS
facilities is not appropriate.
title vi--management
Title VI was omitted from Committee consideration.
title vii--coordination with non-federal entities; inspector general;
united states secret service; general provisions
Subtitle A--Coordination with Non-Federal Entities
Section 701. Responsibilities.
Section 701 of H.R. 5005 sets forth responsibilities of the
Secretary relating to coordination with state and local
governments, the private sector, and other entities, with
respect to planning, equipment, training and exercise
activities, Federal communications systems, and Federal grant
programs for emergency response providers.
The Committee Print strikes section 701. The Committee
recognizes the critical importance of Federal coordination with
state and local governments and private sector entities with
respect to homeland security matters, especially emergency
response functions. However, the Committee views the
responsibilities set forth in this section as either
duplicative of responsibilities contained in other titles of
the act, or inconsistent with such responsibilities,
particularly as amended by the Committee Print.
Subtitle B--Inspector General
Section 710. Omitted from Committee consideration.
Subtitle C--United States Secret Service
Section 720. Omitted from Committee consideration.
Subtitle D--General Provisions
Section 730. Omitted from Committee consideration.
Section 731. Omitted from Committee consideration.
Section 732. Omitted from Committee consideration.
Section 733. Reorganization; Transfer.
Section 733 of H.R. 5005 provides that the Secretary may
reorganize the Department or reallocate its functions among
officers of the Department, including establishing,
discontinuing, or consolidating organizational units within the
Department. The section prohibits the abolition of any entity
established or required to be maintained as a distinct entity
under this Act, or the abolition of any entity or function
transferred to the Department and established by statute unless
90 days notice is given to Congress.
The Committee Print alters the authorities in section 733
by requiring notice to Congress of any changes to the
organization of, or allocation of functions within, the
Department, and expressly prohibits the abolition of entities
established or required to be maintained as a distinct entity
under this Act, or the abolition of any entity or function
transferred to the Department and established by statute,
regardless of any notification to Congress.
Section 734. Omitted from Committee consideration.
Section 735. Omitted from Committee consideration.
Section 736. Military Activities.
Section 736 (originally, section 304 of H.R. 5005) provides
that the Secretary shall have no authority to engage in
military activities. The Committee Print does not alter this
language.
Section 737. Rule of Construction Regarding Transfer of Authority.
There is no comparable provision in H.R. 5005. The
Committee Print adds a new Section 737 to provide a rule of
construction regarding the transfers of authority made by this
Act. Importantly, the rule of construction ensures that, with
respect to regulatory authority, this Act does not establish
such authority for the Secretary, except to the extent that a
function transferred to the Secretary by sections 202, 302,
402, 403, 502 or 720 of this Act includes such authority. This
rule of construction also ensures that the Act does not alter
or diminish the regulatory authority of any other executive
agency, except to the extent that a function of such agency
that includes such authority is transferred to the Secretary by
one of the sections listed in the preceding sentence. Section
737 also provides a similar rule of construction for other non-
regulatory authorities that are transferred to the Secretary.
Section 738. Provisions Regarding Transfers from Department of Energy.
There is no comparable provision in H.R. 5005. The
Committee Print adds a new section 738 to clarify how the
transfers of authority from DOE to the new Department will
occur with respect to the activities being carried out for DOE
by its national laboratories. In such circumstances, the two
Secretaries shall ensure that the contracts between the
Department of Homeland Security and the operators of the
national laboratories are separate from the general management
contracts between DOE and the operators of the national
laboratories. Given that the national laboratories performing
work for the Department of Homeland Security will continue to
utilize DOE facilities, section 738 further provides that the
new Department shall reimburse DOE for costs relating to such
activities. However, the new Department shall not be required
to pay administrative or personnel costs of DOE or its
contractors in excess of the amount that the Secretary of
Energy normally pays for an activity carried out by such a
contractor. Through this provision, the Committee intends to
permit direct tasking of the national laboratories by the new
Department with respect to those transferred activities. The
Department also may contract with the operators of such
laboratories to perform other tasks through the existing ``work
for others'' program of DOE.
title viii-transition
Title VIII was omitted from Committee consideration.
title ix-conforming and technical amendments
Section 901. Omitted from Committee consideration.
Section 902. Omitted from Committee consideration.
Section 903. Omitted from Committee consideration.
Section 904. Omitted from Committee consideration.
Section 905. Strategic National Stockpile and Small-Pox Vaccine
Development.
Section 905 of H.R. 5005 makes technical and conforming
changes to the Public Health Security and Bioterrorism
Preparedness and Response Act of 2002, consistent with the
transfer of certain authorities over the National Strategic
Stockpile from HHS to the new Department in section 502 of this
Act. The Committee Print does not alter the language of this
section.
Section 906. Biological Agent Registration; Public Health Service Act.
Section 906 of H.R. 5005 makes technical and conforming
changes to the Public Health Service Act with respect to the
program established in section 351A of such Act governing the
registration of dangerous biological agents and toxins, if the
program is transferred to the new Department. The Committee
Print makes minor modifications to this section to address
errors in the original text.
Section 907. Omitted from Committee consideration.
COMMITTEE ON FINANCIAL SERVICES
House of Representatives,
Committee on Financial Services,
Washington, DC, July 11, 2002.
Hon. Richard K. Armey
Chairman, House Select Committee on Homeland Security, The
Capitol, Washington, D.C.
Dear Chairman Armey: The terrorist attacks of September
11th demonstrated the need for improved security and prevention
measures to combat acts of violence against U.S. citizens. The
Financial Services Committee has contributed to the fight
against terrorism by cutting off funding for organizations that
finance terrorist activities and strengthening existing money
laundering laws through the USA PATRIOT Act (P.L. 107-56).
Additionally, the Committee has sought to prevent catastrophic
economic losses from such attacks through the passage of the
Terrorist Risk Protection Act (H.R. 3210).
The Financial Services Committee has done an extensive
review of its jurisdiction as it relates to the President's
proposal to create a Department of Homeland Security (H.R.
5005). The Committee strongly supports the efforts of the
President and the Select Committee on Homeland Security to
create a new executive department that will coordinate
resources in an effort to prevent attacks on the United States.
While the Committee will not mark up H.R. 5005, it would
like to identify its jurisdiction over this legislation and
reserve its right to consider the issues within our
jurisdiction in the future. The Committee believes that it is
in the best position to continue oversight of these programs,
regardless of what executive department they are located.
The following represents our views about how the programs
within our jurisdiction will integrate into the new Department
of Homeland Security:
Federal Emergency Management Agency
The Committee has jurisdiction over three programs within
the Federal Emergency Management Agency (FEMA) that would
become the responsibility of the new department created through
H.R. 5005. These programs are: the National Flood Insurance
Programs, the Defense Production Act and the Emergency Food and
Shelter Program. FEMA's mission is to prevent, prepare for,
respond to, and recover from disasters of all types. The
Committee believes that the expertise of FEMA in consequence
management is critical to the function of the proposed Office
of Homeland Security.
National Flood Insurance Program--The National Flood
Insurance Act of 1968 (42 USC 4001 et seq.) created the
National Flood Insurance Program (NFIP) and authorized the
Director of FEMA to administer the Federal Insurance
Administration (FIA). The FIA provided insurance protection for
properties which are vulnerable to floods, but not insured by
the private sector. Prior to passage of this act, insurance
companies generally did not offer coverage for flood disasters
because of the high risks involved. The legislation as amended
in 1973 and 1994 authorized the FIA and Mitigation Directorate
to administer the NFIP. In 2001, the FIA and the Mitigation
Directorate were brought together into a single organization,
the Federal Insurance and Mitigation Administration (FIMA).
FIMA has expertise in risk assessment, mitigation or loss
prevention and insurance. Efforts such as resident education
and flood mapping enable FEMA to reach out to residents in
flood prone regions and protect against preventable losses.
These services work in conjunction with the NFIP and have
proven successful in building relationships in regions where
floods are a threat to property and lives. The Committee
understands that FIMA's risk assessment programs are now being
designed to assist local communities to identify and address
their vulnerabilities from natural and man-made disasters.
The Committee views FEMA's efforts to prevent and mitigate
damage from floods as critical to the protection of lives and
property. The Committee further believes that it is important
that the NFIP and the FIMA to work together efficiently in the
prevention of losses from floods and from other disasters and
for that reason should for the time being remain within FEMA as
it is transferred to the Department of Homeland Security.
FEMA's programs may be reviewed by the Committee in the future
in an effort to improve their operation and to ensure that
users are properly served.
The Defense Production Act--The goal of the Defense
Production Act of 1950 (50 USC App. 2062) (DPA) is to ensure
that the United States has the ability to mobilize industrial
and other civilian resources in support of national defense an
civil emergency preparedness maintain military readiness when
there is a threat to national security. The DPA is essential to
the protection of the United States in so far as it uses
economic tools to provide uninterrupted supplies of industrial
resources in times of military crisis and civil emergency.
The DPA authorizes FEMA to coordinate Federal agencies'
decisions concerning the provision of transportation services,
the priority availability of civil defense resources,
materials, services and facilities to ensure the dispersal of
such resources in the interest of national defense. The DPA was
reauthorized by the Financial Services Committee in 2001 for
two years (P.L. 107-47).
The Committee believes the DPA is an important mechanism
for the protection of the United States and should be located
in the new Department of Homeland Security. Through the
President's proposal, the DPA will be very important to
mobilize national defense and civil emergency preparedness
resources in the event of a terrorist attack or in an effort to
ensure that there is adequate preparation to prevent such an
attack.
The Emergency Food and Shelter Program--The Emergency Food
and Shelter Program (EFSP) (P.L. 100-77) is governed by a
national board consisting of several charitable organizations
and is chaired by FEMA. The goal of this program is to allocate
Federal funds for the provision of food and shelter. The
national board awards funds to jurisdictions based upon a
formula. Further, a small portion of the overall award is
allocated by formula to state set-aside committees which then
allocate funds to jurisdictions based upon the criteria they
feel is most appropriate. The EFSP seeks to ensure that
allocations are quickly made to neediest areas of the country,
that the public and private sectors cooperate, and that
decisions are made at the local level. In 2001, $140 million in
aid was distributed through this program.
It can be argued that the operation of food and shelter
programs has little to do with the protection of the United
States from terrorist activities. However, the EFSP is a
critical program which supplies food and shelter to needy
people in emergency situations, and to ensure that the program
remains effective and functional, the Committee recommends that
it remain within FEMA at this time. The President's 2003 budget
proposal calls for the EFSP to be moved from FEMA to the
Department of Housing and Urban Development. This could be an
effective allocation of Federal resources to aid those in need,
and the Committee may examine the viability of such a move in
the future.
United States Secret Service
The Committee commends the President for his proposal to
move the United States Secret Service (USSS) to the new
Department and maintain it as a ``distinct entity'' outside the
four major jurisdictional cylinders established under the new
Secretary. The Committee believes that the long dual-role
history of the Service--investigative and protective--combined
with its more recently developed expertise in preventing and
investigating cyber crimes and its core mission of protecting
the financial system of the United States, make the USSS
uniquely suited to draw from and augment the work of the other
component agencies of the new Department.
Since its founding in 1865 as the first investigative arm
of the United States government and the protector of the
integrity of U.S. currency, the Service has been the primary
guardian of the country's financial services--banks, currency
and payment systems. The added mission of personal protection,
dating to 1901 following the assassination of President William
McKinley, built on the Service's expertise at preventing
crimes. That mission statement was expanded again in 1984 with
passage of the Omnibus Crime Control Act (P.L. 98-473), adding
jurisdiction over new crimes involving identity theft, access
devices such as credit cards, and computer crimes. In 1994,
further jurisdiction was added, recognizing USSS expertise
investigating fraud against financial institutions. Today, the
Secret Service has over 6,000 employees, an annual budget of
just over $1 billion and 125 field offices across the United
States and around the world.
Infrastructure Protection--Springing from the Service's
personal-protection role is the unique and important duty to
protect critical infrastructures of the United States. The
Committee believes this role should become an enhanced portion
of the Service's duties at the new Department.
The events of September 11 reinforce lessons the Committee
learned in efforts to protect against financial-system and
infrastructure failures due to the Year 2000 problem: that in
an increasingly computerized and inter-connected world, the
failure of a seemingly innocuous system can cause panic, deaths
or economic calamity. Recent news stories indicating that Al
Qaeda operatives have been probing the cyber security of U.S.
power systems and dams as well as banks and defense systems
show that the lesson has not been lost on terrorists, either. A
serious compromise of these electronic networks could wreak
havoc on our economy, law enforcement, military, health care,
transportation and emergency services.
Cyber Crime--Cyber criminals have devised sophisticated
programs and techniques to defraud both consumers and private
industry through electronic means. In response, the Secret
Service has developed new tools to combat the growing areas of
cyber terrorism, financial crime and computer fraud. These
techniques include the widely respected Electronic Crimes
Special Agent Program and the series of task forces modeled on
the New York Electronic Crimes Task Force that are now under
development. The former program provides specialized training
to select agents in all areas of electronic crimes, qualifying
those personnel as experts in the forensic examination of
electronic evidence. The USA PATRIOT Act, to which the
Committee contributed a major title, authorized the Secret
Service to establish a nationwide network of cyber crime task
forces, based on the New York model that uses an innovative
approach allowing local, state and national law enforcement
agencies to combine their resources and experience with those
of prosecutors, the private sector and academic institutions to
deter electronic crimes of all sorts. In recent months, the
Service has launched similar task forces across the country.
The Committee strongly supports these efforts and believes they
can be instrumental in preventing crimes that could disrupt the
financial systems of the United States.
Anti-Counterfeiting--The Service's original mission in 1865
was to block the counterfeiting of the newly issued national
currency, and while the mission does not today have the profile
of protecting the President, it remains a core function.
Indeed, the USSS anti-counterfeiting efforts may be even more
important today than they were a century ago, as the U.S.
dollar is the reserve currency of the world, is the official
currency of a number of countries, and is the default currency
of many more. The public's faith in the integrity of the dollar
is at the heart of the stability of the U.S. economy.
Thus, the Committee believes that the Service's efforts to
combat counterfeiting deserve continued and enhanced emphasis.
Recent discoveries in Colombia of credible counterfeits of the
new U.S. one-dollar coin and in both Colombia and in areas of
Eastern Europe of counterfeit plants producing or ready to
produce both U.S. banknotes and the new Euro banknotes indicate
the magnitude of the problem. The Committee believes that the
continued growth of counterfeiting by personal computer in the
U.S. eventually will be mirrored overseas, where counterfeiting
still mostly is done on presses and is thus somewhat easier to
interdict. Also, the Committee believes that the establishment
of more overseas field offices so that agents can gather and
act on information first-hand--rather than relying on other
Federal law agencies or other countries' law-enforcement--will
increase the ability to stop counterfeiting.
Given the demonstrated nexus between counterfeiting, drug-
running, arms-smuggling and terrorism, the Committee strongly
believes that trying to staff anti-counterfeiting and other
anti-crime and threat-assessment efforts for all of Central and
South America and the Caribbean (except Colombia) from a single
office in Miami is simply not practical anymore. The Committee
further believes that the Service's recent agreement with
Europol to jointly police against counterfeiting is an
important move and a model for other law enforcement that
should be encouraged. The Committee stands ready to enhance
other anti-counterfeiting law, as appropriate.
Financial Crimes--The Service's pedigree as the only
Federal investigative unit until some of its agents were
detailed to help form the Federal Bureau of Investigation in
1907, and its position within the Department of the Treasury,
naturally led to a good relationship with the financial
services industry and successes in stopping financial crimes.
In the 1980s, with the advent of relatively new technologies
such as computers and credit cards came a wave of an entirely
new sort of bank and financial fraud, and the 1984 Act created
three new criminal statutes--Title 18, Sections 1028, 1029 and
1030--to deal with fraud in conjunction with identity
documents, access device fraud and computer crimes, giving the
Service major new authorities and clear jurisdiction. The USA
PATRIOT Act cemented the Service's jurisdiction over Sections
1030 and 1344. The Committee believes that the Service's role
in these areas, as well as the assessment of threats against
financial services companies and the protection of that
infrastructure--communications, power, etc.--vital to those
companies, is invaluable and should be emphasized.
Monetary Security--While the President's legislative
proposal for the new Department does not suggest consolidating
the Treasury Department's monetary security forces into the new
Department, the Committee believes that this could be an
important step that should be closely examined. Currently the
United States Mint and the Bureau of Engraving and Printing
(BEP) maintain separate security forces that over the years
have had varying degrees of success. The Committee feels that
transferring this mission to the Secret Service in the new
Department would have important benefits both to the security
of the facilities that produce the country's currency and
coins, and also to the security of U.S. gold reserves held at
Fort Knox, currently under the supervision of the Mint. Noting
that the BEP currently relies on the USSS heavily for
consultations on its security arrangements, the Committee
further believes that moving this mission to the Service may
allow the currency-production arms of the Treasury to
concentrate on what they do best and allow the Service to train
its newest agents in a different form of protection detail,
ultimately enhancing their abilities.
The Financial Services Committee strongly supports the
efforts of the President and the Select Committee on Homeland
Security to protect our citizens from terrorist attacks. While
the Committee waives its referral of H.R. 5005, its Members
stand ready to assist in the structuring of the envisioned
Department of Homeland Security if such assistance is
requested.
Yours truly,
Michael G. Oxley,
Chairman,
John J. LaFalce,
Ranking Member.
COMMITTEE ON GOVERNMENT REFORM
House of Representatives,
Committee on Government Reform,
Washington, DC, July 15, 2002.
Hon. Richard K. Armey
Majority Leader and Chairman, House Select Committee on
Homeland Security, The Capitol, Washington, D.C.
Dear Chairman Armey: On Thursday, July 11, the Committee on
Government Reform reported H.R. 5005, the Homeland Security Act
of 2002, as amended. After adopting a number of amendments to
help the Department better fulfill its mission, the Committee
ordered the bill reported with a favorable recommendation by a
vote of 30 to 1. I am transmitting the final Committee bill to
you, along with a summary of key provisions adopted by the
Committee.
The purpose of this letter is to share with you and other
Members of the Select Committee my views on a number of
important issues debated before the Committee.
1. Transfer of Key Agencies:
If the Department of Homeland Security is to be successful
in its mission of better protecting the American people from
threats of terrorism, we must take a comprehensive approach.
While it is not possible to include within the Department every
Federal agency that plays a role in homeland security, we must
include those agencies that play a pivotal role in border
security, transportation security and recovery from terrorist
attacks. The proposal sent to Congress by President Bush takes
just such an approach.
Last week, the Government Reform Committee cast several
votes in support of the President's recommendations to shift
key agencies and functions to the new Department. The Committee
voted to retain in H.R. 5005 provisions transferring the Coast
Guard, the Secret Service, the Federal Emergency Management
Agency and the INS to the Homeland Security Department. I
believe that the Committee was correct to do so, and I voted to
retain these key provisions of the President's plan.
Supporters of the valuable work done by each of these
agencies correctly note that they perform important functions
not directly related to countering terrorist threats. It is my
view that these functions can continue to be performed
successfully within the Homeland Security Department. In fact,
the Committee amended H.R. 5005 to make very clear that the
Department's mission includes these activities. At the same
time, those homeland security functions directly related to
preventing terrorist attacks will benefit immeasurably from
improved coordination and cooperation within the new
Department. I urge you to retain these fundamental building
blocks of the President's plan in H.R. 5005.
2. Visa Issuance:
I have been a strong supporter of transferring the function
of visa issuance from the State Department to the Homeland
Security Department in its entirety. I continue to support this
position, although it did not prevail in Committee.
The Government Reform Committee's oversight of the State
Department has produced ample evidence that the Consular
Services Bureau lacks a meaningful commitment to security
concerns. When the State Department learned that one of its
consular officials was selling visas for cash and sex in
Communist China, they swept the problem under the rug. Instead
of firing him, or having him prosecuted, they brought him back
to Washington and placed him in a highly sensitive position --
reviewing visa applications from countries such as Iran and
Iraq that are state sponsors of terrorism. Despite the fact
that this official, Charles Parish, took the Fifth before the
Committee, the State Department vigorously defended its
inexplicable decision-making in this case.
More recently, we have learned that the Department
established a program known as `Visa Express' in Saudi Arabia,
which allows Saudis to apply for passports through travel
agencies. Of the 15 Saudi nationals who took part in the
hijackings of September 11, three received their U.S. visas
through Visa Express. Because they were able to apply through
travel agents, U.S. consular officials never interviewed them.
Although the Visa Express program is a clear example of placing
convenience ahead of security, the State Department continues
to defend it.
In just the last few weeks, we have learned that more than
70 U.S. visas were illegally sold to foreign nationals in
Qatar. This is another pertinent example of the State
Department's inability to police itself.
State Department officials have made their view clear that
diplomatic considerations play an important role in the
consideration of visa applications, and the weight of the
evidence makes it equally clear that such concerns will
continue to outweigh security concerns as long as this function
resides at the State Department.
After lengthy debate, the Government Reform Committee
adopted a compromise provision that would authorize the
Secretary of Homeland Security to place a Homeland Security
official in each consulate. In addition, it clarifies that the
final decision to reject a visa rests with the Homeland
Security Department. I support this provision. I continue to
prefer the more direct approach of shifting this function in
its entirety to the Homeland Security Department. However,
given the contrary votes in three House committees, its
adoption appears unlikely. I would request that you and your
colleagues on the Select Committee review the Government Reform
Committee's provision requiring the State Department to
discontinue its Visa Express program in Saudi Arabia, and
maintain it in the legislation when it goes to the House floor.
3. Personnel Provisions:
The Administration has asked for a great deal of
flexibility in managing the personnel of the Department. In an
undertaking this large, some flexibility is necessary and
appropriate. The Committee adopted alternative language that
gives the Administration flexibility where it is needed most,
while maintaining appropriate safeguards that have strong
support on the Committee. The Committee has authorized the new
Secretary to adjust pay levels to correct disparities in pay
between agencies being inherited by the Department. The
Committee has authorized the Secretary to put in place a system
for the expedited suspension and removal of personnel for
national security reasons, subject to a hearing. The Committee
has also authorized the Secretary to develop a human resources
demonstration program to help the Department recruit and retain
a talented workforce. While we believe that these provisions
are sound, we are open to further discussions with the
Administration to refine this legislative language.
I want to draw your attention to two specific issues of
concern in this area. First, Congresswoman Morella offered an
amendment, which was adopted by one vote, limiting the
President's ability to restrict collective bargaining rights at
the Homeland Security Department on national security grounds.
While I believe that the amendment was well-intentioned, I do
not believe that it sets good policy, and I urge you to
reconsider it.
Under current law, the President has the authority to
restrict collective bargaining at governmental units that are
critical to national security. This is an authority that has
been used judiciously by both Republican and Democratic
Presidents since the late 1970s. The Morella amendment would
weaken this Presidential authority at the Department of
Homeland Security. Ironically, at a time when national security
concerns are paramount, this provision would give the President
less authority over the Department of Homeland Security than he
has over any other Department. While I have great respect for
the author of this amendment, I believe that this language
should not be included in the final version of H.R. 5005.
Second, the Committee bill includes language requiring the
Administration to adhere to current pay ceilings for members of
the Executive Schedule and Senior Executive Service. Efforts to
exempt individual agencies from these limitations in the past
have been controversial. They have cost the taxpayers
significant sums of money while failing to produce better
management at those agencies. This Committee has opposed
piecemeal exemptions from pay ceilings as a matter of fiscal
responsibility, and I recommend that the Select Committee
retain these provisions in the final bill.
4. Indemnification:
The Committee adopted provisions authorizing Federal
agencies to indemnify contractors from liability when they
provide the government with anti-terrorism technology necessary
to protect critical infrastructures. The Secretary of Homeland
Security is authorized to provide similar indemnification for
such technology purchased by state and local governments.
These provisions were added to address a serious problem.
While private-sector companies are developing advanced
technology to help prevent terrorist attacks, they are unable
to sell it to government agencies because they cannot obtain
sufficient liability insurance. At a time when terrorist
organizations are targeting the United States for lethal
attacks, we must lower the barriers to the use of this
technology. We have an obligation to do everything we can to
ensure that we reduce our vulnerabilities to terrorist attacks.
This legislation is modeled after a law that has
successfully provided for indemnification of commercial space
launches for decades. It is fiscally responsible and has been
constructed to protect the best interests of the government and
the public. Before offering indemnification, agency heads would
be required to ensure that contractors have obtained as much
private insurance coverage in the private marketplace as
reasonably possible. Agency heads would be required to
determine that the technology is effective, and would be used
to protect critical infrastructures. Indemnification would have
to be approved jointly by the head of an agency and the
Director of OMB, who would be responsible for protecting the
overall financial interests of the Federal government.
These indemnification provisions have been crafted in a
responsible way to address a serious problem. I hope that the
Select Committee will approve them and retain them in H.R.
5005.
Thank you for your consideration of my views on these
important issues, and for your consideration of the legislation
reported by the Government Reform Committee. If you have any
questions, or are in need of any assistance, please don't
hesitate to contact me.
Sincerely,
Dan Burton,
Chairman.
------
MEMORANDUM
From: Chairman Dan Burton
To: Majority Leader Dick Armey
Date: July 15, 2002
Re: Amendments to H.R. 5005
On Thursday, July 11, the Committee on Government Reform
marked up H.R. 5005, the Homeland Security Act of 2002. After
15 hours of debate, during which the Committee considered 37
amendments, the Committee voted 30-1 to report H.R. 5005 to the
Select Committee with a favorable recommendation.
The purpose of this memo is to formally transmit the
Committee's bill to the Select Committee, and to outline the
most significant actions taken at the mark-up. The Committee
cast a series of votes in support of the President's proposals
to shift key agencies to the Homeland Security Department,
including the Coast Guard, the INS, FEMA and the Secret
Service. The Committee also adopted a number of important
management reforms and safeguards to ensure that the new
Department is able to function efficiently and fulfill its
mission.
Organizational and Policy Provisions Adopted by the Committee:
1. In a series of votes, the Committee voted to maintain
the structural integrity of the proposed Department of Homeland
Security. The Committee voted to shift into the Department the
Coast Guard, the Immigration and Naturalization Service, the
Federal Emergency Management Agency, and the Secret Service.
2. The Committee adopted a modified approach for the
inclusion of the Department of Agriculture's Animal and Plant
Health Inspection Service.
3. The Committee approved a modification to the
Administration's proposal regarding visa issuance, authorizing
the Secretary of Homeland Security to place Homeland Security
personnel at each consulate to monitor the review of visa
applications. The Committee also added a provision clarifying
that the final authority to reject a visa application rests
with the Secretary of Homeland Security. Finally, the Committee
voted to prohibit the continuation of the "Visa Express"
program in Saudi Arabia.
4. The Committee voted to require the President to develop
an annual threat assessment and a strategic plan related to
Homeland Security. Also approved was a requirement that the
President produce a biannual report to Congress on homeland
security preparedness.
5. The Committee adopted provisions allowing Federal
agencies to indemnify from liability contractors that provide
anti-terrorism technology to protect critical infrastructures.
The Secretary of Homeland Security would also have the
authority to indemnify contractors providing such technology to
state and local governments, with the concurrence of the
Director of the Office of Management and Budget.
6. The Committee voted to add the provisions of legislation
introduced by Representative Saxby Chambliss (GA) to improve
the sharing of information with state and local governments.
7. The Committee voted to add the provisions of legislation
introduced by Representative Tom Davis (VA) to improve
information security.
8. The Committee voted to maintain provisions in H.R. 5005
to exempt from the Freedom of Information Act information
provided to the Homeland Security Department regarding the
vulnerability of critical infrastructures. The Committee also
adopted an amendment to extend a similar exemption to other
Federal agencies.
9. The Committee voted to shift the Port Security functions
of the Department of Transportation, along with reporting
requirements, to the Homeland Security Department.
10. The Committee added the Secretary of Homeland Security
to the National Security Council.
11. The Committee also defined "terrorism" and "homeland
security," and expanded the mission statement to reflect the
importance of non-terrorist functions and the need to respond
to natural disasters.
Management Initiatives:
1. The Committee voted to create a Deputy Secretary for
Management to oversee critical management functions of the
Department. Also created by the amendment were a Deputy
Secretary for Policy, and a Principal Deputy Secretary.
2. The Committee reduced the number of assistant
secretaries authorized by the bill from 16 to 12.
3. The Committee adopted an amendment designating an
Assistant Secretary for Narcotics Interdiction.
4. The Committee replaced the Administration's provision
related to personnel flexibility with a three-part plan. First,
the Secretary would be authorized to adjust pay rates to
resolve pay disparities as the Department is being assembled.
Second, the Secretary would be authorized to suspend or remove
employees of the Department on national security grounds,
subject to a hearing. Third, the Secretary would be authorized
to conduct a demonstration project creating a new human
resources system designed to help recruit and retain talented
employees. The Secretary would be required to continue to
comply with the Whistleblowers Protection Act, veterans'
preference requirements, and other important safeguards.
5. The Committee adopted an amendment to limit the
President's authority to deny collective bargaining rights to
units of the new Department that have collective bargaining
agreements in place. The Committee also adopted an amendment
specifying that, as the Secretary adjusts pay rates to resolve
pay disparities, he may not reduce pay levels of current
employees.
6. The Committee revised the real property provisions of
H.R. 5005 to give the Secretary flexibility in managing the
Department's property while ensuring that local zoning
requirements are taken into consideration and that fair market
value is obtained when property is sold or leased.
7. The Committee's modification to H.R. 5005's personal
services contracts provision allows the Secretary to waive pay
restrictions for experts and consultants for urgent homeland
security needs.
8. With regard to the Federal Advisory Committee Act, the
Committee deleted provisions in H.R. 5005 exempting the
Department from public meeting requirements and conflict-of-
interest rules.
9. The Committee retained provisions in H.R. 5005 placing
the Inspector General for Homeland Security on the same footing
as Inspectors General at the Departments of Defense, Treasury
and Justice. The Committee added a provision requiring
notification of committees of jurisdiction in the House and
Senate whenever an inspector general investigation is
curtailed.
10. The Committee voted to authorize funding for the
Department for five years.
11. The Committee required the Secretary to submit an
organizational plan for the Department to Congress.
12. The Committee clarified that the Department may not
perform prosecutorial or investigative functions unless
authorized by Congress to do so.
Other Provisions:
The Committee also approved the following by voice votes:
1. An amendment by Congressman Horn (CA) that would
establish an Intergovernmental Coordinating Council to promote
effective coordination and cooperation among Federal, State and
local governments on homeland security issues. The council
would be chaired by the Secretary and consist of State and
local governmental officials as well as officials of the
Department and other federal agencies.
2. An amendment by Congressman Waxman (CA) that would
establish a privacy officer in the Department. The privacy
officer would be appointed by the Secretary from among senior
Department officials and would be responsible for ensuring that
personally identifiable information in the possession of the
Department is collected, used and disclosed in accordance with
the Privacy Act.
3. An amendment by Rep. Carolyn Maloney (NY) that would
give the Secretary broader authority to provide federal
assistance to State and local governments following a major
disaster.
4. An amendment offered by Rep. Kucinich (OH) that would
offer whistleblowers new remedies against retaliation when they
disclose information to Congress. This amendment would allow
aggrieved employees to bring a civil action in any U.S.
district court and seek damages including lost wages and
benefits, reinstatement, costs and attorney fees.
5. An amendment offered by Rep. Souder (IN) that would
designate one of the Department's assistant secretary positions
as the Assistant Secretary for Narcotics Interdiction.
6. An amendment offered by Rep. Ose (CA) that would require
the Department to issue common rules with the Department of
Transportation on transportation security issues and with the
Nuclear Regulatory Commission on nuclear security issues.
7. An amendment offered by Rep. Tierney (MA) that would
require the Secretary to develop a plan to expeditiously
deliver Potassium Iodide to individuals exposed to radiation
following a nuclear power plant disaster.
8. An amendment offered by Rep. Schakowsky (IL) that would
require the Secretary to report to Congress on the impact on
immigration caused by the transfer of the Immigration and
Naturalization Service into the new Department.
9. An amendment offered by Rep. Schakowsky (IL) that would
transfer oversight responsibility for internal investigations
performed by the Customs Service's Office of Internal Affairs
and the Secret Service's Office of Inspections from the
Inspector General at the Treasury Department to the Department
of Homeland Security Inspector General.
10. An amendment offered by Rep. Schakowsky (IL) that would
establish an Office for Civil Rights and Civil Liberties to
review and evaluate allegations of civil rights, civil
liberties and racial and ethnic profiling abuses by Department
officials.
11. An amendment offered by Rep. Schakowsky (IL) that would
establish a Citizenship and Immigration Services Ombudsman to
assist individuals and employers on citizenship and immigration
matters.
12. An amendment offered by Rep. Tom Davis (VA) that would
authorize a pilot program for flexible research and development
negotiating authority to attract high tech companies to perform
advanced research projects.
13. An amendment offered by Rep. Tierney (MA) that would
limit the use of the personnel authorities granted to the
Transportation Security Administration to employees working for
or carrying out the functions of the Transportation Security
Administration in the new Department.
14. An amendment offered by Rep. Danny Davis (IL) that
would establish an Office of Small and Disadvantaged Business
Utilization in the Department.
15. An amendment offered by Rep. Kucinich (OH) and Rep.
Barr (GA), establishing minimum standards for private security
guards.
------
H.R. 5005
Showing the Amendment Recommended by the Committee on Government Reform
Strike all after the enacting clause and insert the following:
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. Establishment; mission.
Sec. 102. Secretary; functions.
Sec. 103. Other officers.
TITLE II--INFORMATION ANALYSIS AND INFRASTRUCTURE PROTECTION; CRITICAL
INFRASTRUCTURE INFORMATION
Subtitle A--Information Analysis and Infrastructure Protection
Sec. 201. Under Secretary for Information Analysis and Infrastructure
Protection.
Sec. 202. Functions transferred.
Sec. 203. 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.
Sec. 216. Applicability.
TITLE III--CHEMICAL, BIOLOGICAL, RADIOLOGICAL, AND NUCLEAR
COUNTERMEASURES
Sec. 301. Under Secretary for Chemical, Biological, Radiological, and
Nuclear Countermeasures.
Sec. 302. Functions transferred.
Sec. 303. Conduct of certain public health-related activities.
Sec. 304. Transfer of Plum Island Animal Disease Center, Department of
Agriculture.
TITLE IV--BORDER AND TRANSPORTATION SECURITY
Sec. 401. Under Secretary for Border and Transportation Security.
Sec. 402. Functions transferred.
Sec. 403. Visa issuance.
Sec. 404. Transfer of certain agricultural inspection functions of the
Department of Agriculture.
Sec. 405. Interagency common rules.
Sec. 406. Immigration functions.
Sec. 407. Citizenship and Immigration Services Ombudsman.
Sec. 408. Seaport security functions.
TITLE V--EMERGENCY PREPAREDNESS AND RESPONSE
Sec. 501. Under Secretary for Emergency Preparedness and Response.
Sec. 502. Functions transferred.
Sec. 503. Nuclear incident response.
Sec. 504. Definition.
Sec. 505. Conduct of certain public health-related activities.
Sec. 506. Minimum requirements for private security officers.
TITLE VI--MANAGEMENT
Sec. 601. Deputy Secretary for Management.
Sec. 602. Chief Financial Officer.
Sec. 603. Chief Information Officer.
Sec. 604. Establishment of Office for Civil Rights and Civil Liberties.
TITLE VII--COORDINATION; INSPECTOR GENERAL; UNITED STATES SECRET
SERVICE; GENERAL PROVISIONS; ACQUISITIONS; INFORMATION SHARING;
PROPERTY
Subtitle A--Coordination With Non-Federal Entities
Sec. 701. Responsibilities.
Sec. 702. Intergovernmental Coordinating Council.
Subtitle B--Inspector General
Sec. 710. Authority of the Secretary.
Subtitle C--United States Secret Service
Sec. 720. Functions transferred.
Subtitle D--General Provisions
Sec. 730. Human resource management.
Sec. 731. Labor-management relations.
Sec. 732. Reporting requirements.
Sec. 733. Requirement to develop comprehensive risk management
assessment and homeland security strategy.
Sec. 734. Military activities.
Sec. 735. Reorganization; transfer.
Sec. 736. Miscellaneous provisions.
Sec. 737. Authorization of appropriations.
Subtitle E--Acquisitions
Sec. 740. Research and development projects.
Sec. 741. Personal services.
Sec. 742. Special streamlined acquisition authority.
Sec. 743. Program to encourage and support innovative solutions to
enhance homeland security.
Sec. 744. Risk sharing and indemnification.
Sec. 745. Procurements from small businesses.
Subtitle F--Information Sharing
Sec. 750. Short title.
Sec. 751. Findings and sense of Congress.
Sec. 752. Facilitating homeland security information sharing
procedures.
Sec. 753. Report.
Sec. 754. Authorization of appropriations.
Sec. 755. Authority to share grand jury information.
Sec. 756. Authority to share electronic, wire, and oral interception
information.
Sec. 757. Foreign intelligence information.
Sec. 758. Information acquired from an electronic surveillance.
Sec. 759. Information acquired from a physical search.
Subtitle G--Property
Sec. 761. Real property management.
Sec. 762. Criteria for using authorities.
Sec. 763. Outleases.
Sec. 764. Review and revision of transactions by administrator.
Sec. 765. Transactional reports.
TITLE VIII--TRANSITION
Sec. 801. Definitions.
Sec. 802. Reorganization plan.
Sec. 803. Transitional authorities.
Sec. 804. Savings provisions.
Sec. 805. Terminations.
Sec. 806. Incidental transfers.
TITLE IX--CONFORMING AND TECHNICAL AMENDMENTS
Sec. 901. Executive department.
Sec. 902. Executive Schedule.
Sec. 903. Inspector General.
Sec. 904. Chief Financial Officer.
Sec. 905. Chief Information Officer.
Sec. 906. United States Secret Service.
Sec. 907. Coast Guard.
Sec. 908. Strategic national stockpile and smallpox vaccine
development.
Sec. 909. Select agent registration.
Sec. 910. Membership of Secretary on National Security Council.
Sec. 911. National Bio-Weapons Defense Analysis Center.
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.
Sec. 1007. Effective date.
TITLE XI--ADDITIONAL RESPONSIBILITIES OF SECRETARY
Sec. 1101. Homeland security events.
Sec. 1102. Standards and reporting.
Sec. 1103. Special commission to review air quality.
SEC. 2. DEFINITIONS.
The following shall apply for purposes of this Act:
(1) The term ``American homeland'' or ``homeland'' means
the United States, in a geographic sense.
(2) The term ``assets'' includes contracts, facilities,
property, records, unobligated or unexpended balances of
appropriations, and other funds or resources (other than
personnel).
(3) The term ``Department'' means the Department of
Homeland Security.
(4) The term ``emergency response providers'' includes
Federal, State, and local emergency public safety, law
enforcement, emergency response, emergency medical, and related
personnel, agencies, and authorities.
(5) 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.
(6) The term ``functions'' includes authorities, powers,
rights, privileges, immunities, programs, projects, activities,
duties, responsibilities, and obligations.
(7) The term ``homeland security'' means the deterrence,
detection, preemption, prevention, and defense against
terrorism targeted at the territory, sovereignty, population,
or infrastructure of the United States, including the
management of the programs and policies necessary to respond to
and recover from terrorist attacks within the United States.
(8) The term ``local government'' has the meaning given in
section 102(6) of the Robert T. Stafford Disaster Relief and
Emergency Assistance Act (Public Law 93-288).
(9) The term ``major disaster'' has the meaning given in
section 102(2) of the Robert T. Stafford Disaster Relief and
Emergency Assistance Act (Public Law 93-288).
(10) The term ``personnel'' means officers and employees.
(11) The terms ``terrorism'' and ``terrorist attack'' mean
the calculated attack or threat of attack against persons,
property, or infrastructure to inculcate fear and intimidate or
coerce a government, the civilian population, or any segment of
such population, in the pursuit of political, religious, or
ideological goals.
(12) The term ``Secretary'' means the Secretary of Homeland
Security.
(13) The term ``United States'', when used in a geographic
sense, means any State of the United States, the District of
Columbia, Puerto Rico, the Virgin Islands, Guam, American
Samoa, and the Commonwealth of the Northern Mariana Islands,
any possession of the United States, and any waters within the
jurisdiction of the United States.
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 thirty days after the date of enactment
or, if enacted within thirty days before January 1, 2003, on January 1,
2003.
TITLE I--DEPARTMENT OF HOMELAND SECURITY
SEC. 101. ESTABLISHMENT; 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) 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; and
(D) act as a focal point regarding natural and man-made
crises and emergency planning, and carry out all functions of
entities transferred to the Department as provided by law.
(2) In carrying out the mission described in paragraph (1), and as
further described in this Act, the Department's primary
responsibilities shall include--
(A) information analysis and infrastructure protection;
(B) chemical, biological, radiological, nuclear, and
related countermeasures;
(C) border and transportation security;
(D) emergency preparedness and response; and
(E) coordination (including the provision of training and
equipment) with other executive agencies, with State and local
government personnel, agencies, and authorities, with the
District of Columbia, with the private sector, and with other
entities.
(3) 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) There is a Secretary of Homeland Security,
appointed by the President, by and with the advice and consent of the
Senate.
(2) The Secretary is the head of the Department and shall have
direction, authority, and control over it.
(3) All functions of all officers, employees, and organizational
units of the Department are vested in the Secretary.
(b) Functions.--The Secretary--
(1) may delegate any of his functions to any officer,
employee, or organizational unit of the Department, unless
otherwise provided by this Act;
(2) may promulgate such regulations as necessary to carry
out the functions and duties of the Department as set forth in
this Act;
(3) 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
his responsibilities under this Act or as otherwise provided by
law;
(4) shall take reasonable steps to ensure that information
systems and databases of the Department are compatible with
each other; and
(5) shall take reasonable steps to consolidate field
offices of the Department in a manner that promotes efficiency
without diminishing effectiveness.
(c) Construction.--This Act may not be construed as establishing
any regulatory authority for the Secretary, except to the extent that
the regulatory authority established by another Act is transferred to
the Secretary by this Act. Nor shall this Act be construed as altering
the regulatory authority of any other executive agency, except to the
extent that a regulatory authority of another executive agency is
expressly transferred to the Department by this Act.
SEC. 103. OTHER OFFICERS.
(a) Deputy Secretaries; Under and Assistant Secretaries; CFO.--To
assist the Secretary in the performance of his functions, 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 chapter 33,
subchapter 3, of title 5, United States Code.
(2) A Deputy Secretary for Policy.
(3) A Deputy Secretary for Management.
(4) An Under Secretary for Information Analysis and
Infrastructure Protection.
(5) An Under Secretary for Chemical, Biological,
Radiological, and Nuclear Countermeasures.
(6) An Under Secretary for Border and Transportation
Security.
(7) An Under Secretary for Emergency Preparedness and
Response.
(8) Not more than four Assistant Secretaries.
(9) A Chief Financial Officer.
(b) Inspector General.--To assist the Secretary in the performance
of his functions, 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 his functions, there is a Commandant of the Coast Guard,
who shall be appointed as provided in section 44 of title 14, United
States Code.
(d) 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 new technologies sustains, and
does not erode, the protections provided in all statues
relating to the use, collection, and disclosure of personal
information;
(2) assuring that personal information contained in systems
of records is handled in full compliance with fair information
practices under applicable provisions of section 552a of title
5, United States Code, popularly known as the Privacy Act of
1974;
(3) evaluating legislative and regulatory proposals
involving collection, use, and disclosure of personal
information by the Federal Government for consistency with
section 552a of title 5, United States Code;
(4) conducting a privacy impact assessment of proposed
rules when the Secretary deems such assessment appropriate; and
(5) preparing a report to the Congress on an annual basis
that--
(A) identifies any complaints received from the
public regarding privacy violations by the Department;
and
(B) describes how the Department addressed such
complaints, and internal controls implemented by the
Department to improve privacy protections.
(e) Other Officers.--To assist the Secretary in the performance of
his functions, there are the following officers, appointed by the
President:
(1) A General Counsel, who shall be the chief legal officer
of the Department.
(2) Not more than eight Assistant Secretaries, one of which
shall be an Assistant Secretary for Narcotics Interdiction.
(3) A Director of the Secret Service.
(4) A Chief Information Officer.
(f) Assistant Secretary for Narcotics Interdiction.--The Assistant
Secretary for Narcotics Interdiction shall--
(1) coordinate policy and operations within the Department
and with other Federal departments and agencies to interdict
the entry of illicit drugs into the United States;
(2) ensure the adequacy of resources within the Department
for illicit drug interdiction; and
(3) serve as the United States Interdiction Coordinator for
the Director of National Drug Control Policy.
(g) Performance of Specific Functions.--Subject to the provisions
of this Act, every officer of the department shall perform the
functions specified by law for his office or prescribed by the
Secretary.
TITLE II--INFORMATION ANALYSIS AND INFRASTRUCTURE PROTECTION; CRITICAL
INFRASTRUCTURE INFORMATION
Subtitle A--Information Analysis and Infrastructure Protection
SEC. 201. UNDER SECRETARY FOR INFORMATION ANALYSIS AND INFRASTRUCTURE
PROTECTION.
The Secretary, acting through the Under Secretary for Information
Analysis and Infrastructure Protection, shall have responsibility for
the following:
(1) Receiving and analyzing law enforcement information,
intelligence, and other information in order to understand the
nature and scope of the terrorist threat to the American
homeland and to detect and identify potential threats of
terrorism within the United States.
(2) Comprehensively assessing the vulnerabilities of the
key resources and critical infrastructures in the United
States.
(3) Integrating relevant information, intelligence
analyses, and vulnerability assessments (whether such
information, analyses, or assessments are provided or produced
by the Department or others) to identify protective priorities
and support protective measures by the Department, by other
executive agencies, by State and local government personnel,
agencies, and authorities, by the private sector, and by other
entities.
(4) Developing a comprehensive national plan for securing
the key resources and critical infrastructures in the United
States.
(5) Taking or seeking to effect necessary measures to
protect the key resources and critical infrastructures in the
United States, in coordination with other executive agencies
and in cooperation with State and local government personnel,
agencies, and authorities, the private sector, and other
entities.
(6) Administering the Homeland Security Advisory System,
exercising primary responsibility for public threat advisories,
and (in coordination with other executive agencies) providing
specific warning information to State and local government
personnel, agencies, and authorities, the private sector, other
entities, and the public, as well as advice about appropriate
protective actions and countermeasures.
(7) Reviewing, analyzing, and making recommendations for
improvements in the policies and procedures governing the
sharing of law enforcement, intelligence, and other information
relating to homeland security within the Federal Government and
between such government and State and local government
personnel, agencies, and authorities.
SEC. 202. FUNCTIONS TRANSFERRED.
In accordance with title VIII, there shall be transferred to the
Secretary 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 Computer Security Division of the National
Institute of Standards and Technology, including the functions
of the Secretary of Commerce relating thereto and the functions
of the National Institute of Standards and Technology and the
Secretary of Commerce relating to information security
established by the amendments made by title X.
(5) The National Infrastructure Simulation and Analysis
Center of the Department of Energy, including the functions of
the Secretary of Energy relating thereto.
(6) The Federal Computer Incident Response Center of the
General Services Administration, including the functions of the
Administrator of General Services relating thereto.
SEC. 203. ACCESS TO INFORMATION.
The Secretary shall have access to all reports, assessments, and
analytical information relating to threats of terrorism in the United
States and to other areas of responsibility described in section
101(b), 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 executive agency, except as otherwise directed by the
President. The Secretary shall also have access to other information
relating to the foregoing matters that may be collected, possessed, or
prepared by an executive agency, as the President may further provide.
With respect to the material to which the Secretary has access under
this section--
(1) the Secretary may obtain such material by request, and
may enter into cooperative arrangements with other executive
agencies to share such material on a regular or routine basis,
including requests or arrangements involving broad categories
of material;
(2) regardless of whether the Secretary has made any
request or entered into any cooperative arrangement pursuant to
paragraph (1), all executive agencies promptly shall provide to
the Secretary--
(A) all reports, assessments, and analytical
information relating to threats of terrorism in the
United States and to other areas of responsibility
described in section 101(b);
(B) all information concerning infrastructure or
other vulnerabilities of the United States to
terrorism, whether or not such information has been
analyzed;
(C) all information relating to significant and
credible threats of terrorism in the United States,
whether or not such information has been analyzed, if
the President has provided that the Secretary shall
have access to such information; and
(D) such other material as the President may
further provide; and
(3) the Secretary shall ensure that any material received
pursuant to this section is protected from unauthorized
disclosure and handled and used only for the performance of
official duties, and that any intelligence information shared
under this section shall be transmitted, retained, and
disseminated consistent with the authority of the Director of
Central Intelligence to protect intelligence sources and
methods under the National Security Act and related procedures
or, as appropriate, similar authorities of the Attorney General
concerning sensitive law enforcement information.
