Congressional Record, Volume 148 Issue 150 (Tuesday, November 19, 2002)

[Congressional Record Volume 148, Number 150 (Tuesday, November 19, 2002)]
[Senate]
[Pages S11405-S11512]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

[[Page S11405]]

Senate

HOMELAND SECURITY ACT OF 2002--Continued

The safety act

Mr. CHAFEE. Madam President, I would like to thank the Republican
Leader for his willingness to address concerns raised by me and our
colleagues from Maine regarding certain provisions in H.R. 5005, the
Homeland Security Act of 2002.
In the interests of clarity, I wanted to discuss one aspect of the
Support Anti-Terrorism by Fostering Effective Technologies (SAFETY) Act
of 2002, which is included in H.R. 5005. The SAFETY Act provides that
the ``government contractor defense'' will be available to certain
sellers of anti-terrorism technology. In Boyle v. United Technologies
Corp., 487 U.S. 500, 108 S. Ct. 2510 (1988), the U.S. Supreme Court
recognized that the government contractor defense offers relief to
certain defendants from liability for design defects. It is my
understanding that the drafters of the SAFETY Act were aware of the
Boyle decision and intended for the government contractor defense to
apply solely to design defect claims, rather than offering blanket
relief to any and all causes of action.
Mr. LOTT. I concur with the Senator from Rhode Island. It is clear
that the government contractor defense contained in the SAFETY Act
could be raised only in response to design defect claims.
Mr. CHAFEE. I thank the Republican Leader, and look forward to the
opportunity to correct three other provisions of the Homeland Security
Act when the 108th Congress convenes in January.

First Responders

Mr. DAYTON. Madam President, I would like to speak about a very
important first responder matter which, I hope, the Senate will include
in the Homeland Security Act of 2002.
By definition, emergency management usually occurs in crisis. The
incident managers must assess the emergency, organize the staff, and
direct their responses under very difficult conditions. Currently,
however, many first responders are not fully prepared for attacks like
September 11, 2001.NOTICE

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By order of the Joint Committee on Printing.

MARK DAYTON, Chairman.

[[Page S11406]]

The Homeland Security Act of 2002 includes provisions to improve the
preparedness of emergency response providers. It is also designed to
improve the Federal Government's response to terrorist attacks and
other major disasters.
To date, however, most of the homeland security training and
consulting contracts have been awarded to Fortune 500 companies.
Postsecondary educational institutions have been left out of the
process. It is essential that our country's colleges and universities
also collaborate on the design of homeland defense-integrated emergency
management and training systems. Demonstration programs should train
first responders to use new technologies that would reduce the
devastations from terrorist attacks. They can integrate these
technologies into management procedures that will improve
accountability, command, and control. The results of those
demonstration programs could then be disseminated nationwide.
Am I correct to assume that funding for colleges and universities to
develop homeland defense-integrated emergency management and training
systems could be provided through provisions in the Homeland Security
Act of 2002?
Mr. LIEBERMAN. I will request that the new Secretary of the Homeland
Security Department give attention to the concerns about emergency
management raised by the Senator from Minnesota, and I hope that
homeland defense-integrated emergency management and training systems
will be given due consideration for funding through grants from the
extramural programs.
Mr. DAYTON. I thank the Senator for his consideration and support.

Background Checks for Truck Drivers

Mr. McCAIN. Madam President, last November, Congress included a
provision in section 1012 of the USA Patriot Act, P.L. 107-56, which
requires all commercial truck drivers who haul hazardous materials to
undergo a background records check before receiving or renewing their
Commercial Driver's License, CDL, endorsement to haul hazmat.
Unfortunately, over a year has passed and regulations to promulgate
this requirement have not been issued.
Mr. HOLLINGS. I want to associate myself with the concerns raised by
my colleague. This is a very important issue to both of us. In fact, we
worked together in a bipartisan fashion on S. 1750, the Hazmat
Endorsements Requirements Act, which would clarify existing law and
guide the process for administering the checks. The Senate Commerce
Committee approved S. 1750 in April without objection. However, the
Senate has not taken up this legislation, nor has the Department of
Transportation issued a rulemaking to implement Section 1012.
Last week, we took an important step forward in addressing Port and
Maritime Security when we passed S. 1214. That important measure
includes requirements for background records checks for many port
workers, and clarifies that if a driver holds a valid CDL with a
hazardous materials endorsement obtained after a background records
check, the driver would not need to have a duplicative check to access
secure port areas. Unfortunately these checks are not being performed
and it is unlikely that will change until the DOT issues a rule or the
Congress approves legislation to address concerns regarding the hazmat
endorsement background records check requirements enacted last year.
Mr. McCAIN. That is correct. We have not fully addressed the issue of
background checks for commercial drivers and more work remains.
Mr. HOLLINGS. I hope we can continue our bipartisan work on this
important issue early next year to ensure the requirements in the USA
Patriot Act will be carried out and that truck drivers are afforded a
right to a formal appeals process.
Mr. McCAIN. I agree that the issue must be addressed. In the absence
of any regulatory action by DOT, I will certainly want to continue our
joint efforts to provide the appropriate guidance to DOT and the states
on this important security matter.
Mr. HOLLINGS. I thank my colleague and look forward to working with
him on this issue during the next Congress.

AGRICULTURAL PROVISIONS

Mr. HARKIN. Madam President, as Chairman of the Senate Committee on
Agriculture, Nutrition and Forestry, I want to enter into a colloquy
with the ranking minority member of the Committee, Senator Lugar,
regarding the agricultural provisions in the compromise homeland
security legislation.
Mr. LUGAR. I am pleased to join with my colleague to discuss some of
the agricultural provisions in this legislation. A provision in Section
421 dealing with the transfer of certain agricultural inspections from
the U.S. Department of Agriculture--USDA--to the new Department of
Homeland Security--DHS--needs clarification. This section requires that
USDA and DHS enter into a transfer agreement and stipulates that the
agreement shall address USDA supervision of training of employees who
will be carrying out agricultural inspection functions at the new DHS
and the transfer of funds from USDA to the new DHS. We want to make
clear that we expect that the transfer agreement shall include these
components and that USDA will be responsible for agricultural
inspection training and that appropriate funds would be transferred
from USDA to the new DHS.
Mr. HARKIN. I agree with your interpretation of that provision. I
also want to provide additional explanation about a section that
originated from our mutual concern about the safety of food that enters
our country. Like you, I have been concerned that agencies that inspect
foods and food products that come through our borders do not have the
ability to share information in order to jointly track shipment and
other crucial information. As a result, we crafted a provision, now
included in this legislation, to ensure that information systems--i.e.,
computers--will be coordinated across agencies with border security
responsibilities. This includes agencies that will be housed in the new
DHS as well as those like the Food and Drug Administration and the Food
Safety Inspection Service--that will not, but have a homeland security
function.
Mr. LUGAR. That is an important provision in this legislation. I also
want to clarify a provision related to the transfer of the Plum Island
Animal Disease Center from USDA to the new DHS. Due to a technical
error, there appears to be a contradiction between Section 303(3) and
Section 310 of the House passed bill. The intent of this bill is to
transfer the assets and liabilities of this center, which is now part
of USDA, but not the USDA personnel or functions. While I am fairly
confident this technical error will yet be rectified, in implementing
this new law, I would expect that the language in Section 310 would
govern.
Mr. HARKIN. Thank you for that clarification. Finally, we are aware
that the Chairman and ranking minority member of the House Agriculture
Committee, during consideration of this legislation in the House,
entered into the Record their understanding of how these agricultural
provisions would be implemented. While I question whether or not it is
necessary to transfer Plum Island to the new DHS at this time, I concur
with the House's interpretation of the provisions that are included.
Mr. LUGAR. I also concur with their interpretation which follows and
would expect that these agricultural provisions be carried out
consistent with this description. I ask unanimous consent it be printed
in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

Sec. 310. 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 new DHS shall be completed in a manner that
minimizes any disruption of agricultural research, diagnostic
or other USDA 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

[[Page S11407]]

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 new DHS. With
this in mind, the Committee fully expects that in the absence
of alternative facilities for current USDA 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.
Sec. 421. 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 (APHIS) 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 new DHS 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 new DHS the responsibility for certain
agricultural import and entry inspection activities of the
USDA 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 inspection 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 USDA 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 USDA.
(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 USDA 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 USDA. Although the Committee has excluded quarantine
activities from those functions transferred to the new DHS,
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 the 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 new DHS 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 new DHS 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 is permanently stationed at one of 186
points of entry into the United States, the Committee is
aware that the Secretary of Agriculture commonly redeploys up
to 20% 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 DHS, 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 Department
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 USDA 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 DHS in order to
reimburse the DHS 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
Agriculture Risk Protection Act of 2000 related to the
protection of inspection animals.

federal alcohol and tobacco statutes

Mr. GRASSLEY. Madam President, it is clear that the Secretary of the
Treasury presently possesses the authority to administer the Federal
alcohol and tobacco statutes referenced in the bill before us. These
authorities currently are delegated to the Bureau of Alcohol, Tobacco
and Firearms and now will be delegated to the new Tax and Trade Bureau.
I appreciate this colloquy to confirm that the language in section
1111(c) (1) concerning the transfer to the Department of Justice not
only excludes the authorities, functions, personnel, and assets of the
Bureau of Alcohol, Tobacco and Firearms

[[Page S11408]]

that will be retained within the Department of the Treasury as set
forth in paragraph (2) of this section, but also excludes the functions
of the Secretary of the Treasury that relate to these retained
authorities, functions, personnel, and assets.
Mr. BAUCUS. The Senator is correct.
Mr. GRASSLEY. I also wanted to confirm that section 1111(b) as it
relates to alcohol and tobacco only invests the Bureau of Alcohol
Tobacco, Firearms and Explosives at the Department of Justice with the
responsibility to investigate with respect to the Title 18 laws
pertaining to the smuggling of alcohol and tobacco. All other
investigatory responsibilities pertaining to alcohol and tobacco remain
at the Department of the Treasury under the new Tax and Trade Bureau,
or as otherwise delegated under existing law.
Mr. BAUCUS. The Senator is correct and his reading is consistent with
the provisions of this legislation.
Mr. GRASSLEY. Finally, I wish to confirm that Treasury retained the
authority to audit or investigate violations such as false or
inaccurate records of production, false or inaccurate tax returns,
failure to respond to delinquency notices, unlawful transfers in bond,
and the unlawful production, labeling, advertising and marketing of
alcoholic beverages.
Mr. BAUCUS. That is correct, and I appreciate my good friend from
Iowa for clarifying these points.