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 and any
agency designated by the Department or with which the
Department shares critical infrastructure information including
the following:
(A) The Department of Justice.
(B) The Department of Defense.
(C) The Department of Commerce.
(D) The Department of Transportation.
(E) The Department of the Treasury.
(F) The Department of Health and Human Services.
(G) The Department of Energy.
(H) The Environmental Protection Agency.
(I) The General Services Administration.
(J) The Federal Communications Commission.
(K) The Federal Energy Regulatory Commission.
(L) The Nuclear Regulatory Commission.
(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 the Department of Homeland Security.
(3) The head of a covered Federal agency by notice
published in the Federal Register. This duty may not be
delegated.
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, if 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, 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
that one year, or both, and shall be removed from office or employment.
(g) Authority To Issue Warnings.--The Federal Government may
provide advisories, alerts, and warnings to relevant companies,
targeted sectors, other governmental entities, or the general public
regarding potential threats to critical infrastructure as appropriate.
In issuing a warning, the Federal Government shall take appropriate
actions to protect from disclosure--
(1) the source of any voluntarily submitted critical
infrastructure information that forms the basis for the
warning; or
(2) information that is proprietary, business sensitive,
relates specifically to the submitting person or entity, or is
otherwise not appropriately in the public domain.
(h) Authority To Delegate.--The President may delegate authority to
a critical infrastructure protection program, designated under
subsection (e), to enter into a voluntary agreement to promote critical
infrastructure security, including with any Information Sharing and
Analysis Organization, or a plan of action as otherwise defined in
section 708 of the Defense Production Act of 1950 (50 U.S.C. App.
2158).
SEC. 215. NO PRIVATE RIGHT OF ACTION.
Nothing in this subtitle may be construed to create a private right
of action for enforcement of any provision of this Act.
SEC. 216. APPLICABILITY.
Nothing in this subtitle shall apply to any information submitted
in the course of lobbying any covered Federal agency.
TITLE III--CHEMICAL, BIOLOGICAL, RADIOLOGICAL, AND NUCLEAR
COUNTERMEASURES
SEC. 301. UNDER SECRETARY FOR CHEMICAL, BIOLOGICAL, RADIOLOGICAL, AND
NUCLEAR COUNTERMEASURES.
The Secretary, acting through the Under Secretary for Chemical,
Biological, Radiological, and Nuclear Countermeasures, shall have
responsibility for the following:
(1) Securing the people, infrastructures, property,
resources, and systems in the United States from acts of
terrorism involving chemical, biological, radiological, or
nuclear weapons or other emerging threats.
(2) Conducting a national scientific research and
development program to support the mission of the Department,
including developing national policy for and coordinating the
Federal Government's civilian efforts to identify, devise, and
implement scientific, technological, and other countermeasures
to chemical, biological, radiological, nuclear, and other
emerging terrorist threats, including directing, funding, and
conducting research and development relating to the same.
(3) Establishing priorities for, directing, funding, and
conducting national research, development, and procurement of
technology and systems--
(A) for preventing the importation of chemical,
biological, radiological, nuclear, and related weapons
and material; and
(B) for detecting, preventing, protecting against,
and responding to terrorist attacks that involve such
weapons or material.
(4) Establishing guidelines for State and local government
efforts to develop and implement countermeasures to threats of
chemical, biological, radiological, and nuclear terrorism, and
other emerging terrorist threats.
(5) Promulgating guidelines regarding the health risks of
short-, medium-, or long-term exposure to acutely or sub-
actuely toxic chemicals, biological, and radioactive materials
that may be released into the environment as a consequence of a
major disaster that the Secretary determines constitutes a
homeland security event under section 1101. The Director of the
Centers for Disease Control and Prevention shall provide the
Under Secretary with such information and analysis as may be
necessary for the Under Secretary to promulgate guidelines
under this section in the case of biological materials.
(6) Providing for standardized and rapid data collection
and analysis and communication regarding environmental risks
following any major disaster that the Secretary determines
constitutes a homeland security event under section 1101, in
coordination with the Administrator of the Environmental
Protection Agency or the Director of the Centers for Disease
Control and Prevention (in the case of a release of biological
agents) to coordinate all data collection and monitoring and
dissemination of analysis regarding the release of pollutants
and contaminants (including biological agents) into the
environment by reason of any such disaster.
(7)(A) Providing awards of grants, contracts, and
cooperative agreements in consultation with the Secretary of
Health and Human Services to public and nonprofit private
entities for the purpose of collecting public health data
during and in the aftermath of public health emergencies, and
conducting research with respect to such data, in order to
develop medical therapies and other public health strategies
for assisting victims of such emergencies in recovering from
the emergencies; and
(B) Providing for the approval of applications for awards
under subparagraph (A) in advance of public health emergencies
in order that, upon the occurrence of such an emergency, the
Under Secretary can promptly begin disbursing amounts from the
awards and the recipients of the awards can promptly begin
carrying out the purpose described in subsection (a).
SEC. 302. FUNCTIONS TRANSFERRED.
In accordance with title VIII, there shall be transferred to the
Secretary the functions, personnel, assets, and liabilities of the
following:
(1) The select agent registration enforcement programs and
activities of the Department of Health and Human Services,
including the functions of the Secretary of Health and Human
Services relating thereto.
(2) 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 non-
proliferation and verification research and development
program.
(B) The nuclear smuggling programs and activities,
and other programs and activities directly related to
homeland security, within the proliferation detection
program of the non-proliferation and verification
research and development program, except that 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) The energy security and assurance program and
activities.
(E) 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.
(F) The Environmental Measurements Laboratory.
(G) The advanced scientific computing research
program and activities, and the intelligence program
and activities, at Lawrence Livermore National
Laboratory.
(3) The National Bio-Weapons Defense Analysis Center of the
Department of Defense, including the functions of the Secretary
of Defense related thereto.
SEC. 303. CONDUCT OF CERTAIN PUBLIC HEALTH-RELATED ACTIVITIES.
(a) Certain Activities Carried Out Through HHS.--(1) Except as the
President may otherwise direct, the Secretary shall carry out his
civilian human health-related biological, biomedical, and infectious
disease defense research and development (including vaccine research
and development) responsibilities through the Department of Health and
Human Services (including the Public Health Service), under agreements
with the Secretary of Health and Human Services, and may transfer funds
to him in connection with such agreements.
(2) With respect to any responsibilities carried out through the
Department of Health and Human Services under this subsection, the
Secretary, in consultation with the Secretary of Health and Human
Services, shall have the authority to establish the research and
development program, including the setting of priorities.
(b) Transfer of Funds.--With respect to such other research and
development responsibilities under this title, including health-related
chemical, radiological, and nuclear defense research and development
responsibilities, as he may elect to carry out through the Department
of Health and Human Services (including the Public Health Service)
(under agreements with the Secretary of Health and Human Services) or
through other Federal agencies (under agreements with their respective
heads), the Secretary may transfer funds to the Secretary of Health and
Human Services, or to such heads, as the case may be.
SEC. 304. TRANSFER OF PLUM ISLAND ANIMAL DISEASE CENTER, DEPARTMENT OF
AGRICULTURE.
(a) Transfer Required.--In accordance with title VIII, 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.--Upon the transfer
of the Plum Island Animal Disease Center, the Secretary of Homeland
Security and the Secretary of Agriculture shall enter into an agreement
to ensure Department of Agriculture access to the center for research,
diagnostic, and other activities of the Department of Agriculture.
TITLE IV--BORDER AND TRANSPORTATION SECURITY
SEC. 401. UNDER SECRETARY FOR BORDER AND TRANSPORTATION SECURITY.
The Secretary, acting through the Under Secretary for Border and
Transportation Security, shall have responsibility 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 governmental activities at ports of entry.
(3) Administering the immigration and naturalization laws
of the United States, including the rules governing the
granting of visas or other forms of permission, including
parole, to enter the United States to individuals who are not
citizens or lawful permanent residents thereof.
(4) Administering the customs laws of the United States.
(5) Conducting the inspection and related administrative
functions of the Department of Agriculture transferred to the
Secretary of Homeland Security under section 404.
(6) In carrying out the foregoing responsibilities,
ensuring the speedy, orderly, and efficient flow of lawful
traffic and commerce.
SEC. 402. FUNCTIONS TRANSFERRED.
In accordance with title VIII, there shall be transferred to the
Secretary the functions, personnel, assets, and liabilities of the
following:
(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 Immigration and Naturalization Service of the
Department of Justice, including the functions of the Attorney
General relating thereto.
(3) The Visa Office of the Bureau of Consular Affairs of
the Department of State, including the functions of the
Secretary of State relating thereto.
(4) The Coast Guard of the Department of Transportation,
which shall be maintained as a distinct entity within the
Department, including the functions of the Secretary of
Transportation relating thereto.
(5) 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.
(6) The Federal Protective Service of the General Services
Administration, including the functions of the Administrator of
General Services relating thereto.
SEC. 403. VISA ISSUANCE.
(a) 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 (b) 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, including the authority to refuse visa
applications and develop programs of training for consular
officers, 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).
(b) Authority of the Secretary of State.--
(1) The Secretary of State may direct a consular officer to
refuse a visa to an alien if the Secretary of State considers
such refusal necessary or advisable in the foreign policy or
security interests of the United States.
(2) Nothing in this section 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 212(a)(3)(C) of the Immigration and
Nationality Act (8 U.S.C. 1182(a)(3)(C)).
(C) Section 212(f) of the Immigration and
Nationality Act (8 U.S.C. 1182(f)).
(D) Section 237(a)(4)(C) of the Immigration and
Nationality Act (8 U.S.C. 1227(a)(4)(C)).
(E) Section 104 of the Cuban Liberty and Democratic
Solidarity (LIBERTAD) Act of 1996 (22 U.S.C. 6034;
Public Law 104-114).
(F) 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.
(G) 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.
(H) Section 568 of the Foreign Operations, Export
Financing, and Related Programs Appropriations Act,
2002 (Public Law 107-115).
(c) Assignment of Homeland Security Employees to Diplomatic and
Consular Posts.--
(1) In general.--The Secretary is authorized to assign
employees of the Department of Homeland Security to any
diplomatic and consular posts abroad to 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 or all such applications prior to
their adjudication, either on the initiative of the
employee of the Department of Homeland Security or upon
request by a consular officer or other person charged
with adjudicating such applications.
(C) Conduct investigations with respect to matters
under the jurisdiction of the Secretary.
(2) Permanent assignment; participation in terrorist
lookout committee.--When appropriate, employees of the
Department of Homeland Security assigned to perform functions
described in paragraph (1) 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).
(3) Training and hiring.--
(A) The Secretary shall ensure that any employees
of the Department of Homeland Security assigned to
perform functions described in paragraph (1) shall be
provided all necessary training to enable them to carry
out such functions, including training in foreign
languages, in conditions in the particular country
where each employee is assigned, and in other
appropriate areas of study.
(B) Prior to assigning employees of the Department
to perform the functions described in paragraph (1),
the Secretary shall promulgate regulations establishing
foreign language proficiency requirements for employees
of the Department performing the functions described in
paragraph (1) and providing that preference shall be
given to individuals who meet such requirements in
hiring employees for the performance of such functions.
(C) The Secretary is authorized to use the National
Foreign Affairs Training Center, on a reimbursable
basis, to obtain the training described in subparagraph
(A).
(d) 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.
(e) 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 2 years 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 Governmental Affairs of the Senate.
(f) Termination of Noninterview Programs.--All third-party
screening, interview waiver, or other noninterview programs in Saudi
Arabia shall be terminated upon enactment of this Act, and no such
program may be created after the date of enactment. On-site personnel
of the Department of Homeland Security shall review all applications
prior to adjudication. All individuals applying for a visa in Saudi
Arabia must be interviewed unless on-site personnel of the Department
of Homeland Security determine, in writing, and pursuant to written
guidelines issued by the Secretary, that such individual is unlikely to
present a risk to homeland security. Such guidelines shall be written
within 30 days of the date of enactment.
SEC. 404. 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 of Homeland
Security 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 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 of Homeland Security 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 of Homeland Security
whenever the Secretary of Agriculture prescribes regulations,
policies, or procedures for administering the laws specified in
subsection (b) at the locations referred to in subsection (a).
(3) Effective administration.--The Secretary of Homeland
Security, 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 801(2), the Secretary
of Agriculture and the Secretary of Homeland Security shall
enter into an agreement to effectuate the transfer of functions
required by subsection (a). The Secretary of Agriculture and
the Secretary of Homeland Security 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 of
Homeland Security to carry out the functions
transferred pursuant to subsection (a).
(B) The transfer of funds to the Secretary of
Homeland Security under subsection (f).
(3) Cooperation and reciprocity.--The Secretary of
Agriculture and the Secretary of Homeland Security may include
as part of the agreement the following:
(A) Authority for the Secretary of Homeland
Security 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 of Homeland Security 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 of Homeland Security funds for activities
carried out by the Secretary of Homeland Security for which
such fees were collected.
(2) Limitation.--The proportion of fees collected pursuant
to such sections that are transferred to the Secretary of
Homeland Security under this subsection may not exceed the
proportion of the costs incurred by the Secretary of Homeland
Security to all costs incurred to carry out activities funded
by such fees.
(g) Transfer of Department of Agriculture Employees.--During the
transition period, the Secretary of Agriculture shall transfer to the
Secretary of Homeland Security 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. 405. INTERAGENCY COMMON RULES.
The Secretary shall issue common rules with modal units of the
Department of Transportation with respect to matters relating to
transportation security, including with respect to the following:
(1) Air transportation security matters under the authority
of the Federal Aviation Administration.
(2) Road, highway, and bridge security matters under the
authority of the Federal Highway Administration.
(3) Railroad security matters under the authority of the
Federal Railroad Administration.
(4) Mass transit security matters under the authority of
the Federal Transit Administration.
(5) Maritime transportation security matters under the
authority of the Maritime Administration.
SEC. 406. 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 United States House of
Representatives, and to the Committees on the Judiciary and
Government Affairs of the Senate, on the impact the transfer
made by section 402(2) 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, and the reasons for such denials, 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 median 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,
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 the Congress Regarding Immigration Services.--It is
the sense of the Congress that--
(1) the quality and efficiency of immigration services
rendered by the Federal Government should be improved after the
transfer made by section 402(2) takes 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.
SEC. 407. 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 Secretary. The Ombudsman shall have a background in customer
service as well as immigration law. The Ombudsman may establish an
office (other than the local offices described in this section) within
the Department, and hire staff as appropriate, consistent with other
Federal employment law .
(b) Functions.--It shall be the function of the Ombudsman--
(1) to assist individuals and employers in resolving
problems with citizenship and immigration services;
(2) to identify areas in which individuals and employers
have problems in dealing with citizenship and immigration
services personnel of the Department;
(3) to the extent possible, to propose changes in the
administrative practices of the Department to mitigate problems
identified under paragraph (2); and
(4) to identify potential legislative changes that may be
appropriate to mitigate such problems.
(c) Annual Reports.--
(1) Objectives.--Not later than June 30 of each calendar
year, the Ombudsman shall report to the Committees on the
Judiciary and Government Reform of the United States House of
Representatives, and the Committees on the Judiciary and
Government Affairs of 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 initiatives the Ombudsman
has taken on improving services and responsiveness of
the Department in providing 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
Department who is responsible for such inaction;
(F) shall contain recommendations for such
administrative and legislative 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 review
or comment from the Secretary 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 Department performing immigration
functions 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;
(4) shall ensure that identifying information about
individuals and employers seeking assistance is not disclosed
by the Ombudsman or any employee of the Ombudsman without the
consent of the individual or employer; and
(5) shall meet regularly with the Secretary (or the
Secretary's delegate) to identify serious immigration 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 consistent with other
Federal employment law.
(2) Consultation.--The Ombudsman may consult with the
appropriate supervisory personnel of the Department in carrying
out the Ombudsman's responsibilities under this subsection.
(f) Response of Recommendations.--The Secretary shall establish
procedures requiring a formal response to all recommendations submitted
by the Ombudsman within 3 months after submission.
(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 Department 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 the Congress through the
Ombudsman; and
(D) at the local ombudsman's discretion, may
determine not to disclose to any other component of the
Department 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 any
other component of the Department.
SEC. 408. SEAPORT SECURITY FUNCTIONS.
(a) Transfers.--In addition to the other transfers under this
title, in accordance with title VIII there shall be transferred to the
Secretary the functions, personnel, assets, and liabilities of the
Department of Transportation relating to port security that are
authorized by the Ports and Waterways Safety Act (33 U.S.C. 1221 et
seq.), the International Maritime and Port Security Act (46 App. U.S.C.
1807 et seq.), and chapter 37 of title 46, United States Code.
(b) Report.--Not later than 2 years after the date of the enactment
of this Act, the Secretary shall submit to the Congress a report on
whether or not efforts undertaken on the development of contingency
plans and procedures to prevent or respond to acts of terrorism under
section 7 of the Ports and Waterways Safety Act (33 U.S.C. 1226) meet
the following goals:
(1) Port of origin goals.--
(A) Increasing proactive policing of international
cargo.
(B) Increasing inspection of arriving cargo based
on port of origin cargo screening capability and
compliance with security standards.
(C) Increasing communications with foreign
governments and recommend steps to improve foreign port
security and cargo screening.
(2) Transit goals.--
(A) Developing an improved cargo identification and
screening system for containerized cargo.
(B) Developing standards to improve the physical
security of the cargo containers themselves, including
standards for seals and locks.
(C) Developing a plan to extend the seaward
jurisdiction of the Coast Guard to a point farther than
three miles from shore.
(3) Port of entry goals.--
(A) Developing an improved import cargo information
system enabling shippers and carriers of containerized
cargo to provide import cargo information 24 hours
before the container is loaded on a ship destined for
the United States.
(B) Developing an improved system to require ocean
carriers to provide crew and passenger manifests in
advance of a vessel's arrival in the United States.
(4) Port security technical security goals.--
(A) Conducting vulnerability assessments at each
seaport.
(B) Conducting regular mandatory security meetings
at each seaport between Federal, State, and local law
enforcement organizations, the trade, and port
authorities.
(C) Developing a plan that assigns first responder
duties and responsibilities among Federal, State, and
local government agencies and sets minimum training,
drills, and antiterrorism action standards for vessel
and facility personnel.
(D) Establishing a system of surveillance to
safeguard against and provide the earliest possible
notice of a terrorist act.
(E) Developing a system of standard security cards
to be used in identifying personnel with access to
sensitive areas.
(F) Developing standardized guidelines for
physical, procedural, and personnel security for
seaports.
(G) Developing a central database of the
individuals responsible for implementing antiterrorism
actions at each seaport.
(5) Inspections goals.--
(A) Increasing inspections based on each ship's
threat potential as assessed before it is allowed to
enter a United States port.
(B) Creating teams of specifically trained
inspectors to assess threats.
(C) Creating teams of specially trained incident
managers to manage identified threats.
(D) Developing a plan to consolidate federal
inspection facilities and co-locate Federal inspectors
in joint facilities.
(E) Develop a plan to move remotely located
inspection facilities to the docks.
TITLE V--EMERGENCY PREPAREDNESS AND RESPONSE
SEC. 501. UNDER SECRETARY FOR EMERGENCY PREPAREDNESS AND RESPONSE.
The Secretary, acting through the Under Secretary for Emergency
Preparedness and Response, shall have responsibility for the following:
(1) Helping to ensure the preparedness of emergency
response providers for 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 while maintaining the programmatic integrity of existing
Federal-State-local partnerships including under the FIRE Act
and the COPS program.
(7) Developing comprehensive programs for developing
interoperative communications technology, and helping to ensure
that emergency response providers acquire such technology.
(8) Providing direct assistance with amounts appropriated
by the Congress to State and local emergency responders through
a block grant program that--
(A) meets short- and long-term security needs and
complies with applicable laws;
(B) funds, among other activities, additional law
enforcement, fire, public health and emergency
resources, improving cyber and infrastructure security,
and devising a homeland security plan; and
(C) provides that grants may be used to cover costs
incurred for eligible activities on or after September
11, 2001, so as to allow local communities a soft match
of overtime and security expenses incurred as a result
of the September 11, 2001, terrorist attacks and
Federal directives to secure communities thereafter.
SEC. 502. FUNCTIONS TRANSFERRED.
In accordance with title VIII, there shall be transferred to the
Secretary the functions, personnel, assets, and liabilities of the
following:
(1) The Federal Emergency Management Agency, including the
functions of the Director of the Federal Emergency Management
Agency relating thereto.
(2) The Office for Domestic Preparedness of the Office of
Justice Programs, including the functions of the Attorney
General relating thereto.
(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 the Assistant Secretary for Public Health
Emergency Preparedness (including 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 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. 503. NUCLEAR INCIDENT RESPONSE.
(a) Nuclear Incident Response Team.--At the direction of the
Secretary (in connection with an actual or threatened terrorist attack,
major disaster, or other emergency), 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) Delivery of Potassium Iodide.--In the event of a terrorist
attack, major disaster, or other emergency, the Secretary shall devise
a plan to deliver Potassium Iodide (KI) to the people for whom it is
intended within 4 hours after exposure to radioactive iodines from a
nuclear power plant, and as expeditiously as possible to persons beyond
the immediate 20-mile radius of protection.
(c) Common Interagency Rules.--The Secretary shall issue common
rules with the Nuclear Regulatory Commission with respect to matters
relating to nuclear security.
(d) Construction.--Nothing in this title shall be understood to
limit the ordinary responsibility of the Secretary of Energy, the
Administrator of the Environmental Protection Agency, and the Nuclear
Regulatory Commission 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. 504. DEFINITION.
For purposes of this title, ``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 Oak Ridge National
Laboratory, radiological assistance functions, and related
functions;
(2) those entities of the Environmental Protection Agency
that perform such support functions (including radiological
emergency response functions) and related functions; and
(3) those entities of the Nuclear Regulatory Commission
that perform such support and related functions.
SEC. 505. CONDUCT OF CERTAIN PUBLIC HEALTH-RELATED ACTIVITIES.
(a) In General.--Except as the President may otherwise direct, the
Secretary shall carry out the following responsibilities through the
Department of Health and Human Services (including the Public Health
Service), under agreements with the Secretary of Health and Human
Services, and may transfer funds to such Secretary in connection with
such agreements:
(1) All biological, chemical, radiological, and nuclear
preparedness-related construction, renovation, and enhancement
of security for research and development or other facilities
owned or occupied by the Department of Health and Human
Services.
(2) All public health-related activities being carried out
by the Department of Health and Human Services on the effective
date of this Act (other than activities under functions
transferred by this Act to the Department) to assist State and
local government personnel, agencies, or authorities, non-
Federal public and private health care facilities and
providers, and public and non-profit health and educational
facilities, to plan, prepare for, prevent, identify, and
respond to biological, chemical, radiological, and nuclear
events and public health emergencies, by means including direct
services, technical assistance, communications and
surveillance, education and training activities, and grants.
(b) Preparedness and Response Program.--With respect to any
responsibilities carried out through the Department of Health and Human
Services under this section, the Secretary, in consultation with the
Secretary of Health and Human Services, shall have the authority to
establish the preparedness and response program, including the setting
of priorities.
SEC. 506. MINIMUM REQUIREMENTS FOR PRIVATE SECURITY OFFICERS.
(a) Increase of Grants.--The Secretary shall increase grants
awarded by the Federal Emergency Management Agency to a State for
purposes other than emergency relief by 10 percent if the Secretary has
certified that the State meets the requirements of subsection (b).
(b) Minimum Requirements.--In order to be eligible under subsection
(a), the following requirements shall apply with respect to private
security officers employed within the State:
(1) Each private security officer shall receive 24 hours of
training before any security assignment, an additional 16 hours
within 90 days of the initial security assignment, and an
additional 8 hours of training each year. All training
described in this paragraph shall be certified by the State.
(2) The State shall perform criminal background checks on
all private security officers, including State and Federal name
and fingerprint checks.
(3) No private security officer may work in the State
without a license that verifies that the officer has completed
the requirements of this subsection.
(4) The State shall have an advisory council regarding
requirements for private security officers representing various
stakeholders, including private security officers.
(5) The State shall maintain a registry of all licensed
private security officers which shall be open to public
inquiry.
(6) The State shall establish enforcement mechanisms that
include dedicated enforcement personnel, a complaint procedure
open to any member of the public, open record keeping, and the
ability to fine, suspend, and revoke private security officer
licenses.
(7) Whistleblower protections shall be afforded to private
security officers in the State.
(c) Private Security Officer Defined.--In this section, the term
``private security officer'' means any individual working as a contract
security officer or a proprietary security officer who--
(1) advertises as providing or performs bodyguard services
or otherwise guards persons or property;
(2) attempts to prevent theft or unlawful taking of goods,
wares, or merchandise; or
(3) attempts to prevent the misappropriation or concealment
of goods, wares, or merchandise.
(d) User Fee.--As specified in subsection (b)(2), an association of
employers of private security officers, designated for the purposes of
this section by the State Attorney General, may submit fingerprints or
other methods of positive identification approved by the appropriate
Federal authority to the appropriate Federal authority on behalf of any
applicant for a State license or certificate of registration as a
private security officer or employer of private security officers. In
response to such a submission, the State Attorney General may, to the
extent provided by State law conforming to the requirements of the
second paragraph under the heading ``Federal Bureau of Investigation''
and the subheading ``Salaries and Expenses'' in title II of Public Law
92-544 (86 Stat. 1115), exchange, for licensing and employment
purposes, identification and criminal history records with the
appropriate Federal authority.
TITLE VI--MANAGEMENT
SEC. 601. DEPUTY SECRETARY FOR MANAGEMENT.
The Secretary, acting through the Deputy Secretary for Management,
shall have responsibility for the following with respect to the
Department:
(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 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.
SEC. 602. CHIEF FINANCIAL OFFICER.
Notwithstanding section 902(a)(1) of title 31, United States Code,
the Chief Financial Officer of the Department shall report to the
Secretary, or to the Deputy Secretary for Management, as the Secretary
may direct.
SEC. 603. CHIEF INFORMATION OFFICER.
Notwithstanding section 3506(a)(2) of title 44, United States Code,
the Chief Information Officer shall report to the Secretary, or to the
Deputy Secretary for Management, as the Secretary may direct.
SEC. 604. ESTABLISHMENT OF OFFICE FOR CIVIL RIGHTS AND CIVIL LIBERTIES.
The Secretary shall establish in the Department an Office for Civil
Rights and Civil Liberties, the head of which shall be the Director for
Civil Rights and Civil Liberties. The Director 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;
(2) make public through the Internet, radio, television, or
newspaper advertisements information on the responsibilities
and functions of, and how to contact, the Office; and
(3) submit to the President of the Senate, the Speaker of
the House of Representatives, and the appropriate committees
and subcommittees of the Congress on a semiannual 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 in paragraph (1) and any
actions taken by the Department in response to such
allegations.
TITLE VII--COORDINATION; INSPECTOR GENERAL; UNITED STATES SECRET
SERVICE; GENERAL PROVISIONS; ACQUISITIONS; INFORMATION SHARING;
PROPERTY
Subtitle A--Coordination With Non-Federal Entities
SEC. 701. RESPONSIBILITIES.
In discharging his responsibilities relating to coordination
(including the provision of training and equipment) with State and
local government personnel, agencies, and authorities, with the private
sector, and with other entities, the responsibilities of the Secretary
shall include--
(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;
(3) directing and supervising grant programs of the Federal
Government for State and local government emergency response
providers; and
(4) distributing or, as appropriate, coordinating the
distribution of, warnings and information to State and local
government personnel, agencies, and authorities and to the
public.
SEC. 702. INTERGOVERNMENTAL COORDINATING COUNCIL.
(a) Establishment and Purposes.--The Secretary shall establish an
Intergovernmental Coordinating Council to serve as an ongoing advisory
forum for promoting effective coordination and cooperation among
Federal, State, and local governments on matters relevant to the work
of the Department. The subjects to be addressed by the Council shall
include--
(1) ensuring that State and local officials have the
information they need to prepare for and respond to homeland
security threats;
(2) ensuring the greatest possible coordination and
consistent operation of Federal homeland security programs and
activities;
(3) ensuring that State and local governments provide the
greatest cooperation and support for the work of the Department
and other Federal agencies with respect to homeland security;
(4) ensuring that the needs and perspectives of State and
local government officials are integrated into all relevant
aspects of the homeland security strategies and work of the
Department and other Federal agencies; and
(5) such other subjects as the Chair or Vice Chair of the
Council may suggest.
(b) Chair and Vice Chair.--The Secretary shall chair the Council
and shall designate an official of a State or local government to serve
as Vice Chair of the Council.
(c) Composition.--The Council shall consist of officials of State
and local governments as well as such officials of the Department and
of other Federal agencies as the Secretary designates. The Secretary
shall determine the size and composition of the Council in accordance
with the criteria set forth in this subsection and in consultation with
the Vice Chair. With respect to State and local government members, the
Council shall be representative of--
(1) the full range of emergency response providers;
(2) the geographical regions of the country;
(3) different levels and sizes of governments; and
(4) jurisdictions that face different homeland security
threats.
(d) Meetings.--The Council shall hold regular meetings at such
times and locations as the Secretary determines, in consultation with
the Vice Chair.
(e) Definition of State.--For the purposes of this section,
``State'' includes the District of Columbia, Puerto Rico, the Virgin
Islands, Guam, American Samoa, and the Commonwealth of the Northern
Mariana Islands.
Subtitle B--Inspector General
SEC. 710. 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 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, or may delay the issuance
of any report by the Inspector General, after the Inspector General has
decided to initiate, carry out, or complete such audit or
investigation, issue such subpoena, or issue such report, if the
Secretary determines that such prohibition or delay, respectively, 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) Notifications Required.--
(1) Notification by secretary.--The Secretary shall, within
7 days after any exercise of authority under subsection (b),
transmit a written statement of the reasons for the exercise of
such authority to the President of the Senate, the Speaker of
the House of Representatives, the Committee on Government
Reform of the House of Representatives, and the Committee on
Governmental Affairs of the Senate.
(2) Notification by inspector general.--The Inspector
General shall provide written notification to the Committee on
Government Reform of the House of Representatives and the
Committee on Governmental Affairs of the Senate of any exercise
of authority by the Secretary under subsection (b) by not later
than 7 days after receiving notice of such exercise of
authority.
(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 further 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.''.
Subtitle C--United States Secret Service
SEC. 720. FUNCTIONS TRANSFERRED.
In accordance with title VIII, there shall be transferred to the
Secretary the functions, personnel, assets, and liabilities 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--General Provisions
SEC. 730. HUMAN RESOURCE MANAGEMENT.
(a) Authority To Adjust Pay Schedules.--
(1) In general.--Notwithstanding any provision of title 5,
United States Code, the Secretary may, under regulations
prescribed jointly with the Director of the Office of Personnel
Management, provide for such adjustments in rates of basic pay
as may be necessary to address inequitable pay disparities
among employees within the Department performing similar work
in similar circumstances.
(2) Applicability.--No authority under paragraph (1) may be
exercised with respect to 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.
(3) Limitations.--Nothing in this subsection shall
constitute authority--
(A) to fix pay at a rate greater than the maximum
amount of cash compensation allowable under section
5307 of title 5, United States Code, in a year; or
(B) to exempt any employee from the application of
such section 5307.
(4) Sunset provision.--Effective 5 years after the
effective date of this Act, all authority to issue regulations
under this subsection (including regulations which would
modify, supersede, or terminate any regulations previously
issued under this subsection) shall cease to be available.
(b) Suspension and Removal of Employees in the Interests of
National Security.--The Secretary shall establish procedures consistent
with section 7532 of title 5, United States Code, to provide for the
suspension and removal of employees of the Department when necessary in
the interests of national security or homeland security. Such
regulations shall provide for written notice, hearings, and review
similar to that provided by such section 7532.
(c) Demonstration Project.--
(1) In general.--Not later than 5 years after the effective
date of this Act, the Secretary shall submit to Congress a
proposal for a demonstration project, the purpose of which
shall be to help attain a human resources management system
which in the judgment of the Secretary is necessary in order to
enable the Department best to carry out its mission.
(2) Requirements.--The proposal shall--
(A) ensure that veterans' preference and
whistleblower protection rights are retained;
(B) ensure that existing collective bargaining
agreements and rights under chapter 71 of title 5,
United States Code, remain unaffected;
(C) ensure the availability of such measures as may
be necessary in order to allow the Department to
recruit and retain the best persons possible to carry
out its mission;
(D) include one or more performance appraisal
systems which shall--
(i) provide for periodic appraisals of the
performance of covered employees;
(ii) provide for meaningful participation
of covered employees in the establishment of
employee performance plans; and
(iii) use the results of performance
appraisals as a basis for rewarding, reducing
in grade, retaining, and removing covered
employees; and
(E) contain recommendations for such legislation or
other actions by Congress as the Secretary considers
necessary.
(3) Definition of a covered employee.--For purposes of
paragraph (2)(D), the term ``covered employee'' means a
supervisor or management official (as defined in paragraphs
(10) and (11) of section 7103(a) of title 5, United States
Code, respectively) who occupies a position within the
Department which is in the General Schedule.
(d) Merit System Principles.--All authorities under subsections (a)
and (b) shall be exercised in a manner, and all personnel management
flexibilities or authorities proposed under subsection (c) shall be,
consistent with merit system principles under section 2301 of title 5,
United States Code.
(e) Remedies for Retaliation Against Whistleblowers.--
Section 7211 of title 5, United States Code, is amended--
(1) by inserting ``(a)'' before ``The right''; and
(2) by adding at the end the following:
``(b) Any employee aggrieved by a violation of subsection (a) may
bring a civil action in the appropriate United States district court,
within 3 years after the date on which such violation occurs, against
any agency, organization, or other person responsible for the
violation, for lost wages and benefits, reinstatement, costs and
attorney fees, compensatory damages, and equitable, injunctive, or any
other relief that the court considers appropriate. Any such action
shall, upon request of the party bringing the action, be tried by the
court with a jury.
``(c) The same legal burdens of proof in proceedings under
subsection (b) shall apply as under sections 1214(b)(4)(B) and 1221(e)
in the case of an alleged prohibited personnel practice described in
section 2302(b)(8).
``(d) For purposes of this section, the term `employee' means an
employee (as defined by section 2105) and any individual performing
services under a personal services contract with the Government
(including as an employee of an organization).''.
(f) Nonreduction in Pay.--Nothing in this section shall, with
respect to any employee who is transferred to the Department pursuant
to this Act, constitute authority to reduce the rate of basic pay
(including any comparability pay) payable to such employee below the
rate last payable to such employee before the date on which such
employee is so transferred.
SEC. 731. 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.
(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) 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.
SEC. 732. REPORTING REQUIREMENTS.
(a) Biennial Reports.--Every 2 years the Secretary shall submit to
Congress--
(1) a report assessing the resources and requirements of
executive agencies relating to border security and emergency
preparedness issues;
(2) a report certifying the preparedness of the United
States to prevent, protect against, and respond to natural
disasters, cyber attacks, and incidents involving weapons of
mass destruction; and
(3) a report assessing the emergency preparedness of each
State, including an assessment of each State's coordination
with the Department with respect to the responsibilities
specified in section 501.
(b) Additional Report.--Not later than 1 year after the effective
date of this Act, the Secretary shall submit to Congress a report--
(1) assessing the progress of the Department in--
(A) implementing this Act; and
(B) ensuring the core functions of each entity
transferred to the Department are maintained and
strengthened; and
(2) recommending any conforming changes in law necessary as
a result of the enactment and implementation of this Act.
SEC. 733. REQUIREMENT TO DEVELOP COMPREHENSIVE RISK MANAGEMENT
ASSESSMENT AND HOMELAND SECURITY STRATEGY.
(a) Requirement To Develop Strategy.--The President shall develop a
comprehensive strategy for homeland security under which Federal,
State, and local government organizations coordinate and cooperate to
meet homeland security objectives.
(b) Components of Strategy.--The homeland security strategy
required to be developed under subsection (a) shall include the
following components:
(1) Identification of specific homeland security threats
based upon the results of the assessment under subsection (c).
(2) Development of a specific strategy with respect to
antiterrorism activities and consequence management that
includes specific, measurable objectives by which the efficacy
of the execution of the strategy may be determined.
(3) Identification of the executive departments, agencies,
and other organizations that should play a role in protecting
homeland security and specification of the role of each such
organization.
(4) Providing for the selective use of personnel and assets
of the Armed Forces in circumstances in which those personnel
and assets would provide unique capability and could be used
without infringing on the civil liberties of the people of the
United States.
(5) Optimization of the use of intelligence assets and
capabilities, including improvement of the processes by which
intelligence information is provided to State and local
governments.
(6) Providing for augmentation of existing medical response
capability and equipment stockpiles at the Federal, State, and
local levels.
(7) Development of a multiyear plan for phased
implementation of the strategy and a comprehensive projected
budget.
(c) Requirement To Develop Risk Assessment.--The President shall
conduct a comprehensive threat and risk assessment with respect to
homeland security to be used as the basis for the identification of
specific homeland security threats for purposes of subsection (b)(1).
Not later than six months after the enactment of this Act, and annually
thereafter, the President shall submit to Congress a comprehensive,
national-level risk management assessment, which shall be submitted in
unclassified form to the maximum extent possible, with a classified
annex, if necessary.
(d) Components of Risk Assessment.--The assessment required to be
developed under subsection (c) shall include the following components:
(1) A description of the most significant threats to the
United States, including military, terrorist, State, non-State,
foreign, domestic, conventional, and unconventional threats.
(2) A description of the most significant vulnerabilities
of the United States, including those relating to population
and infrastructure.
(3) A prioritization of the most significant risks to the
United States, based on the likelihood of the threats
identified under subsection (b)(1) and the potential damage
they could cause by exploiting vulnerabilities identified under
subsection (b)(2).
(e) Participation of Executive Agencies.--The President shall
direct the participation of any executive agencies, departments, or
offices to develop the assessment required in subsection (c), including
the provision of all necessary intelligence and other information.
SEC. 734. MILITARY ACTIVITIES.
Except as specifically provided in this Act, nothing in this Act
shall confer upon the Secretary any authority to engage in warfighting,
the military defense of the United States, or other traditional
military activities.
SEC. 735. REORGANIZATION; TRANSFER.
(a) Allocation of Functions.--The Secretary is authorized to
allocate or reallocate functions among the officers of the Department,
and to establish, consolidate, alter, or discontinue such
organizational units within the Department, as the Secretary may deem
necessary or appropriate, but such authority does not extend to the
abolition of any entity established or required to be maintained as a
distinct entity by this Act.
(b) Transfer of Appropriations.--Except as otherwise specifically
provided by law, not to exceed five percent of any appropriation
available to the Secretary in any fiscal year may be transferred
between such appropriations, except that not less than fifteen days'
notice shall be given to the Committees on Appropriations of the Senate
and House of Representatives before any such transfer is made.
(c) Limitation.--Notwithstanding any other provision of this
section, and except as otherwise specifically provided in this Act, the
Secretary may not abolish any entity that is transferred to the
Department, or terminate any function that is transferred to the
Secretary, the Department, or any of the personnel of the Department,
if such entity or function, respectively, is established or required by
statute.
SEC. 736. MISCELLANEOUS PROVISIONS.
(a) Seal.--The Department shall have a seal, whose design is
subject to the approval of the President.
(b) Gifts, Devises, and Bequests.--With respect to the Department,
the Secretary shall have the same authorities that the Attorney General
has with respect to the Department of Justice under section 524(d) of
title 28, United States Code.
(c) 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.
(d) 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. 737. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated for each of fiscal years
2003 through 2007 such sums as maybe necessary to carry out this Act.
Subtitle E--Acquisitions
SEC. 740. RESEARCH AND DEVELOPMENT PROJECTS.
(a) Authority.--During the five-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)(A) In carrying out basic, applied, and advanced
research and development projects for response to existing or
emerging terrorist threats, 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) of such
section), after making a determination that--
(i) the use of a contract, grant, or cooperative
agreement for such projects is not feasible or
appropriate; and
(ii) use of other authority to waive Federal
procurement laws or regulations would not be feasible
or appropriate to accomplish such projects.
(B) The annual report required under subsection (h) of such
section 2371, 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)(A) Under the authority of paragraph (1) and subject to
the limitations of such paragraph, the Secretary may 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; 10 U.S.C. 2371 note).
(B) In applying the authorities of such section 845--
(i) subsection (c) thereof shall apply with respect
to prototype projects under this paragraph, except that
in applying such subsection any reference in such
subsection to the Comptroller General shall be deemed
to refer to the Comptroller General and the Inspector
General of the Department; and
(ii) the Secretary shall perform the functions of
the Secretary of Defense under subsection (d) thereof.
(b) Report.--Not later than one year 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) 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. 741. 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. 742. SPECIAL STREAMLINED ACQUISITION AUTHORITY.
(a) Authority.--(1) 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) 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) Not later than the date that is seven 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) 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 $5,000.
(2) 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) 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) 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
$175,000.
(2) Section 18(c)(1) of the Office of Federal Procurement Policy
Act is amended by adding at the end the following new subparagraph:
``(H) the procurement is by the Secretary of
Homeland Security pursuant to the special procedures
provided in section 742(c) of the Homeland Security Act
of 2002.''.
(d) Application of Certain Commercial Items Authorities.--(1) 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) 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) 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. 743. PROGRAM TO ENCOURAGE AND SUPPORT INNOVATIVE SOLUTIONS TO
ENHANCE HOMELAND SECURITY.
(a) Establishment of Program.--The Secretary shall establish and
promote a program to encourage and recognize contractor innovation and
excellence in facilitating the mission of the Department (as described
in section 101).
(b) Issuance of Announcements Seeking Innovative Solutions.--Under
the program, the Secretary shall issue announcements seeking unique and
innovative solutions to advance the mission of the Department.
(c) Technical Assistance Team.--(1) The Secretary shall convene a
multifunction technical assistance team to assist in screening
proposals submitted to the Secretary to provide unique and innovative
solutions to advance the mission of the Department. The team shall be
composed of Department employees who have expertise in scientific and
technical disciplines that would facilitate the assessment of the
feasibility of the proposals.
(2) The technical assistance team shall--
(A) assess the feasibility, scientific and technical
merits, and estimated cost of each proposal; and
(B) submit each proposal, and the assessment of the
proposal, to each Under Secretary of the Department whose
duties most coincide with the subject matter of the proposal
and to any other executive agency whose mission would, in the
opinion of the technical assistance team, be facilitated by the
subject matter of the proposal.
(3) The technical assistance team shall not consider or evaluate
proposals submitted in response to a solicitation for offers for a
pending procurement or for a specific agency requirement.
(d) Monetary Awards for Innovative Solutions.--(1) Under the
program carried out under this section, the Secretary shall provide
monetary awards in recognition of unique and innovative solutions with
the potential to significantly advance the mission of the Department.
(2) The Secretary shall use a competitive process to select
recipients of monetary awards under this subsection which shall include
the widely advertised solicitation (including the announcements
described in subsection (b)) of descriptive submissions on technology
developments and prototypes, the substance of which are not otherwise
available to the United States. The Secretary shall work with the
technical assistance team described in subsection (c) in carrying out
the competitive selection process.
(3) An award made under this subsection may not exceed $20,000. The
total amount of awards made under this subsection in a fiscal year may
not exceed $500,000.
(4) At least one quarter of the total amount awarded under this
subsection during a fiscal year shall be awarded to small business
concerns, within the meaning of such term as used in the Small Business
Act (15 U.S.C. 632 et seq.).
SEC. 744. RISK SHARING AND INDEMNIFICATION.
(a) Definitions.--Section 4 of the Office of Federal Procurement
Policy Act (41 U.S.C. 403) is amended by adding at the end the
following new paragraphs:
``(16) The term `anti-terrorism technology and services'
means any product, equipment, service or device, including
information technology as defined in section 5002 of the
Clinger-Cohen Act of 1996, system integration and any other
kind of services (including support services) related to
technology, designed, developed, modified or procured for the
purpose of preventing, detecting, identifying, or otherwise
deterring acts of terrorism.
``(17) The term `act of terrorism,' means the calculated
attack or threat of attack against persons, property or
infrastructure to inculcate fear, intimidate or coerce a
government, the civilian population, or any segment thereof, in
the pursuit of political, religious or ideological grounds.
``(18) 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.
``(19) The term `liability insurance' means insurance for
legal liabilities incurred by the insured resulting from--
``(A) loss of or damage to property of others;
``(B) ensuing loss of income or extra expense
incurred because of loss of or damage to property of
others;
``(C) bodily injury (including death) to persons
other than the insured or its employees; or
``(D) loss resulting from debt or default of
another.
``(20) The term `homeland security procurement' means any
procurement of anti-terrorism technology and services, as
determined by the head of the agency, procured for the purpose
of preventing, detecting, or otherwise deterring acts of
terrorism.''
(b) Federal Risk Sharing and Indemnification.--The Office of
Federal Procurement Policy Act is further amended by adding at the end
the following new sections:
``SEC. 40. FEDERAL RISK SHARING AND INDEMNIFICATION.
``(a) When conducting a homeland security procurement the head of
an agency may include in a contract an indemnification provision
specified in subsection (e) if the head of the agency determines in
writing that it is in the best interest of the Government to do so and
determines that--
``(1) the anti-terrorism technology and services are needed
to protect critical infrastructure services or facilities;
``(2) the anti-terrorism technology and services would be
effective in facilitating the defense against acts of
terrorism; and
``(3) the supplier of the anti-terrorism technology is
unable to secure insurance coverage adequate to make the anti-
terrorism technology and services available to the Government.
``(b) The head of the agency may exercise the authority in this
section only if authorized by the Director of the Office of Management
and Budget to do so.
``(c) In order to be eligible for an indemnification provision
specified in this section, any entity that provides anti-terrorism
technology and services to an agency identified in this Act shall
obtain liability insurance of such types and in such amounts, to the
maximum extent practicable as determined by the agency, to satisfy
otherwise compensable third party claims resulting from an act of
terrorism when anti-terrorism technologies and services have been
deployed in defense against acts of terrorism.
``(d) An indemnification provision included in a contract under the
authority of this section shall be without regard to other provisions
of law relating to the making, performance, amendment or modification
of contracts.
``(e)(1) The indemnification provision to be included in a contract
under the authority of this section shall indemnify, in whole or in
part, the contractor for liability, including reasonable expenses of
litigation and settlement, that is not covered by the insurance
required under subsection (c), for:
``(A) Claims by third persons, including employees of the
contractor, for death, personal injury, or loss of, damage to,
or loss of use of property, or economic losses resulting from
an act of terrorism;
``(B) Loss of, damage to, or loss of use of property of the
Government; and
``(C) Claims arising (i) from indemnification agreements
between the contractor and a subcontractor or subcontractors,
or (ii) from such arrangements and further indemnification
arrangements between subcontractors at any tier, provided that
all such arrangements were entered into pursuant to the terms
of this section.
``(2) Liabilities arising out of the contractor's willful
misconduct or lack of good faith shall not be entitled to
indemnification under the authority of this section.
``(f) An indemnification provision included in a contract under the
authority of this section shall be negotiated and signed by the agency
contracting officer and an authorized representative of the contractor
and approved by the head of the agency prior to the commencement of
performance of the contract.
``(g) The authority conferred by this section shall be limited to
the following agencies:
``(1) The Department of Homeland Security;
``(2) The Department of Agriculture;
``(3) The Department of Commerce;
``(4) The Department of Defense;
``(5) The Department of Energy;
``(6) The Department of Health and Human Services;
``(7) The Department of the Interior;
``(8) The Department of Justice;
``(9) The Department of State;
``(10) The Department of the Treasury;
``(11) The Department of Transportation;
``(12) The Federal Emergency Management Agency;
``(13) The Federal Reserve System;
``(14) The General Services Administration;
``(15) The National Aeronautics and Space Administration;
``(16) The Tennessee Valley Authority;
``(17) The U.S. Postal Service;
``(18) The Central Intelligence Agency;
``(19) The Architect of the Capitol; and
``(20) Any other agency designated by the Secretary of
Homeland Security that engages in homeland security contracting
activities.
``(h) If any suit or action is filed or any claim is made against
the contractor for any losses to third parties arising out of an act of
terrorism when its anti-terrorism technologies and services have been
deployed such that the cost and expense of the losses may be
indemnified by the United States under this section, the contractor
shall--
``(1) immediately notify the Secretary and promptly furnish
copies of all pertinent papers received;
``(2) authorize United States Government representatives to
collaborate with counsel for the contractor's insurance carrier
in settling or defending the claim when the amount of the
liability claimed may exceed the amount of insurance coverage;
and
``(3) authorize United States Government representatives to
settle or defend the claim and to represent the contractor in
or to take charge of any litigation, if required by the United
States Government, when the liability is not insured.
The contractor may, at its own expense, be associated with the United
States Government representatives in any such claim or litigation.''.