Preserving Coast Guard Mission Performance

Mrs. MURRAY. Madam President, I would like to thank the chairman of
Governmental Affairs Committee, the Senator from Connecticut, for his
tireless efforts and leadership concerning the creation of the
Department of Homeland Security. Our country is facing a range of
threats that we must address--from port and airport security to cyber
terrorism. We need funding for a new organizational structure to reduce
these risks.
I also would like to engage in a colloquy with the ranking member of
the Committee on Appropriations, the Senior Senator from Alaska,
regarding the Coast Guard. The men and women of our Coast Guard make
significant contributions to our nation each and every day, and they
deserve our support and admiration.
Last week, our colleague from Alaska addressed an important section
in this legislation, Section 888, which governs the Coast Guard's role
in the new Department of Homeland Security. His statement clearly
established that it is the intent of this provision that the Coast
Guard's non-homeland security missions and capabilities must be
maintained without significant reduction when the Service transfers to
the new Department.
As the chairman of the Transportation Appropriations Subcommittee and
as a Senator from a coastal state, I emphatically agree with my Alaska
colleague's remarks about the intent and effect of Section 888. I also
would like to ask him some questions about the Coast Guard and its role
in the Homeland Security Department.
Does my colleague from Alaska agree that the United States Coast
Guard is integral to the security of this country, and that the Coast
Guard provides a wide range of services to our nation? Does he also
recognize that some of these services are related to homeland security
while others are not? For instance, the Coast Guard provides vital
services in the areas of marine safety, search and rescue, aids to
navigation, fisheries enforcement, marine environmental protection, and
ice operations. While these traditional missions do not directly
contribute to national security, they do ensure the safety of our
citizens and our environment.
Mr. STEVENS. I firmly agree with my colleague from Washington about
both the Coast Guard's role in securing our nation and the importance
of its non-homeland security missions and capabilities.
Mrs. MURRAY. Madam President, does the Senator from Alaska believe
that it is imperative that these essential non-homeland security
missions be maintained, and that the language in the bill clearly
identifies the need to protect these critical services?
Mr. STEVENS. I strongly agree with this imperative and with my
colleague's interpretation of Section 888. Indeed, Section 888 mandates
this protection.
Mrs. MURRAY. Madam President, as the Senator from Alaska has
previously indicated, the essential non-homeland security missions are
to be protected pursuant to Section 888. It is also my understanding
that the Coast Guard organizational structure shall be maintained. To
ensure that we achieve our objectives, the Inspector General of the
Department shall conduct an annual review to assess the Coast Guard
performance of all its missions, with a particular emphasis on
examining the non-homeland security missions. Is this the understanding
of the Senator from Alaska?
Mr. STEVENS. I share my colleague's understandings on these matters.
Mrs. MURRAY. Madam President, does the Senator from Alaska agree that
any significant changes to the authorities, functions, missions and
capabilities of the Coast Guard can be implemented only if they are
specified in subsequent legislation? And to that end, does he believe
the language contained in the bill will serve to protect the non-
homeland security missions of the Coast Guard while moving the
organization into an important homeland security role?
Mr. STEVENS. I do agree. Section 888 is a clear statement that
Congress will play a major role in deciding whether there would be any
significant changes to the Coast Guard in these areas. The language
also preserves the Service's non-homeland security missions while
permitting it to perform important homeland security missions.
Mrs. MURRAY. As the ranking member of the Appropriations Committee,
the Senator from Alaska is aware that, as part of the fiscal year
Transportation Appropriations bill reported unanimously in July, the
Committee mandated that the Coast Guard submit quarterly mission hour
reports detailing precisely how the Coast Guard has allocated its human
and capital resources by mission for the preceding quarter.
The Committee also granted the Commandant unprecedented budget
flexibility with the dramatically increased funds provided above the
fiscal year 2002 level to address simultaneously his homeland security
needs while ensuring that his other critical missions return to their
pre-September 11, 2001 levels.
Finally, the Committee required the Commandant to submit a detailed
plan as part of his fiscal year 2004 budget request to show us
precisely how he would maintain such mission balance. I am sure that
the Senator from Alaska agrees with me that, notwithstanding the fact
that the fiscal year 2003 Transportation Appropriations bill has been
entangled in the larger delay in the Appropriations process, the
bipartisan leadership of the Appropriations Committee expects the
Commandant to move forward with the submission of these reports.
Mr. STEVENS. Yes, I concur with the Senator that the Committee should
begin receiving these reports without delay so that we can monitor the
Coast Guard's progress in complying with not only the Appropriations
Committee's directives but with the requirements articulated under
Section 888 of the Homeland Security Act.
Mrs. MURRAY. It is with great disappointment that I have to tell the
Senator from Alaska that I am greatly concerned by some preliminary
indications from the Department of Transportation Inspector General,
IG, that the Coast Guard may not have fulfilled its statutory
obligations to fully fund mandated improvements to its Search and
Rescue Program in fiscal year 2002.

As part of the Department of Transportation and Related Agencies
Appropriations Act, 2002, the Committee mandated that not less than
$14,541,000 be used solely to address the many deficiencies that the IG
found with the Coast Guard's readiness in the area of Search and
Rescue. We also mandated that the Inspector General monitor the Coast
Guard's compliance with this directive.
While the Inspector General's office has not yet finalized its
report, I am greatly concerned by preliminary indications that the
Coast Guard did not, I repeat ``not fulfill the requirement in the law.
This is precisely the kind of concern that makes it essential that we
continue to monitor the Coast Guard's compliance with Appropriations
Committee directives as well as

[[Page S11409]]

with Section 888 of the Homeland Security Act. Again, I commend your
leadership in this area and look forward to working with you and
Admiral Collins, the Commandant, on these issues in the future.
I also want to thank the Chairman of the Governmental Affairs
Committee again for his foresight and leadership in the efforts to
create the Department of Homeland Security.
Mr. SHELBY. Madam President, as the Ranking Member of the
Transportation Appropriations Subcommittee, I strongly agree with the
remarks made by my distinguished colleague from Alaska last week
regarding the Coast Guard and its treatment in the Homeland Security
legislation. I commend his leadership to preserve the traditional role
of the Coast Guard as it becomes an agency of the Department of
Homeland Security.
The unique strength of the Coast Guard in its multi-mission
operational capability--the ability to perform a variety of missions
for the nation. It is one of several agencies to be subsumed into the
new Department that has both on-homeland security and homeland security
missions. It is critical to maintain all of the Coast Guard's missions
and capabilities instead of allowing one mission area to eclipse any
other. Section 888 takes a significant step forward in preventing that
from happening by preventing assets, personnel, and budget resources
from being diverted away from the Coast Guard's traditional missions,
including rescuing mariners in distress.
Madam President, I share the concerns expressed by the Senator from
Alaska about the utmost importance of maintaining the Coast Guard's
non-homeland security missions and capabilities. When I became Chairman
of the Subcommittee in the next Congress, I shall look forward to
working closely with him as the Full Appropriations Committee Chairman
to ensure that Section 888 is implemented as Congress intends.
Ms. COLLINS. I would like to thank the Senior Senator from Alaska for
the leadership he has shown in helping to preserve the traditional
functions of the Coast Guard after it becomes part of the new
Department of Homeland Security. Maine and Alaska share a common
interest in preserving the Coast Guard's traditional functions,
including its search and rescue mission, which are so critical to our
fishing communities.
The Senior Senator from Alaska and I teamed up in the Governmental
Affairs Committee to ensure that, when we transfer the Coast Guard to
the Department of Homeland Security, we do not leave its traditional
missions behind. Our language ensured that the authorities, functions,
assets, and personal of the Department would be maintained intact and
without reduction after its transfer to the new Department except as
specified in subsequent Acts.