(c) State and Local Risk Sharing and Indemnification.--(1) The
Secretary may, upon the application of a State or local government,
provide for indemnification of contractors who provide anti-terrorism
technologies and services to State or local governments if the
Secretary determines in writing that--
(A) it is in the best interest of the Government to do so;
(B) the State or local government is unable to provide the
required indemnification; and
(C) the anti-terrorism technology and services are needed
to protect critical infrastructure services or facilities,
would be effective in facilitating the defense against acts of
terrorism, and would not be reasonably available absent
indemnification.
(2) The Secretary may exercise the authority in this subsection
only if authorized by the Director of the Office of Management and
Budget to do so.
(3) In order to be eligible for indemnification, any entity that
provides anti-terrorism technology and services to a State or local
government shall obtain liability insurance of such types and in such
amounts to the maximum extent practicable, as determined by the
Secretary, to satisfy otherwise compensable third party claims
resulting from an act of terrorism when anti-terrorism technologies and
services have been deployed in defense against acts of terrorism.
(4) The indemnification provided under the authority of this
subsection shall indemnify, in whole or in part, the contractor for
liability, including reasonable expenses of litigation and settlement,
that is not covered by the insurance required under paragraph (3) for--
(A) claims by third persons, including employees of the
contractor, for death, personal injury, or loss of, damage to,
or loss of use of property, or economic losses resulting from
an act of terrorism;
(B) loss of, damage to, or loss of use of property of the
Government; and
(C) claims arising--
(i) from indemnification agreements between the
contractor and a subcontractor or subcontractors; or
(ii) from such arrangements and further
indemnification arrangements between subcontractors at
any tier, provided that all such arrangements were
entered into pursuant to the terms of this subsection.
Liabilities arising out of the contractor's willful misconduct or lack
of good faith shall not be entitled to indemnification under the
authority of this subsection.
(5) If any suit or action is filed or any claim is made against the
contractor for any losses to third parties arising out of an act of
terrorism when its anti-terrorism technologies and services have been
deployed such that the cost and expense of the losses may be
indemnified by the United States under this subsection, the contractor
shall--
(A) immediately notify the Secretary and promptly furnish
copies of all pertinent papers received;
(B) authorize United States Government representatives to
collaborate with counsel for the contractor's insurance carrier
in settling or defending the claim when the amount of the
liability claimed may exceed the amount of insurance coverage;
and
(C) authorize United States Government representatives to
settle or defend the claim and to represent the contractor in
or to take charge of any litigation, if required by the United
States Government, when the liability is not insured.
The contractor may, at its own expense, be associated with the United
States Government representatives in any such claim or litigation.
(6) In this subsection, the definitions in paragraphs (16) through
(20) of section 4 of the Office of Federal Procurement Policy Act shall
apply.
(c) Implementing Regulations.--Not later than 120 days after the
date of the enactment of this Act, the Federal Acquisition Regulation
shall be amended to ensure consistency between the Federal Acquisition
Regulation and this section.
SEC. 745. PROCUREMENTS FROM SMALL BUSINESSES.
There is established in the Department an office to be known as the
``Office of Small and Disadvantaged Business Utilization''. The
management of such office shall be vested in the manner described in
section 15(k) of the Small Business Act (15 U.S.C. 644(k)) and shall
carry out the functions described in such section.
Subtitle F--Information Sharing
SEC. 750. SHORT TITLE.
This subtitle may be cited as the ``Homeland Security Information
Sharing Act''.
SEC. 751. FINDINGS AND SENSE OF CONGRESS.
(a) Findings.--The 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.
(b) 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. 752. FACILITATING HOMELAND SECURITY INFORMATION SHARING
PROCEDURES.
(a) Procedures for Determining Extent of Sharing of Homeland
Security Information.--
(1) The Secretary shall prescribe procedures under which
relevant Federal agencies determine--
(A) whether, how, and to what extent homeland
security information may be shared with appropriate
State and local personnel, and with which such
personnel it may be shared;
(B) how to identify and safeguard homeland security
information that is sensitive but unclassified; and
(C) to the extent such information is in classified
form, 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 Secretary 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 Secretary, all
appropriate agencies, including the intelligence community,
shall, through information sharing systems, share homeland
security information with 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
Secretary, 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 Secretary, 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 Secretary 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 one 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;
(D) would improve the response to a terrorist act;
or
(E) does not include individually identifiable
information collected solely for statistical purposes.
(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.
SEC. 753. REPORT.
(a) Report Required.--Not later than 12 months after the date of
the enactment of this Act, the Secretary shall submit to the
congressional committees specified in subsection (b) a report on the
implementation of section 752. The report shall include any
recommendations for additional measures or appropriation requests,
beyond the requirements of section 752, to increase the effectiveness
of sharing of information 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. 754. AUTHORIZATION OF APPROPRIATIONS.
There are authorized to be appropriated such sums as may be
necessary to carry out section 752.
SEC. 755. 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. 756. 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 attorney for
the government, 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 attorney for
the government, 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. 757. 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 Act (USA PATRIOT ACT) of 2001 (Public
Law 107-56; 50 U.S.C. 403-5d) is amended by adding at the end the
following: ``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. 758. 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. 759. 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)''.
Subtitle G--Property
SEC. 761. REAL PROPERTY MANAGEMENT.
The Secretary, in accordance with this title and regulations
prescribed jointly by the Secretary, the Administrator of General
Services, and the Director of the Office of Management and Budget--
(1) may acquire replacement real property (including
interests therein)--
(A) by transfer or exchange of real property under
the jurisdiction, custody, and control of the
Department with other executive agencies; or
(B) by sale to or exchange of such property with
non-Federal entities, if--
(i) the transaction does not conflict with
other applicable laws governing the acquisition
of interests in real property by Federal
agencies;
(ii) following consultation with the
Administrator, the agency first made the
property available for transfer or exchange to
other Federal agencies; and
(iii) the transaction results in the agency
receiving fair market value, which shall be
based upon an appraisal;
(2) by lease, permit, license, or other similar instrument,
may make available to other executive agencies and to non-
Federal entities, on a fair market rental value basis, the
unexpired portion of any Government lease for real property
under the jurisdiction, custody, and control of the Director;
(3) may make available by outlease agreements with other
executive agencies or with non-Federal entities, any unused or
underused portion of or interest in any real property and
related personal property under the jurisdiction, custody, and
control of the Department; and
(4) obligate or expend amounts received by the United
States as a result of any exercise of the authority granted by
paragraph (2) or (3) without regard to fiscal year limitations,
for the capital asset expenditures of the Department.
SEC. 762. CRITERIA FOR USING AUTHORITIES.
(a) In General.--Subject to the requirements of subsection (b), the
Secretary may apply authority under section 761 to a real property
interest only if--
(1) the Secretary has determined that such real property
interest is not excess property, and includes as part of the
documentation required under subsection (b)(3) a description of
the need and mission requirement fulfilled by the Federal
property;
(2) the real property interest is used to fulfill or
support a continuing mission requirement of the Department; and
(3) the real property interest can, by the application of
the authority, improve the support of such mission.
(b) Criteria for Application.--Before applying authority under
section 761 to a real property interest, the Secretary, in consultation
with the Administrator of General Services, must determine that such
application meets all of the following criteria:
(1) The application supports the goals and objectives set
forth in the Department's strategic plan under section 306 of
title 5, United States Code.
(2) Use of the real property is economical, cost effective,
and in the best interests of the United States.
(3) The application is documented in a business plan that,
commensurate with the nature of the authority applied--
(A) analyzes all reasonable options for using the
property;
(B) describes how the application will be in
compliance with applicable provisions of law, including
such provisions of--
(i) the National Environmental Policy Act
of 1969 (42 U.S.C. 4321 et seq.); and
(ii) the McKinney-Vento Homeless Assistance
Act (42 U.S.C. 11301 et seq.), including by--
(I) describing the result of the
determination under that Act by the
Secretary of Housing and Urban
Development of the suitability of the
property for use to assist the
homeless; and
(II) explaining the rationale for
the Department's decision not to make
the property available for use to
assist the homeless; and
(C) establishes effective procedures for
soliciting, assessing, and taking into account input
from the local community.
SEC. 763. OUTLEASES.
(a) In General.--The Secretary may make property available by an
outlease agreement authorized by section 761 only if--
(1) the Secretary finds that--
(A) there is no long-term mission requirement for
the property, but the Federal Government is not
permitted to dispose of it; or
(B)(i) there is a continuing, long-term mission
requirement of the Department for the property to
remain in Government ownership; and
(ii) the use of the real property by the lessee
will not be inconsistent with such mission;
(2) in the case of an outlease to a non-Federal entity, the
outlease is conducted competitively; and
(3) the agreement--
(A) is for a term no longer than 50 years; and
(B) will result in the Department receiving fair
market value which, in the case of an exchange or sale
of Federal real property, shall be based upon an
appraisal.
(b) Construction on Outleased Property; Applicable Law.--
(1) Property subject to retained authority.--If the
Secretary retains authority over any decision to construct or
alter buildings on property outleased to a non-Federal entity
under section 761, then any such construction or alteration
shall comply with section 21 of the Public Buildings Act of
1959 (40 U.S.C. 619).
(2) Property not subject to retained authority.--(A) If the
Secretary does not retain authority over any decision to
construct or alter buildings on property outleased to a non-
Federal entity under section 761, then any such construction or
alteration shall comply with all laws described in subparagraph
(B) that would apply to such construction or alteration if the
property were not Federal property.
(B) The laws referred to in subparagraph (A) are all laws
of a State, and of a political subdivision of a State, relating
to zoning, landscaping, open space, minimum distance of a
building from a property line, maximum building height,
historic preservation, esthetic qualities of a building,
building codes, and similar matters, and any other State or
local laws relating to construction or alteration of a
building, respectively, by the non-Federal entity on non-
Federal lands.
(C) The Secretary may waive the application of subparagraph
(A) if the Secretary determines that application of that
subparagraph would hinder fulfillment of the mission of the
Department under section 101(b).
(c) Reports.--The Comptroller General of the United States shall
submit biennial reports to the Congress, including to the Committee on
Government Reform of the House of Representatives and the Committee on
Governmental Affairs of the Senate, on the effectiveness of the use of
outlease authority under section 761.
SEC. 764. REVIEW AND REVISION OF TRANSACTIONS BY ADMINISTRATOR.
The Administrator of General Services may, in the sole discretion
of the Administrator, review any transaction of the Department
undertaken utilizing authority under section 761. After such review,
the Administrator may disapprove such transaction if the Administrator
determines the transaction does not reflect due diligence by the
Department, is not in the best interest of the United States, or does
not comply with the requirements of this title.
SEC. 765. TRANSACTIONAL REPORTS.
(a) In General.--For those transactions authorized under section
761 involving the sale, exchange, or outlease to a non-Federal entity
of any asset valued in excess of $700,000 at the time of the
transaction, the Secretary shall submit the business plan required by
section 762(b)(3) to the Director of the Office of Management and
Budget, the Committee on Governmental Affairs of the Senate, and the
Committee on Government Reform of the House of Representatives at least
30 calendar days before the final execution of such transaction.
(b) Disposal of Real Property by Negotiation.--The Secretary shall
prepare and submit to the Committee on Governmental Affairs of the
Senate and the Committee on Government Reform of the House of
Representatives, a statement explaining the circumstances of each
disposal by negotiation, under section 761, of any real property that
has an estimated fair market value in excess of $700,000.
(c) Adjustment of Threshold.--The Administrator of General Services
may increase or decrease the dollar amounts in subsections (a) and (b)
to reflect a percentage increase or decrease in the Department of
Commerce Consumer Price Index.
TITLE VIII--TRANSITION
SEC. 801. DEFINITIONS.
For purposes of this title--
(1) the term ``agency'' includes any entity, organizational
unit, or function; and
(2) the term ``transition period'' means the 12-month
period beginning on the effective date of this Act.
SEC. 802. 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 sections 202, 302,
402, and 502.
(2) Any consolidation, reorganization, or streamlining of
agencies transferred to the Department pursuant to sections
202, 302, 402, and 502.
(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 sections 202, 302, 402, and 502
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.
(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. 803. 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 he 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 or nonreimbursable basis, provide services or detail
personnel to assist with the transition.
(c) Transfer of Funds.--Until the transfer of an agency to the
Department, the President is authorized to transfer to the Secretary
not to exceed five percent of the unobligated balance of any
appropriation available to such agency, to fund the purposes authorized
in this Act, except that not less than 15 days' notice shall be given
to the Committees on Appropriations of the Senate and House of
Representatives before any such funds transfer is made.
(d) 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.
(e) Transfer of Personnel, Assets, Liabilities, and Functions.--
Upon the transfer of an agency to the Department--
(1) the personnel, assets, and liabilities 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 notwithstanding 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.
SEC. 804. 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, except that the rules, procedures, terms, and conditions relating
to employment in the Transportation Security Administration before the
effective date of this Act may be applied only to the personnel
employed by or carrying out the functions of the Transportation
Security Administration.
(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.
SEC. 805. 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. 806. 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
he may deem necessary to accomplish the purposes of this Act.
TITLE IX--CONFORMING AND TECHNICAL AMENDMENTS
SEC. 901. EXECUTIVE DEPARTMENT.
Section 101 of title 5, United States Code, is amended by inserting
after ``The Department of Housing and Urban Development.'' the
following:
``The Department of Homeland Security.''.
SEC. 902. EXECUTIVE SCHEDULE.
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 the following new items
after ``Affairs.'':
``Deputy Secretary, Department of Homeland Security.''
``Deputy Secretary for Policy, Department of Homeland
Security.''
``Deputy Secretary for Management, Department of Homeland
Security.''
(3) in section 5314, by inserting ``Under Secretaries,
Department of Homeland Security.'' as a new item after
``Affairs.'' the third place it appears;
(4) in section 5315, by inserting after ``Affairs.'' the
first place it appears the following:
``Assistant Secretaries, Department of Homeland Security.
``General Counsel, Department of Homeland Security.
``Chief Financial Officer, Department of Homeland Security.
``Chief Information Officer, Department of Homeland
Security.
``Inspector General, Department of Homeland Security.''.
SEC. 903. INSPECTOR GENERAL.
(a) IN General.--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;
(2) by striking ``; and'' each place it appears and
inserting ``;'';
(3) by striking ``,,'' and inserting ``,''; and
(4) by striking ``;;'' and inserting ``;''.
(b) Oversight Responsibility.--Section 8D of the Inspector General
Act of 1978 (5 U.S.C. App.) is amended--
(1) in subsection (b) by striking ``, the Office of
Internal Affairs of the United States Customs Service, and the
Office of Inspections of the United States Secret Service,'';
(2) in subsection (c) by striking ``and services''; and
(3) in subsection (d) by striking ``or service'' each place
it appears.
SEC. 904. CHIEF FINANCIAL OFFICER.
Section 901(b)(1) of title 31, United States Code, is amended--
(1) by redesignating subparagraphs (G) through (P) as
subparagraphs (H) through (Q), respectively; and
(2) by inserting the following new subparagraph after
subparagraph (F):
``(G) The Department of Homeland Security.''.
SEC. 905. CHIEF INFORMATION OFFICER.
(a) Clinger-Cohen Act.--(1) The provisions enacted in section 5125
of the Clinger-Cohen Act of 1996 (division E of Public Law 104-106; 110
Stat. 684) shall apply with respect to the Chief Information Officer of
the Department.
(2) Section 5131(c) of the Clinger-Cohen Act of 1996 (40 U.S.C.
1441(c)) is amended by inserting ``or appointed'' after ``the Chief
Information Officer designated''.
(b) Title 44.--Chapter 35 of title 44, United States Code, is
amended--
(1) in section 3506(a)(2)--
(A) in subparagraph (A) by striking ``subparagraph
(B)'' and inserting ``subparagraphs (B) and (C)''; and
(B) by adding at the end the following:
``(C) The Chief Information Officer of the Department of Homeland
Security shall be an individual who is appointed by the President.'';
(2) in each of subsections (a)(3), (a)(4), and (c)(1) of
section 3506 by inserting ``or appointed'' after ``the Chief
Information Officer designated''; and
(3) in section 3507(i) by inserting ``or appointed'' after
``the Chief Information Officer designated''.
SEC. 906. UNITED STATES SECRET SERVICE.
(a) In General.--The United States Code is amended in sections 202
and 208 of title 3, and in section 3056 of title 18, by striking ``of
the 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. 907. COAST GUARD.
(a) Title 14, U.S.C.--Title 14 of the United States Code is
amended--
(1) in sections 1, 3, 53, 95, 145, 516, 666, 669, 673 (as
added by Public Law 104-201), 673 (as added by Public Law 104-
324), 674, 687, and 688, by striking ``of Transportation'',
each place it appears, and inserting ``of Homeland Security'';
and
(2) after executing the other amendments required by this
subsection, by redesignating the section 673 added by Public
Law 104-324 as section 673a.
(b) Title 10, U.S.C.--Section 801(1) of title 10, United States
Code, 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''.
(c) Effective Date.--The amendments made by this section shall take
effect on the date of transfer of the Coast Guard to the Department.
SEC. 908. STRATEGIC NATIONAL STOCKPILE AND SMALLPOX VACCINE
DEVELOPMENT.
(a) In General.--The Public Health Security and Bioterrorism
Preparedness and Response Act of 2002 is amended--
(1) in section 121(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 121(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. 909. SELECT AGENT REGISTRATION.
(a) Public Health Service Act.--The Public Health Service Act is
amended--
(1) in section 351A(a)(1)(A), by inserting ``(as defined in
subsection (l)(9))'' after ``Secretary'';
(2) in section 351A(h)(2)(A), by inserting ``Department of
Homeland Security, the'' before ``Department of Health and
Human Services'';
(3) in section 351A(l), by inserting after paragraph (8) a
new paragraph as follows:
``(9) The term `Secretary' means the Secretary of Homeland
Security, in consultation with the Secretary of Health and
Human Services.''; and
(4) in section 352A(i)--
(A) by striking ``(1)'' the first place it appears;
and
(B) by striking paragraph (2).
(b) Public Health Security and Bioterrorism Preparedness and
Response Act of 2002.--Section 201(b) of the Public Health Security and
Bioterrorism Preparedness and Response Act of 2002 is amended by
striking ``Secretary of Health and Human Services'' and inserting
``Secretary of Homeland Security''.
(c) Effective Date.--The amendments made by this section shall take
effect on the date of transfer of the select agent registration
enforcement programs and activities of the Department of Health and
Human Services to the Department.
SEC. 910. MEMBERSHIP OF SECRETARY ON NATIONAL SECURITY COUNCIL.
Section 101(a) of the National Security Act of 1947 (50 U.S.C.
402(a)) is amended in the fourth sentence--
(1) in paragraph (6), by striking ``and'' at the end;
(2) by redesignating paragraph (7) as paragraph (8); and
(3) by inserting after paragraph (6) the following new
paragraph:
``(7) the Secretary of Homeland Security.''.
SEC. 911. 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.
TITLE X--INFORMATION SECURITY
SEC. 1001. INFORMATION SECURITY.
(a) Short Title.--The amendments made by 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--
``(A) the function, operation, or use of which--
``(i) involves intelligence activities;
``(ii) involves cryptologic activities
related to national security;
``(iii) involves command and control of
military forces;
``(iv) involves equipment that is an
integral part of a weapon or weapons system; or
``(v) 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); or
``(B) is protected at all times by procedures
established for information that have been specifically
authorized under criteria established by an Executive
order or an Act of Congress to be kept secret in the
interest of national defense or foreign policy; and
``(3) the term `information technology' has the meaning
given that term in section 5002 of the Clinger-Cohen Act of
1996 (40 U.S.C. 1401).
``Sec. 3533. Authority and functions of the Director
``(a) The Director shall oversee agency information security
policies and practices, including--
``(1) developing and overseeing the implementation of
policies, principles, standards, and guidelines on information
security, including through the oversight of standards
promulgated under section 5131 of the Clinger-Cohen Act of 1996
(40 U.S.C. 1441);
``(2) requiring agencies, consistent with the standards
promulgated under such section 5131 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;
``(3) 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;
``(4) overseeing agency compliance with the requirements of
this subchapter, including through any authorized action under
section 5113(b)(5) of the Clinger-Cohen Act of 1996 (40 U.S.C.
1413(b)(5)) to enforce accountability for compliance with such
requirements;
``(5) reviewing at least annually, and approving or
disapproving, agency information security programs required
under section 3534(b);
``(6) coordinating information security policies and
procedures with related information resources management
policies and procedures; and
``(7) reporting to Congress no later than March 1 of each
year on agency compliance with the requirements of this
subchapter, including--
``(A) a summary of the findings of evaluations
required by section 3535;
``(B) significant deficiencies in agency
information security practices;
``(C) planned remedial action to address such
deficiencies; and
``(D) a summary of, and the views of the Director
on, the report prepared by the National Institute of
Standards and Technology under section 20(e)(7) of the
National Institute of Standards and Technology Act (15
U.S.C. 278g-3).''.
``(b) Except for the authorities described in paragraphs (4) and
(7) of subsection (a), the authorities of the Director under this
section shall not apply to national security systems.
``Sec. 3534. Federal agency responsibilities
``(a) The head of each agency shall--
``(1) be responsible for--
``(A) providing information security protections
commensurate with the risk and magnitude of the harm
resulting from unauthorized access, use, disclosure,
disruption, modification, or destruction of--
``(i) information collected or maintained
by or on behalf of the agency; and
``(ii) information systems used or operated
by an agency or by a contractor of an agency or
other organization on behalf of an agency;
``(B) complying with the requirements of this
subchapter and related policies, procedures, standards,
and guidelines, including--
``(i) information security standards
promulgated under section 5131 of the Clinger-
Cohen Act of 1996 (40 U.S.C. 1441); 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 5131 of the Clinger-Cohen Act
of 1996 (40 U.S.C. 1441) 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
5131 of the Clinger-Cohen Act of 1996 (40 U.S.C. 1441);
``(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 subparagraph (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
subparagraph (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
5131 of the Clinger-Cohen Act of 1996 (40
U.S.C. 1441);
``(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, consistent with guidance issued under
section 3536, including--
``(A) mitigating risks associated with such
incidents before substantial damage is done;
``(B) notifying and consulting with the Federal
information security incident center established under
section 3536; and
``(C) 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 the
Clinger-Cohen Act of 1996 (40 U.S.C. 1401 et seq.);
``(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, United States Code; 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. Federal information security incident center
``(a) The Secretary of Homeland Security shall cause to be
established and operated a central Federal information security
incident center to--
``(1) provide timely technical assistance to operators of
agency information systems regarding security incidents,
including guidance on detecting and handling information
security incidents;
``(2) compile and analyze information about incidents that
threaten information security;
``(3) inform operators of agency information systems about
current and potential information security threats, and
vulnerabilities; and
``(4) consult with agencies or offices operating or
exercising control of national security systems (including the
National Security Agency) and such other agencies or offices in
accordance with law and as directed by the President regarding
information security incidents and related matters.
``(b) Each agency operating or exercising control of a national
security system shall share information about information security
incidents, threats, and vulnerabilities with the Federal information
security incident center to the extent consistent with standards and
guidelines for national security systems, issued in accordance with law
and as directed by the President.
``Sec. 3537. 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. 3538. 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. 3539. Effect on existing law
``Nothing in this subchapter, section 5131 of the Clinger-Cohen Act
of 1996 (40 U.S.C. 1441), 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 the 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. Federal information security incident center.
``3537. National security systems.
``3538. Authorization of appropriations.
``3539. 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.
Section 5131 of the Clinger-Cohen Act of 1996 (40 U.S.C. 1441) is
amended to read as follows:
``SEC. 5131. RESPONSIBILITIES FOR FEDERAL INFORMATION SYSTEMS
STANDARDS.
``(a)(1)(A) Except as provided under paragraph (2), the Secretary
of Commerce shall, on the basis of proposed standards developed under
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 Director of the Office of Management and Budget, promulgate
standards pertaining to Federal information systems.
``(B) 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) Standards described under subparagraph (B) shall be
compulsory and binding.
``(2) Standards and guidelines for national security systems, as
defined under section 3532(3) of title 44, United States Code, shall be
developed, promulgated, enforced, and overseen as otherwise authorized
by law and as directed by the President.
``(b) 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 under this section, if such standards--
``(1) contain, at a minimum, the provisions of those
applicable standards made compulsory and binding by the
Secretary of Commerce; and
``(2) are otherwise consistent with policies and guidelines
issued under section 3533 of title 44, United States Code.
``(c)(1) The decision regarding the promulgation of any standard by
the Secretary of Commerce under subsection (a) shall occur not later
than 6 months after the submission of the proposed standard to the
Secretary of Commerce under section 20 of the National Institute of
Standards and Technology Act (15 U.S.C. 278g-3).
``(2) A decision by the Secretary of Commerce to significantly
modify, or not promulgate, a proposed standard developed 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 Secretary of Commerce's proposed
decision.''.
``(d) In this section, the term `information security' has the
meaning given that term in section 3532(b)(1) of title 44, United
States Code.''.
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, and the General Accounting Office) 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 Secretary of Commerce for promulgation
under section 5131 of the Clinger-Cohen Act of 1996 (40 U.S.C.
1441)--
``(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 Secretary of
Commerce for promulgation under section 5131 of the Clinger-
Cohen Act of 1996 (40 U.S.C. 1441);
``(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 Secretary
of Commerce with such standards submitted to the Secretary; 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 5002 of the Clinger-Cohen Act of
1996 (40 U.S.C. 1401); and
``(5) the term `national security system' has the same
meaning as provided in section 3532(b)(2) of such title.
``(f) There are authorized to be appropriated to the Secretary of
Commerce $20,000,000 for each of fiscal years 2003, 2004, 2005, 2006,
and 2007 to enable the National Institute of Standards and Technology
to carry out the provisions of this section.''.
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;
(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.'';
and
(11) by inserting at the end the following:
``(i) There are authorized to be appropriated to the Secretary of
Commerce $1,250,000 for each of fiscal years 2003, 2004, 2005, 2006,
and 2007 to enable the Information Security and Privacy Advisory Board
to identify emerging issues related to information security and
privacy, and to convene public meetings on those subjects, receive
presentations, and publish reports and recommendations for public
distribution.''.
SEC. 1005. TECHNICAL AND CONFORMING AMENDMENTS.
(a) Computer Security Act.--Sections 5 and 6 of the Computer
Security Act of 1987 (40 U.S.C. 1441 note) are repealed.
(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.
(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 5 and 6 of the Computer
Security Act of 1987 (40 U.S.C. 759 note)'' and
inserting ``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--
``(c)(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), the
Clinger-Cohen Act of 1996, 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 ``the Computer Security Act of 1987
(40 U.S.C. 759 note)'' and inserting ``subchapter II of
this title''; and
(ii) by striking the semicolon 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)).
SEC. 1007. EFFECTIVE DATE.
This title and the amendments made by this title shall take effect
30 days after the date of the enactment of this Act.
TITLE XI--ADDITIONAL RESPONSIBILITIES OF SECRETARY
SEC. 1101. HOMELAND SECURITY EVENTS.
(a) In General.--At the request of the Governor of the affected
State, the Secretary may declare that a major disaster constitutes a
homeland security event for the purposes of this section. Such a
request shall be based on a finding that Federal assistance is
necessary because the event poses a significant risk to the security of
the people and property of the Nation and is of such severity and
magnitude that effective response is beyond the capability of the
effected State and local government.
(b) Federal Assistance.--In any homeland security event, in
addition to providing other assistance made available under title IV of
the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42
U.S.C. 5170 et seq.) in a major disaster, the Secretary may--
(1) establish a coordinating office and appoint a disaster
recovery director--
(A) to work with and coordinate efforts with the
Federal coordinating officer appointed under section
302 of such Act;
(B) to oversee and coordinate the timely
distribution of Federal compensation to persons injured
in such disaster;
(C) develop methods to expedite claims for relief
and assistance by individuals and businesses;
(D) coordinate long-term recovery efforts with
State and local authorities; and
(E) work with Federal agencies to develop more
effective methods to assist affected parties;
(2) require that if an office described in paragraph (1) is
established, the disaster recovery director--
(A) shall consult with local officials in developing a
recovery plan; and
(B) may appoint an independent claims manager to assist in
providing assistance;
(3) in any case in which a Federal official issues a high
security alert after a homeland security event, provide
technical assistance and reimbursement to State and local
governments in the disaster area for expenses incurred related
to such alert, including overtime for law enforcement officers
for a period of time that the Secretary determines is
necessary;
(4) provide grants to a local government which may suffer a
substantial loss of tax and other revenues;
(5) authorize reimbursement to a school system for--
(A) providing additional classroom instruction time
and related activities to students who lost
instructional time as a result of the homeland security
event;
(B) providing mental health and trauma counseling
and other appropriate support services to students
suffering from trauma-related disorders resulting from
the homeland security event;
(C) providing guidance and grief counseling and
mental health services, including overtime payment for
counselors and mental health professionals, for
students and school staff;
(D) clean up and structural inspections and repairs
of school facilities;
(E) textbooks and other school supplies and
equipment used to support the relocation of students
from schools in the disaster area;
(F) the cost of relocating students, including
transportation of students to temporary school
facilities; and
(G) loss of perishable food stock and revenue lost
from food services; and
(6) provide grants, equipment, supplies, and personnel, to
any non-profit medical facility that has--
(A) lost equipment or revenue due to a major
disaster;
(B) incurred additional costs for security
enhancements in anticipation of a homeland security
event;
(C) purchased emergency supplies, medicine, or
equipment, or contracted with medical specialists, in
order to respond to casualties expected to be treated
as a result of a major disaster; or
(D) complied with Federal and state requirements
concerning maintenance of health service treatment
procedures (such as dialysis facilities) that may not
be used as a result of a major disaster;
(7) Provide reimbursement to for-profit telecommunications
and phone services and for-profit utilities (including power,
water (including water provided by an irrigation organization
or facility), sewer, and wastewater treatment) except that
these for-profit entities shall be reimbursed only for
structures and property losses that occur during a homeland
security event if such losses are not covered by such entity's
insurance policies: and
(8) authorize testing of indoor air quality deemed
necessary by the Under Secretary for Chemical, Biological,
Radiological, and Nuclear Countermeasures and to undertake such
remedial actions as may be necessary, in the discretion of the
Under Secretary, to protect human health and safety from the
contamination of indoor air quality following any such event.
SEC. 1102. STANDARDS AND REPORTING.
The Director of the Office of Management and Budget shall--
(1) establish standards for reporting information regarding
disaster efforts made by each agency that assists in providing
relief in a disaster that the Secretary has determined
constitutes a homeland security event under section 1101;
(2) collect data from each such agency regarding the
efforts of such agency for each major disaster described in
paragraph (1) not less than once each year;
(3) report such data to the appropriate committees of
Congress annually.
SEC. 1103. SPECIAL COMMISSION TO REVIEW AIR QUALITY.
The Secretary shall appoint a special commission to undertake a
study of the authorities available to the Environmental Protection
Agency following a major disaster that the Secretary determines
constitutes a homeland security event under section 1101, particularly
a terrorist attack using chemical, biological, or nuclear weapons. The
Commission shall examine the agency's authorities to--
(1) monitor the environment,
(2) evaluate health risks associated with air pollutants
that may be released into the environment as result of such a
disaster; and
(3) communicate with affected communities and first
responders.
The Commission shall submit a report to the Secretary and to the
Congress containing the results of such study and including any
recommendations of the special commission regarding the clarification
and recommendation of Environmental Protection Agency authorities in
such situations.
PERMANENT SELECT COMMITTEE ON INTELLIGENCE
House of Representatives,
Permanant Select Committee on Intelligence,
Washington, DC, July 12, 2002.
Hon. Dick Armey
Chairman, House Select Committee on Homeland Security, The
Capitol, Washington, D.C.
Dear Chairman Armey: Yesterday, in open session, the House
Permanent Select Committee approvied the attached
recommendations to H.R. 5005, by a recorded vote of 17 ayes to
1 no vote. The amendment to Title II of H.R. 5005 would
establish an all-source Intelligence Analysis Center within the
Department of Homeland Security headed by the Under Secretary
for Information Analysis and Infrastructure Protection.
We also appreciate your invitation to testify on the
Committee's recommendations next Wednesday before the Select
Committee on Homeland Security and look forward to sharing the
Committee's views on its recommendations.
Sincerely,
Porter Goss,
Chairman,
Nancy Pelosi
Ranking Member.
------
Proposed Amendment to H.R. 5005
(Recommended to the Select Committee on Homeland Security by the
Permanent Select Committee on Intelligence)
Amend title II to read as follows:
TITLE II--INFORMATION ANALYSIS AND INFRASTRUCTURE PROTECTION
Subtitle A--Under Secretary for Information Analysis and Infrastructure
Protection
SEC. 201. UNDER SECRETARY FOR INFORMATION ANALYSIS AND INFRASTRUCTURE
PROTECTION.
(a) In General.--The Under Secretary for Information Analysis and
Infrastructure Protection (hereinafter in this title referred to as the
``Under Secretary'') shall assist the Secretary with the
responsibilities specified in section 101. The primary responsibility
of the Under Secretary shall be to provide for information analysis and
infrastructure protection to reduce the vulnerability of the United
States to acts of terrorism.
(b) Duties.--In carrying out subsection (a), the Under Secretary
shall--
(1) conduct analysis of information, including foreign
intelligence and open source information, lawfully collected by
Federal, State and local law enforcement agencies and by
elements of the intelligence community with respect to threats
of terrorist acts against the United States;
(2) integrate information, intelligence, and intelligence
analyses to produce and disseminate infrastructure
vulnerability assessments with respect to such threats;
(3) identify priorities for protective and support measures
by the Department, by other executive agencies, by State and
local governments, by the private sector, and by other
entities;
(4) review, analyze, and recommend improvements in law,
policy, and procedure for the sharing of intelligence and other
information with respect to threats against the United States
within the Federal Government and between the Federal
Government and State and local governments;
(5) under the direction of the Secretary, develop a
comprehensive national plan to provide for the security of key
resources and critical infrastructures;
(6) coordinate with other executive agencies, State and
local government personnel, agencies, and authorities, and the
private sector, to provide advice on implementation of such
comprehensive national plan;
(7) establish and administer a system to advise Federal,
State, and local authorities, the private sector, other
entities, and the public, of the likelihood of an act of
terrorism committed in the United States (such system to be
known as the Homeland Security Advisory System) under which the
Under Secretary exercises primary responsibility for public
threat advisories, and (in coordination with other executive
agencies) provides specific warning information to such
authorities, the private sector, other entities, and the
public, as well as advice about appropriate protective actions
and countermeasures;
(8) support the intelligence and information requirements
of the Department;
(9) establish requirements for the collection of
information or foreign intelligence by elements of the
intelligence community authorized to undertake such collection,
Federal law enforcement agencies, other executive agencies, and
for the request of information from State and local law
enforcement agencies or private sector entities as appropriate;
and
(10) perform such other functions as the Secretary may
direct.
Subtitle B--Intelligence Analysis Center
SEC. 211. INTELLIGENCE ANALYSIS CENTER
(a) Establishment; NFIP Agency.--(1) There is established within
the Department the Intelligence Analysis Center. The Under Secretary
shall be the head of the Intelligence Analysis Center.
(2) The Intelligence Analysis Center is a program of the
intelligence community for purposes of the National Foreign
Intelligence Program (as defined in section 3(6) of the National
Security Act of 1947 (50 U.S.C. 401a(6))).
(b) Functions.--The Under Secretary, through the Intelligence
Analysis Center, shall carry out the duties specified in paragraphs
(1), (2), (3), (8), (9), and (10) of section 201(b).
(c) Detail of Certain Personnel.--
(1) In general.--The Secretary and the Director of Central
Intelligence, the Secretary of Defense, the Attorney General,
the Secretary of State, or the head of another agency or
Department as the case may be, shall enter into cooperative
arrangements to provide for an appropriate number of
individuals to be detailed to the Under Secretary to perform
analytical functions and duties with respect to the mission of
the Department from the following agencies:
(A) The Central Intelligence Agency.
(B) The Federal Bureau of Investigation.
(C) The National Security Agency.
(D) The National Imagery and Mapping Agency.
(E) The Department of State.
(F) The Defense Intelligence Agency.
(G) Any other agency or department that the
President determines appropriate.
(2) Terms of detail.--Any officer or employee of the United
States or a member of the Armed Forces who is detailed to the
Under Secretary under paragraph (1) shall be detailed on a
reimbursable basis for a period of less than two years for the
performance of temporary functions as required by the Under
Secretary.
(d) Inclusion of Office of Intelligence as an Element of the
Intelligence Community.--Section 3(4) of the National Security Act of
1947 (50 U.S.C. 401a(4)) 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 Intelligence Analysis Center of the
Department of Homeland Security; and''.
SEC. 212. MISSION OF THE INTELLIGENCE ANALYSIS CENTER.
(a) In General.--The mission of the Intelligence Analysis Center is
as follows:
(1) Analysis and production.--
(A) Correlating and evaluating information and
intelligence related to the mission of the Department
collected from all sources available.
(B) Producing all-source collaborative intelligence
analysis, warnings, tactical assessments, and strategic
assessments of the terrorist threat and infrastructure
vulnerabilities of the United States.
(C) Providing apprporiate dissemination of such
assessments.
(D) Improving the lines of communication with
respect to homeland security between the Federal
Government and State and local public safety agencies
and the private sector through the timely dissemination
of information pertaining to threats of acts of
terrorism against the United States.
(2) Requests for the collection and coordination of
information.--
(A) Requesting the collection of information or
national intelligence by elements of the intelligence
community authorized to undertake such collection,
Federal law enforcement agencies, other executive
agencies, or request information from State and local
law enforcement agencies or private sector entities as
appropriate.
(B) Coordinating with elements of the intelligence
community and with Federal, State, and local law
enforcement agencies, and the private sector as
appropriate.
(3) Additional Duties.--Performing such other functions as
the Secretary may direct.
(b) Strategic and Tactical Missions of the Intelligence Analysis
Center.--The Under Secretary shall conduct strategic and tactical
assessments and warnings through the Intelligence Analysis Center,
including research, analysis, and the production of assessments on the
following as they relate to the mission of the Department:
(1) Domestic terrorism.
(2) International terrorism.
(3) Counterintelligence.
(4) Transnational crime.
(5) Proliferation of weapons of mass destruction.
(6) Illicit financing of terrorist activities.
(7) Cybersecurity and cybercrime.
(8) Key resources and critical infrastructures.
(c) Staffing of the Intelligence Analysis Center.--
(1) Functions transferred.--In accordance with title VIII,
for purposes of carrying out this title, there is transferred
to the Under Secretary the functions, personnel, assets, and
liabilities of the following entities:
(A) The National Infrastructure Protection Center
of the Federal Bureau of Investigation (other than the
Computer Investigations and Operations Section).
(B) The Critical Infrastructure Assurance Office of
the Department of Commerce.
(C) The Computer Security Division of the National
Institute of Standards and Technology.
(D) The Federal Computer Incident Response Center
of the General Services Administration.
(E) The National Infrastructure Simulation and
Analysis Center of the Department of Energy.
(F) The National Communications System of the
Department of Defense.
(G) The intelligence element of the Coast Guard.
(H) The intelligence element of the United States
Customs Service.
(I) The intelligence element of the Immigration and
Naturalization Service.
(J) The intelligence element of the Transportation
Security Administration.
(K) The intelligence element of the Federal
Protective Service.
(L) The El Paso Intelligence Center of the Drug
Enforcement Administration.
(2) Structure.--It is the sense of Congress that the Under
Secretary should model the Intelligence Analysis Center on the
technical, analytic approach of the Information Dominance
Center of the Department of the Army to the maximum extent
feasible and appropriate.
Subtitle C--Additional Provisions
SEC. 221. ACCESS TO INTELLIGENCE.
(a) In General.--To the extent approved by the President, the
Secretary and the Under Secretary shall have access to all intelligence
which is collected by any department, agency, or other entity of the
United States that is related to threats of acts of terrorism against
the United States and to other areas of responsibility described in
section 101(b).
(b) Immediate Provision of Certain Intelligence.--Without regard to
whether the Secretary or the Under Secretary has made any request or
entered into any cooperative arrangement to receive material on a
regular or routine basis, all executive agencies promptly shall provide
to the Secretary and the Under Secretary--
(1) all reports, assessments, and analytical
information relating to threats of terrorism in the
United States and to other areas of responsibility
described in section 101(b);
(2) all information concerning infrastructure or
other vulnerabilities of the United States to
terrorism, whether or not such information has been
analyzed;
(3) all information relating to significant and
credible threats of terrorism in the United States,
whether or not such information has been analyzed, if
the President has provided that the Secretary or the
Under Secretary shall have access to such information;
and
(4) such other material as the President may
further provide.
(c) Protection from Unauthorized Disclosure.--The Secretary shall
ensure that any material received pursuant to this section is protected
from unauthorized disclosure and handled and used only for the
performance of official duties, and that any intelligence information
shared under this section shall be transmitted, retained, and
disseminated consistent with the authority of the Director of Central
Intelligence to protect intelligence sources and methods under the
National Security Act and related procedures or, as appropriate,
similar authorities of the Attorney General concerning sensitive law
enforcement information.
SEC. 222. PROTECTION OF INFORMATION.
(a) Information Voluntarily Provided.--Information provided
voluntarily by non-Federal entities or individuals that relates
directly to the duties of the Under Secretary for Information Analysis
and Infrastructure Protection to reduce the vulnerability of the United
States to acts of terrorism and is or has been in the possession of the
Department shall not be subject to section 552 of title 5, United
States Code.
(b) Information Provided to State and Local Governments.--
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.
SEC. 223. CONFORMING AMENDMENTS.
(a) Inclusion of Under Secretary on the Committee on Transnational
Threats of the National Security Council.--Section 101(i)(2) of the
National Security Act of 1947 (50 U.S.C. 402(i)(2)) is amended--
(1) by redesignating subparagraph (F) as subparagraph (G);
and
(2) by inserting after subparagraph (E) the following new
subparagraph:
``(F) The Under Secretary for Information Analysis and
Infrastructure Protection of the Department of Homeland
Security.
(b) Title 5, United States Code.--Section 5313 of title 5, United
States Code, is amended by adding at the end the following:
``The Under Secretary for Information Analysis and
Infrastructure Protection of the Department of Homeland
Security.''.9/12/2002 10:07:59 AM -
F:\V7\091202\091202.028 Created by: VLCirks deg.
COMMITTEE ON INTERNATIONAL RELATIONS
House of Representatives,
Committee on International Relations,
Washington, DC, July 12, 2002.
Hon. Dick Armey
Chairman, House Select Committee on Homeland Security, The
Capitol, Washington, D.C.
Dear Mr. Chairman: Pursuant to H.Res. 449, the Committee on
International Relations submits its recommendations on portions
of the bill, H.R. 5005, the ``Homeland Security Act of 2002,''
which were referred to it by the Speaker pursuant to Rule X of
the House Rules. The text of these recommendations and
supporting explanatory material are included herein.
Sincerely,
Henry J. Hyde,
Chairman.
------
House International Relations Committee
submission of recommendations to the house select committee on homeland
security
HOMELAND SECURITY ACT OF 2002
July 12, 2002
Mr. Hyde, from the Committee on International
Relations,submitted the following
RECOMMENDATIONS
to the Select Committee on Homeland Security
[To accompany H.R. 5005]
The Committee on International Relations, to whom was
referred portions of the bill, H.R. 5005, the Homeland Security
Act of 2002, hereby submits its recommendations to the
Committee on Homeland Security.
The Amendments
Showing the Amendment to H.R. 5005
Offered by Mr. Hyde and Mr. Lantos
As Adopted by the Committee on International Relations
Page 18, beginning on line 18, strike ``and activities of the
assessment, detection, and cooperation program''.
Page 23, strike line 10 and all that follows through line 6 on page
24, and insert the following:
SEC. 403. VISA ISSUANCE.
(a) 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 (b) 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, 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).
(b) Authority of the Secretary of State.--
(1) The Secretary of State may direct a consular officer to
refuse a visa to an alien if the Secretary of State considers
such refusal necessary or advisable in the foreign policy or
security interests of the United States.
(2) Nothing in this section 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 212(a)(3)(C) of the Immigration and
Nationality Act (8 U.S.C. 1182(a)(3)(C)).
(C) Section 212(f) of the Immigration and
Nationality Act (8 U.S.C. 1182(f)).
(D) Section 237(a)(4)(C) of the Immigration and
Nationality Act (8 U.S.C. 1227(a)(4)(C)).
(E) Section 401 of the Cuban Liberty and Democratic
Solidarity (LIBERTAD) Act of 1996 (22 U.S.C. 6091;
Public Law 104-114).
(F) 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.
(G) 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.
(H) Section 568 of the Foreign Operations, Export
Financing, and Related Programs Appropriations Act,
2002 (Public Law 107-115).
(3) Procedure for Issuance of Student Visas.--
Notwithstanding any other provision of law, an alien may not be
granted a visa for study in the United States under
subparagraphs (F), (J), or (M) of section 101(a)(15) of the
Immigration and Nationality Act without review by the Secretary
of State if the alien is a national of a country designated
under section 620A of the Foreign Assistance Act of 1961 (22
U.S.C. 2371) as a country that has repeatedly provided support
for acts of international terrorism, section 6(j) of the Export
Administration Act (50 U.S.C. app. 2405(j)) as a country that
supports acts of international terrorism, or section 40A of the
Arms Export Control Act (22 U.S.C. 2781) as a country not
cooperating fully with United States antiterrorism efforts.
(4) Procedure for Issuance of Diversity Immigrant Visas.--
Notwithstanding any other provision of law, an alien may not be
granted an immigrant visa under section 203(c) of the
Immigration and Nationality Act (8 U.S.C. 1153(c)) relating to
diversity immigrants without review by the Secretary of State
if the alien is a national of a country designated under
section 620A of the Foreign Assistance Act of 1961 (22 U.S.C.
2371) as a country that has repeatedly provided support for
acts of international terrorism, section 6(j) of the Export
Administration Act (50 U.S.C. app. 2405(j)) as a country that
supports acts of international terrorism, or section 40A of the
Arms Export Control Act (22 U.S.C. 2781) as a country not fully
cooperating with United States antiterrorism efforts.
(c) Assignment of Homeland Security Employees to Diplomatic and
Consular Posts.--
(1) In general.--The Secretary is authorized to assign
employees of the Department of Homeland Security to diplomatic
and consular posts abroad to perform the following functions:
(A) Provide expert advice 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 of
Homeland Security or upon request by a consular officer
or other person charged with adjudicating such
applications.
(C) Conduct investigations with respect to matters
under the jurisdiction of the Secretary.
(2) Permanent assignment; participation in terrorist
lookout committee.--When appropriate, employees of the
Department of Homeland Security assigned to perform functions
described in paragraph (1) 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).
(3) Training and hiring.--
(A) The Secretary shall ensure that any employees
of the Department of Homeland Security assigned to
perform functions described in paragraph (1) shall be
provided all necessary training to enable them to carry
out such functions, including training in foreign
languages, in conditions in the particular country
where each employee is assigned, and in other
appropriate areas of study.
(B) Prior to assigning employees of the Department
to perform the functions described in paragraph (1),
the Secretary shall promulgate regulations establishing
foreign language proficiency requirements for employees
of the Department performing the functions described in
paragraph (1) and providing that preference shall be
given to individuals who meet such requirements in
hiring employees for the performance of such functions.
(C) The Secretary is authorized to use the National
Foreign Affairs Training Center, on a reimbursable
basis, to obtain the training described in subparagraph
(A).
(d) 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.
Section by Section Analysis
Section 302, as amended by the Committee, will transfer
from the Department of Energy to the Department of Homeland
Security certain programs related to nuclear safety, but not
overseas assistance programs for the countries of the former
Soviet Union relating to the protection of nuclear materials in
these countries.
Section 403(a)(1), as amended in the Committee markup,
provides that (with certain exceptions provided in subsection
(b)), the Secretary shall be vested exclusively with
regulatory, administrative, and enforcement authority over
immigration and nationality laws relating to the functions of
consular officers in connection with the granting or refusal of
visas. This paragraph further provides that the visa-related
authorities conferred upon the Secretary of Homeland Security
shall be exercised through the Secretary of State, and that the
Secretary of Homeland Security shall not have authority to
alter or reverse a decision of a consular officer to refuse a
visa.
Section 403(a)(2) provides that the Secretary of Homeland
Security may confer or impose the visa-related authorities
specified in paragraph (1) on any officer or employee of the
United States, with the consent of the head of the agency by
which such person is employed. This could include, for
instance, a delegation of some or all of these authorities back
to the Secretary of State.
Section 403(b)(1) provides that the Secretary of State may
direct a consular officer to refuse a visa on foreign policy or
security grounds. This authority is similar to the authority
currently provided the Secretary of State under section
212(a)(3)(c) of the Immigration and Nationality Act.
Section 403(b)(2) specifies a number of foreign policy-
related authorities under the Immigration and Nationality Act
which will be retained by the Secretary of State.
Section 403(b)(3) provides that no student visa may be
issued to a national of a state that has been designated a
sponsor of international terrorism, or that is not cooperating
fully with United States antiterrorism efforts, without a
review by the Secretary of State.
Section 403(b)(4) provides that no diversity immigrant visa
may be issued to a national of a state that has been designated
a sponsor of international terrorism, or that is not
cooperating fully with United States antiterrorism efforts,
without a review by the Secretary of State.
Section 403 (c)(1) provides that the Secretary of Homeland
Security shall have authority to assign Homeland Security
employees to diplomatic and consular posts abroad to advise
consular officers on homeland security issues, to review visa
applications, and to conduct investigations on threats to
homeland security.
Section 403(c)(2) provides that the overseas assignments
described in paragraph (1) may, where appropriate, be permanent
assignments, and that the Secretary of Homeland Security may
direct that employees on such permanent assignments shall
participate in terrorist lookout committees at such posts.
Section 403(c)(3) provides that the Secretary of Homeland
Security shall provide training for Homeland Security employees
assigned abroad in foreign languages, country conditions, and
other appropriate areas of study; shall establish foreign
language requirements for such positions and employment
preferences for persons who meet such requirements; and may use
the National Foreign Affairs Training Center for the purpose of
training described in subparagraph (a).
Section 403(d) provides that nothing in section 403 shall
be construed to create a private right of action to challenge a
decision of a consular officer to grant or deny a visa. This is
to ensure that the amendment provided by this section does not
affect current law with respect to non-reviewability of visa
decisions.
Purpose and Summary
Sections 302 and 403 of H.R. 5005.
The Speaker referred H.R. 5005 to the Committee on
International Relations for action on provisions within its
rule X jurisdiction. Those provisions are Section 302, dealing
with the nonproliferation programs of the Department of Energy,
and Section 403, dealing with issuance and denial of visas.
The Committee considered and adopted three amendments. An
amendment to section 302(2)(C) was offered by Chairman Hyde at
the request of the Administration. This amendment deletes a
clause relating to certain assistance programs designed to
reduce the risk of nuclear proliferation abroad. Under
subsection 302(2)(c) certain programs and activities of the
Department of Energy, including the Nuclear Assessment Program,
would move to the new Department of Homeland Security.
Subsection 302(c) of the bill as introduced also included a
clause which would transfer to the new Department certain
assistance programs to the countries of the former Soviet
Union. These programs, which are currently part of the
Cooperative Threat Reduction Program, are designed to prevent
the proliferation of nuclear materials in the recipient
countries.
The amendment adopted by the Committee strikes the clause
that would have transferred these assistance programs based on
the representation from the Administration officials that the
transfer of such assistance programs was no longer
contemplated.
The Committee also considered and adopted an substitute
amendment to section 403. This amendment is intended to improve
the President's proposal for reforming the processes by which
applications for visas to the United States are considered at
United States diplomatic and consular posts abroad. It
preserves the fundamental recommendation of the President to
transfer to the Secretary of Homeland Security exclusive
authority to issue regulations with respect to, administer, and
enforce provisions of the Immigration and Nationality Act and
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. However,
under both the bill as introduced and the amendment adopted by
the Committee, the actual processing of visa applications will
continue to be done primarily by consular officers and other
employees of the Department of State. United States Ambassadors
and other heads of United States missions abroad would also
continue to exercise their authority as chiefs of mission under
Section 207 of the Foreign Service Act of 1980.
The Committee amendment to Section 403 embodies a
compromise between the Administration's original plan for visa
processing, as reflected in H.R. 5005 as introduced, and a
dramatically different proposal which was offered and
ultimately rejected in the Committees on the Judiciary and
Government Reform, under which all visa processing would have
been performed by employees of the Department of Homeland
Security. The amendment adopted by the International Relations
Committee explicitly authorizes the assignment of Homeland
Security employees in U.S. diplomatic and consular posts
abroad. Rather than assume all visa processing functions,
however, these employees will concentrate on identifying and
reviewing cases that present homeland security issues.
Under the amendment, Homeland Security officers at U.S.
embassies and other overseas posts would provide expert advice
and training to consular officers, ensure their access to
appropriate information, investigate threats to the homeland
security of the United States (including but not limited to
participating in ``terrorist lookout committees'' mandated for
each Embassy by the Enhanced Border Security and Visa Entry
Reform Act of 2002), and review individual visa petitions. This
will preserve the essence of the Administration's proposal
while ensuring that security concerns will be central to key
decisions made abroad.
The amendment makes clear that the Secretary of Homeland
Security would have no authority to reverse a visa denial by a
consular officer. It also provides that nothing in section 403
would create or authorize a private right of action to
challenge such a decision. This change is designed to avoid an
unintended consequence of the original language, which might
have subjected denials of visas by consular officers to various
types of administrative and judicial review that do not apply
to such decisions under current law.
The amendment also preserves the authority of the Secretary
of State to refuse a visa on foreign policy grounds, and
extends this authority to cover security grounds.
The amendment also includes a provision that makes clear
that nothing in section 403 shall be construed to affect the
Secretary's authorities under certain laws. The Committee
believes that these are some of the key authorities that the
Secretary currently has, but that other authorities vested in
the Secretary of State by the Immigration and Nationality Act
and other relevant laws will continue to remain with the
Secretary, consistent with Section 403(a)(1). The Committee
believes that the list of provisions in its recommendation
should be further refined as the legislative process moves
forward and is prepared to work with the Select Committee in
this regard.
The amendment also makes other technical and conforming
changes, including requirements for language training of
certain Homeland Security employees.
A perfecting amendment to the substitute amendment to
section 403 was adopted by the Committee requiring that no
application for a nonimmigrant student visa or a diversity
lottery immigrant visa may be granted without a review by the
Secretary of State if the applicant is a national of a country
designated as supporting terrorism, or a country that is not
fully cooperating with U.S. antiterrorism efforts. The
substitute amendment as amended was adopted.
The Committee believes that the Secretary of Homeland
Security should review the effectiveness of the student visa
program with the goal of ensuring that no student visas be
granted to nationals of: (1) countries on the State
Department's list of state sponsors of terrorism; or (2)
countries in which the governments or persons operating with
the complicity or protection of such governments that have been
sanctioned for the proliferation of weapons of mass destruction
or the means to deliver them for a period of at least five
years from the date of imposition of such sanctions, if the
visa applicant is seeking to engage in a commercial activity or
academic pursuit related to one of the critical fields on the
government's Technology Alert List. This list, which has been
distributed to all of our consular posts, includes such
subjects as: nuclear technology; missile technology,
propulsion, and guidance systems; chemical and biotechnology
engineering; and remote imaging technologies.
Background and Need for the Legislation
On June 6, 2002, President Bush proposed creating a new
Department of Homeland Security. On June 18, 2002, the White
House issued proposed legislative language, which was
introduced on June 24, 2002 by Mr. Armey (by request) as H.R.
5005.
The September 11 terrorist attacks on the United States
brought to light serious shortcomings in current United States
visa adjudication processes and policies. While efforts to
encourage courtesy and facilitate legitimate travel, such as
the reunification of families, commercial activities, tourism,
cultural and educational exchange, and the admission of those
with needed skills, to the United States are entirely
appropriate, they must be accompanied by an abiding commitment
to security and by more vigorous and effected methods of
investigation to help identify and exclude persons who threaten
the security of the United States.
In order to identify persons who are known or reasonably
believed to present security or other concerns for the United
States, State Department consular officers must rely on a
database the content of which is supplied by law enforcement
and intelligence agencies. To the extent this database is
insufficient, the consular officers will be at a disadvantage
when making determinations on whether to issue or deny visas.
The transfer of ultimate authority over visa processing to the
Department of Homeland Security should facilitate the
integration and sharing of information among intelligence and
law enforcement agencies and with United States Government
personnel charged with considering visa applications.
Hearings
The Committee held one day of hearings on H.R. 5005 on June
26, 2002. Testimony was received from Under Secretary of State
for Political Affairs Marc Grossman, representing the
Department of State and the Bush Administration.Committee
Consideration
On July 10, 2002 the Committee met in open session and
recommended 3 amendments be submitted to the Committee on
Homeland Security by voice vote, a quorum being present.
Congressional Budget Ofice Cost Estimate
CBO estimates these amendments would not affect direct
spending or revenues.
COMMITTEE ON THE JUDICIARY
House of Representatives,
Committee on the Judiciary,
Washington, DC, July 12, 2002.
Hon. Richard Armey
Chairman,
Hon. Nancy Pelosi
Ranking Member, House Select Committee on Homeland Security, The
Capitol, Washington, D.C.
Dear Chairman Armey and Ranking Member Pelosi: Pursuant to H. Res.
449, we are pleased to transmit to the Select Committee on Homeland
Security the Committee on the Judiciary's views and recommendations
concerning H.R. 5005, the ``Homeland Security Act of 2002.'' The
recommendations represent the Judiciary Committee's bipartisan support
for the creation of a Department of Homeland Security and reflect the
Committee's judgment that H.R. 5005 can be further refined to ensure
that this Department fulfills its fundamental purpose to prevent
terrorist attacks on American soil.
On June 26, 2002, the Committee on the Judiciary received testimony
from Homeland Security Director Tom Ridge concerning H.R. 5005. In
addition, the Judiciary Committee Subcommittees on Crime, Terrorism,
and Homeland Security, Immigration Border Security, and Claims, and
Commercial and Administrative Law conducted separate hearings which
examined this proposed legislation. The Committee recommendations
reflect the views received at these hearings as well as extensive
consultation with Administration officials, outside experts, and the
conclusions of several congressionally-chartered antiterrorism
commissions.
The proposed Department's central, predominate purpose is to
assess, prevent, and respond to terrorism and other threats affecting
America's internal security. The Judiciary Committee has a special
responsibility to help effectuate this goal. As it has done repeatedly
since September 11, 2001, the Committee has responded to the
President's call to action by diligently and expeditiously discharging
its responsibility to ensure the security of all Americans. Given the
Committee's jurisdiction over subversive activities affecting the
internal security of the United States, the nation's immigration and
naturalization laws, federal civil and criminal procedure, and federal
administrative practice and procedure, the Committee is uniquely
positioned to assist the creation of a focused and effective Department
of Homeland Security.
The amendments to H.R. 5005 discussed in this letter were favorably
reported by the Judiciary Committee on July 10, 2002. Most of these
changes were contained in a Manager's Amendment which we jointly
introduced. We have included a summary of these recommendations and
additional views presented by the members of the Judiciary Committee
for your review. While consistent with the articulated mission of the
Department of Homeland Security, the proposed amendments recommend
important structural changes which would strengthen the Department's
ability to effectively assess, deter, and respond to terrorist threats.
Of no less importance, the Committee makes critical recommendations to
help safeguard the civil liberties and freedoms cherished by all
Americans.
The Judiciary Committee strongly supports the establishment of a
federal Department primarily dedicated to homeland security. Our
recommendations help advance this goal and should provide valuable
guidance to the Select Committee as it completes the critical task of
shaping the Department of Homeland Security.
Sincerely,
F. James Sensenbrenner, Jr.,
Chairman,
John Conyers, Jr.,
Ranking Member.
______
Amendments to H.R. 5005
Adopted by the Committee on the Judiciary
(July 10, 2002)
(Page & line nos. refer to the text of the introduced bill)
Strike ``emergency response providers'' each place it appears in
the bill and insert ``emergency responders''.
Page 4, strike lines 2 and 3 and insert the following:
For purposes of this Act:
Page 4, strike lines 13 through 17 and insert the following:
(4) The term ``emergency responder''--
(A) means those organizations that represent or
support the first arriving agent or unit capable of
moderating an emergency condition or administering to
the needs created by an emergency event; and
(B) includes Federal, State, and local law
enforcement, emergency medical services, emergency
management, fire, hazardous materials response, public
works, public safety communications personnel; public
health and medical care personnel; and chief executive
governmental officials.
Page 5, strike lines 3 through 6 and insert the following:
(7) 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 non-profit corporation under state
law), or regional or interstate government.
(B) an Indian tribe or authorized tribal
organization, or an Alaska Native village or
organization; and
(C) a rural community, unincorporated town or
village, or other public entity.
Page 5, strike lines 7 through 10.
Page 5, strike lines 15 through 21 and insert the following:
(11) The term ``United States'', when used in a geographic
sense, means any State of the United States, the District of
Columbia, Puerto Rico, the Virgin Islands, Guam, American
Samoa, and the Commonwealth of the Northern Mariana Islands,
any possession of the United States, and any waters within the
jurisdiction of the United States.
Page 5, after line 21, insert the following:
(12)(A) The term ``crisis management''--
(i) means a function that is predominantly a law
enforcement function;
(ii) includes measures to identify, acquire, and
plan the use of resources needed to anticipate,
prevent, or resolve a threat or act of terrorism.
(B) With respect to a terrorist incident, the term--
(i) includes traditional law enforcement missions,
such as intelligence, surveillance, tactical
operations, negotiations, forensics, and
investigations, as well as technical support missions,
such as agent identification, search, render safe
procedures, transfer and disposal, and limited
decontamination;
(ii) in addition to the traditional law enforcement
missions, also includes assurance of public health and
safety.
(13) The term ``consequence management'' means a function
that is predominantly emergency management and includes
measures to protect public health and safety, restore essential
government services, and provide emergency relief to
governments, businesses, and individuals affected by the
consequences of terrorism.
(14)(A) The term ``terrorism'' includes international
terrorism or domestic terrorism.
(B) In this paragraph the term ``international terrorism''
means activities that occur primarily outside the territorial
jurisdiction of the United States, or transcend national
boundaries in terms of the means by which they are
accomplished, the persons they appear intended to intimidate or
coerce, or the locale in which their perpetrators operate or
seek asylum, and--
(i) involve violent acts or acts dangerous to human
life that are a violation of the criminal laws of the
United States or of any State, or that would be a
criminal violation if committed within the jurisdiction
of the United States or of any State; or
(ii) appear to be intended--
(I) to intimidate or coerce a civilian
population;
(II) to influence the policy of a
government by intimidation or coercion;
(III) to affect the conduct of a government
by mass destruction, assassination or
kidnapping; or
(IV) to retaliate against a government or
its civilian population.
(C) In this paragraph the term ``domestic terrorism'' means
activities that occur primarily within the territorial
jurisdiction United States, and--
(i) involve violent acts or acts dangerous to human
life that are a violation of the criminal laws of the
United States or of any State, or that would be a
criminal violation if committed within the jurisdiction
of the United States or of any State; or
(ii) appear to be intended--
(I) to intimidate or coerce a civilian
population;
(II) to influence the policy of a
government by intimidation or coercion;
(III) to affect the conduct of a government
by mass destruction, assassination or
kidnapping; or
(IV) to retaliate against a government or
its civilian population.
(15) The term ``critical infrastructure'' means physical
and cyber-based public and private systems essential to the
minimum operations of the economy and government, including
information and telecommunications, energy, banking and
finance, transportation, and water systems and emergency
services.
Page 7, strike lines 1 through 3 and insert the following:
(C) coordinate Federal, State, and local government
personnel, agencies, and authorities with each other
and with the private sector to prevent, prepare, and
disrupt terrorist activities.''
Page 7, strike line 11 and insert the following:
(C) enforcement and security; and
Page 7, strike line 12 and insert the following:
(D) crisis and consequence training and coordination.
Page 7, strike lines 13 through 17.
Page 8, strike line 18 and insert the following:
(a) Deputy Secretary; Under Secretaries; General Counsel.--
Page 9, strike lines 7 through 8 and insert the following:
(4) An Under Secretary for Enforcement and Security.
Page 9, strike lines 9 through 10.
Page 9, after line 12, insert the following:
(8) A General Counsel, who shall be the chief legal officer
of the Department.
Page 10, strike lines 1 and 2 (and redesignate provisions
accordingly).
Page 10, strike line 4 (and redesignate provisions accordingly).
Page 12, line 4, after ``countermeasures'' insert ``related to the
warnings''.
Page 12, strike ``and'' at line 5, strike the period at line 12 and
insert ``; and'', and after line 12 insert the following:
(8) securing the people, infrastructures, property,
resources, and systems in the United States from acts of
terrorism involving chemical, biological, radiological, or
nuclear weapons or other emerging threats.
Page 13, line 17, strike ``The'' and insert ``(a) In General.--
The''.
Page 13, line 17, strike ``reports, assessments, and analytical''.
Page 14, line 16, strike ``reports, assessments, and analytical''.
Page 15, after line 18, insert the following:
(b) Information Sharing.--The Secretary shall make regulations to
provide that information required to be made available to the Secretary
under subsection (a) is shared with Federal, State, and local agencies
and employees as necessary to guard against threats to homeland
security.
Page 15, after line 24 insert the following (and redesignate
provisions and amend the table of contents accordingly):
SEC. 205. 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. 206. 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 new technologies sustain, and
do not erode, the protections provided in all statues 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 and
section 552a of title 5, United States Code;
(3) evaluating legislative and regulatory proposals
involving collection, use, and disclosure of personal
information by the Federal government for consistency with the
Privacy Act of 1974 and section 552a of title 5, United States
Code;
(4) conducting a privacy impact assessment of proposed
rules when the Secretary deems such assessment appropriate; and
(5) preparing a report to the Congress on an annual basis
that identifies any complaints received from the public as to
privacy violations and how the Department addressed such
complaints as well as internal controls implemented to improve
privacy protections.
Page 16, strike lines 11 through 15.
Page 16, line 16, strike ``(2)`` and insert ``(1)''.
Page 16, line 25, insert ``and'' after the semicolon.
Page 17, line 1, strike ``(3)'' and insert ``(2)''.
Page 17, line 9, strike ``; and'' and insert a period.
Page 17, strike lines 10 through 14.
Page 21, after line 2, insert the following (and redesignate
provisions and amend the table of contents accordingly):
SEC. 305. COMPELLING NEED FOR SCIENCE AND TECHNOLOGY RESEARCH AND
DEVELOPMENT.
It is the sense of the Committee on the Judiciary of the House of
Representatives that there is a compelling need for the Department of
Homeland Security to carry out science and technology research and
development in a robust and effective manner to prevent and detect
terrorist attacks, including weapons of mass destruction and cyber
security attacks.
Page 21, strike lines 3 through 4 and insert the following (and
amend the table of contents accordingly):
TITLE IV--ENFORCEMENT AND SECURITY
Subtitle A--Assignment of Responsibilities for Enforcement and Security
Page 21, strike lines 5 through 6, and insert the following:
SEC. 401. UNDER SECRETARY FOR ENFORCEMENT AND SECURITY.
Page 21, beginning at line 9, strike ``Border and Transportation''
and insert with ``Enforcement and''.
Page 21, strike lines 18 through 24 and insert the following (and
redesignate provisions accordingly):
(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 411 takes effect;
(4) establishing and administering rules, in accordance
with section 403, 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;
Page 22, line 2, strike ``and''.
Page 22, line 5, strike the period and insert a semicolon.
Page 22, after line 5, insert the following:
(7) developing a national program to enhance the capacity
of State and local agencies in crisis and consequence
management to prepare for and respond to incident of terrorism
and other emergencies, through coordinated training, equipment
acquisition, technical assistance, and support for Federal,
State, and local exercises;
(8) 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;
(9) coordinating other Federal response resources in the
event of a terrorist attack and other emergencies;
(10) aiding the recovery from terrorist attacks and other
emergencies;
(11) building a comprehensive national incident management
system with Federal, State, and local government personnel,
agencies, and authorities, to respond to such attacks and other
emergencies;
(12) consolidating existing Federal Government emergency
response plans into a single, coordinated national response
plan; and
(13) developing comprehensive programs for developing
interoperative communications technology, and helping to ensure
that emergency response providers acquire such technology.
Page 22, strike lines 13 through 15 (and redesignate provisions
accordingly).
Page 23, line 5, strike ``and''.
Page 23, line 9, strike the period and insert a semicolon.
Page 23, after line 9, insert the following:
(7) the Office of National Preparedness of the Federal
Emergency Management Agency, including the functions of the
Director of the Federal Emergency Management Agency relating
thereto;
(8) the Office for Domestic Preparedness of the Office of
Justice Programs, including the functions of the Attorney
General relating thereto;
(9) the National Domestic Preparedness Office of the
Federal Bureau of Investigation, including the functions of the
Attorney General relating thereto;
(10) the Domestic Emergency Support Teams of the Department
of Justice, including the functions of the Attorney General
relating thereto;
(11) the Office of the Assistant Secretary for Public
Health Emergency Preparedness (including 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 relating thereto; and
(12) 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.
Beginning on page 23, strike line 10 through page 24, line 6, and
insert the following:
SEC. 403. VISA ISSUANCE.
(a) 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 (b) 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, 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).
(b) Authority of the Secretary of State.--
(1) Foreign Policy or Security Interests of the United
States.--The Secretary of State may direct a consular officer
to refuse a visa to an alien if the Secretary of State
considers such refusal necessary or advisable in the foreign
policy or security interests of the United States.
(2) Construction.--Nothing in this section 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 212(a)(3)(C) of the Immigration and
Nationality Act (8 U.S.C. 1182(a)(3)(C)).
(C) Section 212(f) of the Immigration and
Nationality Act (8 U.S.C. 1182(f)).
(D) Section 237(a)(4)(C) of the Immigration and
Nationality Act (8 U.S.C. 1227(a)(4)(C)).
(E) Section 401 of the Cuban Liberty and Democratic
Solidarity (LIBERTAD) Act of 1996 (22 U.S.C. 6091).
(F) 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.
(G) 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.
(H) Section 568 of the Foreign Operations, Export
Financing, and Related Programs Appropriations Act,
2002 (Public Law 107-115).
(c) Assignment of Homeland Security Employees to Diplomatic and
Consular Posts.--
(1) In general.--The Secretary is authorized to assign
employees of the Department of Homeland Security to diplomatic
and consular posts abroad to perform the following functions:
(A) Provide expert advice 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 of
Homeland Security or upon request by a consular officer
or other person charged with adjudicating such
applications.
(C) Conduct investigations with respect to matters
under the jurisdiction of the Secretary.
(2) Permanent assignment; participation in terrorist
lookout committee.--When appropriate, employees of the
Department of Homeland Security assigned to perform functions
described in paragraph (1) 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).
(3) Training and hiring.--
(A) In general.--The Secretary shall ensure that
any employees of the Department of Homeland Security
assigned to perform functions described in paragraph
(1) and, as appropriate, consular officers, shall be
provided all necessary training to enable them to carry
out such functions, including training in foreign
languages, interview techniques, fraud detection
techniques, and other skills required by such
employees, in conditions in the particular country
where each employee is assigned, and in other
appropriate areas of study.
(B) Foreign language proficiency.--Prior to
assigning employees of the Department to perform the
functions described in paragraph (1), the Secretary
shall promulgate regulations establishing foreign
language proficiency requirements for employees of the
Department performing the functions described in
paragraph (1) and providing that preference shall be
given to individuals who meet such requirements in
hiring employees for the performance of such functions.
(C) Use of national foreign affairs training
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).
(d) 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.
(e) 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 2 years 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 Governmental Affairs of the Senate.
Page 24, after line 6, insert the following (and amend the table of
contents accordingly):
Subtitle B--Immigration and Nationality Functions
CHAPTER 1--IMMIGRATION ENFORCEMENT
SEC. 411. TRANSFER OF FUNCTIONS TO UNDER SECRETARY FOR ENFORCEMENT AND
SECURITY.
In accordance with title VIII, there shall be transferred from the
Commissioner of Immigration and Naturalization to the Under Secretary
for Enforcement and 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. 412. ESTABLISHMENT OF BUREAU OF IMMIGRATION ENFORCEMENT.
(a) Establishment of Bureau.--
(1) In general.--There is established in the Department of
Homeland Security a bureau to be known as the ``Bureau of
Immigration Enforcement''.
(2) Director.--The head of the Bureau of Immigration
Enforcement shall be the Director of the Bureau of Immigration
Enforcement, who--
(A) shall report directly to the Under Secretary
for Enforcement and Security; and
(B) shall have a minimum of 10 years professional
experience in law enforcement, at least 5 of which
shall have been years of service in a managerial
capacity.
(3) Functions.--The Director of the Bureau of Immigration
Enforcement--
(A) shall establish the policies for performing
such functions as are--
(i) transferred to the Under Secretary for
Enforcement and Security by section 411 and
delegated to the Director by the Under
Secretary for Enforcement and Security; or
(ii) otherwise vested in the Director by
law;
(B) shall oversee the administration of such
policies; and
(C) shall advise the Under Secretary for
Enforcement and Security with respect to any policy or
operation of the Bureau of Immigration Enforcement that
may affect the Bureau of Citizenship and Immigration
Services of the Department of Justice established under
chapter 2, including potentially conflicting policies
or operations.
(4) Program to collect information relating to foreign
students.--The Director of the Bureau of Immigration
Enforcement 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 411 takes effect, the Director of the Bureau of
Immigration Enforcement 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, as a condition on further
promotion--
(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 411 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 Immigration Enforcement.
(2) Functions.--In consultation with Bureau of Immigration
Enforcement personnel in local offices, the Chief of Policy and
Strategy shall be responsible for--
(A) establishing national immigration enforcement
policies and priorities;
(B) performing policy research and analysis on
immigration enforcement issues; and
(C) coordinating immigration policy issues with the
Chief of Policy and Strategy for the Bureau of
Citizenship and Immigration Services of the Department
of Justice (established under chapter 2), and the
Assistant Attorney General for Citizenship and
Immigration Services, as appropriate.
(c) General Counsel.--
(1) In general.--There shall be a position of General
Counsel for the Bureau of Immigration Enforcement.
(2) Functions.--The General Counsel shall serve as the
principal legal advisor to the Director of the Bureau of
Immigration Enforcement. The General Counsel shall be
responsible for--
(A) providing specialized legal advice, opinions,
determinations, regulations, and any other assistance
to the Director of the Bureau of Immigration
Enforcement with respect to legal matters affecting the
Bureau of Immigration Enforcement; and
(B) representing the Bureau of Immigration
Enforcement in all exclusion, deportation, or removal
proceedings before the Executive Office for Immigration
Review, including in proceedings to adjudicate relief
from exclusion, deportation, or removal, and in other
legal or administrative proceedings involving
immigration enforcement issues.
(d) Chief Budget Officer.--
(1) In general.--There shall be a position of Chief Budget
Officer for the Bureau of Immigration Enforcement.
(2) Functions.--
(A) In general.--The Chief Budget Officer shall be
responsible for--
(i) formulating and executing the budget of
the Bureau of Immigration Enforcement;
(ii) financial management of the Bureau of
Immigration Enforcement; and
(iii) collecting all payments, fines, and
other debts for the Bureau of Immigration
Enforcement.
(3) Authority and functions of agency chief financial
officers.--The Chief Budget Officer for the Bureau of
Immigration Enforcement shall have the authorities and
functions described in section 902 of title 31, United States
Code, in relation to financial activities of such bureau.
(e) Chief of Congressional, Intergovernmental, and Public
Affairs.--
(1) In general.--There shall be a position of Chief of
Congressional, Intergovernmental, and Public Affairs for the
Bureau of Immigration Enforcement.
(2) Functions.--The Chief of Congressional,
Intergovernmental, and Public Affairs shall be responsible
for--
(A) providing information relating to immigration
enforcement to the Congress, including information on
specific cases relating to immigration enforcement;
(B) serving as a liaison with other Federal
agencies on immigration enforcement issues; and
(C) responding to inquiries from the media and the
general public on immigration enforcement issues.
(f) Citizenship and Immigration Services Liaison.--
(1) In general.--There shall be a position of Citizenship
and Immigration Services Liaison for the Bureau of Immigration
Enforcement.
(2) Functions.--The Citizenship and Immigration Services
Liaison shall be responsible for the appropriate allocation and
coordination of resources involved in supporting shared support
functions for the Bureau of Citizenship and Immigration
Services of the Department of Justice (established under
chapter 2) and the Bureau of Immigration Enforcement,
including--
(A) information resources management, including
computer databases and information technology;
(B) records and file management; and
(C) forms management.
SEC. 413. PROFESSIONAL RESPONSIBILITY AND QUALITY REVIEW.
(a) In General.--The Under Secretary for Enforcement and Security
shall be responsible for--
(1) conducting investigations of noncriminal allegations of
misconduct, corruption, and fraud involving any employee of the
Bureau of Immigration Enforcement that are not subject to
investigation by the Inspector General for the Department;
(2) inspecting the operations of the Bureau of Immigration
Enforcement 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 Immigration Enforcement.
(b) Special Considerations.--In providing assessments in accordance
with subsection (a)(2) with respect to a decision of the Bureau of
Immigration Enforcement, 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. 414. EMPLOYEE DISCIPLINE.
The Under Secretary for Enforcement and 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 Immigration Enforcement
who willfully deceives the Congress or agency leadership on any matter.
SEC. 415. REPORT ON IMPROVING ENFORCEMENT FUNCTIONS.
(a) In General.--The Secretary, not later than 1 year after the
effective date of this Act, shall submit to the Committees on
Appropriations and the Judiciary of the United States House of
Representatives and of the Senate a report with a plan detailing how
the Bureau of Immigration Enforcement, after the transfer of functions
specified under section 411 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 Assistant Attorney General for Citizenship and
Immigration Services, 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. 416. REPORT ON INTERIOR CHECKPOINTS.
Not later than 6 months after the date of the enactment of this
Act, the Attorney General shall submit to the Congress a report on
whether all permanent interior checkpoints operated by the Immigration
and Naturalization Service ought to be closed, and the funds that
otherwise would be expended for the operation of such checkpoints ought
to be reallocated for protecting and maintaining the integrity of the
borders of the United States and increasing enforcement at other points
of entry into the United States.
CHAPTER 2--CITIZENSHIP AND IMMIGRATION SERVICES
Subchapter A--Transfers of Functions
SEC. 421. ESTABLISHMENT OF BUREAU OF CITIZENSHIP AND IMMIGRATION
SERVICES.
(a) Establishment of Bureau.--
(1) In general.--There is established in the Department of
Justice a bureau to be known as the ``Bureau of Citizenship and
Immigration Services''.
(2) Assistant attorney general.--The head of the Bureau of
Citizenship and Immigration Services shall be the Assistant
Attorney General for Citizenship and Immigration Services,
who--
(A) shall report directly to the Deputy Attorney
General; and
(B) shall have a minimum of 10 years professional
experience in the rendering of adjudications on the
provision of government benefits or services, at least
5 of which shall have been years of service in a
managerial capacity or in a position affording
comparable management experience.
(3) Functions.--The Assistant Attorney General for
Citizenship and Immigration Services--
(A) shall establish the policies for performing
such functions as are transferred to the Assistant
Attorney General by this section or this Act or
otherwise vested in the Assistant Attorney General by
law;
(B) shall oversee the administration of such
policies;
(C) shall advise the Deputy Attorney General with
respect to any policy or operation of the Bureau of
Citizenship and Immigration Services that may affect
the Bureau of Immigration Enforcement of the Department
of Homeland Security, including potentially conflicting
policies or operations;
(D) shall meet regularly with the Ombudsman
described in section 422 to correct serious service
problems identified by the Ombudsman; and
(E) shall establish procedures requiring a formal
response to any recommendations submitted in the
Ombudsman's annual report to the Congress within 3
months after its submission to the Congress.
(4) Managerial rotation program.--
(A) In general.--Not later than 1 year after the
effective date specified in section 427, the Assistant
Attorney General for 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, as a condition on further promotion--
(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 427, the Attorney
General shall submit a report to the Congress on the
implementation of such program.
(5) Pilot initiatives for backlog elimination.--The
Assistant Attorney General for Citizenship and Immigration
Services is authorized to implement innovative pilot
initiatives to eliminate any remaining backlog in the
processing of immigration benefit applications, and to prevent
any backlog in the processing of such applications from
recurring, in accordance with section 204(a) of the Immigration
Services and Infrastructure Improvements Act of 2000 (8 U.S.C.
1573(a)). Such initiatives may include measures such as
increasing personnel, transferring personnel to focus on areas
with the largest potential for backlog, and streamlining
paperwork.
(b) Transfer of Functions From Commissioner.--There are transferred
from the Commissioner of Immigration and Naturalization to the
Assistant Attorney General for 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 427:
(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 427.
(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) establishing national immigration services
policies and priorities;
(B) performing policy research and analysis on
immigration services issues; and
(C) coordinating immigration policy issues with the
Chief of Policy and Strategy for the Bureau of
Immigration Enforcement of the Department of Homeland
Security.
(d) General Counsel.--
(1) In general.--There shall be a position of General
Counsel for the Bureau of Citizenship and Immigration Services.
(2) Functions.--The General Counsel shall serve as the
principal legal advisor to the Assistant Attorney General for
Citizenship and Immigration Services. The General Counsel shall
be responsible for--
(A) providing specialized legal advice, opinions,
determinations, regulations, and any other assistance
to the Assistant Attorney General for 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 and in other legal or administrative proceedings
involving immigration services issues.
(e) Chief Budget Officer.--
(1) In general.--There shall be a position of Chief Budget
Officer for the Bureau of Citizenship and Immigration Services.
(2) Functions.--
(A) In general.--The Chief 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.
(3) Authority and functions of agency chief financial
officers.--The Chief Budget Officer for the Bureau of
Citizenship and Immigration Services shall have the authorities
and functions described in section 902 of title 31, United
States Code, in relation to financial activities of such
bureau.
(f) Chief of Congressional, Intergovernmental, and Public
Affairs.--
(1) In general.--There shall be a position of Chief of
Congressional, Intergovernmental, and Public Affairs for the
Bureau of Citizenship and Immigration Services.
(2) Functions.--The Chief of Congressional,
Intergovernmental, and Public Affairs shall be responsible
for--
(A) providing information relating to immigration
services to the Congress, including information on
specific cases relating to immigration services issues;
(B) serving as a liaison with other Federal
agencies on immigration services issues; and
(C) responding to inquiries from the media and the
general public on immigration services issues.
(g) Immigration Enforcement Liaison.--
(1) In general.--There shall be a position of Immigration
Enforcement Liaison for the Bureau of Citizenship and
Immigration Services.
(2) Functions.--The Immigration Enforcement Liaison shall
be responsible for the appropriate allocation and coordination
of resources involved in supporting shared support functions
for the Bureau of Immigration Enforcement of the Department of
Homeland Security and the Bureau of Citizenship and Immigration
Services, including--
(A) information resources management, including
computer databases and information technology;
(B) records and file management; and
(C) forms management.
(h) 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. 422. CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN.
(a) In General.--Within the Department of Justice, 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 Attorney General. 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;
(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); and
(4) to identify potential legislative changes that may be
appropriate to mitigate such problems.
(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 United States 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 initiatives the Office of
the Ombudsman has taken 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 and legislative 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 review
or comment from the Attorney General, Deputy Attorney General,
Assistant Attorney General for Citizenship and Immigration
Services, or any other officer or employee of the Department of
Justice 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 Assistant Attorney
General for 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 Assistant Attorney General for Citizenship and
Immigration Services shall establish procedures requiring a formal
response to all recommendations submitted to such Assistant Attorney
General 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
of Justice and report directly to the 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. 423. PROFESSIONAL RESPONSIBILITY AND QUALITY REVIEW.
(a) In General.--The Assistant Attorney General for 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 Department of Justice Office of
the Inspector General;
(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. 424. EMPLOYEE DISCIPLINE.
The Assistant Attorney General for Citizenship and Immigration
Enforcement 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 the Congress or agency
leadership on any matter.
SEC. 425. OFFICE OF IMMIGRATION STATISTICS WITHIN BUREAU OF JUSTICE
STATISTICS.
(a) In General.--Part C of title I of the Omnibus Crime Control and
Safe Streets Act of 1968 (42 U.S.C. 3731 et seq.) is amended by adding
at the end the following:
``office of immigration statistics
``Sec. 305. (a) There is established within the Bureau of Justice
Statistics of the Department of Justice an Office of Immigration
Statistics (in this section referred to as the `Office'), which shall
be headed by a Director who shall be appointed by the Attorney General
and who shall report to the Director of Justice Statistics.
``(b) The Director of the Office shall be responsible for the
following:
``(1) Maintenance of all immigration statistical
information of the Bureau of Citizenship and Immigration
Services and the Executive Office for Immigration Review. 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 on the day prior to the effective date specified
in section 427 of the Homeland Security Act of 2002), 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 offices and bureaus, and
the reasons for such denials, disaggregated by category of
denial and application or petition type.
``(2) Establishment of standards of reliability and
validity for immigration statistics collected by the Bureau of
Citizenship and Immigration Services and the Executive Office
for Immigration Review.
``(c) The Bureau of Citizenship and Immigration Services and the
Executive Office for Immigration Review shall provide statistical
information to the Office of Immigration Statistics from the
operational data systems controlled by the Bureau of Citizenship and
Immigration Services and the Executive Office for Immigration Review,
respectively, for the purpose of meeting the responsibilities of the
Director.''.
(b) Transfer of Functions.--There are transferred to the Office of
Immigration Statistics established under section 305 of the Omnibus
Crime Control and Safe Streets Act of 1968, as added by subsection (a),
the 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:
(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.
(c) Conforming Amendments.--Section 302(c) of the Omnibus Crime
Control and Safe Streets Act of 1968 (42 U.S.C. 3732(c)) is amended--
(1) by striking ``and'' at the end of paragraph (22);
(2) by striking the period at the end of paragraph (23) and
inserting ``; and''; and
(3) by adding at the end the following:
``(24) collect, maintain, compile, analyze, publish, and
disseminate information and statistics involving the functions
of the Bureau of Citizenship and Immigration Services and the
Executive Office for Immigration Review.''.
SEC. 426. PRESERVATION OF ATTORNEY GENERAL'S AUTHORITY.
(a) In General.--Any function for which this subchapter vests
responsibility in an official other than the Attorney General, or which
is transferred by this subchapter to such an official, may,
notwithstanding any provision of this subchapter, be performed by the
Attorney General, or the Attorney General's delegate, in lieu of such
official.
(b) References.--In a case in which the Attorney General performs a
function described in subsection (a), any reference in any other
Federal law, Executive order, rule, regulation, document, or delegation
of authority to the official otherwise responsible for the function is
deemed to refer to the Attorney General.
SEC. 427. EFFECTIVE DATE.
Notwithstanding section 4, this subchapter, and the amendments made
by this subchapter, shall take effect on the date on which the transfer
of functions specified under section 411 takes effect.
SEC. 428. TRANSITION.
(a) References.--With respect to any function transferred by this
subchapter to, and exercised on or after the effective date specified
in section 427 by, the Assistant Attorney General for 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
Assistant Attorney General for 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 subchapter 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 427.
(2) Savings provisions.--Subsections (a), (b), and (c) of
section 804 shall apply to a transfer of functions under this
subchapter 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 subchapter
(and functions that the Attorney General 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 subchapter,
subject to section 202 of the Budget and Accounting Procedures
Act of 1950, shall be transferred to the Assistant Attorney
General for Citizenship and Immigration Services for allocation
to the appropriate component of the Department of Justice.
Unexpended funds transferred pursuant to this paragraph shall
be used only for the purposes for which the funds were
originally authorized and appropriated. The Attorney General
shall have the right to adjust or realign transfers of funds
and personnel effected pursuant to this subchapter for a period
of 2 years after the effective date specified in section 427.
(4) Authorities of attorney general.--The Attorney General
(or a delegate of the Attorney General), at such time or times
as the Attorney General (or the delegate) shall provide, may
make such determinations as may be necessary with regard to the
functions transferred by this subchapter, and may make such
additional incidental dispositions of personnel, assets,
liabilities, grants, contracts, property, records, and
unexpended balances of appropriations, authorizations,
allocations, and other funds held, used, arising from,
available to, or to be made available in connection with such
functions, as may be necessary to carry out the provisions of
this subchapter. The Attorney General shall provide for such
further measures and dispositions as may be necessary to
effectuate the purposes of this subchapter.
Subchapter B--Other Provisions
SEC. 431. FUNDING FOR CITIZENSHIP AND IMMIGRATION SERVICES.
(a) Establishment of Fees for Adjudication and Naturalization
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.''.
(b) Authorization of Appropriations for Refugee and Asylum
Adjudications.--There are authorized to be appropriated such sums as
may be necessary to carry out the provisions of sections 207 through
209 of the Immigration and Nationality Act (8 U.S.C. 1157-1159). All
funds appropriated under this subsection shall be deposited into the
Immigration Examinations Fee Account established under section 286(m)
of the Immigration and Nationality Act (8 U.S.C. 1356(m)) and shall
remain available until expended.
SEC. 432. BACKLOG ELIMINATION.
Section 204(a) of the Immigration Services and Infrastructure
Improvements Act of 2000 (8 U.S.C. 1573(a)) is amended by striking
``October 17, 2000;'' and inserting ``1 year after the date of the
enactment of the Homeland Security Act of 2002;''.
SEC. 433. REPORT ON IMPROVING IMMIGRATION SERVICES.
(a) In General.--The Attorney General, not later than 1 year after
the effective date of this Act, shall submit to the Committees on the
Judiciary and Appropriations of the United States 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 subchapter 1 takes effect, will complete
efficiently, fairly, and within a reasonable time, the adjudications
described in paragraphs (1) through (5) of section 421(b).
(b) Contents.--For each type of adjudication to be undertaken by
the Assistant Attorney General for 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 Attorney General considers advisable.
(c) Consultation.--In carrying out subsection (a), the Attorney
General shall consult with the Secretary of State, the Secretary of
Labor, the Director of the Bureau of Immigration Enforcement of the
Department of Homeland Security, 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 421(b) and related processes.
SEC. 434. 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 the 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 subchapter 1 takes effect, the Bureau of Citizenship and Immigration
Services, 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. 435. APPLICATION OF INTERNET-BASED TECHNOLOGIES.
(a) Establishment of Tracking System.--The Attorney General, 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
Attorney General 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 Attorney General, 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
United States 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 Attorney General 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 Attorney
General 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 United
States 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. 436. 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 the
Congress on how to ensure that qualified and
independent legal counsel is timely appointed to
represent the interests of each such child;
(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 of the Department
of Justice, and the Director of the Bureau of
Immigration Enforcement of the Department of Homeland
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 411 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 804 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.
CHAPTER 3--GENERAL PROVISIONS
SEC. 441. ABOLISHMENT OF INS.
The Immigration and Naturalization Service of the Department of
Justice is abolished.
SEC. 442. 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 Immigration Enforcement of the
Department of Homeland Security; and
(C) the Bureau of Citizenship and Immigration
Services of the Department of Justice; and
(3) the term ``transfer date'' means the date on which the
transfer of functions specified under section 411 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 Attorney General (for transfer to the
appropriate component of the Department of Justice, if necessary) or
the Under Secretary for Enforcement and 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. 443. 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) thereof).
(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 442(a)(2).
SEC. 444. SENSE OF CONGRESS.
It is the sense of the Congress that--
(1) the missions of the Bureau of Immigration Enforcement
of the Department of Homeland Security and the Bureau of
Citizenship and Immigration Services of the Department of
Justice 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. 445. REPORTS AND IMPLEMENTATION PLANS.
(a) Division of Funds.--The Attorney General and the Secretary, not
later than 120 days after the effective date of this Act, shall each
submit to the Committees on Appropriations and the Judiciary of the
United States 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 Immigration Enforcement.
(b) Division of Personnel.--The Attorney General and the Secretary,
not later than 120 days after the effective date of this Act, shall
each submit to the Committees on Appropriations and the Judiciary of
the United States 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 Immigration Enforcement.
(c) Implementation Plan.--
(1) In general.--The Attorney General and 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 each submit to the Committees on
Appropriations and the Judiciary of the United States 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 Immigration
Enforcement, 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
Immigration Enforcement.
(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 411 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
United States House of Representatives and the Senate a report
containing the following:
(A) A determination of whether the transfers of
functions made by chapters 1 and 2 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 chapters
1 and 2 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
411 takes effect, the Comptroller General of the United States
shall submit to the Committees on Appropriations and on the
Judiciary of the United States 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 Immigration Enforcement 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 Immigration Enforcement.
(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.
Page 24, strike line 7 and all that follows through page 27, line
15.
Page 27, line 16, strike ``503'' and insert ``404''.
Page 28, line 10, strike ``504''; and insert ``405''.
Page 29, line 1, strike ``505'' and insert ``406''.
Page 30, line 12, before ``In'' insert ``(a) In General.--
Page 31, after line 6, insert the following:
(b) Immigration Enforcement.--
(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 Immigration Enforcement.
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 411 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 the
Bureau of Immigration Enforcement.
(2) Transfer of functions.--In accordance with title VIII, 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.
Page 31, strike lines 15 through 19 and insert the following:
TITLE VII--INSPECTOR GENERAL; GENERAL PROVISIONS
Page 31, strike line 20 and all that follows through page 32, line
19.
Page 32, line 20, strike ``Subtitle B'' and insert ``Subtitle A''.
Page 33, line 2, insert ``sensitive'' before ``information''.
Page 34, strike lines 7 through 10 and insert the following:
(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 the Congress.
(d) Appointment of Deputy Inspector General for Civil Rights and
Civil Liberties.--The Inspector General of the Department of Homeland
Security shall appoint a Deputy Inspector General for Civil Rights and
Civil Liberties (hereinafter in this subsection referred to as the
``Deputy'').
(e) Civil Rights and Civil Liberties Review.--The Deputy shall--
(1) review information alleging abuses of civil rights,
civil liberties, and racial and ethnic profiling by employees
and officials of the Department of Homeland Security;
(2) make public through the Internet, radio, television, or
newspaper advertisements information on the responsibilities
and functions of, and how to contact, the Deputy; and
(3) submit to the President of the Senate, the Speaker of
the House of Representatives, and the appropriate committees
and subcommittees of the Congress on a semiannual basis a
report on the implementation of this subsection and detailing
any abuses described in paragraph (1), including the use of
funds appropriated to carry out this subsection.
Page 34, beginning at line 11, strike subtitle C of title VII (and
redesignate provisions accordingly)
Page 34, line 20, strike ``Subtitle D'' and insert ``Subtitle B''.
Page 35, line 5, insert ``(a)'' before ``Notwithstanding''.
Page 35, line 13, strike ``; and'', and after line 13 insert the
following:
``(b) Notwithstanding any other provision of this title, 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 title 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 the 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.''; and
Page 41, after line 6, insert the following (and redesignate
provisions and amend the table of contents accordingly):
SEC. 735. CONTINUING PROTECTION OF WHISTLEBLOWER PROTECTION ACT.
It is the sense of the Committee on the Judiciary of the House of
Representatives that employees transferred to the Department who, on
the date of the enactment of this Act, are covered by section
2302(b)(8) of title 5, United States Code (popularly known as the
Whistleblower Protection Act), should continue to receive that
protection. However, recognizing that personnel in the Department will
have access to substantial law enforcement information and
intelligence, the Committee believes that such whistleblower
protections should not compromise information or intelligence that
would be protected if it remained in other agencies.
SEC. 736. ESTABLISHMENT OF INTERNET SITE FOR REPORTING SUSPICIOUS
ACTIVITIES.
It is the sense of the Committee on the Judiciary of the House of
Representatives that the Secretary of Homeland Security shall establish
a site on the Internet, the purpose of which shall be to provide a
single location at which may be found a direct connection to all other
Internet sites established by Federal agencies for reporting suspicious
activities. The Committee recommends that the Secretary take such
action as is necessary to ensure that the domain name for the site is
www.911.gov, or an equally identifiable domain name.
Page 44, after line 10 insert the following:
(f) Task Force on Administrative Procedure.--The Secretary shall
appoint a task force to resolve conflicts among and harmonize the
various administrative procedures of the agencies transferred to the
Department. The task force should be composed of legal officers (or
similarly qualified persons) made available for this purpose by the
head of the executive agency from which the transferred agency came.
(g) Administrative Law Judges.--The Office of Personnel Management
shall ensure that there are sufficient qualified administrative law
judge resources available to the Department to conduct matters required
to be conducted by administrative law judges in agencies transferred to
the Department.
Page 45, line 1, strike ``Subject'' and insert ``(1) Subject''.
Page 45, line 3, strike ``(1)'' and insert ``(A)''.
Page 45, line 12, strike ``(2)'' and insert ``(B)''.
Page 45, after line 20, insert the following:
(2)(A) The Secretary's authority under paragraph (1) does not
extend to a pending proceeding in or an order issued by an agency that
has not yet been transferred to the Department.
(B) Unless the Secretary makes a determination in writing stating
the reason it should not do so--
(i) a pending proceeding before an agency transferred to
the Department shall continue to be pending;
(ii) an order issued by an agency transferred to the
Department shall continue in force; and
(iii) the procedure applicable before the transfer shall
continue to apply to such proceeding or order.
Page 47, after line 19, insert the following:
SEC. 807. AUTHORIZATIONS.