I am pleased that the fundamental elements and purposes of our Coast
Guard amendment are included in the final compromise homeland security
bill. Section 888 of the final compromise measure is intended to
preserve the traditional functions of the Coast Guard such as marine
safety, search and rescue, aids to navigation, living marine resources,
and ice operations. The Coast Guard will also be a separate and
distinct entity in the new Department, and the Commandant of the Coast
Guard will report directly to the Secretary of Homeland Security, thus
preventing a demotion from the Commandant's current status in the
Department of Transportation.
There is, however, a question that I would like to address to my
friend from Alaska. It is my understanding that Section 888 of the
final compromise bill is intended to prohibit changes in the Coast
Guard's personnel, assets, or authorities that would adversely impact
the Service's capability to perform its non-homeland security
functions. Is that also the Senator's understanding of this provision?
Mr. STEVENS. Yes, that is my understanding also.
Ms. SNOWE. I would like to enter into a colloquy with several of my
colleagues from coastal States regarding Section 888 of the final
version of the Homeland Security Act of 2002. The provisions of Section
888 were drafted to preserve the traditional roles and missions of the
Coast Guard and ensure they are not altered or diminished.
Since September 11, 2001, the Coast Guard has taken on additional
homeland security responsibilities resulting in its largest peacetime
port security operation since World War II. While our new reality
requires the Coast Guard to maintain a robust homeland security
posture, these new priorities must not diminish the Coast Guard's focus
on its other traditional missions such as marine safety, search and
rescue, aids to navigation, fisheries law enforcement, and marine
environmental protection.
As a Senator from a coastal State, and as the ranking member on the
Oceans, Atmosphere, and Fisheries Subcommittee of the Senate Commerce
Committee, I can attest that all these missions are critically
important and that the American people rely on the Coast Guard to
perform them each and every day.
The language in Section 888, which I developed with Senators Stevens
and Collins, strikes the proper balance and ensures the Coast Guard's
non-homeland security missions will not be compromised or decreased in
any substantial or significant way by the transfer to the new
Department of Homeland Security.
First and foremost, it ensures that the Coast Guard will remain in
distinct entity and continue in its role as one of the five Armed
Services. The Coast Guard plays a unique role in our government, in
which it serves as both an armed service as well as a law enforcement
agency, and this must not be changed or altered.
This language in Section 888 maintains the primacy of the Coast
Guard's diverse missions by establishing the Coast Guard as a distinct
agency under the Secretary of Homeland Security and mandates that the
Coast Guard Commandant will report directly to the Secretary, rather
than to or through a Deputy Secretary.
Additionally, this section prevents the Secretary of this new
Department from making substantial or significant changes to the Coast
Guard's non-homeland security missions or alter its capabilities to
carry out these missions, except as specified in subsequent Acts. It
also prohibits the new department from transferring any Coast Guard
missions, functions, or assets to another agency in the new Department
except for personnel details and assignments that do not reduce the
Service's capability to perform its non-homeland security missions.
This section also requires the Inspector General of the new
Department to review and assess annually the Coast Guard's performance
of its non-homeland security missions and to report the findings to the
Congress.
I also am pleased to see the inclusion of my amendment requiring the
new Homeland Secretary, in consultation with the Commandant, to report
to Congress within 90 days of enactment of this Act on the benefits of
accelerating the Coast Guard's Deepwater procurement time line from 20
years to 10 years. The Deepwater project, which will recapitalize all
of the Coast Guard assets operating 50 or more miles from our coasts,
is already underway. However, the Coast Guard must wait up to 20 years,
in some instances, to acquire already existing technology. I believe
that we must accelerate the Deepwater acquisition project and acquire
these much-needed assets for the Coast Guard now, not 20 years down the
road.
Madam President, Section 888 is a strong statement by the Congress
that the Coast Guard is an essential component of the new Department
and that its non-homeland security missions and capabilities must be
maintained due to their overriding importance, not only to coastal
States such as Maine, but also to the entire nation.
Mr. LIEBERMAN. Madam President, as manager of the legislation to
create a Department of Homeland Security, I want to share with the
Senate my views on the meaning and intent of several key provisions in
H.R. 5005, the final homeland security legislation approved by the
Senate on November 19, 2002. These provisions have been through several
iterations and they have been debated extensively.
H.R. 5005 is the result of over a year of deliberations begun last
October when I introduced legislation (S. 1534) with Senator Specter to
create a Department of Homeland Security. That legislation was
subsequently combined

[[Page S11410]]

with legislation by Senator Graham (to create a White House Office for
Combating Terrorism) and became S. 2452, which was reported out of the
Committee on Governmental Affairs on May 22, 2002.
Before the Senate had a chance to consider that bill, however, the
President announced his support for a Department of Homeland Security.
The Administration's bill, first submitted to Congress on June 18,
2002, encompassed almost all of S. 2452's organizational elements
regarding the Department. The Governmental Affairs Committee held
hearings to consider the administration's proposals, and, I prepared an
amendment to S. 2452 that was considered, and adopted, at a July 24-25
business meeting of the Committee. That expanded version of S. 2452
went a considerable way to incorporate the administration's proposals.
In late July, the House of Representatives passed its version of the
Homeland Security bill, H.R. 5005. This House bill became the base bill
for floor consideration in the Senate, and the amended version of S.
2452 was offered on the Senate floor as SA 4471 to H.R. 5005.
The following statement will discuss various provisions in H.R. 5005
and, where appropriate, their relationship to similar provisions in SA
4471. It is intended to supplement a statement and other material I
submitted for the Record on September 4, 2002, (S8159-S8180) which
interpreted key provisions in SA 4471 (also referred to as the
Committee bill).

Intelligence

Title II, Subtitle A, Section 201 of H.R. 5005, establishes a
Directorate for Information Analysis and Infrastructure Protection.
This is a critical provision that goes to the heart of the weaknesses
that have been exposed in our nation's homeland defenses since
September 11, 2001--that is, the lack of information sharing related to
terrorist activities between intelligence, law enforcement, and other
agencies. This directorate stems from the President's legislative
submission in June, which included a proposal to create an information
analysis and infrastructure protection directorate in the Department.
However, the President's concept has been altered and expanded in
response to testimony before the GAC and input from key Senators. The
version in H.R. 5005, while not exactly what the GAC recommended,
represents a substantial improvement over the President's June 18th,
2002 proposal. If fully implemented, and if the new department and the
various agencies responsible for gathering and providing intelligence
properly interpret its provisions, it will improve our capacity to fuse
that intelligence in order to prevent terrorist attacks before they
occur.
S. 2452, as originally reported on May 22, 2002, and based largely on
recommendations by the bi-partisan Hart-Rudman Commission, included
directorates for critical infrastructure, emergency preparedness, and
border security. The President's June 18th proposal added a fourth
directorate for ``information analysis and infrastructure protection.''
SA 4471 was developed after examining the President's proposal and
hearing from expert witnesses on the critical need for a national level
focal point for the analysis of all information available to the United
States to combat terrorism. On June 26 and 27, the GAC held hearings on
how to shape the intelligence functions of the proposed Department of
Homeland Security--to determine how, in light of the failure of our
government to bring all of the information available to various
agencies together prior to September 11, 2001, the government should
receive information from the field, both foreign and domestic, and
convert it, through analysis, into actionable information that better
protects our security.
The GAC's hearings focused specifically on the relationship between
the Department of Homeland Security and the Intelligence Community. The
hearings featured testimony from some of our country's most noted
experts in intelligence issues, including Senators Bob Graham and
Richard Shelby, the chairman and ranking member of the Senate
Intelligence Committee. Other witnesses included Lt. Gen. Patrick M.
Hughes, former director of the Defense Intelligence Agency; Jeffrey
Smith, former General Counsel of the Central Intelligence Agency; Lt.
Gen. William Odom, former Director of the National Security Agency;
Chief William B. Berger, President of the International Association of
Chiefs of Police; and Ashton B. Carter, former Assistant Secretary of
Defense for International Security Policy. Finally, CIA Director George
Tenet and FBI Director Robert Mueller also testified.