Nothing in this Act shall be construed to authorize the development
of a national identification system or card.
Page 48, line 8, before ``Title'' insert ``(a) In General.--''.
Page 48, line 24, strike the period at the end and insert ``;
and''.
Page 48, after line 24, insert the following:
(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 411 takes
effect.
Page 49, line 4, strike ``of the Treasury'' and insert ``Secretary
of the Treasury''.
Page 49, line 5, strike ``of Homeland Security'' and insert
``Attorney General''.
At the end of the bill add the following:
TITLE --TRANSFERS TO THE DEPARTMENT OF JUSTICE
SEC. __01. TRANSFER OF THE FEDERAL LAW ENFORCEMENT TRAINING CENTER.
There shall be transferred to the Attorney General the functions,
personnel, assets, and liabilities of the Federal Law Enforcement
Training Center, including any functions of the Secretary of the
Treasury relating thereto.
SEC. __02. TRANSFER OF THE UNITED STATES SECRET SERVICE.
There shall be transferred to the Attorney General the functions,
personnel, assets, and liabilities of the United States Secret Service,
including any functions of the Secretary of the Treasury relating
thereto.
SEC. __03. STUDY.
Not later than 90 days after the effective date of this Act, the
Attorney General shall submit a plan to the Committee on the Judiciary
of the House of Representatives and the Committee on the Judiciary of
the Senate regarding the integration of the United States Secret
Service and the Federal Law Enforcement Training Center into the
Department of Justice.
9/12/2002 10:04:24 AM - F:\V7\091202\091202.026 Created by:
VLCirks deg.Committee on the Judiciary
U.S. House of Representatives
Views and Recommendations on H.R. 5005
``The Homeland Security Act of 2002''
July 12, 2002
Principal Provisions of Judiciary Committee Amendments to H.R. 5005
The Committee amendments to H.R. 5005 are fully consistent
with the articulated mission of the proposed Department of
Homeland Security (DHS). Reported amendments merely streamline
the structure and focus the mission of the Department to help
ensure its success. The Committee recommends modifying the
mission statement of the Department to stress that its core
mission should be the prevention, detection, disruption, and
effective response to terrorist threats and activities. The
Manager's Amendment to H.R. 5005 would enhance the
effectiveness of the new Department and reduce bureaucracy by:
(1) limiting the number of Under Secretaries to four; (2)
transferring only a small component of the Federal Emergency
Management Agency to the new Department; (3) transferring the
Secret Service to the Department of Justice; and (4) ensuring
that immigration services remain at the Department of Justice.
The amendments also make important recommendations to reduce
potential abuses by the new Department, including the addition
of a privacy officer, the creation of deputy Inspector General
for civil rights and civil liberties, and the inclusion of
strengthened whistleblower protection provisions. The following
chart reflects the revised organizational structure the
Committee recommends for the proposed Department.
Law Enforcement and Emergency Response Amendments
clarification of key terms
The Committee recommends the statutory definition of terms
which are critical to the effective functioning of the proposed
Department. Accordingly, ``critical infrastructure'' and
``terrorism'' are clearly defined. The definition of critical
infrastructures is based up Presidential Decision Directive 63.
The definition of terrorism is derived from 18 U.S.C. Sec.
2331 as amended by the PATRIOT Act of 2001. The Committee
recommends clarification of these terms in order to provide
definitional guidance and consistency to the Department. It
also important to define these terms because the new Department
will have authority to share and analyze intelligence
information relating to terrorist threats. Providing a clear
definition of terrorism will ensure that DHS will not obtain or
misuse unrelated personal information.
crisis management and consequence management
As introduced, H.R. 5005 would make consequence management,
not crisis management, the primary mission of the new
Department. The Committee amendments clarify that crisis
management is a central function of the proposed Department.
The Committee amendment defines crisis management and
consequence management to better delineate the functions of the
new Department. ``Crisis management'' includes measures to
identify, acquire and plan the use of resources needed to
anticipate, prevent, or resolve a threat or act of terrorism.
In contrast, ``consequence management'' is primarily concerned
with the response and coordination of relief activities after
an attack occurs. There is a clear and vital distinction
between crisis and consequence management and this distinction
must not be lost in the creation of the new Department.
preservation of fema as an independent agency
The amendments reported by the Committee recommend
modifying the provisions of H.R. 5005 that would transfer all
of functions of the Federal Emergency Management Agency (FEMA)
to the new Department. This is because FEMA's main mission as a
consequence management agency is to respond to natural
disasters. In most fiscal years, 75 to 95 percent of FEMA's
budget is directed towards disaster relief assistance.
Transferring FEMA in its entirety to DHS would detract from the
agency's core mission. A terrorist attack is a federal crime
and a crisis event, which requires a response different from
that of a natural disaster. In addition, transferring all of
FEMA to the new Department would divert FEMA from its vital and
highly effective disaster relief role.
The Judiciary Committee's recommendation to maintain FEMA
as a separate federal agency obviates the need for an Under
Secretary for Emergency Preparedness and Response. Thus, the
Committee's amendment eliminates the Under Secretary for
Emergency Preparedness and Response, and transfers remaining
functions to the Undersecretary for Border and Transportation
Security. To reflect the centrality of law enforcement to this
component, the Judiciary Committee amendment also changes the
title of the Undersecretary for Border and Transportation
Security to the Under Secretary for Enforcement and Security.
This change properly reflects the comprehensive enforcement and
security functions of this division, while acknowledging the
primacy of other law enforcement functions and responsibilities
which would be transferred. For example, the Coast Guard,
Customs Service, and Border Patrol are charged with enforcing
federal laws pertaining to drug interdiction, child
pornography, intellectual property, and illegal immigration.
In addition, FEMA does not belong at DHS because directors
of this agency have explicitly refused to provide first
responders with training and assistance in crisis management
functions. For example, in a March 13, 2002, letter to Chairman
Sensenbrenner, the Director of FEMA stated that FEMA would not
handle crisis management or law enforcement training, technical
assistance, exercises, and equipment. The Director asserted
that: ``While FEMA will coordinate grants and assistance to
first responders, it will not assume any law enforcement
functions, nor will FEMA provide law enforcement training--
training or investigative techniques, evidence collection
techniques * * *''. State and local emergency responders must
receive crisis management training as it is an essential
component of an effective, coordinated homeland security
strategy.
DHS must serve all first responders through training and
assistance in both consequence and crisis management to be
adequately prepared for today's terrorist threat. As reported
by the Judiciary Committee, H.R. 5005 would make the Under
Secretary for Enforcement and Security responsible for training
and coordinating state and local emergency responders in both
crisis and consequence management. It must be stressed that
investing the Under Secretary for Enforcement and Security with
these responsibilities in no way detracts from the Federal
Bureau of Investigation's lead role in investigating terrorist
threats or events; nor does it undermine the role of FEMA,
which would remain an independent agency charged with
consequence management in the event of a natural disaster.
transfer of fema's office of national preparedness to dhs
The Committee's amendment recommends the transfer of a
small component of FEMA, the Office of National Preparedness
(ONP), to the new Department. ONP's primary focus is to provide
training and technical assistance for first responders in
consequence management following a terrorist attack.
Transferring ONP from FEMA would augment other training and
emergency assistance functions transferred to DHS from other
agencies. These include the Office for Domestic Preparedness
(ODP) within the Department of Justice as well as offices
within the Department of Health and Human Services which
provide grants, technical assistance and equipment to first
responders. The selective transfer of ONP from FEMA to DHS
would strengthen the Department's ability to respond to
terrorist events while averting the imposition of extraneous
and burdensome responsibilities which would detract from the
Department's central homeland security mission. This would help
guarantee a centralized crisis and consequence management
function at the new Department.
transfer of the secret service to the department of justice
As introduced, H.R. 5005 would transfer the Secret Service
to DHS while preserving the Service as a ``distinct entity.''
The Committee recommends streamlining and focusing the proposed
Department by transferring Secret Service to the Department of
Justice rather than DHS. The Judiciary Committee is the
authorizing Committee for the Secret Service and has concluded
that the Service does not properly belong at DHS. Crime
prevention and law enforcement are central to the mission of
the Secret Service. The Secret Service is charged with
enforcing several federal statutes relating to counterfeiting,
threats against governments officials such as the President and
Vice President, credit card fraud, computer crimes, and fraud
against financial institutions. Furthermore, unlike nearly all
of the law enforcement agencies H.R. 5005 would transfer to
DHS, the Service is not a border or transportation security
agency. Finally, while the Service coordinates with federal and
state agencies when providing security for national events,
these activities comprise a fraction of its overall
responsibilities.
transfer of the federal law enforcement training center to the
department of justice
The Committee further recommends transferring the Federal
Law Enforcement Training Center (FLETC) from the Treasury
Department to the Justice Department. FLETC was established in
1970 to provide an interagency law enforcement training program
to train federal, state, local, and foreign law enforcement
entities. FLETC's training curriculum closely resembles that
provided by the Federal Bureau of Investigation. Its basic
training course provides instruction in criminal investigation
to uniformed law enforcement officers who possess authority to
carry firearms and effect arrests. FLETC's transfer to the
Department of Justice assures a greater level of consistency
and coordination of federal law enforcement training procedures
under the direction of the nation's chief law enforcement
officer, the Attorney General. The rationale for shifting FLETC
to the Department of Justice is even more pronounced given the
fact that H.R. 5005's transfer of the Customs Service from the
Treasury Department to DHS would leave Treasury with a greatly
diminished law enforcement mission.
Immigration Enforcement and Services Amendments
steps to ensure the effective operation and integration of certain
immigration functions within dhs
The Committee recommends the incorporation of many of the
immigration-related structural reform provisions contained in
H.R. 3231, the ``Barbara Jordan Immigration Reform and
Accountability Act,'' which passed the House by a vote of 405-
9. Like H.R. 3231, the Committee recommends the abolition of
the Immigration and Naturalization Service (INS). In addition,
the amendment retains H.R. 3231's requirements concerning: the
Ombudsman; the Citizenship Office; the requirement to utilize
Internet-based technology to promote administrative efficiency;
pilot initiatives for reduce administrative backlogs; voluntary
separation incentive payments; the authority to conduct a
demonstration project relating to disciplinary action of
immigration officers; the managerial rotation program; a
reporting requirement on interior checkpoints; and an
assessment of shifting demands presented by fluctuating
immigration needs.
separation of immigration enforcement from immigration services
The Committee recommends establishing the Bureau of
Immigration Enforcement within the Department of Homeland
Security's office of Border and Transportation Security
(renamed the division of Enforcement and Security), while
establishing the Bureau of Citizenship and Immigration Services
in the Department of Justice. The Bureau of Immigration
Enforcement recommended by the amendment would be nearly
identical to the enforcement bureau created by H.R. 3231. The
Bureau of Citizenship and Immigration Services, is also very
similar to the services bureau contained H.R. 3231. Finally,
the Committee amendment would create an Assistant Attorney
General for Citizenship and Immigration Services who would
report to the Deputy Attorney General.
These organizational reforms will help address widely-
recognized, systemic ``mission overload'' problems within the
INS, while helping to ensure that immigration services will
receive the resources necessary to professionally respond to
the needs of legal immigrants. By separating immigration
enforcement from immigration services and elevating the status
of immigration services within the Justice Department, the
amendment gives legal immigration services the focus and
attention they deserve. Maintaining immigration services in the
Justice Department would also promote a closer examination of
the financial needs of the service bureau to improve
immigration services than if the component resided in the
Department of Homeland Security. If the services bureau were
transferred to DHS, appropriating funds for these services
would be an afterthought.
Retaining responsibility for immigration services at the
Department of Justice, which is responsible for administering
immigration benefits, would also ensure the legitimate needs of
legal immigrants are not subsumed by the massive size and scope
of a Department which would be primarily dedicated to homeland
security. It would affirm America's commitment to welcome legal
immigrants to the United States in a timely and professional
manner by personnel who will not assume that all legal
immigrants present a security threat.
With respect to immigration enforcement, the Committee
recognizes that several enforcement functions of the INS, such
as inspections and the Border Patrol, naturally fit together
with Customs and other border components. These units should be
consolidated as a border security unit, which is an integral
part of the Department of Homeland Security. Therefore, the
Committee recommends that the immigration enforcement be
transferred to DHS and established as the Bureau of Immigration
Enforcement within the Border and Transportation Security
division (renamed the division of Enforcement and Security).
With the proposed transfer of immigration enforcement and
services functions to two separate Departments, it is essential
that the enforcement and service bureaus communicate
effectively with one another. Many aliens must interact with
both immigration services and enforcement officers; this
overlap is unavoidable. Accordingly, the Committee Amendment
would create a liaison in each bureau to communicate with the
other bureau. To ensure that the two bureaus share information
and coordinate their efforts, each liaison would be required to
create a common access system to information technology,
databases, records, files, and other administrative resources.
Currently, the INS has systemic administrative and
organizational problems, often misplacing or losing
applications and other paperwork. Sending and receiving paper
files between the two Departments would only compound the
problem. The Committee Amendment, like H.R. 3231, would thus
require the Attorney General to establish an Internet-based
system so that aliens may apply for benefits and check the
status of their applications online. The INS must move away
from its antiquated paper filing system. Dividing the INS
between DHS and the Justice Department would facilitate
movement toward an electronic filing system so that both the
service and enforcement bureaus can easily access and maintain
the integrity of alien files. Most importantly, these changes
would ensure that fewer files are lost.
office of children's affairs
With respect to the Office of Children's Affairs, the
Committee amendment would transfer the same functions created
in H.R. 3231 to the Director of the Office of Refugee
Resettlement within the Department of Health and Human
Services. These functions include ``unaccompanied alien
childrens'' care and placement that were exercised by the INS
Commissioner prior to the effective date of the bill;
coordinating and implementing the law and policy for
unaccompanied alien children who come into federal custody;
making placement determinations for all unaccompanied alien
children in federal custody; identifying and overseeing the
infrastructure and personnel of facilities that house
unaccompanied alien children; annually publishing a state-by-
state list of professionals or other entities qualified to
provide guardian and attorney services; maintaining statistics
on unaccompanied alien children; and reuniting unaccompanied
alien children with a parent abroad, where appropriate.
The Committee amendment also gives the Director of the
Bureau of Immigration Enforcement the responsibility for
collecting information relating to nonimmigrant foreign
students and other exchange program participants, including the
Student and Exchange Visitor Information System, and using such
information to carry out the enforcement functions of the
bureau.
Protections Against Potential Abuses by the Department
safeguards to protect individual privacy
The amendments to H.R. 5005 add important provisions to
protect against the unauthorized use or disclosure of private
information. The amendment requires the appointment of a
privacy officer to ensure the Department's compliance with the
Privacy Act of 1974, and permits congressional oversight of
such compliance. In addition to information technologies, the
privacy officer would be responsible for assuring that all
forms of technologies, are not employed by DHS to erode
citizens' privacy protections.
The privacy officer will report to Congress on privacy
violations and conduct privacy impact assessments of proposed
rules when deemed appropriate by the Secretary. The Committee
recommends that the DHS Secretary establish procedures ensuring
the confidentiality and accuracy of personally identifiable
information. These procedures would require the DHS Secretary
to: (1) limit the redissemination of personally identifiable
information (such as Social Security numbers) 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. The text of this
provision is substantively identical to H.R. 4598, the
``Homeland Security Information Sharing Act.'' In addition, the
amendment contains a clear mandate that nothing in H.R. 5005 be
construed to authorize the development of a national
identification card or system. Finally, the amendment would
require the Secretary of DHS to appoint a task force to
harmonize the administrative procedures and adjudicative
processes of the new Department.
inspector general amendments to h.r. 5005
As introduced, section 710(a) and (b) of H.R. 5005 would
allow the Secretary to restrict the activities of the Inspector
General (IG) when those activities involve certain information,
generally related to national security. Specifically, H.R. 5005
would permit the Secretary to exercise control over the
Inspector General's authority to conduct audits or
investigations or to issue subpoenas if these activities would
require access to 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 certain persons or property; and (5) other
matters that, in the Secretary's judgment, would constitute a
serious threat to national security. Section 710(c) requires
the Secretary to notify the President of the Senate and the
Speaker of the House within 30 days of the exercise of that
authority.
The proposed amendment conforms the Secretary's authority
and responsibilities more closely to the corresponding
provisions relating to the authority and responsibilities of
other department heads at the Departments of Defense, Justice,
and Treasury and the Central Intelligence Agency. First, the
language would amend subsection 710(a) to allow the Secretary
to restrict the IG's authority when access to ``sensitive''
information--not just any information-- concerning the
specified matters is involved. Provisions governing other
inspectors general specifically refer to ``sensitive''
information, not just any information. Second, the amendment
alters and expands the reporting requirement in subsection
701(c) to require: (1) the Secretary to notify the IG and
provide reasons for the exercise of the authority; (2) the IG
to forward the Secretary's notification and reasons to the
President of the Senate, the Speaker of the House, and
appropriate committees and subcommittees of Congress; and (3)
the IG to report to Congress whether he or she disagrees with
the Secretary. If there is a disagreement, the amendment
requires the IG to explain the reason for the disagreement in
his report to Congress.
establishment of a deputy ig for civil rights and civil liberties
The amendment would also require the Inspector General to
appoint a Deputy Inspector General to examine allegations of
civil rights abuses, including allegations of racial or ethnic
profiling, by employees of the Department of Homeland Security.
The Deputy Inspector General must advertise his or her
responsibilities and report to Congress on a semi-annual basis
regarding his responsibilities.
enhanced whistleblower protections
The Manager's Amendment contains a sense of the Committee
that employees transferred to DHS continue to receive existing
whistleblower protections provided that sensitive intelligence
or law enforcement information is not compromised. The general
whistleblower statute broadly applies to federal employees.
However, federal personnel are not protected by this statute if
they work in an ``excepted service'' or are excluded from
coverage by the President ``based on a determination that [it]
is necessary and warranted by conditions of good administration
* * *''. This statute specifically does not apply to the
Federal Bureau of Investigation, Central Intelligence Agency,
and other foreign intelligence or counterintelligence agencies.
Federal employees who handle sensitive and classified law
enforcement and counter-intelligence information have been
extended whistleblower protections, but are subject to special
treatment because of the sensitive nature of the information
that may be involved in any investigation or complaint brought
forward by an employee.
The Committee's language seeks to ensure that when
regulations are implemented by the Department they should
reflect the procedures that have been adopted in other agencies
to protect such information. Section 730 of the bill as
introduced appeared to permit the Secretary to eliminate those
protections. In response to Members questions, Governor Ridge
testified that the bill was not intended to strip whistleblower
protections from employees by moving them to the Department of
Homeland Security. The amendment expresses the sense of the
Committee that the protections should be continued in the new
Department, but that sensitive law enforcement information and
intelligence need to continue to be protected as they are under
current law in other agencies.
Additional Amendments
harmonization and rationalization of department compensation
DHS would incorporate law enforcement personnel from a
number of existing agencies. Disparate pay scales and
retirement policies among similarly situated law enforcement
personnel threatens to erode employee morale and jeopardize the
success of the new Department's law enforcement mission. The
Committee expresses concern that pay and benefit disparities
among law enforcement agencies have resulted in substantial
defections from agencies where the pay and benefit package
appears to be low to agencies where the pay and benefit
packages are perceived to The amendment requires the Secretary
of Homeland Security, in consultation with the Director of the
Office of Personnel Management, to submit a plan (within 90
days of the establishment of the Department) to the President
and Congress to ensure, to the maximum extent practicable, the
elimination of disparities in pay and benefits among employees
(especially among law enforcement personnel) of the new
Department. The Committee is particularly concerned that
increased compensation provided to employees of the
Transportation Security Administration (TSA) is causing
qualified law enforcement personnel from the Secret Service,
Capitol Hill Police, and Park Service to migrate to the TSA.
Additional Concerns
executive office for immigration review
The Executive Office for Immigration Review (EOIR), located
in the Justice Department, houses the immigration courts and
the Board of Immigration Appeals. These units adjudicate the
deportability of aliens and aliens' applications for relief
from deportation in immigration proceedings. Although the
Committee Amendment did not address EOIR, the Committee
believes that it should remain in the Justice Department.
impact on civil service employees
The Committee is also concerned about the impact the bill
has on civil service protections which currently exist for
federal employees that would be transferred to DHS. Section
804(e)(2) notes only that current employment terms (pay, civil
service protections) would remain in place until a new human
resources management system is established by DHS. The
Committee recommends that the Select Committee and other
committees of jurisdiction address concerns regarding the
potential loss of civil service protections by employees
affected by the bill.
the federal advisory committee act and the freedom of information act
The Committee recognizes that the new Department will have
a significant need to establish and use the services of
advisory committees with respect to highly confidential and
sensitive national security matters. In its current form, H.R.
5005 would exempt from the requirements of the Federal Advisory
Committee Act (FACA) any advisory committees established by the
Secretary of DHS. Although FACA currently exempts the Central
Intelligence Agency and the Federal Reserve Board from its
requirements, the Committee is concerned that such an exemption
may substantially diminish the openness and public-access goals
of the FACA. The bill also creates an exemption to the Freedom
of Information Act (FOIA) for information that companies and
individuals voluntarily provide that ``relates to''
infrastructure vulnerabilities and related matters. Because the
FOIA is so important to preserving openness and accountability
in government, the breadth of this new exemption also raises
serious concerns.
The Committee recognizes, however, that public access to
this information may have two unintended effects: (1) companies
will be deterred from providing that information to the new
Department; and (2) potential terrorists will have access to
that information. It is worth noting that FOIA currently
contains exemptions restricting the disclosure of national
security information (see 5 U.S.C. 552(b)(1)), sensitive law
enforcement information (see 5 U.S.C. 552(b)(7)) or
confidential business information (see 5 U.S.C. 552 (b)(4)).
That being the case, any additional exemption from FOIA must be
demonstrably necessary and should be extremely narrow. The
Committee recommends that the possibility of narrowing the
scope of this provision be considered to make clear that
material that would be exempt from disclosure may be
segregated, to the extent feasible, from non-exempt, releasable
material. Any exception to current FACA and FOIA requirements
should be carefully considered with a view toward maintaining
the sunshine safeguards needed to preserve an open and
accountable governmental, while providing the Department with
the needed flexibility to carry out its mission. The Committee
recommends that the Select Committee and the other committees
of jurisdiction address these concerns.
Additional Views of Chairman F. James Sensenbrenner, Jr.
I strongly believe that all visa granting functions of the
Department of State should be transferred to the new Department
of Homeland Security. The State Department has repeatedly
demonstrated that it cannot perform this function with due
regard for national security. In fact, its core mission as a
diplomatic agency is incompatible with the responsibility to
make grant and denial decisions on the millions of visa
requests it receives each year.
While lapses at the Immigration and Naturalization Service
and other federal agencies that increased America's
vulnerability to the World Trade Center and Pentagon terrorists
attacks have received attention, only recently has attention
been given to equally if not more serious failures at the State
Department.
Fifteen of the Saudi terrorists who launched the 9-11
attacks had been granted visas by State Department consular
officers in Saudi Arabia. Twelve of the terrorists were
personally interviewed by the consular officers. A large scale
investigation has just come to light into the sale of 70 visas
at the U.S. embassy in Qatar, including one to the roommate of
two of the 9-11 terrorists. The State Department has come under
intense criticism for the ``Visa Express'' program in Saudi
Arabia, which raises disturbing questions about the role of
Saudi travel agencies in pre-screening visa applicants and
which continues in operation today. Just last month, Deputy
Secretary of State Richard Armitage sent a letter to the
Justice Department rejecting the Foreign Terrorist Tracking
Task Force's (FTTTF) recommendations to deny visas to specific
aliens because ``the information we have received states only
that the FTTTF believes the applicants may pose a threat to
national security * * *'' It seems as if the events of
September 11 have gone unnoticed by the State Department.
At the State Department, visas are considered first and
foremost a device to curry favor with foreign governments. The
more visas issued, the happier the foreign government.
Consequently, State Department consular officers are under
intense pressure from the Secretary of State and their
ambassador and superiors to approve as many visas as possible.
Employee evaluations are often tied to the number of visas
issued without regard to adequate screening. In other words,
the quantity of visas issued is valued more highly than the
quality of interviews given.
Besides being under pressure to approve visas, consular
officers are sent out into the field with wholly inadequate
training. They receive no more than a few hours training in
interviewing techniques, probably the single most important
skill they will need in their jobs. On the other hand, FBI
agents are given 51 hours of training in interviewing
techniques and many follow-up mock interviews at the academy.
Compounding these problems is the crisis in motivation. Now,
the talent and educational credentials of foreign service
officers are not open to question. However, men and women are
attracted to the foreign service because of their desire to be
diplomats. They consider consular duty as ``grunt work'' to
``pay their dues.'' They generally dislike their jobs and leave
for political and economic posts as soon as they are allowed.
There is unanimity among former consular officers that the
State Department's Visa Office should be transferred in its
entirety to the Department of Homeland Security. What would be
the benefits of such a move? First, the institutional pressures
on consular officers to bias their visa decisions in favor of
grants would evaporate. Consular officers would know that their
job performance would in large part be graded based on their
abilities to withhold visas from those aliens who would violate
our immigration laws or do American harm. Second, consular
staffs would be filled by law enforcement professionals who
choose to perform this vital function, would take pride in and
feel challenged by their jobs, and would want to make careers
out of consular work.
The consular reforms contained in the Committee-approved
bill unfortunately create an unwieldy hybrid consular office
that will do nothing to remedy the office's current ills.
Giving the Department of Homeland Security only oversight
authority over the consular service and the ability to issue
regulations does nothing to change the fact that it will still
be State Department foreign service officers who will have the
responsibility of interviewing visa applicants and have the
decision making power to grant visas. They will still be
subject to inappropriate pressure to issue visas in order to
comply with the diplomatic goals of their employer, the
Secretary of State. Their career advancement will still be
dependent on the good will of the ambassador. And, they will
still be junior officers going through a rite of passage rather
than seasoned law enforcement professionals with a zeal for
uncovering fraud and deceit by aliens seeking visas. Thus, the
Committee approved bill fails the fundamental test of true
reform.
Now, there is one possible way in which the Committee-
approved Visa Office can perform with appropriate regard for
national security. A Department of Homeland Security law
enforcement officer would have to review in-depth the file of
every visa grant and also have to sit in on every interview and
be able to ask questions. For, without doing so, how could he
or she be able to personally observe the demeanor of the alien
applicant, critical in determining the alien's true intent, and
be able to ensure that all pertinent questions were asked?
While this is theoretically allowed for by the Committee bill,
it is clear that it will never happen. For in order to have it
happen, we would need a massive and costly increase in the
federal bureaucracy. We would have to add to the federal
workforce a large force of Department of Homeland Security
personnel, without at the same time decreasing the number of
State Department consular officers. It is not even clear
whether our embassies and consulates would be physically big
enough to house all these new employees. And it would be hugely
inefficient. We would have in essence two individuals
performing the work of one. In each and every case, the State
Department employee would be superfluous.
For the above stated reasons, I believe it is crucial that
visa granting responsibilities be transferred to the Department
of Homeland Security.
Let me answer one obvious question. How could the transfer
of the consular function take place in a smooth manner without
disruption to the process of issuing millions of visas a year?
Those State Department foreign service officers who would
prefer to remain as consular officers would certainly be given
the opportunity. However, it is to be expected that most would
decline because of their lack of interest in the task. We would
clearly need a transition period in order to give the
Department of Homeland Security time to train a new corps of
consular officers in language skills, interviewing techniques,
and other skills. Many would likely come with a background in
law enforcement. INS inspectors and investigators would
certainly find a foreign posting attractive. I have therefore
proposed that for a two-year period, current consular officers
would be detailed from the State Department to the Department
of Homeland Security. Gradually, these officers would be
replaced and returned to the State Department as new employees
come on board.
F. James Sensenbrenner, Jr.
Separate Views of Mr. Hyde
I write separately to discuss two amendments that were
adopted by the Committee at its markup of H.R. 5005.
i. visa processing
The President's homeland security plan, as reflected in the
introduced version of H.R. 5005, would transfer to the
Secretary of Homeland Security all responsibility for enforcing
and administering the laws relating to processing of visa
petitions at United States diplomatic and consular posts
abroad. Section 403 of H.R. 5005 provides that the authority
vested in the Secretary of Homeland Security shall be exercised
through the Secretary of State.
A proposal was offered at the markup that would have
dramatically altered the President's plan. This provision would
have required Homeland Security personnel to do the actual
adjudication of all visa applications at all our Embassies and
consulates--over 10 million applications per year. It would
have all but eliminated the role of the Secretary of State in
granting and denying visa applications, which is among the most
important responsibilities of our Embassies and consulates.
In my view, this provision was well-intentioned but
ultimately self-defeating. It would ultimately have required
the creation of a whole new bureaucracy, and it would have
caused enormous practical difficulties in our Embassies and
consulates abroad. Even more important, it would have risked
overwhelming Homeland Security personnel with non-homeland
security functions and thereby make it difficult or impossible
for them to perform their central mission.
I therefore offerend an amendment with Mr. Berman to
provide for a compromise on the issue of visa adjudication by
Homeland Security employees. This amendment, which was adopted
by the Committee, explicitly authorizes the assignment of
Homeland Security employees in U.S. diplomatic and consular
posts abroad. Rather than assume all visa processing functions,
however, these employees will concentrate on identifying and
reviewing cases that present homeland security issues.
Under the Hyde-Berman amendment, Homeland Security officers
at U.S. Embassies and other overseas posts will investigate
threats to the security of the United States and advise
consular officers on these threats. They will ensure that these
officers have access to information that would identify visa
applications presenting possible homeland security questions,
and Homeland Security employees would review these applications
individually. This arrangement will preserve the essence of the
Administration's proposal--the sensible division of labor under
which homeland security officers will be allowed to concentrate
on homeland security functions--while helping to ensure that
security concerns are central to key decisions made abroad.
The Hyde-Berman amendment retains the requirement of the
underlying Chairman's amendment for a study of the role of
foreign nationals in visa processing and a report to Congress
on this issue.
Finally, the Hyde-Berman amendment addresses a possible
unintended consequence of turning over visa decisions to the
Department of Homeland Security: the subjection of such
decisions to various types of administrative and judicial
review which do not apply to such decisions under current law.
With over 3 million visa applications denied each year, this
change would have enormous implications for our judicial system
as well as for the security of our borders. The Hyde-Berman
provision will ensure that denials of visa petitions in our
overseas posts will continue to be non-reviewable.
By retaining a role for consular officers in adjudicating
the millions of applications presenting no security-related
issues, the President's plan will allow Homeland Security
officers to perform their homeland security mission. By
authorizing the presence of Homeland Security officers in our
overseas posts to identify and deal with homeland security
issues, the Hyde-Berman amendment will ensure that the
President's plan works as intended.
ii. law enforcement information sharing.
The Committee also adopted an important amendment to
section 203 of H.R. 2005, which gives the Secretary of Homeland
Security access to information in the possession of other
government agencies that is relevant to homeland security. The
amendment adopted by the Committee takes the logical next step,
by requiring the Secretary to promulgate regulations to ensure
that this important information is shared with other federal,
state, and local law enforcement agencies as necessary to guard
against threats to homeland security.
The failure or inability of law enforcement and
intelligence agencies to share information with one another
prior to the September 11 attacks has been widely noted. Other
legislation currently under consideration by Congress would
take some tentative steps toward wider information sharing, but
the problem is still very much with us. I am informed, for
instance, that there are at least 41 federal and local law
enforcement agencies with at least some jurisdiction in the
District of Columbia, and that only a handful of these agencies
are under any legal obligation to share information with any of
the others.
The Committee amendment is simple and straightforward. It
applies only to information to which the Secretary will have
access under section 203, and it gives him the authority and
the mandate to ensure that the information gets to the proper
authorities so that it can be used to anticipate and counter
threats to homeland security.
Henry J. Hyde.
Additional Views of the Honorable Bob Barr
privacy and administrative procedure
The Subcommittee on Commercial and Administrative Law,
which I chair, held an oversight hearing on July 9, 2002, with
respect to H.R. 5005, the Homeland Security Act of 2002. The
hearing focused on administrative law, adjudicatory issues, and
privacy ramifications of the proposed legislation. Three
witnesses testified, including a representative on behalf of
the Administration and two experts from academia.
The testimony received at the hearing, as well as the
comments of the Subcommittee Members who attended the hearing,
clearly highlighted the need for a privacy officer in the new
Department of Homeland Security; the inclusion of procedural
guidelines regarding the sharing of information; restrictions
with respect to national identification card(s); and
whistleblower protections, among other concerns. For example,
the Administration's witness assured the Subcommittee that
employees of the new Department of Homeland Security, ``will
retain whistleblower protection and other basic rights like
equal pay for equal work and fair and equitable treatment.''\1\
Likewise, there was general support for implementing procedural
safeguards with respect to personally identifiable information
shared among governmental agencies, and to having a privacy
officer appointed to ensure compliance with the Privacy Act and
congressional oversight of such compliance.\2\
---------------------------------------------------------------------------
\1\ Adminstrative Law, Adjudicatory Issues, and Privacy
Ramifications of Creating a Department of Homeland Security: Hearing on
H.R. 5005 Before the Subcommittee on Commercial and Administrative Law
of the House Comm. on Judiciary, 107th Cong. (2002) (statement of Mark
Everson, Controller of the Office of Federal Financial Management,
Office of Management and Budget).
\2\ Id. (Statements of Jefferey S. Lubbers, Professor of Law at the
American University Washington College of Law, and Peter P. Swire,
Professor of Law at Ohio State University).
---------------------------------------------------------------------------
H.R. 5005, as reported by the House Judiciary Committee on
July 10, 2002, includes provisions that adequately address
these concerns, and I would urge their inclusion in the bill
reported by the Select Committee. Specifically with respect to
privacy concerns, the bill ensures the privacy officer will, in
addition to information technologies, be responsible for
assuring that all forms of technologies, including Carnivore-
like surveillance systems, do not erode citizens' privacy
protections. In addition, this officer will be charged with the
responsibility to conduct privacy impact assessments of
proposed rules when deemed appropriate by the Secretary.
The bill, as amended, contains a clear mandate that it not
be construed to authorize the development of a national
identification system or card. In light of the fact that the
Administration witness would not issue a clear, definitive
statement the Administration was not interested in, and would
not pursue, a national identification card, I believe it is
essential this Committee insist the final legislation include
an unequivocal prohibition on a national identification card
within the context or jurisdiction of the new Department of
Homeland Security to be established by H.R. 5005.
Finally, the bill as reported by our Committee also
includes important provisions intended to better effectuate the
administrative procedures and adjudicative processes of the new
Department.
Bob Barr.
Additional Views of Rep. Zoe Lofgren
I very much appreciate Chairman Sensenbrenner's acceptance
of my amendment transferring to the Office of Refugee
Resettlement in the Department of Health and Human Services
oversight responsibility for care, placement and custody of
unaccompanied alien children. I believe that the Chairman's
bill has evolved significantly to take into consideration many
of my concerns and I appreciate his cooperation and dedication
to this immense undertaking.
I am pleased that this amendment has strong bipartisan
support in the Judiciary Committee. Given the level of support
from the Judiciary Committee, I fully expect any Homeland
Security legislation emerging from further committee action to
contain language on unaccompanied alien children that was
accepted by the Judiciary Committee Chairman and the majority
of the Members of the Committee. In accepting the amendment,
the Judiciary Committee Members have expressed their belief
that unaccompanied alien children would be better served in the
Department of Health and Human Services than in the Department
of Homeland Security. It is my sincere hope that as the members
of further committees review the entirety of the Homeland
Security legislative package that they consider the strong
interests of the Members of the committee of jurisdiction.
Zoe Lofgren.
Additional Minority Views of the Honorable Sheila Jackson Lee
treatment of minors detained by the department of homeland security
Minors may for unjustified reasons, come within the custody
of the Department of Homeland Security. This Amendment would
simply ensure that minors in custody of the DHS are provided
access to independent counsel within 24 hours and the DHS
endeavors to make contact with a parent or guardian as soon as
possible. The Department of Homeland Security must take
affirmative action towards assisting the minor in contacting
the minor's parent or guardian.
Minors come to the U.S. for many reasons. Many are trying
to establish some type of legal residency in order to be an
anchor for other family members. Many children are coming to
work and help support poverty stricken family members in the
country of origin. Others are fleeing some type of oppression
and are ultimately granted asylum and others are looking for an
education and a future. Minors, both immigrant and
nonimmigrant,, may come into the custody of the Department of
Homeland Security--for example, through an unannounced raid.
These minors should have these minimal procedural protections.
The INS houses approximately 450 to 600 juveniles at any
one given time. An average daily population could be projected
as 475 to 500. In FY 97, 3,149 unaccompanied juveniles were
taken into custody; in FY 98, there were 5,323 custody events
representing 4,457 different juveniles; and in FY 99, there
were 5,644 custody events representing 4,607 different
juveniles. Of May 25, 2000, there were 523 juveniles in INS
custody nationwide. Of these, 87 were held in facilities in
California. creasing numbers of children are trafficked by
international criminal organizations for various types of
exploitation. Most frequently, they are used as a cheap source
of labor.
Congress should ensure that these minors are provided
adequate representation and ensure that the Department of
Homeland Security does all that it can to facilitate contact
with parents or guardians. I would ask members to support
similar provisions in legislation creating the Department of
Homeland Security.
creating a 5th division of immigration affairs
Splitting the enforcement and service functions of the
Immigration and Naturalization Service (INS) between two
agencies raises concerns about coordination between the two
separate functions that dictate that it be kept together in a
single department. Splitting the services and enforcement
functions raises serious concerns that the INS' service
function will be left to wither on the vine in another agency
without the attention and resources it deserves. An alternative
proposal could have the entire INS (a) pulled from the Border
and Transportation Security division; (b) placed in its own
division headed by an Undersecretary for Immigration Security
and Services; and (c) restructured as envisioned by H.R. 3231.
I offered ana amendment that would create a fifth division
to the Department of Homeland Security. I presented the
amendment to the committee but withdrew it in order to allow
the Committee to move forward. The proposal would be consistent
wit the INS in that it would incorporate the INS in whole into
the Department of Homeland Security. It would It would
accomplish this, however, in a manner different from the
Administration's Proposal. The Jackson Lee Proposal would
create a fifth division within the Department of Homeland
Security titled the Division of Immigration Services and
Security. This division would house three subdivisions titled;
(1) Border Security; (2) Immigration Services and (3) Visa
processing. This Division will separate the function of the INS
allowing greater focus on the services component of this
agency. This proposed Division would, however, preserve the
unity of the Enforcement and Service function, as opposed to
removing the service function out of the Homeland Security
Department. Under this approach, the services and enforcement
functions would be given equal priority within the new
division. By raising this issue to the undersecretary level,
the service function will have an advocate focused on the clear
and defined mission of running the Immigration affairs of the
nation. Additionally, the important coordination and
communication that occurs between the enforcement and service
functions of the INS will be maintained. The agency will be
able to better share information and coordinate with other
homeland security agencies and ensure a strong services
function. This approach is also consistent with the President's
goal of placing the entire INS in the DHS.
Also troubling is the prospect of placing the entire visa
issuance function currently the responsibility of the State
Department, within the exclusive authority of the Secretary of
Homeland Security. Everyday, in consular posts around the
world, issues arise as to how a policy or regulation should
apply in a specific case. Cases often turn on questions that
have a significant impact on U.S. foreign policy interests,
U.S. business interests, or American values of family unity and
humanitarian protection. These issues all lie within the
expertise of the state Department and therefore should be
resolved in consultation with it.
Furthermore, there are functions of the current INS that
require a presence outside the United States. Primarily, these
are refugee processing, orphan/adoption processing and the
adjudication of waivers. These functions need to be preserved
as much as possible as functions of the State Department, which
already possesses related expertise and has the needed
infrastructure in the countries where these activities take
place.
Placing the entire visa issuance function within the
exclusive authority of the Secretary for Homeland Security will
diminish the effectiveness of the this important function. The
Hyde-Berman Amendment, which passed during full committee
markup, is the preferred alternative which can be reconciled
with the administration's proposal. I spoke in favor of this
amendment during the markup, which allows the administration of
visa issuance function by State Department employees with the
oversight and regulatory guidance of the Department of Homeland
Security. I am willing to comport my amendment with the Hyde-
Berman Amendment.
I am also willing to comport my amendment with the Lofgren-
Jackson Lee Amendment which will allow the Administration for
Children and Families (ACF) within the Department of Health and
Human Services to be the lead agency with responsibility for
unaccompanied alien children. These children, pose no threat to
the interests of the United States and the expertise ACF has
demonstrated in dealing with similar issues will serve the
needs of the children better than the Department of Homeland
Security .
The creation of the Department of Homeland Security is a
chief priority of the Administration and Congress to achieve in
a very short time. This is a difficult task integrating
functions between the Justice Department and the Department of
Homeland Security and the Judiciary Committee's expertise is
crucial to providing proper guidance.
Shelia Jackson Lee.
Additional Views of Ms. Waters
I am writing to request that the Members of the Select
Committee consider a serious oversight in H.R. 5005.
Specifically, I am concerned that the legislation does not
explicitly refer to the Small Business Act and the protections
it provides to minority- and female-owned small businesses.
As originally drafted, H.R. 5005 contains two procurement
provisions. The first is in Section 301, ``Under Secretary for
Chemical, Biological, Radiological, and Nuclear
Countermeasures.'' One of the responsibilities of the new Under
Secretary for Chemical, Biological, Radiological, and Nuclear
Countermeasures is ``establishing priorities for, directing,
funding, and conducting national research, development, and
procurement of technology and systems'' (emphasis added). The
second place that refers to procurement is in Section 601 of
H.R. 5005 as introduced. Section 601 sets out the primary
responsibilities of the Under Secretary for Management. Among
those responsibilities is procurement. However, there is no
language in the proposed legislation to ensure that procurement
complies with the provisions of the Small Business Act.
The Small Business Act, first enacted in 1953, was created
to protect small businesses and assist them in becoming viable
contributors to our economy. Language from the Act itself
confirm this, as where it says: ``The essence of the American
economic system of private enterprise is free competition. Only
through full and free competition can free markets, free entry
into business, and opportunities for the expression and growth
of personal initiative and individual judgment be assured. The
preservation and expansion of such competition is basic not
only to the economic well-being but to the security of this
Nation. Such security and well-being cannot be realized unless
the actual and potential capacity of small business is
encouraged and developed.''
The language goes on to say, ``It is the declared policy of
the Congress that the Government should aid, counsel, assist,
and protect, insofar as is possible, the interests of small-
business concerns in order to preserve free competitive
enterprise, to insure that a fair proportion of the total
purchases and contracts or subcontracts for property and
services for the Government (including but not limited to
contracts or subcontracts for maintenance, repair, and
construction) be placed with small-business enterprises, to
insure that a fair proportion of the total sales of Government
property be made to such enterprises, and to maintain and
strengthen the overall economy of the Nation.''
The need for protecting small businesses hasn't changed. If
anything, we need to protect small businesses even more in our
current market situation, where the technology firms have gone
bust and more and more large companies-like Enron and WorldCom-
are cooking the books. We all have small businesses in our
districts, businesses that provide good jobs and help maintain
our economy. As we're developing the Department of Homeland
Security, we must be sure to remember those businesses.
Therefore, I urge the Members of the Select Committee to
make an amendment that would affect the two aforementioned
sections of H.R. 5005. The suggested amendment language is as
follows:
Page 17, after line 14, insert the following:
``(5) Nothing in this Act shall reduce the effect of Section
637 of Title 15 of the United States Code.''
Page 30, line 12, insert at the beginning the following:
``(a)''
Page 31, after line 6, insert the following:
``(b) Nothing in this Act shall reduce the effect of Section 637 of
Title 15 of the United States Code.''
The goal of this amendment is simply to ensure that the
provisions of the Small Business Act relating to procurement
opportunities for minority- and female-owned small businesses
apply to government contracts of the new Department of Homeland
Security.
Maxine Waters.
Additional Views of Messrs. Flake, Green, Barr, Ms. Hart, and Mr. Pence
Simultaneous termination of visas and drivers licenses.--As
cosponsors of a proposal to require states to issue driver's
licenses that expire when a temporary visitor's legal stay
concludes, we urge the Select Committee on Homeland Security to
adopt this policy into the Homeland Security Act of 2002. We
note that the administration's Director for Homeland Security
has publicly advocated such a policy change. In order to
encourage compliance by states, driver's licenses or other
comparable identification documents issued by a state would not
be accepted by a federal agency for identification purposes
unless the state issuing the license were in compliance with
the law.
Simply having a valid state driver's license, which has
become the de facto identification card in the U.S., has made
it easy for non-citizen visa holders to remain in the U.S. past
the expiration date on their visas. A driver's license
facilitates many legal interactions in the United States, from
boarding an airplane to entering a government building to
opening a bank account.
Jeff Flake
Mark Green
Bob Barr
Melissa Hart
Mike Pence
Addtional Views of Mr. Smith of Texas
As Chairman of the Subcommittee on Crime, Terrorism and
Homeland Security, I fully support the actions taken by the
Committee on Judiciary with regard to the transfer of only the
Office of National Preparedness from the Federal Emergency
Management Agency (FEMA). It is important that neither FEMA nor
the new Department of Homeland Security are distracted from its
core mission. FEMA has an important role to play when a natural
disaster occurs. Its core mission is to provide assistance to
states and local officials to address needs after a flood or
hurricane. Moving the entire agency over to the Department of
Homeland Security will also distract FEMA from this core
mission.
FEMA is well-equipped to perform the duties and functions
that it has traditionally performed, training first responders
to address the aftermath of a disaster. However, it is not
well-equipped to provide training for law enforcement and other
first responders in how to recognize and disrupt possible
terrorist threats.
Several first responders groups have expressed concerns
about FEMA being the agency responsible for such training. The
National Sheriff's Association testified before this
Committee's Subcommittee on Crime, Terrorism and Homeland
Security, ``[t]he prevention, detection and apprehension of
terrorists are law enforcement functions, and it is not
appropriate for training and coordination to be assigned to the
FEMA regime, where there are no such responsibilities. In the
tragic event that there is a terrorist attack, that crisis is
also a law enforcement responsibility. Sheriffs and Chiefs of
Police are shocked that OMB would propose that FEMA should
assume responsibility in these areas, where there is neither
experience nor legal authority to act.''\1\
---------------------------------------------------------------------------
\1\ This is a test of the footnote.
---------------------------------------------------------------------------
These same views have been reiterated by the International
Brotherhood of Police Officers (IBPO). In a March 8, 2002
letter to the Subcommittee on Crime, Terrorism and Homeland
Security the IBPO stated that it ``is concerned that FEMA does
not have the experience or understanding that a law enforcement
agency has when investigating terrorism.''
Additionally, the Police Executive Research Forum (PERF), a
national organization of police executive professionals, that
serves more than 50 percent of the country's population,
explained that while it respects and values FEMA's role in
disaster mitigation, it was troubled about FEMA assuming a new
role in training in antiterrorism efforts by state and local
law enforcement. PERF explained:
[t]he mission of FEMA and its area of expertise are
based on disaster response and mitigation. While law
enforcement, firefighting, emergency medical services,
and HAZMAT agencies could all be first responders to a
critical incident, the role of law enforcement is
unique in its crisis prevention, detection activities,
and apprehension of suspects. Police agencies have
primary responsibility for local intelligence
gathering, public safety and maintaining public order
before and during a crisis. They do this through
combinations of community policing, criminal
investigation, and emergency response. All of this must
be done while meeting the day-to-day demands of a local
police department. These efforts require [F]ederal
support that is based on extensive experience and
knowledge of local police operations and challenges* *
* . The knowledge that comes from this experience
cannot be easily transferred to an agency that is
relatively new to law enforcement issues.
FEMA's experience and expertise have traditionally been in
other areas of public safety and welfare than law enforcement.
They have little history of effective partnership with local
law enforcement on proactive efforts. Additionally, FEMA has
indicated that regardless of where it is transferred in the
Federal government, it will not provide training in crisis
management for first responders; it will continue to provide
training in consequence management only.
Last week, an article in the New York Times outlined in
detail how the lack of a coordinated response, or coordinated
communication systems, between state and local law enforcement
and firefighters could have caused additional avoidable
tragedies on September 11. We must make sure that any future
terrorist threats are addressed with a coordinated response.
The Department of Homeland Security can ensure this type of
response by allowing the transferred Office of Domestic
Preparedness to continue to provide the coordinated training
for all state and local first responders in both crisis and
consequence management.
I support the decision by the Committee on Judiciary to
allow FEMA to continue to perform its mission as a separate
agency. This will ensure that the creation of the new
Department of Homeland Security will not detract from the
important services the Federal government has traditionally
provided for the American people after a natural disaster.
Lamar Smith.
COMMITTEE ON SCIENCE
House of Representatives,
Committee on Science,
Washington, DC, July 12, 2002.
Hon. Richard K. Armey
Chairman, House Select Committee on Homeland Security, The
Capitol, Washington, D.C.
Dear Mr . Chairman: The Committee on Science was referred
the bill, H.R. 5005, the Homeland Security Act of 2002, and
reports its recommendations and views thereon.
The Committee reported its recommendations by voice vote on
July 10, 2002. The Committee is looking forward to working with
you and your staff to bring the bill to a successful markup in
the Select Committee and passage on the floor of the House.
Thank you for your consideration.
Sincerely,
Sherwood L. Boehlert,
Chairman,
Ralph M. Hall,
Ranking Minority Member.
------
Amendments to H.R. 5005 as Adopted by the Committee on Science on July
10, 2002
Amendments to H.R. 5005
as Adopted by the Committee on Science
on July 10, 2002
Page 4, after line 10, insert the following and renumber subsequent
paragraphs accordingly:
(3) The term ``critical infrastructure'' means physical and
cyber-based public and private systems essential to the minimum
operations of the economy and government, including information
and telecommunications, energy, banking and finance,
transportation, and water systems and emergency services.
Page 5, after line 2, insert the following and renumber subsequent
paragraphs accordingly:
(8) The term ``key resources'' means publicly or privately
controlled resources essential to the minimal operations of the
economy and government.
Page 7, line 12, strike ``; and'' and insert a semicolon.
Page 7, line 17, strike the period and insert ``; and''.
Page 7, after line 17, insert the following new subparagraph:
(F) research, development, demonstration, testing,
evaluation, and deployment in support of subparagraphs (A)
through (E).
Page 8, after line 16, insert the following new subsection:
(c) 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
OMB Circular A-119.
Page 9, after line 11, insert the following new paragraph and
redesignate the subsequent paragraphs accordingly:
(7) An Under Secretary for Science and Technology.
Page 12, line 14, strike ``title VIII'' and insert ``title IX''.
Page 13, lines 4 through 7, strike paragraph (4) and redesignate
the subsequent paragraphs accordingly.
Page 13, strike ``and'' at the end of line 11.
Page 13, strike the period at the end of line 15 and insert ``;
and''.
Page 13, after line 15, insert the following new paragraph:
(6) the Energy Security and Assurance Program and
activities of the Department of Energy, including the functions
of the Secretary of Energy relating thereto.
Page 15, after line 24, insert the following new sections:
SEC. 205. INFORMATION SECURITY.
(a) Responsibilities.--In carrying out his duties under section
201, the Under Secretary for Information Analysis and Infrastructure
Protection shall--
(1) as appropriate, provide to Federal, State, and local
government entities, and, upon request, to private entities
that own or operate critical information systems and
communications networks--
(A) analysis and warnings related to threats to,
and vulnerabilities of, information systems and
communications networks; and
(B) in coordination with the Under Secretary for
Emergency Preparedness and Response, crisis management
support in response to threats to, or attacks on
information systems and communications networks;
(2) develop, in concert with the private sector and with
other government entities and in coordination with the Under
Secretary for Emergency Preparedness and Response, emergency
recovery plans to respond to major failures of critical
information systems and communications networks; and
(3) promulgate information security standards for Federal
information systems, except for national security and national
intelligence information systems, developed by the National
Institute of Standards and Technology under subsection (b).
(b) Federal Computer Security.--In developing the standards for
promulgation under subsection (a)(3), the Director of the National
Institute of Standards and Technology shall--
(1) emphasize the development of technology-neutral policy
guidelines and standards for computer security and electronic
authentication practices by Federal agencies;
(2) develop qualitative and quantitative measures
appropriate for assessing the quality and effectiveness of
information security and privacy programs at Federal agencies;
(3) promote the development of accreditation procedures for
Federal agencies based on the measures developed under
paragraph (2);
(4) consult with, and provide assistance to, Federal
agencies regarding the selection by agencies of security
technologies and products and the implementation of security
practices;
(5) develop uniform testing procedures suitable for
determining the conformance of commercially available security
products to the guidelines and standards developed under
paragraph (1);
(6) establish procedures for the certification of private
sector laboratories to perform the tests of commercially
available security products developed in accordance with
paragraph (5);
(7) promote the testing of commercially available security
products for their conformance with guidelines developed under
paragraph (1); and
(8) develop technology-neutral guidelines and standards, or
adopt existing technology-neutral industry guidelines and
standards, for electronic authentication infrastructures to be
made available to Federal agencies so that such agencies may
effectively select and utilize electronic authentication
technologies in a manner that is adequately secure to meet the
needs of those agencies and their transaction partners and
interoperable to the maximum extent possible, and ensure that
those guidelines and standards include--
(A) protection profiles for cryptographic and
noncryptographic methods of authenticating identity for
electronic authentication products and services;
(B) a core set of interoperability specifications
for the use of electronic authentication products and
services in electronic transactions between Federal
agencies and their transaction partners; and
(C) validation criteria to enable Federal agencies
to select cryptographic electronic authentication
products and services appropriate to their needs.
(c) Definitions.--As used in this section--
(1) 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;
(2) the term ``Federal information system'' means an
information system operated by a Federal agency or by a
contractor of a Federal agency or other organization that
processes information (using an information system) on behalf
of the Federal Government to accomplish a Federal function;
(3) the term ``electronic authentication'' means
cryptographic or noncryptographic methods of authenticating
identity in an electronic communication; and
(4) the term ``electronic authentication infrastructure''
means the software, hardware, and personnel resources, and the
procedures, required to effectively utilize electronic
authentication technologies.
SEC. 206. NET GUARD.
(a) In General.--The Under Secretary for Information Analysis and
Infrastructure Protection, in coordination with the Under Secretary for
Emergency Preparedness and Response, shall establish a national
technology guard, known as NET Guard, comprising 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 (if requested by a local community
and approved by the Under Secretary for Information Analysis and
Infrastructure Protection). In carrying out this responsibility, the
Under Secretary for Information Analysis and Infrastructure Protection
shall--
(1) establish procedures for the deployment of NET Guard
teams;
(2) establish criteria for the certification of such teams,
including--
(A) the types of expertise, capabilities, and
equipment required; and
(B) minimum training and practice requirements;
(3) issue credentials and forms of identification, as
appropriate, identifying each such team and its members and may
suspend or terminate certification of, and recover credentials
and forms of identification from, any NET Guard team, or any
member thereof, when the Under Secretary deems it appropriate;
and
(4) disseminate to local communities information about the
capabilities of NET Guard.
(b) Deployment.--The Under Secretary for Information Analysis and
Infrastructure Protection, in coordination with the Under Secretary for
Emergency Preparedness and Response, may--
(1) activate NET Guard teams in an emergency (as defined in
section 102(1) of the Robert T. Stafford Disaster Relief and
Emergency Assistance Act), or a major disaster;
(2) authorize the payment to a member of a NET Guard team
for the period that member is engaged in performing duties as
such at the request of the United States by--
(A) compensating them as employees for temporary or
intermittent services as experts or consultants under
section 3109 or title 5, United States Code; and
(B) providing travel or transportation expenses,
including per diem in lieu of subsistence, as provided
by section 5703 of title 5, United States Code;
(3) assign, on a voluntary basis, NET Guard teams to work,
on a temporary basis, on such other technology-related projects
that the Under Secretary for Information Analysis and
Infrastructure Protection deems appropriate; and
(4) conduct such additional activities as the Under
Secretary for Information Analysis and Infrastructure
Protection deems necessary to fulfill the purpose of this
section.
Page 16, line 15, through page 17, line 3, strike ``threats'' and
all that follows through ``technology and systems'' and insert
``threats, including establishing priorities''.
Page 17, line 10, redesignate paragraph (4) as paragraph (2).
Page 17, line 16, strike ``title VIII'' and insert ``title IX''.
Page 18, lines 4 though 7, strike subparagraph (A).
Page 18, lines 8 and 18, redesignate subparagraphs (B) and (C) as
subparagraphs (A) and (B), respectively.
Page 18, line 17, insert ``and'' after ``Secretary of Energy;''.
Page 18, line 21, insert ``and'' after ``and cooperation
program;''.
Strike page 18, line 22, through page 19, line 9.
Page 19, line 13, strike ``; and'' and insert a period.
Page 19, strike lines 14 through 17.
Page 19, line 18, through page 20, line 21, strike section 303, and
renumber the subsequent section accordingly.
Page 22, line 2, strike ``and''.
Page 22, line 5, strike the period and insert ``; and''.
Page 22, after line 5, insert the following new paragraph:
(6) promulgating identification and security standards and
measures for use by the Department in carrying out paragraphs
(1), (2), and (5).
Page 22, line 7, strike ``title VIII'' and insert ``title IX''.
Page 23, line 2, insert ``(except its research and development
activities)'' after ``of the Department of Transportation''.
Page 24, after line 6, insert the following new subsection:
(c) Report.--Not later than December 31, 2002, or 30 days after the
date of the enactment of this Act, whichever is later, the Director of
the Office of Science and Technology Policy shall submit to the
Congress a report on how the provisions of this section will affect
procedures for the issuance of student visas.
Page 25, line 22, insert ``, including interventions to treat the
psychological consequences of terrorist attacks or major disasters and
provision for training for mental health workers to allow them to
respond effectively to such attacks or disasters'' after ``major
disasters''.
Page 26, line 11, strike ``title VIII'' and insert ``title IX''.
Page 26, line 17, insert ``, and the Integrated Hazard Information
System of the National Oceanic and Atmospheric Administration'' after
``relating thereto''.
Page 30, after line 9, insert the following new section:
SEC. 506. UNITED STATES FIRE ADMINISTRATION.
(a) Statutory Authority.--The United States Fire Administration
shall continue to exist as a distinct entity within the Department, and
shall continue to carry out the activities specified in the Federal
Fire Prevention and Control Act of 1974.
(b) Assistance to Firefighters Grants Program.--
(1) In general.--The Under Secretary for Emergency
Preparedness and Response, through the United States Fire
Administration, shall administer the grant program under
section 33 of the Federal Fire Prevention and Control Act of
1974 (15 U.S.C. 2229).
(2) Amendments.--Section 33 of the Federal Fire Prevention
and Control Act of 1974 (15 U.S.C. 2229) is amended--
(A) in subsection (b)(2)(B)(i), by inserting ``,
including a requirement for peer review of the
selection process'' after ``under this section'';
(B) in subsection (b)(3)(N), by inserting
``including funding to enable training described in
subparagraph (B)'' after ``that utilize volunteers'';
(C) in subsection (b)(5)(B)(i), by inserting ``In
allocating funds under this section, the Administrator
shall not discriminate against an applicant whose
funding jurisdiction places a high budget priority on
fire department needs.'' after ``for which applied.'';
and
(D) in subsection (b)(11), by striking
``professional'' and inserting ``career''.
(c) Consultation.--The Under Secretary for Emergency Preparedness
and Response shall consult with the Administrator of the United States
Fire Administration on the implementation of programs that involve
firefighters or emergency medical personnel, including the First
Responder Grant Initiative.
Page 31, after line 14, insert the following new title and renumber
the subsequent titles and sections accordingly:
TITLE VII--SCIENCE AND TECHNOLOGY
SEC. 701. UNDER SECRETARY FOR SCIENCE AND TECHNOLOGY.
In assisting the Secretary with the responsibilities specified in
section 101(b)(2)(F), the primary responsibilities of the Under
Secretary for Science and Technology shall include--
(1) establishing and administering the primary research and
development activities of the Department;
(2) conducting basic and applied research, development,
demonstration, testing, and evaluation activities that are
relevant to any or all units of the Department, through both
intramural and extramural programs;
(3) serving as the chief scientist and chief technology
officer of the Department, providing advice to the Secretary on
all matters relating to science and technology;
(4) coordinating all research, development, demonstration,
testing, and evaluation activities of the Department;
(5) facilitating the deployment of technology that will
serve to enhance homeland security;
(6) developing and overseeing the administration of
guidelines for merit review of research and development
projects throughout the Department;
(7) developing guidelines for the dissemination of research
conducted or sponsored by the Department; and
(8) coordinating with the Office of Science and Technology
Policy and the White House Office of Homeland Security and
other appropriate Federal agencies in developing and carrying
out the science and technology agenda of the Department.
SEC. 702. FUNCTIONS TRANSFERRED.
(a) In general.--In accordance with title IX, 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) 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;
(C) the Environmental Measurements Laboratory; and
(D) the advanced scientific computing research
program and activities, and the intelligence program
and activities, at Lawrence Livermore National
Laboratory;
(2) the Plum Island Animal Disease Center of the Department
of Agriculture, including the functions of the Secretary of
Agriculture relating thereto; and
(3) the research and development activities of the
Transportation Security Administration.
(b) Notification.--(1) At least 60 days before effecting any
transfer pursuant to subsection (a)(1)(A), the President shall transmit
to the Congress a report describing--
(A) which national laboratories will be affected by the
transfer, and the estimated number of employees and amount of
expenditures that would be transferred at each affected
national laboratory;
(B) any changes to the contracts between the Department of
Energy and the operators of national laboratories necessary for
the Department to carry out activities at the national
laboratories, and any other agreements necessary to carry out
such activities;
(C) any changes to the physical plant of any national
laboratory and any transfer of workers to a different location
that will result from the transfer under subsection (a)(1)(A);
(D) how the transfer under subsection (a)(1)(A) will affect
the duties of workers at affected national laboratories who
work on both homeland security issues and other matters; and
(E) what impact the transfer under subsection (a)(1)(A)
will have on the ability of the national laboratories to carry
out their other duties.
(2) At least 60 days before effecting any transfer pursuant to
subsection (a)(1)(B), the President shall notify the Congress of the
proposed transfer and shall include the reasons for the transfer and a
description of the impact of the transfer on the activities of the
Department of Energy.
(3) At least 60 days before effecting any transfer pursuant to
subsection (a)(1)(D), the President shall submit a report to the
Congress describing--
(A) any changes to the contract between the Department of
Energy and the operator of Lawrence Livermore National
Laboratory necessary for the Department to carry out activities
at Lawrence Livermore National Laboratory, and any other
agreements necessary to carry out such activities;
(B) any changes to the physical plant or transfers of
workers to different sites at Lawrence Livermore National
Laboratory being made to enable the Department to carry out
activities at the Laboratory;
(C) how the transfer under subsection (a)(1)(D) will affect
the duties of workers at Lawrence Livermore National Laboratory
who work on both homeland security issues and other matters;
and
(D) any relationships the Department intends to develop
with other national laboratories of the Department of Energy.
(4) At least 180 days before any change in the biosafety level at
the facility described in subsection (a)(2), the President shall notify
the Congress of the change and describe the reasons therefor. No such
change may be made until at least 180 days after the completion of the
transition period defined in section 901(2).
SEC. 703. CONDUCT OF CERTAIN PUBLIC HEALTH-RELATED ACTIVITIES.
(a) Certain Activities Carried Out Through HHS.--(1) Except as the
President may otherwise direct, the Secretary shall carry out his
civilian human health-related biological, biomedical, and infectious
disease defense research and development (including vaccine research
and development) responsibilities through the Department of Health and
Human Services (including the Public Health Service), under agreements
with the Secretary of Health and Human Services, and may transfer funds
to him in connection with such agreements.
(2) With respect to any responsibilities carried out through the
Department of Health and Human Services under this subsection, the
Secretary, in consultation with the Secretary of Health and Human
Services, shall have the authority to establish the research and
development program, including the setting of priorities.
(b) Transfer of Funds.--With respect to such other research and
development responsibilities under this title, including health-related
chemical, radiological, and nuclear defense research and development
responsibilities, as he may elect to carry out through the Department
of Health and Human Services (including the Public Health Service)
(under agreements with the Secretary of Health and Human Services) or
through other Federal agencies (under agreements with their respective
heads), the Secretary may transfer funds to the Secretary of Health and
Human Services, or to such heads, as the case may be.
(c) Report.--Not later than 30 days after the end of each fiscal
year, beginning with the first fiscal year in which the Department is
in operation, the Under Secretary for Science and Technology shall
submit to the Congress a report describing the responsibilities of the
Department that have been carried out in accordance with this section
and listing all transfers of funds carried out under subsection (b)
along with the specific purpose of each transfer.
SEC. 704. 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) Assistance for disaster decisionmaking to enhance skill
in making decisions by public safety and other crisis
management personnel, in order to keep Americans safe before,
during, and after terrorist incidents and natural disasters.
(7) Design of metrics and use of those metrics to evaluate
the effectiveness of homeland security programs throughout the
Federal Government, including all national laboratories.
(8) Design of and support for the conduct of homeland
security-related exercises and simulations.
(9) 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, and nonprofit institutions.
(e) Annual Reports.--The Institute shall transmit to the Secretary
and the Congress an annual report on the activities of the Institute
under this section.
SEC. 705. INQUIRIES.
(a) Office.--The Secretary, acting through the Under Secretary for
Science and Technology, shall establish an office to serve as a point
of entry for individuals or companies seeking guidance on how to pursue
proposals to develop or deploy products that would contribute to
homeland security. Such office shall refer those seeking guidance on
Federal funding, regulation, acquisition, or other matters to the
appropriate unit of the Department or to other appropriate Federal
agencies.
(b) Functions.--The Under Secretary for Science and Technology
shall work in conjunction with the Technical Support Working Group
(organized under the April, 1982, National Security Decision Directive
Numbered 30) to--
(1) screen proposals described in subsection (a), as
appropriate;
(2) assess the feasibility, scientific and technical
merits, and estimated cost of proposals screened under
paragraph (1), as appropriate;
(3) identify areas where existing technologies may be
easily adapted and deployed to meet the homeland security
agenda of the Federal Government; and
(4) develop and oversee the implementation of homeland
security technology demonstration events, held at least
annually, for the purpose of improving contact among technology
developers, vendors, and acquisition personnel.
SEC. 706. MISCELLANEOUS PROVISIONS.
(a) Authority To Reorganize.--
(1) In general.--Notwithstanding any other provision of
this Act, the responsibilities of the Under Secretary for
Science and Technology under section 701 may not be reassigned
to any other Under Secretary, or to any person under the
authority of any other Under Secretary.
(2) Notice to congress.--(A) As soon as practicable after
the date of enactment of this Act, but not later than December
31, 2002, the President shall submit to the Congress a plan
regarding how the science and technology functions of the
Department, including those functions transferred to the
Department from other departments and agencies, are to be
organized. Such plan shall not take effect until 90 days after
the President has submitted the plan to the Congress.
(B) The President shall notify the Congress of any
subsequent changes to the plan, and no proposed changes shall
take effect until 90 days after the notification has been
submitted to the Congress.
(b) Classification.--(1) To the greatest extent practicable,
research conducted or supported by the Department shall be
unclassified.
(2) The Under Secretary for Science and Technology shall--
(A) decide whether classification is appropriate prior to
the award of a research grant, contract, or cooperative
agreement by the Department and, if so, shall control the
research results through standard classification procedures;
and
(B) periodically review all classified research grants,
contracts, or cooperative agreements issued by the Department
to determine whether classification is still necessary.
No restrictions shall be placed upon the conduct or reporting of
federally-funded fundamental research that has not received national
security classification, except as provided in applicable provisions of
law.
(c) 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.
(d) 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.
(e) Sense of Congress.--It is the sense of Congress that the
Secretary should consult with the National Aeronautics and Space
Administration in developing computer security systems and processes,
capitalizing on their expertise developed through International Space
Station and satellite technology research.
SEC. 707. COORDINATION COUNCIL.
(a) Establishment and Composition.--There is established within the
Department a Homeland Security Science and Technology Coordination
Council (in this section referred to as the ``Coordination Council'').
The Coordination Council shall be composed of all the Under Secretaries
of the Department and any other Department officials designated by the
Secretary, and shall be chaired by the Undersecretary for Science and
Technology. The Coordination Council shall meet at the call of the
chair.
(b) Responsibilities.--The Coordination Council shall--
(1) establish priorities for research, development,
demonstration, testing, and evaluation activities conducted or
supported by the Department;
(2) ensure that the priorities established under paragraph
(1) reflect the acquisition needs of the Department; and
(3) assist the Under Secretary for Science and Technology
in carrying out his responsibilities under section 701(4).
SEC. 708. 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 one year, one a
term of two years, and the other a term of three 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 one-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 one 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 the 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 the 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.
SEC. 709. UNIVERSITY-BASED CENTERS FOR HOMELAND SECURITY.
(a) Establishment.--The Secretary, acting through the Under
Secretary for Science and Technology, shall establish up to 4
university-based centers for homeland security to provide a
coordinated, university-based approach to enhance the Nation's homeland
security.
(b) Selection.--In selecting colleges or universities as centers
for homeland security, the Secretary shall consider the following
criteria:
(1) Demonstrated expertise in the training of first
responders.
(2) Demonstrated expertise in responding to incidents
involving weapons of mass destruction.
(3) Demonstrated expertise in health sciences.
(4) Demonstrated expertise in emergency medical services.
(5) Demonstrated expertise in the area of biological and
life sciences.
(6) Strong affiliations with animal and plant diagnostic
laboratories.
(7) Demonstrated expertise in food safety.
(8) Affiliation with Department of Agriculture laboratories
or training centers.
(9) Demonstrated expertise in water and wastewater
operations.
(10) Nationally recognized programs dealing with
environment and public health in both urban and rural areas.
(11) Demonstrated expertise in port and waterway security.
(12) Demonstrated expertise in multi-modal transportation.
(13) Nationally recognized programs in information
security.
(14) Nationally recognized programs in engineering.
(15) Demonstrated expertise in educational outreach and
technical assistance.
(16) Demonstrated expertise in border transportation and
security.
(17) Demonstrated expertise in interdisciplinary public
policy research and communication outreach regarding science,
technology and public policy.
(c) Authorization of Appropriations.--There are authorized to be
appropriated such sums as may be necessary to carry out this section.
Page 36, strike lines 12 through 25.
Page 37, strike lines 1 through 10 and renumber the subsequent
subsections accordingly.
Page 52, after line 11, add the following new sections:
SEC. 1008. OFFICE OF SCIENCE AND TECHNOLOGY POLICY.
The National Science and Technology Policy, Organization, and
Priorities Act 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. 1009. 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 of Homeland Security for Science
and Technology.
``(14) Other Federal officials the Council considers
appropriate.''.
SEC. 1010. CONDUCT OF CERTAIN MEASUREMENT AND STANDARDS DEVELOPMENT
ACTIVITIES.
The National Institute of Standards and Technology Act (15 U.S.C.
271 et seq.) is amended--
(1) by redesignating section 32 as section 34; and
(2) by inserting after section 31 the following new
section:
``conduct of certain measurement and standards development activities
``Sec. 32. (a) Activities by Institute.--Except as the President
may otherwise direct, the Institute, in accordance with cooperative
agreements entered into with the Secretary of Homeland Security, shall
carry out--
``(1) a program of measurement and standards development
activities related to the detection of chemical, biological,
radiological, nuclear, and explosive threats; and
``(2) a program to develop standards and guidelines with
respect to border and transportation security technologies,
which shall include conformity assessment and related
activities.
The Secretary of Homeland Security shall transfer funds to the Director
in connection with such programs.
``(b) Report.--Not later than 30 days after the end of each fiscal
year, beginning with the first fiscal year in which the Department of
Homeland Security is in operation, the Director shall transmit to the
Congress a report describing the activities carried out under this
section, and listing all transfers of funds carried out under
subsection (a), along with the specific purpose of each transfer.''.
SEC. 1011. STANDARDS REVIEW.
The National Institute of Standards and Technology Act (15 U.S.C.
271 et seq.), as amended by section 1010 of this Act, is further
amended by adding after section 32 the following new section:
``standards review
``Sec. 33. The Director, in accordance with an agreement entered
into with the Secretary of Homeland Security, and in consultation with
standards development organizations as appropriate, shall prepare a
list of United States homeland security-related voluntary consensus
standards needs. Within one year after the date of the enactment of the
Homeland Security Act of 2002--
``(1) the Director shall transmit to the Congress a 3-year
plan outlining research priorities to assist in the development
of the listed standards; and
``(2) the Secretary of Homeland Security shall transmit to
the Congress a Government-wide plan for expediting the
development, revision, and promulgation of these standards,
including specific steps that Federal agencies should take to
provide the resources to voluntary standards development
organizations needed to have the standards in place as soon as
is practicable.''.9/12/2002 10:00:12 AM -
F:\V7\091202\091202.024 Created by: VLCirks deg.
Section-by-Section Description of Science Committee Amendments to H.R.
5005
Amendments to Section 2. definitions.
Provision: defines ``critical infrastructure'' as physical
and cyber-based public and private systems essential to the
minimum operations of the economy and government, including
information and telecommunications, energy, banking and
finance, transportation, and water systems and emergency
services.
Rationale: the term ``critical infrastructure'' is used
throughout the bill but is not defined.
Provision: defines ``key resources'' as publicly or
privately controlled resources essential to the minimal
operations of the economy and government, including reservoirs.
Rationale: the term ``key resources'' is used in Title II
but is not defined.
Amendment to Section 101. executive department; mission.
Provision: adds ``research, development, demonstration, and
testing and evaluation'' related to homeland security to the
responsibilities of the Department of Homeland Security.
Rationale: science and technology are widely recognized as
among the principal tools with which the mission of the
department will be realized. Accordingly, research and
development should be included explicitly in the department's
responsibilities.
Provision: requires that all standards activities of the
Department shall be conducted in accordance with the National
Technology Transfer Advancement Act of 1995 and OMB Circular A-
119.
Rationale: the Science Committee wants to assure that any
standards-setting functions transferred to the Department of
Homeland Security continue to conform to the voluntary,
consensus-based standards development process that is the norm
for most standards activities in the U.S.
Amendment to Section 103. other officers.
Provision: adds an Under Secretary for Science and
Technology to the roster of departmental officers.
Rationale: science and technology for homeland security
will require both high-level attention and management. The
cross-cutting nature of homeland security technical challenges
suggest that the department will need a central research and
development organization (led by the Under Secretary for S&T).
Amendment to Section 202. functions transferred. (to the Secretary of
Homeland Security within Title II--Information Security and
Infrastructure Protection)
Provision: transfers the Energy Security and Assurance
Program and activities of the Department of Energy to Title II
(Information Analysis and Infrastructure Protection), rather
than to Title III (Chemical, Biological, Radiological, and
Nuclear Countermeasures).
Rationale: this program is related to infrastructure
protection, particularly protection of power generation and
distribution systems.
Amendments to Title II--information analysis and infrastructure
protection
Provision: strikes the paragraph in H.R. 5005 that
transfers the Computer Security Division of the Information
Technology Laboratory at the National Institute of Standards
and Technology (NIST) to the Department of Homeland Security.
Rationale: The NIST Computer Security Division develops
information security standards, and testing and evaluation
tools for use in federal agencies and in the private sector.
The effectiveness of the division is directly related to its
tight integration with other NIST laboratories, including the
other divisions of the Information Technology Laboratory, the
Physics Laboratory, and the Electronics and Electrical
Engineering Laboratory. The effectiveness of the Computer
Security Division is further enhanced by its close relationship
with NIST's industrial customers. For example, the Advanced
Encryption Standard, recently certified by NIST and widely used
in both government and industry, was developed largely through
the coordinated efforts of private sector and academic computer
security experts with the NIST Computer Security Division
acting as an honest broker that also provided technical support
and test and evaluation services. It is the view of the
Committee that the expertise of the Computer Security Division
could best be harnessed in the service of homeland security if
the division remains within NIST.
Provision: adds a new section (Section 205) on information
security that gives the Under Secretary for Information
Analysis and Infrastructure Protection responsibility for
(1) providing analysis and warnings related to information
and communications threats and vulnerabilities;
(2) providing crisis management support in response to
threats to, or attacks on information systems and
communications networks;
(3) promulgating information security standards for Federal
information systems, except for national security and national
intelligence information systems (the National Security Agency
is responsible for information security standards for these
systems). The information security standards will be developed
by the National Institute of Standards and Technology (NIST).
In elaborating NIST's responsibilities for developing
technology-neutral information security standards, the new
section includes most of the relevant provisions of the
Computer Security Enhancement Act, H.R. 1259, passed by the
House of Representatives on November 27, 2001.
Rationale: the vulnerability of critical information and
communication systems has been identified as one of the most
serious security threats facing the United States, yet
cybersecurity is not specifically addressed in H.R. 5005 as
introduced. The amendment lays out explicit responsibility and
authority for addressing information threats directed at non-
military systems.
Provision: adds a new section (Section 206) establishing a
volunteer corps of technical experts, known as NET Guard, to
assist local communities to respond and recover from attacks on
information systems and communications networks. The section
requires the Under Secretary to establish procedures for
deploying NET Guard teams and criteria for certifying teams,
including expertise, training, and practice requirements. The
Under Secretary for Information Analysis and Infrastructure
Protection, in coordination with the Under Secretary for
Emergency Preparedness and Response, is authorized to deploy
NET Guard teams in the event of an emergency (as defined by the
Stafford Disaster Relief and Emergency Assistance Act) or major
disaster. The Under Secretary is also authorized to temporarily
assign volunteer NET Guard teams to technology-related projects
deemed appropriate by the Under Secretary.
Rationale: most of the nation's expertise in information
security and information infrastructure protection resides
outside of the public sector. This section establishes a
mechanism whereby technical experts in academia and the private
sector can offer their services to a national ``volunteer fire
department'' organized by the Department of Homeland Security
and dedicated to responding to information and communications
attacks (putting out cyber ``fires'').
Amendment to Section 301. under secretary for chemical, biological,
radiological, and nuclear countermeasures.
Provision: strikes the paragraphs that give the Under
Secretary responsibility for research, development, and
procurement of science and technology for homeland security.
Rationale: as mentioned above, the Science Committee would
give these responsibilities to a new Under Secretary for
Science and Technology. In the Committee's view, science and
technology should be organized within a dedicated secretariat
that serves the needs of the entire department. The research
and development requirements cut across the four functional
areas established by the bill-information and infrastructure,
chem-bio-nuclear, border and transportation, and emergency
preparedness and response. The Committee believes it would be
unwise to house responsibility for research and development
within just one of these functional areas. In addition, the
research and development language in section 301 of H.R. 5005
is too vague and general to give the Department clear
responsibility for homeland security research and development.
Amendments to Section 302. functions transferred. (to the Secretary of
Homeland Security within Title III-Chemical, Biological,
Radiological, and Nuclear Countermeasures)
Provision: strikes the paragraphs that transfer a number of
research and development programs in the Department of Energy,
including:
(1) the chemical and biological national security and
supporting programs and activities of the non-proliferation and
verification research and development program,
(2) life science activities of the biological and
environmental research program related to microbial pathogens,
(3) the Environmental Measurements Laboratory,
(4) and the advanced scientific computing research program
and activities, and the intelligence program and activities, at
Lawrence Livermore National Laboratory.
Rationale: these are research and development programs and
facilities that properly should be housed within the under-
secretariat for science and technology created in a
subsequently listed Science Committee amendment.
Provision: strikes the paragraph that transfers the energy
security and assurance program in the Department of Energy.
Rationale: this is a critical infrastructure assurance
program that properly belongs in the under-secretariat for
information analysis and infrastructure protection (transferred
there by a previously-listed Science Committee amendment).
Provision: strikes the paragraph that transfers the Plum
Island Animal Disease Center of the Department of Agriculture.
Rationale: this is a scientific research facility that
properly belongs in the under-secretariat for science and
technology (transferred there by a subsequently-listed Science
Committee amendment).
Amendment to Section 303. conduct of certain public health-related
activities.
Provision: strikes the paragraphs directing the Secretary
of Homeland Security to carry out civilian human health-related
biological, biomedical, and infectious disease defense research
and development through the Department of Health and Human
Services.
Rationale: these paragraphs relate to research and
development. They are transferred in their entirety into the
new Title VII establishing an under-secretariat for science and
technology by a subsequently listed Science Committee
amendment.
Amendment to Section 401. under secretary for border and transportation
security.
Provision: adds ``promulgating identification and security
standards and measures'' for border and transportation security
to the responsibilities of the Under Secretary for Border and
Transportation Security.
Rationale: standards and measures will be required for the
development and deployment of border and transportation
security technologies such as biometric identification
technology, explosives detection technology, etc. The Science
Committee wants to assure that this is an explicit
responsibility of the Under Secretary.
Amendment to Section 402. functions transferred. (to the Secretary of
Homeland Security within Title IV-Border and Transportation
Security).
Provision: qualifies the transfer of the Transportation
Security Administration by excluding transfer of its research
and development activities. Those activities are transferred
within Title VII the under-secretariat for science and
technology by a subsequently listed Science Committee
amendment.
Rationale: the Science Committee's view is that research
and development functions should be housed under the Under
Secretary for Science and Technology.
Amendment to Section 403. visa issuance.
Provision: adds a requirement that the Director of the
Office of Science and Technology Policy submit a report to
Congress on how the transfer of administrative and regulatory
responsibility for visa issuance to the Secretary of Homeland
Security will affect the issuance of student visas.
Rationale: early draft plans for implementing new security
rules for student visas caused some justified consternation in
academic circles at the time those plans were made public.
Subsequently, the Director of the Office of Science and
Technology Policy created the Interagency Panel on Advanced
Science Security (IPASS) to review the implementation plans and
propose revisions. A new implementation plan for improving the
security of the student visa process, developed by IPASS, has
relieved most of the previously expressed concerns of the
academic institutions that would be responsible for enforcing
student visa regulations. The Science Committee wants to assure
that a robust and workable security regime for student visas
survives intact in the transfer of the visa function to
Homeland Security.
Amendments to Title V--emergency preparedness and response
Provision: adds ``interventions to treat the psychological
consequences of terrorist attacks or major disasters'' to the
responsibilities of the Under Secretary for Emergency
Preparedness and Response in aiding in the recovery from
terrorist attacks and major disasters.
Rationale: the primary goal of terrorist attacks is to
cause widespread psychological distress in order to demoralize
the civilian population of the United States. With that in
mind, the Science Committee deems it appropriate to address
psychological consequences in any response to incidences of
terrorism or other major disasters.
Provision: transfers the Integrated Hazard Information
System of the National Oceanic and Atmospheric Administration
to the Department of Homeland Security.
Rationale: the Science Committee views the system as an
emergency preparedness asset that can contribute to the
effectiveness of the other functions transferred to the
Department within the under-secretariat for emergency
preparedness and response.
Provision: adds a new section (Section 506) on the U.S.
Fire Research Administration specifying that the Fire
Administration shall continue to exist as a distinct entity
within the Department of Homeland Security (H.R. 5005 transfers
the Fire Administration to the Dept. of Homeland Security) and
shall continue to carry out the activities specified in the
Federal Fire Prevention and Control Act of 1974. The amendment
also requires the Under Secretary for Emergency Preparedness
and Response to administer the Assistance to Firefighters
Grants Program.
Rationale: in the view of the Science Committee, the U.S.
Fire Research Administration and the associated Assistance to
Firefighters Grants Program are important national resources
that aid in the prevention and control of fire. They should be
preserved as distinct entities within their new home in the
Homeland Security Department.
Amendment establishing a new Title VII--science and technology
Provision: adds a title to the bill (Title VII, the
existing Title VII and subsequent titles are renumbered)
establishing an Under Secretary for Science and Technology and
transferring within that title most of the research and
development functions transferred to the Department of Homeland
Security by H.R. 5005. The Under Secretary for Science and
Technology would be responsible for conducting basic and
applied research, development, demonstration, and testing and
evaluation relevant to any or all units of the Department. The
Under Secretary would also serve as the chief scientist and
chief technology officer of the Department. Individual elements
of this new title are discussed below.
Rationale: just as it was in the Cold War, scientific and
technological research and development will confer differential
advantage to the United States in its war against terrorism.
Carrying out a research and development agenda focused on
countering terrorism will be one of the most important
responsibilities of the new department. The scientific and
technical challenges posed by the threat of terrorism cut
across science and engineering disciplines and cut across the
functional units established by H.R. 5005. The Science
Committee believes, therefore, that scientific and
technological research and development must be centrally
organized at a high level within the department.
Provision: transfers research and development functions
within the under-secretariat for science and technology.
Functions already transferred by H.R. 5005-and identified as
research and development activities-are moved into the science
and technology division.
Rationale: in order to maximize the effectiveness of the
department's homeland security science and technology
development efforts, the Science Committee believes that
research and development functions should be consolidated
within the under-secretariat for science and technology.
Provision: requires Congressional notification prior to
effecting the transfer of Department of Energy's chemical and
biological national security and supporting programs and
activities of the nonproliferation and verification research
and development program. The report to Congress must describe
which national laboratories will be affected and how, how the
contract between the Department of Energy and the relevant
laboratory operator will be changed, and whether any change to
the physical plant or transfer of personnel to a different
location will be involved.
Rationale: the Science Committee has received contradictory
information regarding the precise identity of these programs,
their location within the national laboratory system, their
budgets, and the number of personnel involved. In the exercise
of its normal oversight responsibilities, the Committee wants
to assure that any transfer or reorganization of civilian
research programs conducted at the Department of Energy's
national laboratories are both orderly and well justified.
Provision: requires Congressional notification prior to
effecting the transfer of ``such life sciences activities of
the biological and environmental research program [at the
Department of Energy] related to microbial pathogens as may be
designated by the President for transfer to the Department.''
Rationale: both H.R. 5005 and the Science Committee's
amendments thereto authorize, at the President's discretion,
the transfer of research related to microbial pathogens from
the Department of Energy to the Department of Homeland
Security. The Science Committee believes that, prior to any
transfer, the Administration notify Congress and provide
reasons for the transfer and an assessment of its impact on the
Department of Energy.
Provision: requires Congressional notification prior to
effecting the transfer of any programs, personnel, or
facilities of the Lawrence Livermore National Laboratory to the
Department of Homeland Security. The provision also requires
Congressional notification prior to any changes to the contract
between the Department of Energy and the operator of Lawrence
Livermore National Laboratory.
Rationale: several programs at Lawrence Livermore National
Laboratory are transferred to the Department of Homeland
Security by H.R. 5005, but the programs listed in the bill are
not specified in such a way as they may be easily identified
with actual programs at the laboratory. Moreover, the Science
Committee has received contradictory testimony, as well as
contradictory information in private briefings, regarding the
nature of the programs slated for transfer and the plans for
reorganizing the laboratory. In the exercise of its normal
oversight responsibilities, the Committee wants to assure that
any transfer or reorganization at Livermore both orderly and
well justified.
Provision: requires Congressional notification prior to
changing the maximum biosafety level of the biological
containment facilities of the Plum Island Animal Disease
Center.
Rationale: the Science Committee wishes to assure proper
Congressional oversight of biological containment at the Plum
Island Center.
Provision: moves text directing the Secretary of Homeland
Security to carry out civilian human health-related biological,
biomedical, and infectious disease defense research and
development through the Department of Health and Human
Services. The text is moved in its entirety from Title III to
Title VII.
Rationale: these provisions relate to research and
development and should appear within Title VII where all of the
department's research and development functions are
consolidated.
Provision: requires the Under Secretary for Science and
Technology to submit an annual report to Congress on how the
Department's responsibilities with regard to human health-
related biomedical research have been carried out. The
provision requires a listing all funds transferred from the
Department to any other federal agency for the purposes of
conducting human health-related biomedical research. The
provision also requires an explanation of the specific purpose
of each inter-agency transfer.
Rationale: assures Congressional oversight of inter-agency
(inter-departmental) transfers of funds.
Provision: establishes a Homeland Security Institute, a
federally funded research and development center to provide
independent analysis to the Secretary of Homeland Security.
Rationale: the top-level recommendation of the National
Academy of Sciences with regard to homeland security was to
establish a Homeland Security Institute, a federally funded
research and development center that would provide independent
technical advice and analysis.
Provision: establishes an office that would act as a single
point of entry for individuals or companies seeking guidance on
how to pursue proposals to develop or deploy products that
would contribute to homeland security.
Rationale: both Congress and the Executive Branch have been
overwhelmed with unsolicited proposals related to homeland
security products and technologies. Currently, there is no
central clearinghouse where proposals can be received and
evaluated. In the view of the Science Committee, the creation
and operation of such a clearinghouse is an appropriate role
for the Department of Homeland Security.
Provision: prevents the reassignment, under any future
departmental reorganization, of the responsibilities of the
Under Secretary for Science and Technology to any other Under
Secretary or any person under the authority of any other Under
Secretary.
Rationale: given that scientific and technological research
and development for homeland security will be among the most
important activities of the new department, the Science
Committee want to assure that this function remains undiluted
in any future reorganization.
Provision: requires the Administration to submit a plan to
Congress on how the science and technology functions of the
Department of Homeland Security are to be organized-and
stipulates that the plan shall not take effect until 90 days
after the plan has been submitted to Congress. The
Administration is required to notify Congress of any subsequent
changes to the plan and any proposed changes cannot take effect
until 90 days after Congress has been notified.
Rationale: assures Congressional oversight of the
organization and possible reorganization of the department's
scientific and technological research and development.
Provision: requires that, to the greatest extent
practicable, homeland security research should remain
unclassified.
Rationale: clearly some homeland security research must be
classified, but experience suggests that classified research
may not always be subject to the same level of scientific
scrutiny that unclassified published research is subject to. It
is the Science Committee's observation that unclassified
research has a greater number of quality checks associated with
it because a broader community of scientists and engineers has
access to the results and, through the normal scientific
process, has the opportunity to comment or offer criticism.
Provision: makes it clear that other Under Secretaries in
the Department my carry out research, development,
demonstration, and deployment activities as long as those
activities are coordinated through the Under Secretary for
Science and Technology.
Rationale: the Science Committee doesn't want to preclude
the conduct of research and development within other under-
secretariats of the Department, as appropriate.
Provision: grants the Secretary of Homeland Security
authority to issue regulations, as necessary, with respect to
the conduct of research, development, demonstration, and
testing and evaluation carried out by the Department.
Rationale: in order to carry out his responsibilities, the
Secretary will need authority to issue regulations concerning
the conduct, funding, and review of intramural and extramural
research, development, demonstration, and testing and
evaluation related to homeland security science and technology.
Provision: declares that it is the sense of Congress that
the Secretary of Homeland Security should consult with the
National Aeronautics and Space Administration (NASA) in
developing computer security systems and processes and
utilizing NASA's expertise developed through space station and
satellite technology research.
Rationale: the new Department should draw upon the relevant
expertise and experience of other technology-intensive federal
agencies whenever it is feasible to do so.
Provision: establishes a Homeland Security Science and
Technology Coordinating Council, composed of the all of the
Under Secretaries of the Department and chaired by the Under
Secretary for Science and Technology, to establish priorities
for research and development and to assure that those
priorities reflect the acquisition needs of the Department.
Rationale: provides a mechanism to coordinate research and
development throughout the department.
Provision: establishes a Homeland Security Science and
Technology Advisory Committee to help identify research areas
of potential importance to the nation's security.
Rationale: the Science Committee believes that an advisory
committee of outside experts can help assure a comprehensive,
high-quality research agenda for the Department.
Provision: requires the Secretary of Homeland Security to
establish up to 4 university-based centers for extramural
homeland security research.
Rationale: to explicitly recognize the importance of
university-based research in developing security-related
science and technology.
Provision: strikes the ``other transactions authority''
granted to the Secretary of Homeland Security in H.R. 5005.
Rationale: other transactions authority enables the
authorized party to bypass federal procurement regulations. The
General Accounting Office has indicated that use of this
authority has been problematic in the Department of Defense,
the only federal agency that currently has such authority.
Provision: amends the National Science and Technology
Policy, Organization, and Priorities Act to add homeland
security to the list of issues that the Director of the Office
of Science and Technology Policy (OSTP) should advise the
President on and adds the Office of Homeland Security to list
of offices OSTP is required to coordinate with.
Rationale: OSTP has responsibility for overall coordination
of federal science and technology programs and homeland
security will have a substantial science and technology
component.
Provision: amends Section 7902(b) of Title 10, USC, to add
the Under Secretary of Homeland Security for Science and
Technology to the National Ocean Research Leadership Council of
the National Oceanic Partnership Program.
Rationale: the Council coordinates ocean research, a
significant portion of which is related to coastal and port
security.
Provision: amends the National Institute of Standards and
Technology Act (NIST Act) to authorize NIST to develop
measurements and standards related to the detection of
chemical, biological, radiological, nuclear, and explosive
threats, and to support border and transportation security.
Rationale: credible technical standards and measurement
tools will facilitate the rapid deployment of new detection,
and border and transportation security technologies.
Provision: amends the National Institute of Standards and
Technology Act (NIST Act) to require the Director of NIST to
assess the nation's needs with regard to voluntary consensus
standards that could promote greater security. The amendment
also requires the Director to deliver to Congress a 3-year
research plan to develop those standards, and requires the
Secretary of Homeland Security to deliver to Congress a plan to
disseminate those standards throughout the government.
Rationale: the development and promulgation of security-
related voluntary consensus standards can improve our domestic
security posture.
Committee Views
(In order of Appearance in the Amendment)
standards
The Amendment requires that all standards activities of the
Department of Homeland Security be conducted in accordance with
the National Technology Transfer Advancement Act of 1995 and
OMB Circular A-119. The Committee wants to assure that any
standards-setting functions transferred to the Department
continue to conform to the voluntary, consensus-based standards
development process that is the norm for most standards
activities in the U.S. By requiring conformity with the Act and
with the OMB Circular, the Committee is assuring that the
private sector will maintain its leading role in developing
standards.
By law and under OMB Circular A-119, the Federal government
is required to use voluntary consensus standards in its
regulations and in its procurement activities and is encouraged
to lend expertise to, but not to dominate, the standards
development process. Our private sector-led standards
development process has given the U.S. the world's most robust
standards.
national institute of standards and technology (nist)
The Amendment strikes section 202(4) transferring the
Computer Security Division of NIST to the Department of
Homeland Security. The NIST Computer Security Division develops
information security standards, testing and evaluation tools
for use in federal agencies and the private sector. The
effectiveness of the Division is directly related to its tight
integration with other NIST laboratories, including the other
divisions of the Information Technology Laboratory, the Physics
Laboratory, and the Electronics and Electrical Engineering
Laboratory. The effectiveness of the Computer Security Division
is further enhanced by its close relationship with NIST's
industrial customers. For example, the Advanced Encryption
Standard, recently certified by NIST and widely used in both
government and industry, was developed largely through the
coordinated efforts of private sector and academic computer
security experts with the NIST Computer Security Division
acting as an honest broker that also provided technical support
and test and evaluation services. The Committee has received
extensive comments from the information technology community
expressing concern that the Computer Security Division's close
working relationship with industry likely would not survive if
the division were transferred out of NIST. In addition, a
bipartisan group of 16 Members of Congress, led by
Representatives Goodlatte and Boucher, wrote to the Committee
to express their opposition to the transfer. It is the view of
the Committee that the expertise of the Computer Security
Division could best be harnessed in the service of homeland
security if the division remains within NIST.
energy security and assurance program
The Amendment transfers the Energy Security and Assurance
(ESA) program of the Department of Energy (DOE) to the
Department of Homeland Security under the management of the
Undersecretary for Information Analysis and Infrastructure
Protection (Title II), rather than to the Undersecretary for
Chemical, Biological, Radiological, and Nuclear Countermeasures
(Title III), as proposed by the Administration, or the new
Undersecretary for Science and Technology (Title VII),
established by the Amendment. Both ESA and the National
Infrastructure Simulation and Analysis Center (NISAC) are
components of the DOE's Energy Security program. H.R. 5005
proposes to transfer NISAC into Title II but would transfer the
ESA program into Title III. Keeping the ESA and NISAC programs
together will maintain program coherence, since ESA provides
analysis and support for NISAC. Furthermore, ESA's mission of
providing threat and vulnerability assessment, response
planning, emergency support, and multi-sector coordination for
the nation's critical energy infrastructure is an operational
role that fits more closely with the Information Analysis and
Infrastructure Protection mission outlined in Title II.
information security
The Science Committee views the vulnerability of critical
information and communication systems as being one of the most
serious security threats facing the United States, yet
cybersecurity is not specifically addressed in H.R. 5005. The
Amendment adds a new section 205 on information security that
gives the Under Secretary for Information Analysis and
Infrastructure Protection explicit responsibility and authority
to address information threats directed at non-military
information and communications systems in federal agencies. The
Committee believes that the Under Secretary should establish an
Office of Cyber Security to fulfill these responsibilities
(although the Amendment does not set up such an office).
Section 205 also requires NIST to develop information
security standards that would be promulgated to civilian
federal agencies by the Department. In elaborating NIST's
responsibilities for developing technology-neutral information
security standards, the new section includes most of the
relevant provisions of H.R. 1259, the Computer Security
Enhancement Act, that was approved by the House of
Representatives on November 27, 2001.
net guard
The Committee recognizes that most of the nation's
expertise in information security and information
infrastructure protection resides within the private sector.