Senator Graham's written testimony stated that the Intelligence
Committee's hearings thus far have uncovered several factors that
contributed to the failures of Sept 11--one of which is ``the absence
of a single set of eyes to analyze all the bits and pieces of relevant
intelligence information, including open source material.'' Senator
Shelby's written testimony stated that ``most Americans would probably
be surprised to know that even nine months after the terrorist attacks,
there is today no federal official, not a single one, to whom the
President can turn to ask the simple question, what do we know about
current terrorist threats against our homeland? No one person or entity
has meaningful access to all such information the government possesses.
No one really knows what we know, and no one is even in a position to
go to find out.'' General Patrick Hughes, former director of the
Defense Intelligence Agency, echoed these points. His testimony stated
that, ``in our intelligence community, we currently have an inadequate
capability to process, analyze, prepare in contextual and technical
forms that make sense and deliver cogent intelligence to users as soon
as possible so that the time dependent operational demands for
intelligence are met.''
These hearings made it clear that: (1) there is currently no place in
our government where all intelligence available to the government is
brought together to be analyzed, (2) the Department of Homeland
Security requires an all-source intelligence analysis capability in
order to effectively achieve its mission of preventing, deterring, and
protecting against terrorist attacks, (3) the intelligence function
should be a smart, aggressive customer of the intelligence community,
(4) the intelligence function must have a seat at the table when our
nation's intelligence collection priorities are determined, (5) the
Department is already a significant collector of intelligence-related
information, through such agencies such as the Customs Service and the
Coast Guard being transferred into the Department, and (6) the
Department must have sufficient access to information that is collected
by intelligence, law enforcement, and other agencies. This final point
was underscored by Senator Shelby, who testified that the relatively
limited ``access to information'' provisions in the President's
proposal were unacceptable, and that it would be a mistake if they were
adopted.
The President's proposal was to create an ``information analysis and
critical infrastructure protection division''--whose most important
role, as CIA Director Tenet testified at the GAC hearing on June 27,
2002, would be ``to translate assessments about evolving terrorist
targeting strategies, training, and doctrine overseas into a system of
protection for the infrastructure of the United States.'' Its purpose
would be to focus the intelligence function on detecting and mitigating
against threats to critical infrastructure rather than the entire range
of potential threats. Consequently, the intelligence analysis function
in the Department of Homeland Security would not be designed to uncover
terrorist plots or prevent acts of terrorism before they occurred. The
Governmental Affairs Committee rejected this more limited approach and
subsequently approved a more robust intelligence directorate, along
with a separate directorate for critical infrastructure protection,
which were incorporated in SA 4471. Some of these improvements are now
incorporated in H.R. 5005.
Most importantly, like SA 4471, H.R. 5005 makes it clear that the
purpose of the information analysis function in the Department goes
beyond critical infrastructure protection to encompass disseminating
intelligence in order to deter, prevent, and respond to all terrorist
threats. Section 201(d) of H.R. 5005, which describes responsibilities
of the Under Secretary for Information

[[Page S11411]]

Analysis and Infrastructure Protection, at paragraph (1), states: ``to
access, receive, and analyze law enforcement, intelligence information,
and other information from agencies from the Federal Government, State
and local government agencies), and private sector entities, and to
integrate such information in order to--(A) identify and assess the
nature and scope of terrorist threats to the homeland; (B) detect and
identify threats of terrorism against the United States; and (C)
understand such threats in light of actual and potential
vulnerabilities of the homeland.'' Clause (B) especially establishes
that the information analysis function must be designed in order to
``detect and identify'' threats of terrorism.
In addition, Section 201(d)(9) states that the responsibilities of
the Under Secretary (for information analysis and infrastructure
protection) shall include the following: ``to disseminate, as
appropriate, information analyzed by the Department within the
Department, to other agencies of the Federal Government with
responsibilities relating to homeland security, and to agencies of
State and local governments and private sector entities with such
responsibilities in order to assist in the deterrence, prevention,
preemption of, or response to, terrorist attacks against the United
States.'' Again, it is important that the new information analysis
division focus on doing everything within its power to deter, prevent
and preempt, acts of terrorism, while also ensuring that our nation is
adequately prepared to respond.
As noted earlier, the President's June 18th proposal would have
established a more limited function primarily designed to assess
threats and vulnerabilities to our critical infrastructure. This is an
important task and will clearly be a major focus of the Department of
Homeland Security, but the Department's information analysis role will
now encompass all terrorist threats, not just those to critical
infrastructure. Many potential terrorist attacks--for example a bomb in
a shopping mall and attacks using weapons of mass destruction--are not
directed at critical infrastructure, but at producing mass casualties.
Thus, the intelligence analysis function in the Department can and must
focus on the full range of threats that we face. And it must have the
capacity to access and properly analyze all of the information about
terrorist attacks that our government possesses.
Secondly, though it falls short of the Committee's recommendation,
the final legislation does establish dedicated leadership for both the
information analysis and infrastructure protection functions. SA 4471
established separate, Senate confirmed Under Secretaries for
``intelligence analysis'' and ``critical infrastructure protection.''
This was to ensure that focused leadership--with sufficient clout--was
provided for each of these complex, and major challenges facing our
government. With 85 percent of our critical infrastructure owned by the
private sector, it is clear that full time leadership will be required
to ensure that adequate protective measures are identified and put in
place. Similarly, the tremendous challenge of overcoming barriers to
information sharing within the intelligence community and establishing
a robust intelligence analysis division will likely occupy a
significant amount of time of the Secretary and Under Secretary.