The Amendment establishes a mechanism whereby technical experts
in academia and the private sector can volunteer their services
to state and local governments to assist them in responding to
natural disasters or terrorist attacks that disrupt information
and communications systems. The Amendment emphasizes that this
is a volunteer program and that participating experts may not
be compelled to participate in any given response effort. In
addition, the Department need not pay any of the volunteers for
their services.
behavioral science
The Under Secretary for Emergency Preparedness and Response
will aid the recovery from terrorist attacks and major
disasters. The Committee adopted an amendment that explicitly
authorizes the Under Secretary to provide interventions to
treat the psychological consequences of these events and
provide for appropriate training for mental health workers who
must deal with the aftermath of these events.
u.s. fire administration
The Committee expects that the U.S. Fire Administration
(USFA) will play an important role in the homeland security
effort. However, many of USFA's most important activities are
not directly related to homeland security. These activities
include: 1) educating the public on fire and fire prevention
issues; 2) supporting technological advancement through the
development and testing of new tools that result in improved
fire suppression technology and equipment; 3) compiling and
maintaining a comprehensive database for publication, analysis,
and dissemination of information related to fire prevention and
control; and 4) conducting research on all aspects of fire with
the aim of reducing the loss of life and property from fires.
The Committee believes it is important that these
activities, as well as the Assistance to Firefighters Grants
Program currently administered by USFA, continue to be
performed by USFA. The Amendment requires that USFA be
preserved as a distinct entity in the Homeland Security
Department, retaining its responsibilities as outlined in the
Federal Fire Prevention and Control Act of 1974 as amended.
national earthquake hazards reduction program
The National Earthquake Hazards Reduction Program, an
interagency research effort led by the Federal Emergency
Management Agency (FEMA) and established under P.L. 95-124,
plays an important role in the effort to better understand
earthquakes and thus reduce the damage to life and property
caused by them. The Committee expects that FEMA will continue
to fulfill this responsibility after it is transferred to the
Department of Homeland Security. The Committee will carefully
review this situation next year when the program is
reauthorized.
organization of research and development
The Committee believes strongly that securing the homeland
will depend upon science and technology. As in past wars,
maintaining a technological edge against the enemy will be
critical. Recognizing the important role that will be played by
science and technology in detecting and countering chemical,
biological, nuclear, or radiological weapons, H.R. 5005
included significant research and development activities within
the Under Secretariat for Chemical, Biological, Radiological,
and Nuclear Countermeasures.
The Committee believes, however, that science and
technology will have an important role to play in virtually
every aspect of homeland security-not just in countering tools
of mass destruction such as chemical or biological weapons. For
example, borders will be made more secure when biometric
technologies can be reliably used to identify bad actors from
good. New technologies for detecting explosives and other
weapons will make travel safer. 'Data mining' technologies that
enable the rapid identification of important data from among
the vast quantities collected will help law enforcement
identify terrorist activities. Advances in cyber security will
help protect the nation's critical infrastructures, as they are
intrinsically intertwined with, and dependent on, networks such
as the Internet. Technologies that enable first responders to
communicate more effectively during a crisis will improve
disaster response.
To ensure that science and technology are effectively
mobilized in all aspects of the war against terrorism, the
Committee believes that the Department must have, at its core,
a robust research and development enterprise headed up by an
Under Secretary whose expertise and primary responsibilities
will be science and technology. As such, the Committee believes
that research and development should be centrally organized and
placed at a high level within the Department. The Amendment
places primary responsibility for research and development in a
distinct unit, overseen by an Under Secretary for Science and
Technology who is responsible for basic and applied research,
development, demonstration, testing and evaluation relevant to
any and all of the missions of the Department.
The Amendment moves most of the research and development
functions transferred from existing agencies to the new
Department in the Under Secretariat for Science and Technology.
At the same time, however, the Committee believes that certain
functions, such as the Department of Energy's nuclear
assessment program and the Department of Defense's National
Bio-Weapons Defense Analysis Center, should be retained within
Title III, given their clear links to the operations of that
unit.
The organizational changes recommended by the Committee
will maximize the effectiveness of the Department's overall
science and technology development efforts while still allowing
each unit to conduct some research and development efforts on
activities closely related to the unit's specific function.
department of energy (doe) programs
The Amendment accepts the President's proposed transfers of
DOE research programs to the Department even though the
Administration has been unable to answer several fundamental
questions about the impact and mechanics of these transfers.
The Committee has accepted the proposed transfers because
the Department will clearly need some laboratory facilities and
related research programs from which to build the research and
development programs it will need to carry out its mission.
However, the Committee was unwilling to see those transfers
proceed before basic questions about them can be answered.
Therefore, the Amendment requires reports before the
transfers can occur that must address such fundamental issues
as how the transfer will affect the contractual relationships
between the national labs and DOE; how scientists who work on
both homeland security matters and other issues will be
affected by the transfer; and how the transfer will affect the
physical plant of the labs. In the report, DOE should describe
the effect of the transfer not only on the laboratories from
which programs are being transferred, but also on any other DOE
labs whose mission and work may be affected because of the
transfer.
The Committee retained language in H.R. 5005 that leaves
some of the transfers up to the President, but the Amendment
requires the President to notify Congress of his decision.
Also, because the programs described in H.R. 5005 do not
correspond exactly to program names used in DOE budgets or
other documents, the Amendment requires notification of all DOE
transfers so Congress can know precisely what is being
transferred. The Committee believes that the President should
not transfer programs that primarily support destruction of
foreign weapons of mass destruction or intelligence analysis of
weapons of mass destruction because such programs are not
directly related to homeland security.
The Committee expects, however, that the Department will
continue to interact with many national labs on a wide variety
of research matters, regardless of whether their programs are
transferred to the Department.
homeland security institute
The Committee adopted an amendment that establishes a
Homeland Security Institute, as recommended in the National
Research Council's June 2002 report entitled Making the Nation
Safer: The Role of Science and Technology in Countering
Terrorism. The Secretary should create the Institute as a
federally funded research and development center administered
separately from the Department. The Institute would provide
technical analysis and support for the Secretary including in
areas such as bioterrorism agents.
The Committee intends for the Institute to be a dedicated,
contract, not-for-profit organization funded by the Department.
This type of structure is necessary because the depth and
breadth of technical expertise needed cannot be supplied by the
new Department or other existing federal agencies. The primary
advantage to this type of quasi-governmental organization is a
structure and management that can quickly provide deep
understanding of technical issues for decision-making by
government officials. Another advantage is its ability to hire
highly specialized talent required to perform its duties.
Fields of Research
The Committee intends that the research activities
supported by the Department not be limited to the physical and
biological sciences and engineering, but also include the
behavioral and social sciences. Relevant topics of inquiry
would include research on psychological stresses on victims of,
and responders to terrorist acts, human factors associated with
the interface between technology and human behavior, the root
causes of terrorism, and decision-making and management under
extreme conditions.
inquiries
The Amendment provides for establishment of an office to
serve as a point of entry for those seeking guidance on how to
pursue proposals to develop or deploy products that would
contribute to homeland security. The Committee adopted an
amendment that further refined this idea and directs the
Department, in conjunction with the existing inter-agency group
known as the Technical Support Working Group (TSWG), to screen
promising unsolicited ideas or white papers; assess their
feasibility, technical merits, and costs; pursue proposals that
adapt and deploy existing technologies; and match promising
technologies with appropriate acquisition personnel. The
provision will help eliminate bottlenecks that thwart the
development and deployment of new homeland security
technologies.
classification
The Committee believes that research conducted or supported
by the Department should, ``to the maximum extent possible,''
be unclassified. This policy was implemented by President
Ronald Reagan in National Security Decision Directive 189 in
1985, and it has mediated the tension between the need for
openness as a fundamental principle of scientific research and
the need to keep secret certain information that can be
employed to support attacks on the U.S.
Consistent with this Directive, the Committee adopted an
amendment that requires the Under Secretary, before issuing
research and development grants, contracts or other agreements,
to determine whether the research should be classified. The
Under Secretary must also use existing statutes when deciding
whether to reclassify an existing research program. Finally,
the Under Secretary must review the Department's classified
research programs at regular intervals to determine whether
classification continues to be necessary. These additional
provisions are intended give researchers some certainty as to
whether their research will be classified before the grant is
awarded.
student visas/ipass
The U.S. depends on foreign graduate students in many
science and technology fields. The Committee believes it is
important that procedures for granting student visas balance
the need to improve homeland security with the benefits that
are gained when talented students from other countries study in
the U.S.
Earlier this year, draft plans for new security rules for
student visas caused concern among academic institutions.
However, an implementation plan for improving the security of
the student visa process by establishing an Interagency Panel
on Advanced Science Security (IPASS), relieved most of these
concerns. Recognizing the role that the Director of the Office
of Science and Technology Policy (OSTP) played in creating
IPASS, the Amendment requires the OSTP Director to report to
Congress regarding how the provisions of section 403 will
affect procedures for the issuance of student visas.
national aeronautics and space administration (nasa)
The Committee adopted an amendment expressing the Sense of
Congress that the Secretary should consult NASA on matters
related to computer security systems and processes. The
Committee recognizes that NASA has developed significant
expertise in this area that could be of value in the fight
against terrorism. In addition, NASA has recently partnered
with computer companies and Carnegie Mellon University in an
initiative to develop software that will meet the higher
standards of reliability and security that the Nation will need
in the future. The Committee believes that the new Department
could benefit from the computer security expertise resident in
NASA and encourages the Secretary to seek it out as
appropriate.
homeland security science and technology advisory committee
The Committee adopted an amendment establishing an advisory
committee to review and make recommendations with respect to
general policy issues (including budget priorities) within the
purview of the Undersecretary for Science and Technology. The
20-member Advisory Committee will consist of experts in science
and technology. One or more of those members must be a
representative of the users of the Department's research
activities such as emergency responders. In addition, one or
more members must be representative of citizen groups,
including groups from economically disadvantaged communities.
The Committee feels that it is important to include the
end-user community on the Advisory Committee. Inclusion of the
emergency response and citizen group communities will help
ensure that research agendas are firmly tied to the actual
needs of those who will be on the front lines if the nation is
subjected to a terrorist attack.
The Committee believes that the Advisory Committee can play
a significant role in strengthening the Department of Homeland
Security's research agenda and focus. The Advisory Committee
will provide an independent and unbiased review by which the
Department and Congress can assess the efficacy and utility of
its science and technology activities.
ostp
The Amendment changes the National Science and Technology
Policy, Organization, and Priorities Act to add homeland
security to the list of issues on which the Director of the
Office of Science and Technology Policy (OSTP) should advise
the President and adds the Office of Homeland Security to the
list of offices with which OSTP is required to coordinate.
OSTP has responsibility for overall coordination of Federal
science and technology programs. When coordinating science and
technology activities that may benefit homeland security, the
Committee believes OSTP should consult with the Office of
Homeland Security and the Under Secretary for Science and
Technology in the Department of Homeland Security.
national oceanic partnership program
National Ocean Research Leadership Council of the National
Oceanic Partnership Program coordinates ocean research, a
significant portion of which is relevant to coastal and port
security. The Science Committee believes the Under Secretary
for Science and Technology should be a statutory member of the
Council.
nist organic act
The Committee adopted an amendment that changes the NIST
Organic Act to allow that agency to use its expertise to assist
the Department. Section 1010 requires NIST, working through a
cooperative agreement with the Secretary of Homeland Security
to (1) carry out measurement and standards activities related
to chemical, biological, radiological, nuclear, and explosive
threats and (2) support the development of standards and
guidelines with respect to border and transportation security
technologies. This section requires an annual report to
Congress of the activities carried out under this section.
Section 1011 requires the new Department and NIST to engage
in a systematic review and upgrading of voluntary consensus
standards related to homeland security. In consultation with
standards development organizations (SDO), NIST and the
Department shall prepare a list of homeland security-related
voluntary consensus standards. It further requires NIST to
develop a research plan to aid in the development of the
necessary standards while requiring the Secretary to develop a
Government-wide plan to help SDOs accelerate the development,
revision, and promulgation of these standards.
COMMITTEE ON TRANSPORTATION AND INFRASTRUCTURE
House of Representatives,
Committee on Transportation and Infrastructure,
Washington, DC, July 11, 2002.
Hon. Richard K. Armey
Chairman, House Select Committee on Homeland Security, The
Capitol, Washington, D.C. 20515
Dear Mr. Chairman: On June 24, 2002, H.R. 5005, that
proposes to establish a department of homeland security, was
referred to the Committee on Transportation and Infrastructure.
On July 11, 2002, the Committee met and, in open session,
unanimously approved, by voice vote, amendments to the bill.
Pursuant to H. Res. 449, the Committee herewith transmits its
recommendations on H.R.5005 to the Select Committee on Homeland
Security for consideration.
Sincerely,
Don Young,
Chairman
Legislative Recommendations Submitted to the House Select Committee on
Homeland Security For
H.R. 5005 - HOMELAND SECURITY ACT OF 2002
JULY 12, 2002
The Transportation and Infrastructure Committee met on July
11, 2002, to consider H.R. 5005. The Committee adopted two
amendments to the bill. Chairman Don Young and Ranking Member
Jim Oberstar offered an en bloc manager's amendment which was
adopted by voice vote by the Committee and Congresswoman Eddie
Bernice Johnson offered an amendment to the amendment, which
was also adopted by voice vote. The amendments contained the
following legislative recommendations.
Issuance of Regulations (Section 102(c) )\1\
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\1\ Refers to Section in H.R. 5005 as included in the Committee
Print showing the Amendment Adopted by the Committee on Transportation
and Infrastructure.
---------------------------------------------------------------------------
The amendment clarifies that any regulation adopted by the
Secretary must be subject to the Administrative Procedure Act
(APA), except as specifically provided in H.R. 5005, if enacted
or some other law granting regulatory authority transferred to
the Department of Homeland Security.
The Committee is concerned that H.R. 5005 is not clear as
to the applicability of other existing laws to the rule making
authority of the Secretary of Homeland Security. Unless
Congress has specifically provided otherwise, the Committee
believes that the public notice and comment requirements of the
APA are essential components of governing.
Transfer of Transportation Security Programs (Section 404)
The amendment recognizes that transportation security is
undergoing a transition. A new agency, the Transportation
Security Administration (TSA), was created only last November.
It is still in the process of getting organized at the same
time that it is being pressed to meet some very tight deadlines
for overhauling the aviation security system.
The underlying goal of this amendment is to ensure that the
transfer to a new Department does not interfere with that
overhaul.
Therefore, the amendment would--
a. Require that the transportation security functions
transferred by this Act be maintained within a distinct unit
under the Under Secretary of Border and Transportation
Security. An Assistant Secretary for Transportation Security
would head this separate unit.
b. Require that notwithstanding Title 8 of this Act, the
transfer of the transportation security functions shall not
occur until --
i. the Secretary of Homeland Security, the Under
Secretary of Border and Transportation Security, and
the Assistant Secretary of Transportation Security have
taken office.
ii. the Secretary of Transportation certifies that
explosive detection systems are deployed at all U.S.
airports where they are required and that these systems
are screening all checked baggage, as required under
the Aviation and Transportation Security Act. This Act
mandates that such systems must be deployed by the end
of 2002.
iii. the Secretary certifies that a sufficient number
of federal screeners, security managers, security
personnel, and law enforcement officers have been
deployed by November 19, 2002 at all airports in the
United States where screening is required, except the
five airports participating in the pilot program.
c. Establish a liaison office within the Department of
Homeland Security to provide a mechanism for consulting with
the FAA on any action that might affect aviation safety, air
carrier operations, aircraft airworthiness or the use of
airspace. There is a close nexus between aviation security and
other aspects of the aviation system. The Committee wants to
make sure that when aviation security is moved to a separate
Department, it does not result in a degradation of aviation
safety due to a lack of coordination between the aviation
security regulator and the aviation safety regulator.
d. Make clear that nothing in this Act gives the Secretary
of Homeland Security any additional authority over
transportation security beyond that previously exercised by the
DOT Secretary under Chapter 449 of Title 49 or by the TSA Under
Secretary.
e. Prohibit the new Department from spending any Airport
Improvement Program (AIP) funds. Only the FAA can make AIP
grants.
With the Transportation Security Administration (TSA) impending
transfer to the Department of Homeland Defense, the Committee
is concerned that TSA may lose sight of its responsibility to
ensure both effective security and an efficient transportation
system. In light of this, it is important that in any final
legislative product, Congress make clear that the
Transportation Security Administration should use all
reasonable measures to ensure efficiency and a viable
transportation system in all modes as it fulfills its security
responsibilities.
Clarification of transfer authority (Section 404(e))
H.R. 5005 as introduced authorizes the transfer of the TSA
from the DOT to the Department of Homeland Security.
The Aviation and Transportation Security Act that was
enacted in November 2001 (P.L. 107-71) created the TSA and gave
it responsibility for civil aviation security as well as
security for other modes of transportation. To date, the TSA
has focused on aviation security, so it is not yet known what
other security-related programs may eventually be transferred
to the TSA from other areas of the DOT.
The amendment would only authorize the transfer of those
programs in the TSA that are included in the Administration's
FY 2003 budget request for the Transportation Security
Administration (TSA). However, the amendment also requires the
Administration to notify Congress before transferring any other
security-related programs from the Department of Transportation
(DOT) to the Department of Homeland Security.
The proposed amendment would provide Congress with an
opportunity to review any proposal to transfer additional
programs from the DOT to the Department of Homeland Security.
Under the proposed amendment, such additional programs may not
be transferred before the last day of a 30-day period of
continuous session of Congress following the date of
transmittal by the President to Congress of a notice of the
President's intent to make such a transfer. This language
should not be misinterpreted to authorize the transfer of
existing functions, agencies, personnel, authorities, or
programs in the Department of Transportation that are not
specifically authorized for transfer.
It is essential that Congress exercise its oversight role
and approve any additional transfers of existing programs
within the DOT and that such transfers are not encouraged.
Report to Congress on checked baggage deadline (Section 404(f))
The amendment also directs the DOT to report to Congress
within 60 days on how it plans to meet the deadline in current
law that all checked baggage be screened by the end of the
year. The report is desirable because concerns have been
expressed about whether TSA will meet the deadlines and we must
make every effort to oversee it's progress and prevent
unnecessary delays.
Functions of the Administrator of GSA (Section 405)
The amendment provides limited authority to the
Administrator of GSA and gives him the flexibility to meet the
security needs of federal agencies under special circumstances
and permits the Administrator to respond to routine building
maintenance situations (for example if someone is stuck in an
elevator) without having to call in the DHS. In addition, the
amendment allows GSA to retain the ability to collect fees for
protection services under its current rent billing structure
and to reimburse DHS for FPS protection, which eliminates the
need for DHS to establish its own billing structure for
building security.
Interagency Security Committee (Section 407)
The amendment codifies Executive Order 12977 which
established an Interagency Security Committee. The Committee
establishes policies for building security, develops security
standards, ensures compliance with the standards, and takes
actions as necessary to enhance the quality and effectiveness
of security and protection of federal facilities. The executive
order establishes GSA as the Chair of the Committee. The
amendment allows GSA to remain as Chair or Co-Chair of the
Committee.
Federal Emergency Management Agency (FEMA) (Section 506)
The amendment strikes those portions of the homeland
security bill that transfer FEMA to the DHS, keeping FEMA as an
independent agency. The amendment would also strike those
portions of the bill that would transfer preparedness and
response functions presently handled by FEMA, but unrelated to
homeland security.
The Federal Emergency Management Agency (FEMA), is an
independent agency reporting to the President that has as 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 of mitigation, preparedness, response, and recovery.''
At its inception, FEMA was created to consolidate and
coordinate the efforts of over 15 different agencies and
departments that were responsible for responding to and
preparing for disasters. Created by President Carter with an
Executive Order in 1979, FEMA is tasked with carrying out the
authorities contained in the Robert T. Stafford Disaster Relief
and Emergency Assistance Act (42 U.S.C. Sec. 5121 et. seq., as
amended), which is an amalgamation of previous disaster relief
acts, including the National Flood Insurance Act of 1968, the
Disaster Relief Acts of 1970 and 1974, the Flood Disaster
Protection Act of 1973, and the Federal Fire Prevention and
Control Act of 1974.
Through his executive order, President Carter also merged
many separate federal government disaster-related
responsibilities and agencies into one agency. Among others,
FEMA absorbed the Federal Insurance Administration, the
National Fire Prevention and Control Administration, the
National Weather Service Community Preparedness Program, the
Federal Preparedness Agency of the General Services
Administration and the Federal Disaster Assistance
Administration activities from HUD. Civil defense
responsibilities were also transferred to the new agency from
the Defense Department's Defense Civil Preparedness Agency.
While recognizing the important role that FEMA would play
in responding to any terrorist attack regardless of where it is
administratively situated, the Transportation and
Infrastructure Committee believes that this role would best be
served if FEMA retains its independent status, with an
increased emphasis on coordination with the newly created
Department of Homeland Security (DHS). Retaining this
independence will allow FEMA to continue to effectively carry
out its mission of reducing "the loss of life and property and
protecting the nation from all hazards by leading and
supporting the nation in a comprehensive, risk-based emergency
management program of mitigation, preparedness, response and
recovery", unencumbered by a new bureaucracy which will be
focused on security activities. Only by allowing FEMA to retain
its independent coordinating role can we ensure that the
government will be able to effectively respond to and help the
nation recover from all disasters.
FEMA's role in responding to the attacks of September 11th
has become the most high profile of its activities. However,
preparing for and responding to terrorist acts is a small part
of FEMA's preparedness and response activities. Since 1976,
there have been only four federally declared disasters for
terrorism\2\, yet during the same time frame, there have been
927 federally declared disasters and 77 emergency declarations
resulting from such natural hazards as fires, earthquakes,
floods, hurricanes, and tornados. In none of the federally
declared disasters resulting from terrorism was the ability of
FEMA to respond ever diminished by its independent status. For
example, in responding to the attacks on New York, FEMA
effectively coordinated the efforts of Federal, State and local
first responders, non-profit social service groups, and
individual providers.
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\2\ Declaration 1391 for the attack in New York City on September
11, 2001; declaration 1392 for the attack at the Pentagon on September
11, 2001; Declaration 1048 for the attack at the Murrah Federal
Building in Oklahoma City on April 26, 1995; and Declaration 984 for
the attack at the World Trade Center in New York City on April 2, 1993.
---------------------------------------------------------------------------
Through the existing Federal Response Plan and cooperative
agreements with many state and local agencies, FEMA's
independence has allowed it to effectively marshal all
necessary assets from across the government to respond
effectively and efficiently to each of these disasters. During
the development of the Federal Response Plan, developed in
1992, and signed by the heads of 27 agencies and organizations,
FEMA was vital in coordinating and organizing the myriad roles
and responsibilities of each signatory agency. Since its
inception, it has been vital in the Federal response effort,
yet it is a flexible document, and from time to time has been
updated. Each time this has occurred, FEMA has led the way and
effectively updated the plan to reflect changing conditions and
laws. By retaining FEMA as the lead agency in the Federal
Response Plan, we are ensuring a continuity of knowledge and
using an existing framework to shape future efforts to ensure
seamless provision of federal assistance.
Under this amendment, FEMA retains its role as the lead
agency under the Federal Response Plan in responding to
disasters caused by natural hazards, such as fires,
earthquakes, floods, hurricanes, and tornados and DHS would be
the lead agency for disasters caused by terrorist attacks. The
amendment directs DHS, in consultation with FEMA, to develop a
coordinated preparedness and response program to terrorist
attacks that will become a part of the Federal Response Plan.
In order to effectuate this plan, FEMA and DHS will sign a
memorandum of understanding to clarify the circumstances under
which each agency would respond, similar to agreements that
FEMA already has in place relating to other agencies for
disasters. To ensure that there is no legislative overlap,
references to "Major Disaster," as defined by the Stafford Act,
were stricken. The Committee would like to work with the Select
Committee to develop a definition of "terrorist attack" that
does not overlap or conflict with the "Major Disaster"
definition in the Stafford Act.
Besides coordinating the response activities of as many as
27 Federal Agencies and numerous non-governmental groups such
as the American Red Cross, FEMA is also responsible for the
delivery of a myriad of disaster assistance programs, including
Disaster Unemployment Assistance, Temporary Housing Assistance,
the Individual and Family Grant Program, Disaster Legal
Assistance, Home Repair Assistance, and its Debris Removal
Program. Following the provision of assistance in the aftermath
of a disaster to individuals, FEMA is also responsible for the
provision of prospective mitigation assistance to communities
through its Hazard Mitigation Grant Program, which helps to
make these communities more disaster resistant.
In addition to these response and recovery roles, FEMA is
also responsible for such diverse preparedness activities as
the Emergency Food and Shelter program, maintenance of
floodplain maps, provision and maintenance of the National
Flood Insurance Program, and the U.S. Fire Administration,
which teaches basic firefighting skills under a "train the
trainer" model and also works to develop new methodologies and
equipment. Under the Administration's proposal, each of these
non-homeland security activities would become a part of the
DHS. The Committee believes that it is essential to preserve
these non-security related functions by keeping FEMA
independent from the DHS.
In addition to its preparedness, response, and recovery
responsibilities, FEMA will retain all of its responsibilities
covered by the Floodplain Management Program, National Flood
Insurance Program, Dam Safety Program, Hazard Mitigation Grant
Program, Emergency Management Institute, Urban Search and
Rescue, and U.S. Fire Administration. Each of these programs is
geared towards mitigating the effects of traditional disasters,
yet they also serve a role in homeland security. The amendment
makes clear that increased coordination will allow DHS to
benefit from FEMA's vast experience, while at the same time,
preserving these programs and their founding missions. The
amendment also makes clear that H.R. 5005 will have no effect
on FEMA's authority to independently administer, make policy
relating to, or promulgate regulations for its many grant
programs. In those grant programs where some overlap may occur
(i.e., provision of assistance to fire fighters) FEMA will be
required to coordinate its activities with the Secretary of
Homeland Security to ensure that no efforts are duplicated.
The Transportation and Infrastructure Committee believes
that the best way to improve the delivery of federal disaster
assistance is to allow FEMA to remain the independent
coordinating agency that it has always been. It is the position
of the Committee that the best way to accomplish both
consolidation and coordination is to preserve FEMA's core
mission and to keep FEMA as a distinct entity.
Considering the important role that FEMA serves in the
nation's ability to prepare for and effectively deal with
disasters, it is vital that it not be given secondary status or
absorbed within a large bureaucracy which has little or no
experience addressing these issues. Prior to the creation of
FEMA in 1979, the federal government had no centralized,
coordinated or effective response to disasters. Breaking FEMA
up and separating its employees throughout DHS, an agency whose
primary role will be security, would have the effect of
diluting its ability to effectively carry out its mandate of
preparing the nation to mitigate the effects of a disaster,
preparing first responders, ensuring the adequacy of the
federal response, and assisting in the recovery from disasters.
By keeping FEMA as an independent agency and as a "distinct
entity", FEMA's core mission will be protected and the nation
will be a safer place.
Homeland Security Department Headquarters (Section 732(c))
The amendment strikes the authority of the Secretary to
undertake real property arrangements not consistent with
existing law and requires the Administrator of GSA to construct
a new headquarters facility for the Department of Homeland
Security consistent with the Public Buildings Act of 1959. The
Committee is concerned about the broad reach of several real
property provisions in H.R. 5005 that could be undertaken
without Congressional oversight. Included in these provisions
is authority to acquire real property by transfer or exchange,
or by sale to or exchange with non-Federal parties. Further,
the Committee is gravely concerned these real estate activities
will necessitate the creation of a bureaucracy within the new
Department solely for the purpose of conducting real estate
transactions, thus draining much needed resources away from the
legitimate activities of homeland security.
Under the amendment, the Secretary will be responsible for
homeland security, while the government's landlord, GSA, is
responsible for acquiring the appropriate space for the agency
to properly carry out its intended mission. The Public Building
Service (PBS) of GSA operates and maintains 1,993 Federal
buildings with more than 184 million square feet of office,
storage and special space in the United States for use by
civilian employees of the Federal government. PBS also acts as
the leasing agent for the Federal government, and currently has
in place over 7,400 leases in 6,300 buildings with over 150
million square feet of space.
The Committee on Transportation and Infrastructure
recognizes the importance of establishing a new headquarters
facility for the Department of Homeland Security by direct
federal construction, lease-purchase, or other arrangements
using the Federal Financing Bank. However, the Committee does
not recommend providing the Secretary of the Department of
Homeland Security authority beyond the Public Buildings Act of
1959 to undertake real property functions. The Secretary should
be responsible for homeland security, while the government's
landlord, GSA, should be responsible for acquiring the
appropriate space for the agency to properly carry out its
intended mission.
The amendment authorizes the Administrator to construct
through direct appropriation, or through lease-purchase, or
through a loan by the Federal Financing Bank appropriate
headquarters space. The amendment further exempts any of these
activities from current scoring rules so the cost of the
headquarters will be amortized over a set period of time and
scored on an annual basis. It also allows for appropriate
Congressional oversight through the prospectus process
established under section 7 of the Public Buildings Act of
1959.
Congressional Oversight of Organizational Plan (Section 802(b))
The amendment would require the Secretary, before any
agency can be transferred, to submit an organizational plan to
Congress for oversight review for a continuous 60-day period.
The purpose of this amendment is to insure that Congress
has an adequate opportunity to insure that the transfer of
agencies and functions is being carried out consistent with the
intent of the Act.
Prohibition on Use of Transportation Trust Funds (Section 803(f))
The amendment would prohibit funds derived from the
transportation trust funds from being transferred to or
otherwise made available to the new Department of Homeland
Security. The amendment would not apply to certain security
related funds made available to the Federal Aviation
Administration for fiscal years preceding 2003.
H.R. 5005 as proposed by the Administration provides broad
authority to transfer the assets "held by or available in
connection with" each agency that is transferred to the new
Department of Homeland Security. The term "assets" is broadly
defined to include "unexpended balances of appropriations, and
other funds or resources".
The Committee is concerned that this broad authority could
be used to transfer funds derived from the transportation trust
funds to the new Department of Homeland Security. The
Department of Homeland Security is being established in
response to national security concerns; therefore, the costs of
its activities are inherently national security costs. National
security costs should be funded by the general fund, not the
transportation trust funds. The balances in the transportation
trust funds are barely sufficient to maintain our
transportation systems, and cannot be relied upon to meet the
extraordinary security costs of the post 9/11 era as well.
Revision of Transportation Security Oversight Board (Section 907)
The amendment revises the Transportation Security Oversight
Board by moving the Board into the Department of Homeland
Security, making the Secretary of Homeland Security a Member of
the Board and the Chairperson of the Board.
The Transportation Security Oversight Board plays an
important role in reviewing orders issued by the Undersecretary
of the Transportation Security Administration (TSA). Congress
gave the Undersecretary very strong and broad authority to
issue security directives and regulations relative to all
Transportation security matters without providing notice or
opportunity for comment. The Board has authority to review and
disapprove any regulations or security directives issued by the
Undersecretary within 30 days of issuance. Therefore, the Board
plays an important appellate role.
It is important that the Board operate effectively and
promptly to review the orders and regulations of the
Undersecretary and that it vigorously exercise its review
function, as well as the other statutory functions given to it
by Congress. This amendment, while somewhat technical in
nature, will insure the continued smooth functioning of the
Board.
FAA Consultation Requirements (Section 907(b))
The amendment revises Chapter 471 of Title 49 to require
the Federal Aviation Administration to consult with the new
Department before it makes an AIP grant for security equipment
or terminal modification to accommodate that equipment. It is
important that after the TSA is transferred out of DOT, the
close working relationship that it currently has with the FAA
and vice versa, continue.
Transfer of Federal Protective Service (Sec. 908)
The amendment retains the transfer of the Federal
Protective Service (FPS) and enhances the authority,
responsibility, pay, and benefits of FPS officers by granting
them Law Enforcement Officer (LEO) status. The amendment gives
the Secretary special pay authority to compensate FPS officers
equal to other federal law enforcement officers. The amendment
clarifies that the Act does not impact the current functions
and authority of the Administrator of GSA with regard to the
protection of federal buildings or limit the Administrator's
authority to collect fees for protective services. The
amendment also sustains limited authority for the Administrator
of GSA with regard to the protection of federal buildings and
facilitates the continuation of GSA's billing structure and
authority to collect fees for related building expenses. The
amendment also establishes an Interagency Security Committee
with GSA as the chair or co-chair, which was previously
authorized by Executive Order 12977, signed October 19, 1995.
While recognizing the important role the FPS plays in
protecting federal buildings, the Transportation and
Infrastructure Committee believes that this role is best served
if FPS officers are given similar authorities as other police
organizations that are being transferred to the Department of
Homeland Security (DHS). Recently, the FPS has shifted its
emphasis from a fixed guard post concept to a mobile police
patrol and response concept. FPS officers perform all duties
attendant to the normal interpretation of a police officer
function, including maintaining law and order, preventing or
deterring disturbances, and investigating both felonies and
misdemeanors. The increased authorities and responsibilities
provided under the amendment will allow current FPS officers to
participate as an equal partner on task forces and commissions
related to homeland security activities or be incorporated into
any newly created police force.
At present, FPS officers can only make arrests (including
arrests during the commission of a crime), serve warrants, and
detain suspects on federal property. This puts FPS officers in
the awkward position of having to call 911 and stand idly by as
crimes are committed off federal property, even though they may
be in a position to apprehend a suspect or stop a crime.
Additionally, there are inconsistent jurisdictional policies
with regard to state and local law enforcement authorities
entering Federal facilities to serve warrants and make arrests.
Under provisions of the amendment, the Secretary will have the
authority to clarify and resolve these inconsistent and
sometimes conflicting policies by entering into cooperative
agreements with state and local entities.
The current FPS force is composed of both uniformed and
non-uniformed officers, including criminal investigators and
physical security specialists. All officers receive eight weeks
of instruction at the Federal Law Enforcement Training Center
in Glynco, Georgia, with additional periodic in-service and
refresher training courses. Physical security specialists
receive further training to conduct security surveys and
provide recommendations pertaining to federal facilities.
The FPS has been a part of the Public Buildings Service
(PBS) since 1949. Originally known as the Public Buildings
Administration, PBS is the real property arm of GSA. PBS
operates and maintains 1,993 Federal buildings with more than
184 million square feet of office, storage and special space in
the United States for use by civilian employees of the Federal
government. PBS also acts as the leasing agent for the Federal
government, and currently has in place over 7,400 leases in
6,300 buildings with over 150 million square feet of space. The
amendment maintains that the Administrator will retain current
authorities for the protection of federal buildings and the
ability to collect fees for protection services and prohibits
DHS from using the Federal Building Fund for anything other
than building security.
The amendment is similar to H.R. 4770 approved by the
Committee on May 22, 2002. The amendment enhances the FPS,
provides for the continued protection of federal buildings, and
requires that payments to the Federal Building Fund by agencies
for building security be limited to reimbursements for building
protection services.
Preservation of the Coast Guard within the Department of Transportation
(Title X and Section 406)
The amendment includes provisions that strike all
references to the transfer of the U.S. Coast Guard and ensures
that Coast Guard core missions are performed at adequate
levels.
The amendment establishes a new Under Secretary of
Transportation for the Coast Guard. The provision creates a
hierarchy within the Department of Transportation that is
similar to the civilian leadership structure in the Department
of Defense. Under this amendment, the Coast Guard will have the
advice and support of a civilian leader, to the same extent as
the military services within the Department of Defense. The
Coast Guard Under Secretary will also be the same level as the
five Under Secretaries in the new Department of Homeland
Security, which will enable the head of the Coast Guard to work
and coordinate effectively with the new Department. The Under
Secretary will be responsible for coordinating with Homeland
Security on security matters affecting the Coast Guard.
Finally, the amendment requires the Coast Guard to continue
to devote an adequate amount of resources to core Coast Guard
missions of search and rescue, fisheries law enforcement, drug
interdiction, migrant interdiction, marine environmental
protection, and marine safety. This will ensure that the Coast
Guard has the flexibility to address all homeland security and
port security threats, and also perform other important
maritime missions.
The amendment specifies the levels of funding for each
mission by a minimum percentage that must be obligated. This is
intended to be a minimum level of commitment of resources to
those missions and should be adjusted for inflation to allow
those levels of resources to rise.
After thorough consideration of the proposal to move the
Coast Guard from the U.S. Department of Transportation to the
new Department of Homeland Security, the Transportation and
Infrastructure Committee has concluded that it would be in the
best interest of the citizens of the United States for the
Coast Guard to remain a part of the Department of
Transportation. The Committee is very concerned that moving the
Coast Guard to the new Department of Homeland Security will
force the Coast Guard to place less emphasis on its vital
traditional missions.
The U.S. Coast Guard currently has primary responsibility
for the promotion of safety of life and property at sea, the
enforcement of all applicable Federal laws on, under, and over
the high seas and United States waters. The agency also is
charged with protecting the marine environment, conducting
icebreaking activities, maintaining aids to navigation, and
securing the safety of vessels, ports, waterways, and related
facilities.
As a military service and a branch of the Armed Forces, the
Coast Guard also maintains a readiness to operate as a
specialized service in the Navy upon the declaration of war or
when the President directs. The Coast Guard has defended our
Nation in every war since 1790, including the 1990-1991
conflict in the Persian Gulf.
The Coast Guard's highest priority mission is search and
rescue. The Coast Guard's search and rescue activities save the
lives of approximately ten Americans each day and is unrelated
to the primary mission of the new Department of Homeland
Security. The Coast Guard provides around the clock readiness
to conduct search and rescue missions in all areas of the
maritime environment. Annually, the Coast Guard responds to
approximately 40,000 calls for assistance. This year the Coast
Guard saved 84 percent of all mariners in distress.
The Coast Guard is in process of upgrading and improving
its search planning tools to conduct more efficient and
effective maritime searches. In addition, the Coast Guard is
developing the new National Distress Response System
Modernization Project. This vital multi-million dollar project
will modernize the Coast Guard's outdated distress
communications system allowing the Coast Guard to better
respond to mariners in distress and thereby preventing the
tragic loss of hundreds of American lives.
As the only military service with law enforcement
authority, the Coast Guard apprehends smugglers attempting to
import illegal drugs into the United States through the six
million square mile transit zone. Drug trafficking must be
obstructed to halt the destructive influence of drug
consumption on Americans. The Coast Guard seized a record
138,000 pounds of cocaine in 2001. An untold number of American
children were kept from the ravages of drug addiction due to
the efforts of the Coast Guard. While the Coast Guard seized a
record amount of cocaine, it will not meet its 2001 performance
target due to the great increase in the northward flow of
cocaine toward the United States and the Coast Guard's greatly
increased post September 11th homeland security efforts.
Another important mission of the Coast Guard involves the
protection of American fisheries resources. Commercial and
recreational fisheries contribute about $50 billion annually to
the U.S. economy. Responsible management of ocean resources is
critical as the world's population continues to grow, demanding
increasing food sources. The Coast Guard works to prevent
foreign fishing vessels from entering the U.S. Exclusive
Economic Zone. The agency also partners closely with other
Federal and state agencies to improve the health of fish
stocks.
The Coast Guard's prevention, enforcement and response
operations in marine environmental protection help to protect
our natural resources and reduce the amount of pollution
entering U.S. and international waterways. Due to the Coast
Guard's continued enforcement of the Oil Pollution Act of 1990,
few major oil spills occurred during 2001.
The Coast Guard focuses marine environmental protection
activities on oil spill prevention programs. When oil accidents
do happen, the Coast Guard responds with its partners in other
Federal agencies, state governments, and the maritime industry
to ensure that the impacts of a spill are minimized. These and
other prevention efforts have been effective in reducing oil
spills in all parts of the country.
The Coast Guard also works to prevent undocumented migrants
from illegally entering the United States. The Coast Guard
patrols throughout the Caribbean and Florida Straits and
responds to intelligence about suspicious voyages along the
East and West Coasts and throughout U.S. territories in the
Pacific in its efforts to curtail illegal immigration.
Each year millions of passengers are carried aboard cruise
ships, ferries, charter boats, sightseeing boats, gaming
vessels and other commercial passenger vessels in the U.S.
However, only seven fatalities occurred in fiscal year 2001.
This low death rate is a marked decrease in the actual number
of passenger deaths as well as a decline in the death rate. The
Coast Guard aims to ensure the safety of passengers on board
vessels by preventing accidents, responding promptly to
accidents when they occur, and investigating accidents to
prevent them from happening again in the future. The Coast
Guard is also responsible for recreational boating safety. The
Coast Guard estimates that 742 recreational boating fatalities
occurred during 2001. The ratio of fatalities to the registered
number of boaters is decreasing despite an increasing number of
registered boaters. The Coast Guard coordinates national
outreach campaigns targeting life jacket wear, boating safety
education, vessel safety checks, carbon monoxide poisoning, and
the danger of boating while under the influence of drugs and
alcohol.
The Coast Guard's legal responsibilities have expanded over
the past twenty years. Many of the laws the Coast Guard
administers are codified in subtitle II of title 46, United
States Code. The Coast Guard enforces the following laws:
The Western Hemisphere Drug Elimination Act, which
provides a three-year increase of Coast Guard drug interdiction
resources to respond to the illegal drug threat facing our
country.
The Anti-Drug Abuse Acts of 1986 and 1988, which
expand the Coast Guard's role in waterborne and airborne marine
drug interdiction.
The Maritime Drug Law Enforcement Act, which
authorizes the Coast Guard to search and seize any vessel that
is manufacturing, distributing, or possessing with the intent
to manufacture or distribute a controlled substance in the
United States.
The Deepwater Port Act of 1974, which directs the
Coast Guard to oversee offshore oil port operation and
construction.
The Port and Waterways Safety Act of 1974, which
directs the Coast Guard to ensure port and merchant vessel
safety.
The Port and Tanker Safety Act of 1978, which
authorizes the Coast Guard to inspect foreign tankers, evaluate
crew standards, and monitor offshore lightering activities in
U.S. waters.
The Omnibus Diplomatic Security and Antiterrorism
Act of 1986, which requires the Coast Guard to maintain and
improve port, harbor, and coastal facilities security.
The Federal Boating Safety Act of 1971, which
authorized the Coast Guard to prescribe standards for the
manufacture of pleasure boats and associated equipment.
The Recreational Boating Safety Improvement Act of
1998 which promotes recreational boating safety and access
through a state grant program.
The Federal Water Pollution Control Act of 1972
(popularly known as the Clean Water Act), which requires the
Coast Guard to regulate discharges of oil and sewage from
vessels.
The Oil Pollution Act of 1990 (OPA 90), which
expands the Coast Guard's authority over oil spills, and
establishes a comprehensive regime for oil spill compensation,
liability, response, and research and development.
The Marine Protection, Research and Sanctuaries
Act of 1972, which gives the Coast Guard enforcement authority
over ocean dumping and marine sanctuaries.
The Act to Prevent Pollution from Ships, which
requires the Coast Guard to administer and enforce
international environmental pollution agreements through vessel
and port certification and inspections.
The Marine Plastic Pollution Research and Control
Act of 1987, which requires the Coast Guard to enforce
prohibitions on the disposal of plastic materials and other
garbage at sea.
The Hazardous Materials Transportation Act, which
requires the Coast Guard to enforce safety standards for the
waterborne transportation of hazardous materials.
The Intervention on the High Seas Act, which
authorizes the Coast Guard to intervene in situations involving
pollution discharges on the high seas that pose a threat to the
United States and its territorial waters.
The Fishery Conservation and Management Act of
1976, which assigns joint responsibility to the Coast Guard and
the National Marine Fisheries Services to enforce U.S.
fisheries laws within the 200-mile Exclusive Economic Zone of
the United States.
The Outer Continental Shelf Lands Act Amendments
of 1978, which authorizes the Coast Guard to enforce
environmental and safety regulations governing oil and gas
development activities on the outer Continental Shelf.
The National Invasive Species Act of 1996, which
amended the Nonindigenous Aquatic Nuisance Prevention and
Control Act of 1990 to strengthen and improve the nation's
response to threats posed by aquatic nuisance species.
------
Amendment to H.R. 5005
Offered by Mr. Young of Alaska
Page 6, line 21, insert ``and'' after the semicolon.
Page 6, line 23, strike ``; and'' and insert a period.
Page 7, strike lines 1 through 3.
Page 7, line 10, insert ``and'' after the semicolon.
Page 7, line 11, strike the semicolon and insert a period.
Page 7, strike lines 12 through 17.
Page 8, after line 16, insert the following:
(c) 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.
Page 9, strike lines 17 through 21.
Page 22, strike lines 20 through 24 (and redesignate subsequent
paragraphs accordingly).
Page 23, line 1, insert ``subject to section 404,'' after ``(4)''.
Page 23, line 3, strike ``of the Secretary of Transportation, and''
Page 23, line 4, strike the comma at the end.
Page 23, line 6, insert ``subject to section 405,'' after ``(5)''.
Page 24, after line 6, insert the following (and conform the table
of contents of the bill accordingly):
SEC. 404. FUNCTIONS OF TRANSPORTATION SECURITY ADMINISTRATION.
(a) In General.--The functions of the Transportation Security
Administration of the Department of Transportation transferred under
section 402(5) shall be carried out by an Assistant Secretary of the
Department appointed by the President under section 103(a)(7). The
Assistant Secretary shall be known as the Assistant Secretary for
Transportation Security (in this section referred to as the ``Assistant
Secretary'').
(b) Reporting.--The Assistant Secretary shall report to the Under
Secretary for Border and Transportation Security.
(c) 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.
(d) Date of Transfer of Functions.--Notwithstanding section 802 or
any other provision of this Act, the transfer relating to the
Transportation Security Administration under section 402(5) shall not
occur until after--
(1) the Secretary, Assistant Secretary, and the Under
Secretary for Border and Transportation Security have each
taken office;
(2) the Secretary of Transportation certifies that
explosive detection systems are deployed at all United States
airports described in section 44903(c) of title 49, United
States Code, and that these systems are screening all checked
baggage; and
(3) the Secretary of Transportation certifies that a
sufficient number of Federal screeners, Federal Security
Managers, Federal security personnel, and Federal law
enforcement officers have been deployed at all airports in the
United States at which screening is required under section
44901 of title 49, United States Code, other than airports
participating in the pilot program under section 44919 of such
title.
(e) TSA and Other Security-Related Programs.--
(1) TSA programs.--For purposes of the transfer under
section 402(5), the Transportation Security Administration
shall be considered to consist of those programs for which
funds are specifically requested for the Transportation
Security Administration in the President's budget submission to
Congress for fiscal year 2003.
(2) Other security-related programs.--Other security-
related programs within the Department of Transportation may
not be transferred to the Department of Homeland Security
before the last day of a 30-day period of continuous session of
Congress following the date of transmittal by the President to
Congress of a notice of the President's intent to make such a
transfer. For purposes of the preceding sentence, continuity of
a session of Congress is broken only by an adjournment sine
die, and there shall be excluded from the computation of such
30-day period any day during which either House of Congress is
not in session during an adjournment of more than 3 days to a
day certain.
(f) 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.
(g) 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.
(h) References.--References relating to the Under Secretary of
Transportation for Security and the Transportation Security
Administration of the Department of Transportation in statutes,
Executive orders, rules, regulations, directives, or delegations of
authority that precede the effective date of the transfer under section
402(5) shall be deemed to refer, as appropriate, to the Assistant
Secretary and the Department, respectively.
SEC. 405. 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
402(6), the Administrator shall retain all powers, functions, and
authorities vested in the Administrator under the Federal Property and
Administrative Services Act of 1949 (40 U.S.C. 471 et seq.) 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 210(f) of
the Federal Property and Administrative Services Act of
1949 (40 U.S.C. 490(f)).
(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. 406. RETENTION OF COAST GUARD FUNCTIONS.
(a) Limitation on Functions of Under Secretary.--Notwithstanding
any other provision of this title, the functions of the Under Secretary
for Border and Transportation Security do not include any function that
immediately before this Act takes effect is a function of the Coast
Guard.
(b) Preservation of Coast Guard Functions.--The functions of the
Coast Guard (and of the Secretary of the Department in which the Coast
Guard is operating with respect to such functions) are not affected by
this title.
SEC. 407. INTERAGENCY SECURITY COMMITTEE.
(a) Purpose.--It is the purposes of this section to enhance the
quality and effectiveness of security in and protection of buildings
and facilities in the United States occupied by Federal employees for
nonmilitary activities (in this section referred to as ``Federal
facilities'') and to provide a permanent body to address continuing
Government-wide security for Federal facilities.
(b) Establishment.--There is established within the executive
branch the Interagency Security Committee (in this section referred to
as the ``Committee''). The Committee shall consist of the following
members:
(1) The Administrator of General Services.
(2) Representatives from the following agencies, appointed
by the agency heads:
(A) Department of State.
(B) Department of the Treasury.
(C) Department of Defense.
(D) Department of Justice.
(E) Department of Homeland Security.
(F) Department of the Interior.
(G) Department of Agriculture.
(H) Department of Commerce.
(I) Department of Labor.
(J) Department of Health and Human Services.