H.R. 5005 takes a somewhat different approach: like the President's
June 18th proposal, it establishes a single Under Secretary with
overall responsibility for both information analysis and infrastructure
protection. However, in Title II, Section 201, (b)(1) and (b)(2) it
also creates two Assistant Secretaries to lead information analysis and
infrastructure protection, respectively. Earlier, Title I, Section 103
of the legislation establishes several officers who shall be appointed
by the President ``with the advice and consent of the Senate,''
including not more than 12 Assistant Secretaries (Sec. 103 (a)(8)). The
Assistant Secretaries for information analysis and infrastructure
protection will clearly occupy two of the most critical positions in
our government: consequently, Congress' expectation is they will be
among the 12 Assistant Secretaries who will be appointed by the
President with the advice and consent of the Senate.
Third, responding to the testimony of Senator Shelby and others, the
SA 4471 provided broad, routine access to information for the Secretary
of Homeland Security. The assumption behind the Committee's approach
was that, unless the President determined otherwise, all information
about terrorist threats, including so-called ``unevaluated
intelligence,'' possessed by intelligence agencies would be routinely
shared by intelligence agencies and other agencies with the Department
of Homeland Security. In contrast, the President's proposal would
curtail the Secretary's access to unanalyzed information. The Secretary
would have routine access to reports, assessments and analytical
information. But, except for vulnerabilities to critical
infrastructure, the Secretary would receive access to unanalyzed
information only as the President may further provide.
H.R. 5005 has wisely moved towards SA 4471. In Section 202 (a), H.R.
5005 states that, ``except as otherwise directed by the President, the
Secretary shall have such access as the Secretary considers necessary
to all information, including reports, assessments, analyses, and
unevaluated intelligence relating to threats of terrorism against the
United States and to other areas of responsibility assigned by the
Secretary, and to all information concerning infrastructure or other
vulnerabilities of the United States to terrorism, whether or not such
information has been analyzed, that may be collected, possessed, or
prepared by any agency of the Federal Government.'' This is crucial
because the Secretary must have access to the information he or she
deems necessary to protect the American people, and cannot simply rely
on agencies that have historically been reluctant to share information
to determine what the Secretary should have.
In Section 202(b)(1) the legislation provides that the Secretary may
enter into cooperative agreements with agencies to provide access to
such information. At the same time, if no request has been made, or no
agreement has been entered into, agencies are still required to provide
certain information that is specified in the legislation. This
includes, at Section 202(b)(2) (A) all reports (including information
reports containing intelligence which has not been fully evaluated),
assessments and analytical information relating to threats of terrorism
against the United States and to other areas of responsibility assigned
by the Secretary; (B) all information concerning the vulnerability of
the infrastructure of the United States, or other vulnerabilities of
the United States, to terrorism, whether or not such information has
been analyzed; (C) all other information relating to significant and
credible threats of terrorism, whether or not such information has been
analyzed; and (D) such other information or material as the President
may direct.
These provisions require agencies to provide significant amounts of
information to the Secretary, even in the absence of a cooperative
agreement. With respect to the information required in Section
202(b)(2)(C); in many cases, it may be impossible for agencies to know
if certain information is related to ``significant and credible
threats'' of terrorism precisely because that can only be determined
once the information is fused with information from others.
Consequently, to meet the statutory requirement, agencies should
clearly endeavor to collect requested information, even if it is not
already available, and they should err on the side of providing more,
rather than less, information that is already on hand to the
Department's analysts. This is clearly the best way to help ensure that
the Department can effectively carry out its mandate to prevent, deter,
and preempt terrorist attacks.
Finally, like SA 4471, H.R. 5005 makes the Department responsible for
working with the Director of Central Intelligence to protect sources
and methods and with the Attorney General to protect sensitive law
enforcement information (Section 201(d)(12)). Also, as the Committee
recommended, the substitute formally includes the elements of the
Department concerned with analysis of foreign intelligence in the
``intelligence community'' (Section 201(h)) while also empowering the
Secretary to consult with the Director of

[[Page S11412]]

Central Intelligence and other agencies on our nation's intelligence
gathering priorities (Section 201(d)(10)). These provisions will ensure
that the Department becomes a full partner with the Central
Intelligence Agency and other agencies in our intelligence community,
and that is has a crucial seat at the table in all proceedings where
intelligence-gathering priorities are established.
Though H.R. 5005 is not exactly what the Governmental Affairs
Committee recommended in SA 4471, it does contain key aspects of the
Committee's approach and establishes a single point in our government
with the responsibility for receiving and assessing all information
about terrorist threats to our homeland. Thus, it does represent a very
significant improvement over the Administration's proposal. As a
result, the information analysis and infrastructure protection function
in the Department, assuming it is properly implemented, will greatly
improve our nation's overall capacity to prevent, deter, protect
against, and respond to terrorist threats against our homeland.

Science and Technology

The Department will have profound scientific and technological needs,
and both the immediate and long-term success of its mission will
require the implementation of a broadly-coordinated, tightly-focused,
and sustained effort to invest in critical areas of research,
accelerate technology development, and expedite the transition and
deployment of such technologies into effective use. H.R. 5005 attempts
to meet this objective by creating a strong, coherent, and well-funded
Directorate of Science and Technology. The Directorate established in
this legislation follows directly from the model embodied in the
homeland security bill passed by the Senate Governmental Affairs
Committee, SA 4471, and explicated in the Chairman's Statement on
September 4, 2002 (Congressional Record, pages S8162-S8164). In keeping
with that model, the Directorate will be headed by a Senate-confirmed
Under Secretary for Science and Technology with expansive
responsibilities, as outlined in Section 302, for directing and
managing homeland security research, development, demonstration,
testing, and evaluation (RDDT&E) activities; coordinating the federal
government's civilian efforts, as well as developing a national policy
and strategic plan, for meeting homeland security R&D needs; advising
the Secretary and supporting the Department's efforts to analyze risks
and threats; ensuring the rapid transfer and deployment of technologies
capable of advancing homeland security objectives; and conducting
research on countermeasures for biological and chemical threats.

Research, Development, Demonstration, Testing & Evaluation

With respect to his RDDT&E responsibilities, the Under Secretary will
act through an array of mechanisms and authorities established in H.R.
5005. The primary driver of innovation within the Directorate will be a
Homeland Security Advanced Research Projects Agency (HSARPA), which is
conceived to be similar in purpose and organization to the highly
successful Defense Advanced Research Projects Agency (DARPA) within the
Department of Defense (DOD). Over the past five decades, DARPA has been
recognized as one of the most productive engines of technological
innovation in the federal government. Its success has been grounded in
its ability to recruit outstanding scientific and technical talent,
promote creativity and adaptability under a lean, flexible
organizational structure, and entice collaboration from other R&D
entities by leveraging an independent source of funds. Because the
HSARPA created in H.R. 5005 is purposefully patterned after the nearly
identical Security Advanced Research Projects Agency (SARPA) contained
in SA 4471, the legislative intent concerning the missions, roles,
Acceleration Fund, and structure of that organization (see Chairman's
Statement on September 4, 2002, Congressional Record, pages S8162-8163)
are, of course, straightforwardly applicable to HSARPA.
In order to enable HSARPA to achieve parallel success to DARPA,
Section 307 of H.R. 5005 provides HSARPA with a $500 million
Acceleration Fund to support key homeland security R&D both within and
outside of the federal government, leverage collaboration from R&D
entities external to the Department, and accelerate the development,
prototyping, and deployment of homeland security technologies. The
Secretary is likewise provided with DARPA's flexible authority to hire
and manage top-flight personnel. Although SA 4471 placed limits on this
authority by setting a ceiling of 100 personnel who may be hired
pursuant to this authority and instituting a 7-year sunset provision
[SA 4471, Section 135(c)(3)(C)], those limits have been eliminated in
H.R. 5005 to allow the Secretary greater discretion in exercising such
authority commensurate with need [Section 307(b)(6)]. In a later
section, Section 831, H.R. 5005 also confers the Secretary with another
important authority currently available to the DOD--the ability to
engage in ``other transactions'' for both research and prototype
projects. This flexible contracting authority for such projects has
been integral to DARPA's success, and HSARPA will therefore have the
same authority. While the legislation vests this authority directly in
the Secretary, it is clearly and specifically contemplated that such
authority will be delegated appropriately to other officials within the
Department, particularly the Under Secretary for Science and Technology
and the Director of HSARPA, for use in connection with R&D and
prototyping activities under their direction or management, including
extramural RDDT&E projects and projects supported by the Acceleration
Fund. Nothing in this legislation should be construed as requiring or
encouraging HSARPA to adopt or replicate any specific programs within
DARPA, such as the Total Information Awareness Program, or as
conferring HSARPA with any additional authority to overcome privacy
laws when developing technologies for information-collection.
Separate provisions for the Department's other extramural and
intramural RDDT&E activities are set forth in Section 308. These
provisions are not intended to supercede the specific provisions
established for HSARPA under Section 307, and should not be in any way
limiting on HSARPA. Regarding the university-based center or centers
for homeland security described in Section 308(b)(2), legislative
intent regarding the need for flexible application of this provision in
order to avoid unfairly favoring one or more particular institutions
was clarified in the November floor statements of the Republican
manager of the final bill, Senator Phil Gramm. It should therefore be
emphasized that the criteria listed under Section 308(b)(2)(B) should
not be considered absolute or dispositive in nature, but rather, as
factors that should be considered in the context of national homeland
security needs and the relative strengths of candidate institutions in
meeting those needs. Consistent with this intent, Section 308(b)(2)(C)
specifically provides the Secretary and the Under Secretary with full
``discretion'' in determining whether, how, and when to implement these
provisions. Consideration of additional relevant criteria to supplement
(and, within their discretion, to supercede) those delineated under
Section 308(b)(2)(B) is specifically contemplated in Section
308(b)(2)(C). This subsection anticipates as the Secretary and Under
Secretary exercise their discretion that they actively engage in a
comprehensive, dispassionate, and competitive review of available
institutions to determine the optimal selection for serving national
interests. It is contemplated that consortia of universities capable of
meeting particular areas of required expertise would be eligible to
serve as a university center or centers; therefore, there is no
restriction on such consortia being considered under Section 308(b)(2).
To assure full oversight of the fairness of the selection process, the
Secretary is required to report to Congress under Section 308(b)(2)(C)
on the full details of the selection and implementation of the
university centers.
Regarding the headquarters laboratory described in Sections
308(c)(2)-(c)(4), it deserves reiterating that the establishment of
such a headquarters laboratory is not mandatory under the legislation.
The Secretary and the Under Secretary should use their discretion in
determining whether the designation of such a laboratory is necessary
and would better assist the Directorate in fulfilling its functions. It

[[Page S11413]]

is the intent of H.R. 5005 that the Directorate coordinate and draw
broadly upon the full range of S&T resources and expertise available in
the federal government rather than creating new, duplicative
stovepipes. Accordingly, the risks attaching to the latter should be
weighed carefully against the potential benefits of establishing a
single headquarters laboratory. As an alternative, the Secretary could
certainly opt to select a group of institutions and laboratory elements
with expertise in a variety of fields to fill the pertinent need.
Consequent to the principle of affording the Department with rapid,
non- bureaucratic, expansive, and flexible access to existing federal
S&T capabilities, the legislation in Section 309 provides the Secretary
with authority to utilize any of the Department of Energy (DOE)
laboratories and sites through a variety of mechanisms, most notably,
joint sponsorship agreements, and in Section 309(g), establishes an
Office for National Laboratories within the Directorate to create a
networked laboratory system among the DOE laboratories to support the
missions of the Department. With regard to Section 309(c), it should be
clarified that this provision is limited to those programs and
activities that are transferred from the DOE to the Department under
this legislation. There is no general requirement or obligation within
this or any other provision to execute or maintain separate contracts
for work commissioned by the Department to non-transferred DOE
laboratories or sites or their operators.