(K) Department of Housing and Urban Development.
(L) Department of Transportation.
(M) Department of Energy.
(N) Department of Education.
(O) Department of Veterans Affairs.
(P) Environmental Protection Agency.
(Q) Central Intelligence Agency.
(R) Office of Management and Budget.
(3) The following individuals or their designees:
(A) The Director, United States Marshals Service.
(B) The head of the Federal Protective Service.
(C) The Assistant to the President for National
Security Affairs.
(D) The Director, Security Policy Board.
(4) Such other Federal employees as the President shall
appoint.
(c) Chair.--The Committee shall be chaired or co-chaired by the
Administrator of General Services, or the designee of the
Administrator.
(d) Working Groups.--The Committee is authorized to establish
interagency working groups to perform such tasks as may be directed by
the Committee.
(e) Consultation.--The Committee may consult with other parties,
including the Administrative Office of the United States Courts, to
perform its responsibilities under this section and, at the discretion
of the Committee, such other parties may participate in the working
groups.
(f) Duties and Responsibilities.--The Committee shall--
(1) establish policies for security in and protection of
Federal facilities;
(2) develop and evaluate security standards for Federal
facilities, develop a strategy for ensuring compliance with
such standards, and oversee the implementation of appropriate
security measures in Federal facilities; and
(3) take such actions as may be necessary to enhance the
quality and effectiveness of security and protection of Federal
facilities, including--
(A) encouraging agencies with security
responsibilities to share security-related intelligence
in a timely and cooperative manner;
(B) assessing technology and information systems as
a means of providing cost-effective improvements to
security in Federal facilities;
(C) developing long-term construction standards for
those locations with threat levels or missions that
require blast resistant structures or other specialized
security requirements;
(D) evaluating standards for the location of, and
special security related to, day care centers in
Federal facilities; and
(E) assisting the Administrator of General Services
in developing and maintaining a centralized security
data base of all Federal facilities.
(g) Agency Support and Cooperation.--
(1) Administrative support.--To the extent permitted by law
and subject to the availability of appropriations, the
Administrator of General Services shall provide the Committee
such administrative services, funds, facilities, staff, and
other support services as may be necessary for the performance
of its functions under this section.
(2) Cooperation.--Each executive agency and department
shall cooperate and comply with the policies and
recommendations of the Committee issued pursuant to this
section, except to the extent that the Director of Central
Intelligence determines that compliance would jeopardize
intelligence sources and methods. To the extent permitted by
law and subject to the availability of appropriations,
executive agencies and departments shall provide such support
as may be necessary to enable the Committee to perform its
duties and responsibilities under this section.
(3) Compliance.--The Administrator of General Services
shall be responsible for monitoring Federal agency compliance
with the policies and recommendations of the Committee.
SEC. 408. ANNUAL ASSESSMENT OF TERRORIST-RELATED THREATS TO PUBLIC
TRANSPORTATION.
On an annual basis, the Secretary, in consultation with the heads
of other appropriate Federal departments and agencies, shall conduct an
assessment of terrorist-related threats to all forms of public
transportation, including public gathering areas related to public
transportation.
Page 24, lines 16 and 17, strike ``, major disasters, and other
emergencies''.
Page 25, line 7, strike ``and major disasters''.
Page 25, lines 19 and 20, strike ``or major disaster''.
Page 25, line 22, strike ``and major disasters''.
Page 26, strike lines 3 through 5 and insert the following:
(6) in consultation with the Director of the Federal
Emergency Management Agency, consolidating existing Federal
Government emergency response plans for terrorist attacks into
the Federal Response Plan referred to in section 506(b); and
Page 26, strike lines 14 through 17 (and redesignate subsequent
paragraphs accordingly).
Page 30, after line 9, insert the following:
SEC. 506. ROLE OF FEDERAL EMERGENCY MANAGEMENT AGENCY.
(a) In General.--The functions of the Federal Emergency Management
Agency include, but are not limited to, 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 preparedness, by building the emergency
management profession to prepare effectively for,
mitigate against, respond to, and recover from any
hazard by planning, training, and exercising;
(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 preparedness and response
activities to maximize efficiencies.
(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.
(3) Memorandum of understanding.--Not later than 60 days
after the date of enactment of this Act, the Secretary and the
Director of the Federal Emergency Management Agency shall adopt
a memorandum of understanding to address the roles and
responsibilities of their respective agencies under this title.
Page 31, at the beginning of line 23, insert ``(a) In General.--''.
Page 32, strike lines 3 through 6 (and redesignate subsequent
paragraphs accordingly).
Page 32, strike lines 13 through 15 and insert the following:
(2) subject to subsection (b), directing and supervising
grant programs of the Federal Government for State, local, and
tribal government emergency response providers; and
Page 32, after line 19, insert the following:
(b) Limitation.--Subsection (a)(2) shall not be construed to affect
any grant program carried out by the Director of the Federal Emergency
Management Agency; except that the Director shall coordinate with the
Secretary in making grants relating to emergency response providers.
Page 37, strike line 16 and all that follows through line 14 on
page 39 and insert the following:
(c) Department Headquarters.--
(1) In general.--Subject to the requirements of the Public
Buildings Act of 1959 (40 U.S.C. 601 et seq.), the
Administrator of General Services shall construct a public
building to serve as the headquarters for the Department.
(2) Location and construction standards.--The headquarters
facility shall be constructed to such standards and
specifications and at such a location as the Administrator of
General Services decides. In selecting a site for the
headquarters facility, the Administrator shall give preference
to parcels of land that are federally owned.
(3) Scoring of expenditures, obligations, and
appropriations.--Notwithstanding any provision of the
Congressional Budget Act of 1974 (2 U.S.C. 621 et seq.), the
Balanced Budget and Emergency Deficit Control Act of 1985 (2
U.S.C. 900 et seq.), or chapter 13 or 15 of title 31, United
States Code, or any other provision of law, any expenditures,
obligations, and appropriations made for the headquarters
facility shall be scored on an annual basis.
(4) Alternate financing methods.--In the absence of
appropriations in fiscal year 2003 for Federal construction of
the headquarters facility--
(A) the Administrator of General Services may
construct the facility by lease-purchase or installment
purchase and may use any lease or installment purchase
instrument as a means of financing the acquisition of a
site, if necessary, and the construction of the
facility, either through commercial financial
establishments or through the Federal Financing Bank;
(B) any lease or installment purchase obligation of
the Administrator used in financing the construction of
the facility shall be scored, for borrowing authority
or budget authority purposes, only to the extent
outlays are made from the Federal Buildings Fund
annually to amortize such obligations; and
(C) if the financing is placed with the Federal
Financing Bank, any loans, promissory notes, draws, or
other disbursements made by the Bank and secured by the
lease rental or installment contract payments by the
Administrator of General Services shall for budgetary
purposes be treated as a means of financing the
Department or the General Services Administration, but
only to the extent outlays are made from the Federal
Buildings Fund annually to amortize such obligations.
(5) Use of headquarters facility.--The Administrator of
General Services shall make the headquarter facility, as well
as other Government-owned or leased facilities, available to
the Secretary pursuant to the Administrator's authorities under
section 210 of the Federal Property and Administrative Services
Act of 1949 (40 U.S.C. 490 et seq.) and there is authorized to
be appropriated to the Secretary such amounts as may be
necessary to pay the annual charges for General Services
Administration furnished space and services.
Page 41, lines 17 and 18, strike ``the effective date of this Act''
and insert ``the date of transmittal of a plan to Congress under
section 802(b)''.
Page 41, line 20, strike ``The transfer'' and insert the following:
(a) In General.--Subject to subsection (b), the transfer
Page 41, after line 25, insert the following:
(b) Organization Plan.--
(1) Plan to be completed before transfers occur.--The
transfer of an agency, or any of its functions, to the
Department under this Act shall not occur before the last day
of a 60-day period of continuous session of Congress following
the date of transmittal by the Secretary to Congress of a plan
for the organization of the Department.
(2) Contents of plan.--The plan submitted under paragraph
(1) shall include--
(A) a designation of which agency in the Department
will be carrying out each of the functions assigned to
the Department;
(B) a proposal for funding the Department;
(C) a designation of the number of employees that
will be employed by the Department;
(D) a description of the manner in which the
Department will carry out each function or service
transferred to the Department from another agency; and
(E) a designation of the number of employees who
will be performing each function or service transferred
to the Department from another agency.
(3) Congressional review period.--For purposes of paragraph
(1), continuity of a session of Congress is broken only by an
adjournment sine die, and there shall be excluded from the
computation of the 60-day period any day during which either
House of Congress is not in session during an adjournment of
more than 3 days to a day certain.
Page 44, after line 10, insert the following:
(f) 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, Harbor
Maintenance Trust Fund, or Oil Spill Liability 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.
Page 49, strike line 9 and all that follows through page 50, line 3
(and redesignate subsequent sections of the bill accordingly).
At the end of the bill, add the following (and conform the table of
contents of the bill accordingly):
SEC. 907. 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) (relating to security equipment) or section
47102(3)(B)(x) (relating to installation of bulk explosive detection
systems).''.
SEC. 908. TRANSFER OF CERTAIN SECURITY AND LAW ENFORCEMENT FUNCTIONS
AND AUTHORITIES.
(a) Amendment to Property Act.--Section 210(a)(2) of the Federal
Property and Administrative Services Act of 1949 (40 U.S.C. 490(a)(2))
is repealed.
(b) Law Enforcement Authority.--The Act of June 1, 1948 (40 U.S.C.
318-318d; chapter 359; 62 Stat. 281) is amended to read as follows:
``SECTION 1. SHORT TITLE.
``This Act may be cited as the `Protection of Public Property Act'.
``SEC. 2. LAW ENFORCEMENT AUTHORITY OF SECRETARY OF HOMELAND SECURITY
FOR PROTECTION OF PUBLIC PROPERTY.
``(a) In General.--The Secretary of Homeland Security (in this Act
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.
``SEC. 3. SPECIAL PAY.
``Without regard to the pay provisions of chapter 51 of title 5,
United States Code, and subchapter III of chapter 53 of such title, the
Secretary may, in the Secretary's sole discretion, fix the rates of
basic pay for the positions occupied by officers and agents designated
under this Act so as to enable the officers and agents to be
appropriately compensated in comparison to personnel performing
comparable duties in other law enforcement organizations in the local
labor market.''.
(c) Maximum Age for Entry Into the Position of Federal Protective
Service Officer.--Section 3307 of title 5, United States Code, is
amended--
(1) in subsection (a) by striking ``and (f)'' and inserting
``(f), and (g)''; and
(2) by adding at the end the following:
``(g) The Secretary of Homeland Security may determine and fix the
maximum age limit for an original appointment to a position as a
Federal Protective Service Officer, as defined by section 8331(29) or
8401(35).''.
(d) Amendments Relating to the Civil Service Retirement System.--
(1) Definition.--Section 8331 of title 5, United States
Code, is amended--
(A) by striking ``and'' at the end of paragraph
(27);
(B) by striking the period at the end of paragraph
(28) and inserting ``; and''; and
(C) by adding at the end the following:
``(29) `Federal Protective Service Officer' means--
``(A) an employee occupying a position in the
Department of Homeland Security and designated as an
officer or agency under section 2(b)(1) of the
Protection of Public Property Act, the duties of which
position are primarily--
``(i) to detect, investigate, apprehend,
arrest, or detain individuals suspected or
convicted of offenses against the criminal laws
of the United States;
``(ii) to protect and secure the personal
safety of officials and other employees of the
United States, as well as occupants and
visitors on federally controlled property; and
``(iii) to gather, assess, and analyze
information relating to threats, and to respond
to threats and attacks, against persons and
property of the United States; and
``(B) an employee who is transferred directly to a
supervisory or administrative position in the
Department of Homeland Security from a position of
Federal Protective Service Officer (as defined by
subparagraph (A)) or law enforcement officer;
any determination as to whether or not an employee satisfies
subparagraph (B) shall, in the case of an employee occupying a
position in the Office of the Federal Protective Service of the
General Services Administration on the date of the enactment of
this paragraph, be made without regard to any requirement that
the employee have completed a minimum period of one or more
types of service before the date of transfer.''.
(2) Deductions, contributions, and deposits.--Section 8334
of title 5, United States Code, is amended--
(A) in subsection (a)(1), by striking ``or nuclear
materials courier,'' and inserting ``nuclear materials
courier, or Federal Protective Service Officer,''; and
(B) in subsection (c), by adding after the item
relating to a nuclear materials courier the following:
``Federal Protective Service Officer.... 7.5.................... After the date of the enactment of the
Homeland Security Act of 2002.''.
(3) Computation of annuity for certain officers mandatorily
separated.--Section 8339 of title 5, United States Code, is
amended by adding at the end the following:
``(v) The annuity of a Federal Protective Service Officer retiring
under section 8335(e) is--
``(1) 2\1/2\ percent of the officer's average pay
multiplied by so much of his total service, performed as a
Federal Protective Service Officer or law enforcement officer,
as does not exceed 20 years; plus
``(2) 2 percent of the officer's average pay multiplied by
so much of his total service as exceeds the number of years of
service taken into account under paragraph (1).''.
(4) Immediate retirement.--Section 8336(c)(1) of title 5,
United States Code, is amended by striking ``or nuclear
materials courier'' and inserting ``nuclear materials courier,
or Federal Protective Service Officer''.
(5) Mandatory separation.--
(A) In general.--Section 8335(b) of title 5, United
States Code, is amended--
(i) by striking ``or nuclear materials
courier'' and inserting ``nuclear materials
courier, or Federal Protective Service Officer
(other than one described in subsection (e))'';
and
(ii) by striking ``or courier'' and
inserting ``courier, or Federal Protective
Service Officer (other than one described in
subsection (e))''.
(B) Provisions relating to certain incumbents.--
Section 8335 of title 5, United States Code, is amended
by inserting after subsection (d) the following:
``(e) A Federal Protective Service Officer who is employed by the
Office of the Federal Protective Service of the General Services
Administration on the date of the enactment of the Homeland Security
Act of 2002, and who is otherwise eligible for immediate retirement
under section 8336, shall be separated from the service on the last day
of the month in which such officer becomes 57 years of age or completes
10 years of service as a Federal Protective Service Officer if then
over that age. The Secretary of Homeland Security, under such
regulations as the Secretary may prescribe, may exempt a Federal
Protective Service Officer having exceptional skills and experience as
a Federal Protective Service Officer from the automatic separation
provisions of this subsection until the officer becomes 60 years of
age. The Secretary shall notify the officer in writing of the date of
separation at least 60 days before that date. Action to separate the
officer is not effective, without the consent of the officer, until the
last day of the month in which the 60-day notice expires.''.
(e) Amendments Relating to the Federal Employees' Retirement
System.--
(1) Definition.--Section 8401 of title 5, United States
Code, is amended--
(A) by striking ``and'' at the end of paragraph
(33);
(B) by striking the period at the end of paragraph
(34) and inserting ``; and''; and
(C) by adding at the end the following:
``(35) `Federal Protective Service Officer' has the meaning
given that term in section 8331(29).''.
(2) Deductions and contributions.--
(A) Employee deductions and contributions.--Section
8422(a)(3) of title 5, United States Code, is amended
by adding after the item relating to a nuclear
materials courier the following:
``Federal Protective Service Officer.... 7.5.................... After the date of the enactment of the
Homeland Security Act of 2002.''.
(B) Agency contributions.--Paragraphs (1)(B)(i) and
(3)(A) of section 8423(a) of title 5, United States
Code, are amended by inserting ``Federal Protective
Service Officers,'' after ``firefighters,'' each place
it appears.
(3) Provisions relating to computation of basic annuity.--
(A) Annuity for certain officers mandatorily
separated.--Section 8415 of title 5, United States
Code, is amended by adding at the end the following:
``(l) The annuity of a Federal Protective Service Officer retiring
under section 8425(e) is--
``(1) 2\1/2\ percent of the officer's average pay
multiplied by so much of his total service, performed as a
Federal Protective Service Officer or law enforcement officer,
as does not exceed 20 years; plus
``(2) 2 percent of the officer's average pay multiplied by
so much of his total service as exceeds the number of years of
service taken into account under paragraph (1).''.
(B) Technical and conforming amendments.--
(i) Inapplicability of 1.1 percent accrual
rate.--Section 8415(g)(2) of title 5, United
States Code, is amended by inserting ``Federal
Protective Service Officer,'' after ``nuclear
materials courier,''.
(ii) Annuities on reemployment.--Section
8468(b)(1)(A) of title 5, United States Code,
is amended by inserting ``and (l)'' after
``through (g)''.
(4) Immediate retirement.--Section 8412(d) of title 5,
United States Code, is amended by striking ``or nuclear
materials courier'' each place it appears and inserting
``nuclear materials courier, or Federal Protective Service
Officer''.
(5) Mandatory separation.--
(A) In general.--Section 8425(b) of title 5, United
States Code, is amended by inserting ``Federal
Protective Service Officer (other than one described in
subsection (e)),'' after ``law enforcement officer,''
each place it appears.
(B) Provisions relating to certain incumbents.--
Section 8425 of title 5, United States Code, is amended
by redesignating subsection (e) as subsection (f), and
by inserting after subsection (d) the following:
``(e) A Federal Protective Service Officer who is employed by the
Office of the Federal Protective Service of the General Services
Administration on the date of the enactment of the Homeland Security
Act of 2002, and who is otherwise eligible for immediate retirement
under section 8412, shall be separated from the service on the last day
of the month in which such officer becomes 57 years of age or completes
10 years of service as a Federal Protective Service Officer if then
over that age. The Secretary of Homeland Security, under such
regulations as the Secretary may prescribe, may exempt a Federal
Protective Service Officer having exceptional skills and experience as
a Federal Protective Service Officer from the automatic separation
provisions of this subsection until the officer becomes 60 years of
age. The Secretary shall notify the officer in writing of the date of
separation at least 60 days before that date. Action to separate the
officer is not effective, without the consent of the officer, until the
last day of the month in which the 60-day notice expires.''.
(f) Payments.--
(1) In general.--The Secretary shall pay into the Civil
Service Retirement and Disability Fund an amount determined by
the Director of the Office of Personnel Management to be
necessary to reimburse the Fund for any estimated increase in
the unfunded liability of the Fund resulting from the
amendments made by subsection (e).
(2) Timing.--The Secretary shall pay the amount so
determined in 5 equal annual installments with interest
computed at the rate used in the most recent valuation of the
Civil Service Retirement System, with the first payment thereof
due by the end of fiscal year 2003.
(g) Law Enforcement Pay.--
(1) Pay and benefits under provisions of fepca.--A Federal
Protective Service Officer (within the meaning of section
8331(29) or 8401(35) of title 5, United States Code) is
entitled to the same pay and benefits as are provided by
sections 403, 404, and 407 of the Federal Employees Pay
Comparability Act of 1990 (5 U.S.C. 5305 note) to a law
enforcement officer (as defined by section 402 of such Act).
(2) Award for foreign language capabilities.--Section 4521
of title 5, United States Code is amended--
(A) by striking ``and'' at the end of paragraph
(5);
(B) by striking the period at the end of paragraph
(6) and inserting ``; and''; and
(C) by adding at the end the following:
``(7) a Federal Protective Service Officer (within the
meaning of section 8331(29) or 8401(35)).''.
(3) Overtime pay.--Section 5542(a)(4) of title 5, United
States Code, is amended by inserting ``or a Federal Protective
Service Officer (within the meaning of section 8331(29) or
8401(35))'' after ``law enforcement officer''.
(h) Limitation.--Notwithstanding the authority of the Secretary to
establish a human resources management system under section 10001 of
title 5, United States Code (as added by this Act), or any other
authority granted to the Secretary, the Secretary may not reduce the
pay or benefits of a Federal Protective Service Officer, within the
meaning of section 8331(29) or 8401(35) of such title (as added by this
section), below the level provided by such title.
TITLE X--COAST GUARD FUNCTIONS RELATING TO DEPARTMENT OF HOMELAND
SECURITY
SEC. 1001. UNDER SECRETARY OF THE COAST GUARD.
(a) In General.--Title 14, United States Code, is amended by
inserting before section 41 the following:
``Sec. 40. Under Secretary of the Coast Guard
``(a)(1) There is an Under Secretary of the Coast Guard appointed
from civilian life by the President, by and with the advice and consent
of the Senate. The Under Secretary of the Coast Guard is the head of
the Coast Guard.
``(2) A person may not be appointed as Under Secretary of the Coast
Guard within five years after relief from active duty as a commissioned
officer of a regular component of an armed force.
``(b) Subject to the authority, direction, and control of the
Secretary of the department in which the Coast Guard is operating, the
Under Secretary of the Coast Guard is responsible for, and has the
authority necessary to conduct, all affairs of the Coast Guard.
``(c) After first informing the Secretary of the department in
which the Coast Guard is operating, the Under Secretary of the Coast
Guard may make such recommendations to Congress relating to the Coast
Guard as the Under Secretary considers appropriate.
``(d) The Under Secretary of the Coast Guard may assign such of
Under Secretary's functions, powers, and duties as the Under Secretary
considers appropriate to the Commandant. Officers of the Coast Guard
shall, as directed by the Under Secretary of the Coast Guard, report on
any matter to the Under Secretary of the Coast Guard or the Commandant.
``(e) In addition to the other duties of the Under Secretary of the
Coast Guard, the Under Secretary shall be responsible for acting as the
liaison to the Department of Homeland Security with respect to all
Coast Guard functions.
``(f) The Under Secretary of the Coast Guard may--
``(1) assign, detail, and prescribe the duties of officers
and members of the Coast Guard and civilian personnel of the
Coast Guard; and
``(2) prescribe regulations to carry out his or her
functions, powers, and duties under law.''.
(b) Clerical Amendment.--The table of sections at the beginning of
chapter 3 of title 14, United States Code, is amended by inserting
before the item relating to section 41 the following:
``40. Under Secretary of the Coast Guard.''.
(c) Transfer of Functions.--
(1) Transfer.--There are transferred to the Under Secretary
of the Coast Guard all functions that are vested by law,
regulation, or Executive order in the Commandant of the Coast
Guard.
(2) Reference.--Any reference in any law, regulation, or
Executive order to the Commandant of the Coast Guard with
respect to a function transferred under paragraph (1) is deemed
to refer to the Under Secretary of the Coast Guard.
SEC. 1002. MAINTENANCE OF ALLOCATIONS OF FUNDING FOR COAST GUARD
OPERATION AND MAINTENANCE.
(a) In General.--Chapter 17 of title 14, United States Code, is
amended by adding at the end the following:
``Sec. 676. Maintenance of allocations for operation and maintenance
``(a) In General.--Of the amount appropriated for operation and
maintenance of the Coast Guard for each fiscal year, not less than the
percentage specified in subsection (b) with respect to a purpose shall
be obligated or expended for expenses related to that purpose.
``(b) Purposes and Percentages.--The purposes and percentages
referred to in subsection (a) are, respectively, the following:
``(1) For search and rescue, 12 percent.
``(2) For drug interdiction, 13 percent.
``(3) For fisheries law enforcement, 11 percent.
``(4) For interdiction of migrants, 4 percent.
``(5) For environmental law enforcement, 8 percent.
``(6) For marine safety, 5 percent.''.
(b) Technical Correction; Clerical Amendment.--Chapter 17 of title
14, United States Code, is amended--
(1) by redesignating the second section 673 (relating to
``Small boat station rescue capability'') and section 674 in
order as sections 674 and 675; and
(2) in the table of sections at the beginning of the
chapter by striking the items relating to ``Small boat rescue
capability'' and``Small boat station closures'' and inserting
the following:
``674. Small boat rescue capability.
``675. Small boat station closures.
``676. Maintenance of allocations for operation and maintenance.''.
COMMITTEE ON WAYS AND MEANS
House of Representatives,
Committee on Ways and Means,
Washington, DC, July 12, 2002.
Hon. Richard K. Armey
Chairman, House Select Committee on Homeland Security, The
Capitol, Washington, D.C.
Dear Mr. Chairman: As specified in section 6 of H.Res. 449,
this letter transmits the views and recommendations of the
Committee on Ways and Means on those aspects within the
jurisdiction of the Committee of the bill, H.R. 5005, to
establish a Department of Homeland Security and transfer the
United States Customs Service to the new department. The
recommended legislative text is attached and was favorably
reported from Committee on July 10, 2002.
The Committee on Ways and Means looks forward to working
with the Select Committee on Homeland Security as we promote
security while maintaining the free flow of trade across
American borders.
Best regards,
Bill Thomas
Chairman.
------
Proposed Amendments to H.R. 5005
Proposed Amendments to H.R. 5005
(Recommended to the Select Committee on Homeland Security by the
Committee on Ways and Means)
Page 21, after line 4, insert the following (and conform the table
of contents accordingly):
Subtitle A--General Provisions
Page 22, line 1, insert after ``(4)'' the following: ``except as
provided in subtitle B,''.
Page 22, strike lines 10 through 12 and insert the following:
(1) the United States Customs Service, except as provided
in subtitle B;''.
Page 24, after line 6, add the following (and conform the table of
contents accordingly):
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 set forth in section 420(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 by Secretary of the Treasury.--
(1) Retention of authority.--Notwithstanding sections
401(4), 402(1), and 803(e)(2), authority 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 section 733,
the Secretary may not consolidate, alter, 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 the compensation or benefits under title
5, United States Code, of personnel attributable to such
functions, 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. 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 180 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 (8) of section 420.
SEC. 414. ESTABLISHMENT AND IMPLEMENTATION OF COST ACCOUNTING SYSTEM;
REPORTS.
(a) Establishment and Implementation.--
(1) In general.--Not later than September 30, 2003, the
Commissioner of Customs shall, in accordance with the audit of
the Customs Service's fiscal years 2000 and 1999 financial
statements (as contained in the report of the Office of the
Inspector General of the Department of the Treasury issued on
February 23, 2001), establish and implement a cost accounting
system for expenses incurred in the operation of the Customs
Service.
(2) Additional requirement.--The cost accounting system
described in paragraph (1) shall provide for an identification
of expenses based on the type of operation, the port at which
the operation took place, the amount of time spent on the
operation by personnel of the Customs Service, and an
identification of expenses based on any other appropriate
classification necessary to provide for an accurate and
complete accounting of the expenses.
(3) Use of merchandise processing fees.--The cost
accounting system described in paragraph (1) shall provide for
an identification of all amounts expended pursuant to section
13031(f)(2) of the Consolidated Omnibus Reconciliation Act of
1985.
(b) Reports.--Beginning on the date of the enactment of this Act
and ending on the date on which the cost accounting system described in
subsection (a) is fully implemented, the Commissioner of Customs shall
prepare and submit to the Committee on Ways and Means of the House of
Representatives and the Committee on Finance of the Senate on a
quarterly basis a report on the progress of implementing the cost
accounting system pursuant to subsection (a).
SEC. 415. PRESERVATION OF CUSTOMS FUNDS.
Notwithstanding section 733(b), no funds available to the United
States Customs Service or collected under paragraphs (1) through (8) of
section 13031(a) of the Consolidated Omnibus Reconciliation Act of 1985
may be transferred for use by any other agency or office in the
Department.
SEC. 416. REPORTS TO CONGRESS.
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.
SEC. 417. CUSTOMS USER FEES.
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
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
Automation Account'. In each of fiscal years 2003, 2004, and 2005 there
shall be deposited into the Customs Commercial Automation Account from
fees collected under subsection (a)(9)(A), $350,000,000.
``(B) There is authorized to be appropriated from the Customs
Commercial Automation 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. 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 Customs Commercial Automation Account
during fiscal years 2003, 2004, and 2005 exceed total appropriations
from that Account.''.
SEC. 418. SEPARATE BUDGET REQUEST FOR CUSTOMS.
The President shall include in each budget transmitted to the
Congress under section 1105 of title 31, United States Code, a separate
budget request for the United States Customs Service.
SEC. 419. PAYMENT OF DUTIES AND FEES.
Section 505(a) of the Tariff Act of 1930 (19 U.S.C. 1505(a)) is
amended--
(1) in the first sentence--
(A) by striking ``Unless the merchandise'' and
inserting ``Unless the entry of merchandise is covered
by an import activity summary statement, or the
merchandise''; and
(B) by inserting after ``by regulation'' the
following: ``(but not to exceed 10 working days after
entry or release, whichever occurs first)''; and
(2) by striking the second and third sentences and
inserting the following: ``If an import activity summary
statement is filed, the importer or record shall deposit
estimated duties and fees for entries of merchandise covered by
the import activity summary statement no later than the 15th
day of the month following the month in which the merchandise
is entered or released, whichever occurs first.''.
SEC. 420. 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. 421. 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 the Congress a
report that sets forth all trade functions performed by the executive
branch, specifying each agency that performs each such function.
SEC. 422. CORPORATE EXPATRIATES.
(a) Limitation.--The United States Customs Service shall not enter
into any new contract with a subsidiary of a publicly traded
corporation if the corporation is incorporated in a tax haven country
but the United States is the principal market for the public trading of
the corporation's stock.
(b) Definition.--For purposes of subsection (a), the term ``tax
haven country'' means each of the following: Barbados, Bermuda, British
Virgin Islands, Cayman Islands, Commonwealth of the Bahamas, Cyprus,
Gibraltar, Isle of Man, the Principality of Liechtenstein, the
Principality of Monaco, and the Republic of the Seychelles.
(c) Waiver.--The President may waive subsection (a) with respect to
any specific contract if the President certifies to the Committee on
Ways and Means of the House of Representatives and the Committee on
Finance of the Senate that the waiver is required in the interest of
national security.
Explanation of Proposed Amendments
i. introduction
A. Background on the United States Customs Service
Since 1789, the United States Customs Service has been a
federal agency under the United States Treasury Department.
Congress created the Customs Service as its fifth legislative
act in order to implement the first Act of Congress, the Tariff
Act of 1789. Virtually all federal government revenue was
originally collected by the Customs Service through duties.
Today, the Customs Service collects over $20 billion of
revenue, ensures that all imports and exports comply with U.S.
laws and regulations, guards against smuggling, and is
responsible for the following:
1. Assessing and collecting customs duties, excise taxes,
fees and penalties due on imported merchandise;
2. Interdicting and seizing contraband, including narcotics
and illegal drugs;
3. Processing persons, baggage, cargo and mail, and
administering certain navigation laws;
4. Detecting and apprehending persons engaged in fraudulent
practices designed to circumvent customs and related laws;
5. Protecting American business and labor and intellectual
property rights by enforcing U.S. laws intended to prevent
illegal trade practices, including provisions related to quotas
and the marking of imported merchandise;
6. Collecting anti-dumping and other duties under our trade
remedies laws and by providing customs recordation for
copyrights, patents and trademarks;
7. Protecting the general welfare and security of the
United States by enforcing import and export restrictions and
prohibitions, including the export of critical technology used
to develop weapons of mass destruction, and money laundering;
and
8. Collecting accurate import and export data for
compilation of international trade statistics.
Today, in addition to its own laws, the Customs Service
enforces well over 400 other provisions of law for at least 40
agencies. A number of these statutes relate to quality of life
issues involving the environment, such as motor vehicle safety
and emission controls, water pollution standards, pesticide
controls, freon smuggling, and the protection of endangered
wildlife. Other laws safeguard American agriculture, business
and public health, and consumer safety.
B. The President's Homeland Security Proposal and H.R. 5005
On June 18, 2002, President Bush proposed to transfer all
of the authority and assets of the Customs Service, as well as
many other federal agencies, to a new Department of Homeland
Security. This proposal was incorporated into H.R. 5005, which
was introduced on June 24, 2002. Specifically, the Customs
Service would be placed under an Under Secretariat for Border
and Transportation Security along with the Immigration and
Naturalization Service, the Animal and Plant Health Inspection
Service, the Coast Guard, and the Transportation Security
Administration. Unlike the Coast Guard, H.R. 5005 does not
require that the Customs Service be maintained as a separate
entity. Under Section 402 of H.R. 5005, the Secretary of
Homeland Security would be vested in the functions, personnel,
assets, and liabilities of the United States Customs Service of
the Department of the Treasury, including the functions of the
Secretary of the Treasury relating thereto. The President's
proposal would give the Secretary significant authority to
reorganize the Customs Service, reallocate reserves within
Customs, and make changes to Customs employees' compensation.
C. Rationale for the Committee's Recommendations to Amend H.R. 5005
Unlike other agencies that are being transferred to the new
Department of Homeland Security, the Customs Service has four
unique characteristics:
1. The Customs Service is a revenue-collecting agency with
significant trade facilitation functions. The Customs Service
collects over $20 billion a year in duties, second only to the
Internal Revenue Service in collections. Economically critical
trade laws are implemented by the Customs Service. Because of
its border presence, the Customs Service has taken on other
border-related missions such as preventing drug smuggling and
stopping weapons of mass destruction.
2. A significant portion of the Customs Service's budget is
funded through over $1 1/2 billion worth of user fees paid by
importers, and by law those fees must be used only for specific
inspectional services or as budgetary offsets to general
commercial operations.
3. Most of the Customs Service's legal authority is held by
the Treasury Department or other agencies of government and
delegated to the Customs Service. For example, 19 U.S.C. 3
states that the Secretary of the Treasury shall supervise the
collection of duties. Historically, this responsibility has
been delegated to the Customs Service.
4. Substantial portions of the Customs Service's trade work
is very technical and esoteric. The work requires professionals
with legal and regulatory skills that are unlike border
security skills.
For these reasons, the Members of the Committee recommend
that the Select Committee on Homeland Security recognize the
unique mission of the Customs Service and adopt the attached
bill language to amend H.R. 5005. In making these
recommendations, the Committee adopts the fundamental basis for
of the President's proposal and agrees to transfer Customs
assets and personnel in their entirety to the new Department of
Homeland Security. The Committee rejected the option of carving
up the Customs Service into commercial and non-commercial
elements. Instead, the Committee sought to identify and prevent
further reorganization or reductions in a closely defined core
group that perform revenue-collection functions.
The Committee was guided by one over-riding goal: to ensure
that the Department of Homeland Security would be successful
and not hamstrung by any limits on its authority or ability to
carry out the protection of Americans. It is also important to
ensure that revenue continues to be collected and that goods
keep moving across the border with little delay in order to
maintain delicately balanced commercial schedules and
operations. The Committee is confident that the proposed
changes to H.R. 5005 do not interfere with the new Department's
missions but will enhance its effectiveness.
Four amendments were offered to the Chairman's mark. The
first amendment, offered by Mr. Cardin, would have designated
the existing Customs Service as a ``distinct entity'' within
the Homeland Security Department. This amendment failed by
voice vote. The second amendment, offered by Mr. Becerra, would
have expanded the dedicated use provision for the merchandise
processing fee (MPF) in the Chairman's mark to require use of
MPF receipts (in excess) of the $350 million dedicated for ACE
development) for commercial operations. This amendment failed
by a roll call vote of 12 ayes to 24 noes. The third amendment,
offered by Mr. McDermott, would have preserved existing and
future Customs' employees pay, performance standards, etc. as
provided under Title 19 and Title 5. This amendment failed by a
voice vote. Mr. Doggett offered an amendment to prohibit the
Customs Service from entering into contracts with companies
that have reincorporated overseas in order to avoid U.S.
taxation. This amendment was agreed to without objection.
ii. explanation of recommendations to amend h.r. 5005
Sec. 402 of base text: The recommendation would authorize
the transfer of functions, personnel, assets, and liabilities
of the existing Customs Service in their entirety to the
Division for Border and Transportation Security of the
Department of Homeland Security, subject to other provisions of
the amendment. Unlike H.R. 5005, the Committee does not
recommend transferring the functions of the Department of the
Treasury related to the Customs Service for the reasons given
below in Sections 411 and 412.
Sec. 411: A core Customs Service is established within the
Department of Homeland Security and vested, at a minimum, with
certain revenue-related offices and functions as specifically
identified. This core Customs entity will continue to have a
Senate-confirmed Commissioner, and the incumbent Commissioner
may continue to serve until a new Commissioner is named.
The primary function of the Customs Service has always been
revenue collection and trade facilitation, and it is imperative
to maintain these activities. However, revenue and trade will
be relatively minor activities within the very large, new
Department of Homeland Security. Given the importance of trade
and government revenue, an independent and separate
Congressional mandate for trade and revenue collection is
appropriate. Accordingly, Customs Service personnel and offices
that handle these unique revenue and trade functions should
continue to operate within their organization after the
transfer to the new Department.
This section refers to Section 420(7) of the amendment for
the list of components within the current Customs Service that
the Committee determines to be completely or primarily devoted
to the performance of revenue collection: Import Specialists,
Entry Specialists, Drawback Specialists, National Import
Specialists, Fines and Penalties Specialists, attorneys of the
Office of Regulations and Rulings, Customs Auditors,
International Trade Specialists, and Financial Systems
Specialists. The personnel who perform this work have
specialized skills in the very technical field of trade law,
which are unlike the skills related to border security. For
this reason, the group identified in Section 420(7) would
comprise the Customs Service core established under Section 411
within the Department of Homeland Security and would have a
distinct existence apart, though integrated with, the many
border security elements of the new Department.
Regarding the provision requiring a Senate confirmed
Customs Commissioner, the Committee believes that the person
who leads the Customs Service must be an extraordinary
individual to handle the multiple functions of that office. The
Commissioner should continue to answer to, and be endorsed by
Congress to ensure that all of Customs' missions are
recognized.
Sec. 412(a): The recommendation would reserve revenue
collecting statutory authority to Treasury, where it is
currently vested, and transfer all other authority exercised by
the existing Customs Service to the Department of Homeland
Security. Treasury may delegate its reserved authority to
Homeland Security, as it often does to Customs today. Treasury
shall consult with Homeland Security on all matters and
regulations affecting customs functions. The recommendation
authorizes the Department of the Treasury to hire additional
staff to exercise this authority.
It is not unusual for the Customs Service to implement and
enforce laws that by statute are intended to be implemented by
entirely different departments; indeed, Customs Service
currently enforces 400 laws on behalf of 40 different agencies.
The proposed changes would continue to empower the Secretary of
the Treasury to promulgate regulations on a myriad of highly
technical trade matters, while leaving it to the new Department
of Homeland Security to implement them. In this way, Treasury's
trade expertise and macroeconomic outlook is retained to
address technical trade matters.
Sec. 412(b): With regard to the Customs Service core
established under Section 411, reorganization or decrease in
the funding or staff or reductions to Title 5 pay and benefits
levels is prohibited in order to preserve these critical trade
functions.
The President and Governor Ridge have described their wish
for flexibility in the Department structure created by
Congress, and there are many ways that the Administration will
be able to obtain the ``synergy'' it seeks for the new Homeland
Security Department with the Committee's recommendations. As
described earlier, however, the revenue-oriented group
established under Section 411 has unique functions distinct
from security functions. It is therefore appropriate to
prohibit reductions to this core group and to preserve these
critical trade functions.
Sec. 413: The recommendation provides that the Secretary
shall maintain adequate staffing to assure that existing levels
of customs revenue services are maintained, and the Secretary
shall notify Congress of actions that reduce such services.
Although all offices of the Customs Service conduct
revenue-collecting services, those components of Customs that
are outside of the core revenue-collecting group described in
Section 420(7) and required to be kept intact per Section
412(b) perform mixed functions. The Committee is mindful of the
flexibility needs and security goals of the President and
therefore requires only that customs revenue services, not
necessarily staffing, be maintained at the existing levels as
the Customs Service is transferred to the new Department of
Homeland Security. Any significant reduction in services must
be reported to Congress in advance, which is consistent with
current law at 19 U.S.C. 2075(g).
Sec. 414: The Customs Service is required to implement a
cost accounting system in order to determine and track the use
of $1.5 billion of Customs user fees.
The Committee is concerned that Customs Service is
currently unable to answer fundamental questions about how it
spends money. For example, Customs officials state that it
spends a certain amount of money on commercial operations. The
figure is not based upon the addition of various commercial
costs from all operations within the Customs Service, such as
the number of people who actually processed entries of
merchandise at specific ports during a set period. Instead, the
figure is based upon Customs officials' belief that a set
percentage of its work is always related to commercial
activities. That static percentage is based upon a no longer
available, ad hoc survey conducted by Customs several years
ago. A modern cost accounting system would allow the Customs
Service to accurately identify the amount of money spent at
specific locations and for specific revenue functions.
Given that $1.5 billion of Customs' $2.6 billion budget
comes from the collection of fees that are ostensibly for
specified revenue services, the Committee adopted this
provision to ensure that revenue collecting functions can be
closely tracked within the overall Department of Homeland
Security, with strict account for such fees. Therefore, this
reform is appropriate for a bill to transfer the Customs
Service to the new Department of Homeland Security.
Such a system would also provide compliance with the core
financial system requirements of the Joint Financial Management
Improvement Program (JFMIP), which is a joint and cooperative
undertaking of the U.S. Department of the Treasury, the General
Accounting Office, the Office of Management and Budget, and the
Office of Personnel Management working in cooperation with each
other and other agencies to improve financial management
practices in government. That Program has statutory
authorization in the Budget and Accounting Procedures Act of
1950 (31 U.S.C. 65).
Sec. 415: The recommendation provides that Customs fees
(with the exception of the merchandise processing fee) must
continue to be used for currently authorized functions. Fee
receipts may not be transferred to any other agency or office
in the Department.
Congress created import fees to help fund critical customs
activities. Fees are paid by commercial interests in return for
specific commercial services. There have long been concerns
about whether Customs can adequately account for the cost of
providing commercial services in return for the fees collected.
See the discussion in Section 414 above. It would be
inappropriate and potentially inconsistent with United States
trade obligation for importers to pay fees that subsidize non-
commercial functions of the new Department of Homeland
Security. For these reasons, the Committee believes that fees
should continue to be spent only on activities already defined
in 19 U.S.C. 58c.
Sec. 416: The recommendation would make further changes for
the purpose of ensuring that certain commercial functions are
carried out. The text would require that all reports now
provided to Congress from the Customs Service shall continue to
be provided to the House Ways and Means and Senate Finance
Committees.
Transferring the assets and functions of the Customs
Service to the new Department of Homeland Security will not
lessen the need of these committees for information about trade
operations. Through the Customs Service, the Department will be
implementing virtually all trade obligations of the United
States. These trade obligations lie within the jurisdiction of
these committees. Therefore, existing reports should continue
to be provided to the Congressional committees of jurisdiction
on trade to allow the committees to continue appropriate
oversight and authorizations.
Sec. 417: The recommendation provides that a portion of the
Customs Merchandise Processing Fee must go to build the new
Customs computer.
The Customs Service's current import system, the Automated
Commercial System (ACS), was designed in 1984 and will not be
able to meet the increasingly complex, long-term requirements
impacted by the growth in trade, responsibilities, and
legislation. Consequently, replacing ACS with the Automated
Commercial Environment (ACE) is a critical component in the
modernization and development of the Customs Service. The new
computer system has also taken center stage in the fight
against terrorism since security data collection will be an
important objective of the new Department. It is therefore
entirely appropriate to mandate that the ACE system be built
from the proceeds of the merchandise processing fee.
This provision has strong support from the import business
community that pays the merchandise processing fee. Moreover,
Governor Ridge has stated that he anticipates ``the rapid
development of the ACE system will continue as will the
interagency community's development of an International Trade
Data System that creates a harmonized system for import-related
data. These systems will likely become a cornerstone of the
Department of Homeland Security's enterprise architecture.''
Sec. 418: The recommendation requires that the
Administration provide a separate budget request on the customs
revenue functions within the new Department.
This recommendation is consistent with the overall approach
of the Committee in assuring that the core revenue-collecting
components of the Customs Service are maintained. Coupled with
the cost accounting system that will record expenditures for
customs revenue services, this requirement for a separate
budget request will ensure that the Committee can continue to
oversee that revenue is properly collected and trade is
continuing appropriately.
Sec. 419: The recommendation would change the merchandise
entry process to authorize monthly billing with a prohibition
against deferral of duty past a statutory deadline.
This provision is a general reform of the import process.
The purpose is to modernize the customs system from an
antiquated entry-by-entry billing method to a modern monthly
billing method that is more consistent with general business
practice. Congress provided regulatory flexibility to the
Executive Branch in the Customs Modernization Act to implement
a modern billing system; however, there has been insufficient
progress to date. In addition, the Administration has twice
this year used the underlying statute (19 U.S.C. 1505(a)) in
what the Committee believes is an inappropriate ad hoc manner
to defer duties for extraordinary lengths of time. The
provision creates a statutory deadline that may not be
extended.
This provision is appropriate for the Homeland Security
bill because it supports the overall goal of a modern,
automated import system that will be used for commercial and
homeland security purposes. Moreover, there is a further
benefit in that the process of collecting import data and
determining admissibility (linked closely to a homeland
security mission) becomes more clearly removed from the
collection of revenue (the traditional customs revenue
mission).
Sec. 420: The recommendation defines customs revenue
functions to include the assessing and collecting of all types
of duties, fees, and taxes; the processing and denial of entry
of persons and goods; enforcing quota, marking, and
intellectual property laws; collecting trade data; enforcing
trade agreements; functions of certain revenue collecting
specialists; and functions of certain revenue collecting
support offices.
These definitions are used throughout the recommended
amendment in order to 1) define the scope of the newly created
Customs Service core within the Department of Homeland Security
and its directions for the Department's future operations
related to trade and revenue collection; 2) describe to the
scope of the authorities retained by the Department of the
Treasury for delegation to the Secretary of Homeland Security;
and 3) describe the services that must be maintained by the
Department of Homeland Security even outside the newly-created
Customs Service core.
Sec. 421: The recommendation provides that GAO will report
on all trade functions performed by the executive branch.
The creation of a new Department that will have significant
trade responsibilities has led the Committee to recommend a
comprehensive report to identify all agencies in the executive
branch that have trade functions. This report will assist the
Committee in continuing to conduct oversight of international
trade functions.
Sec. 422: The recommendation provides that Customs is
prohibited from entering into new contracts with publicly
traded corporations if the corporation is incorporated in a tax
haven country as defined in the section, subject to the
President's power to waive based upon national security
reasons.
DISSENTING VIEWS OF MESSRS. STARK, McDERMOTT, AND BECERRA
On the Chairman's Proposed Amendment to H.R. 5005, July 11, 2002
While the Administration's current focus is on the creation of the
new Department of Homeland Security (DHS), the Ways & Means Committee
is responsible for the Customs Service functions under the new
Department. This includes the need to ensure that Customs employees'
labor protections are maintained. And as Members of Congress, we are
responsible for ensuring that the creation of this new department does
not trample on existing laws and our democratic process. The absence of
civil service and Freedom of Information Act protections in the
Chairman's mark is ample reason to reject the amendment. But the hasty
fashion in which this new agency is being developed is completely
unacceptable under a democratic rule of law.
We commend the Chairman for attempting to preserve the revenue-
raising functions of the Customs Service as a distinct entity within
Customs. However, the Chairman's amendment only includes a small
subsection of existing Customs personnel and includes a limited
mandate. Although the Administration continues to reiterate its promise
that Customs employees' civil service, collective bargaining, and
whistle-blower protections will be maintained under the reorganized
agency, these protections were not specifically included in the
Chairman's amendment. While the Chairman advised the Committee that
these protections do not fall under the Ways & Means jurisdiction, our
support cannot rest on a mere promise from the Administration. Twenty-
two existing federal agencies are targets for inclusion under the new
DHS umbrella. We would discourage our colleagues from taking a cavalier
approach with the lives of tens of thousands of civil servants for the
sake of meeting a September 11 deadline.
Nothing in the Chairman's mark ensures that the Freedom of
Information Act, the Federal Advisory Committee Act and the Government
in Sunshine Act are maintained in the new Customs department under the
DHS. As envisioned by the Administration, this leaves the option of
closed-door meetings and secrecy up to the discretion of sixteen
assistant secretaries for the new agencies--ten of whom would not need
Senate confirmation to hold their posts.There is no reason that the new
department needs to be hastily rushed through the Ways & Means
Committee, nor any other Congressional committee. This Committee held a
hearing two weeks ago in which the Department of Treasury
representative provided very little detailed information on the
structure and components of the new Customs agency under DHS. Two weeks
later, the same representative could not provide any additional
information on the new Customs agency. The checks and balances
established by our country's founding fathers should not be ignored in
pursuit of meeting a self-imposed September 11 deadline.
We wish to make perfectly clear that our dissension must not be
interpreted as opposition to securing our domestic territories under
the new Department of Homeland Security, but rather as an exercise in
maintaining the checks and balances so crucial to the democratic
process. This is the largest overhaul of the executive branch in fifty
years and will have ramifications long beyond our tenure as Members of
Congress. Any new department should be fashioned correctly the first
time with all the sunlight the democratic process can afford.
Regretfully, perfecting amendments offered during the Committee markup
were rejected along party lines. In conclusion, the Chairman's
amendment to H.R. 5005 does not provide the necessary elements for a
long-standing democratic Department.
Pete Stark
Jim McDermott
Xavier Bercerra