Interagency Coordination and the National Policy and Strategic Plan

Notwithstanding the mechanisms described above for enabling the
Department to engage and support important homeland security R&D, H.R.
5005 recognizes that the vast bulk of research and development relevant
to homeland security will continue to occur outside the direct control
of the Department--in other agencies, in academia, and in the private
sector. A critical challenge, therefore, will be to ensure that the
Department has the proper tools and mechanisms to elicit cooperation
across a wide range of disparate R&D entities, each with their own
missions and priorities, and to coordinate their collective efforts in
service to homeland security goals.
A key coordination mechanism envisioned by the legislation is the
development of a national policy and strategic plan as described in
Section 302(2). This national policy and strategic plan integrates the
concepts of the National Strategy for Combating Terrorism and the
technology roadmap articulated in SA 4471 [Title III and Section
135(c)(2)(B)] into a single national blueprint for meeting S&T goals
and objectives for homeland security. It is intended that a
comprehensive technology roadmapping exercise (which is commonly
accepted within the S&T community as a prerequisite to optimal
organization and coordination of large-scale R&D projects) serve as a
basis for, and central component of, the larger policy and plan, and
that the resulting roadmap, policy, and plan provide the framework
within which all relevant stakeholders, both within and outside of
government, will coordinate on a common homeland security RDDT&E
agenda.
Effective coordination will also require a forum and body through
which intensive communication and collaboration may occur. Along these
lines, the legislation in Section 311 establishes a Homeland Security
Science and Technology Advisory Committee (``Advisory Committee'')
consisting of representatives from academia and the private sector to
both advise the Department and coordinate with communities outside the
federal government in conducting homeland security R&D. The utility of
having an external, independent entity to inform and guide intra-
Department and interagency S&T efforts has been previously demonstrated
by the advisory group assembled by the National Academy of Sciences
(NAS) in response to the September 11th attacks. This group, which
published a prominent review of the government's homeland security R&D
efforts in June 2002 (Making the Nation Safer: The Role of Science and
Technology in Countering Terrorism), played an important and
constructive role in identifying and stimulating much needed
improvements. Section 311 requires a similar entity to be established
that may, among other things, advise the Department by continuously
critiquing homeland security S&T efforts in a ``red team'' capacity or
function, and recommending new approaches for the Department and
outside agencies. It is specifically anticipated that the National
Research Council of the NAS, drawing on its extensive network of S&T
contacts and the expertise it developed in compiling its June 2002
report, will select appropriate candidates for membership onto the
Advisory Committee [Section 311(b)(2)], as well as support the Advisory
Committee's work on an ongoing basis. The Advisory Committee is
initially authorized for three years, which is a reasonable time period
to permit the Secretary to meaningfully assess the Advisory Committee's
efficacy in fulfilling its defined purpose. Should the Secretary
determine after the initial authorization period that the Advisory
Committee has provided, or is likely to provide, useful support and
functionality to the Department, it is anticipated that the Secretary
will reconstitute or re-establish the Advisory Committee pursuant to
his authority under Section 871(a).
With respect to R&D coordination among the federal agencies, H.R.
5005 does not specifically carry over the Homeland Security Science &
Technology Council (``S&T Council'') from SA 4471 given that it may be
unnecessarily redundant to create a new interagency council when
interagency coordination mechanisms already exist in the form of the
National Science and Technology Council (NSTC) and its various
subcommittees. This does not diminish the importance of such an
interagency body to the homeland security R&D effort. To the contrary,
an active interagency coordination entity must be considered
fundamental to enabling the Secretary and the Under Secretary to
fulfill their core responsibilities of coordinating the federal
government's civilian homeland security R&D efforts [Section 302(2)]
and carrying out the Department's S&T agenda through coordination with
other federal agencies [Section 302(13)]. The omission of the
interagency S&T Council from H.R. 5005 assumes that the NSTC and the
Office of Science and Technology Policy (OSTP), working with the
Secretary and the Under Secretary, will establish and promote the
strong interagency coordination mandated in Sections 302(2) and
302(13). Consequently, the Secretary, the Under Secretary, the OSTP,
and all members of the NSTC are expected to commit to ensuring the
viability of the NSTC as a productive coordination mechanism. In the
event that such faith proves to be misplaced, a separate interagency
group composed of senior R&D representatives from relevant federal
agencies and officials from the Executive Office of the White House
should be immediately constituted by the Secretary and the Under
Secretary based on the authorization for interagency S&T coordination
contained in Sections 302(2) and 302(13). These provisions also
constitute a directive to agencies with S&T expertise in areas
pertinent to homeland security to fully and actively participate in
such interagency efforts.

scientific and technical support, risk analysis, and the homeland
security institute

Another major set of responsibilities assigned to the Under Secretary
relates to providing specialized advise, expertise, and support to
other actors within the homeland security organization [Sections 302
(1), (2), and (3)]. Perhaps the most critical of such responsibilities
is supporting the Department with respect to assessing, analyzing, and
mitigating homeland security threats, vulnerabilities, and risks.
Section 302(2) calls for including coordinated threat identification
within the national policy and strategic plan, and Section 302(3)
specifically calls for the assessment and testing of ``homeland
security vulnerabilities and threats.'' Although primary responsibility
for coordinating and integrating risk analysis and risk management
resides with the Secretary and the Under Secretary for Information
Analysis and Infrastructure Protection, the highly complex and
technical issues inherent to modern risk analysis methods demand
substantial scientific and technical expertise. Section 302(3) mandates
that the Under Secretary for S&T support

[[Page S11414]]

the Under Secretary for Information Analysis and Infrastructure
Protection in this regard. Therefore, Section 305 addresses the problem
of obtaining the necessary S&T expertise by giving the Secretary broad
authority to establish or contract with Federally Funded Research and
Development Centers (FFRDCs), which could perform functions not only
related to R&D, but extending to risk, threat, and vulnerability
analysis. While this authority is discretionary, H.R. 5005 anticipates
that it will be exercised actively in accordance with need. In fact, so
compelling was the NAS's recommendation in its June 2002 report to
create an independent, non-profit institution for critical analysis and
decision support, that H.R. 5005 includes another provision to trigger
immediate exercise of the broad FFRDC authority. Specifically, Section
312 mandates the creation of a Homeland Security Institute
(``Institute'') focusing expressly on capabilities related to risk
analysis, scenario-based threat assessments, red teaming, and other
functions relevant to homeland security. The Institute is initially
authorized for three years, which is a reasonable time period to permit
the Secretary to meaningfully assess the Institute's efficacy in
fulfilling its defined purpose. Should the Secretary determine after
the initial authorization period that the Institute has provided, or is
likely to provide, useful support and functionality to the Department,
it is anticipated that the Secretary will, pursuant to his authority
under Section 305, renew, reconstitute, or re-establish the Institute
with appropriately expanded or modified functions to service the
Department's ongoing and expanding risk assessment mission.

technology transition

The Under Secretary is responsible for ensuring that technologies
capable of supporting homeland security are quickly tested, evaluated,
transitioned, and deployed to appropriate users within or outside the
Department. Section 302(6) explicitly requires the Under Secretary to
establish a system for transferring such technologies. This system
should include processes and mechanisms for identifying homeland
security actors and entities with unmet technological needs; matching
such entities and needs with available technologies or, if none are
readily available, assisting in the development, testing, evaluation,
and deployment of new technologies to meet identified needs; ensuring
viable technology transition paths for products of homeland security
R&D, including HSRAPA-derived technologies; aligning internal R&D
priorities and programs to technological needs inside or outside the
Department; communicating externally with both technology developers
and users to promote alignment of extra-Departmental R&D efforts with
homeland security-related technological needs; providing technology
developers with information and guidance on interfacing with
governmental customers of homeland security technologies; and providing
technical assistance to potential governmental users of homeland
security technologies. To support the Under Secretary in executing
these responsibilities, Section 313 establishes a Technology
Clearinghouse (''Clearinghouse'') to serve as a national point-of-
contact for both technology developers and potential users. The
Clearinghouse must coordinate with the Technical Support Working Group
(TSWG), and may fully integrate with the TSWG. In light of the fact
that the mission of the TSWG dovetails with, and is fully embraced by,
that of the Directorate, it is contemplated that the Under Secretary
may assume full or joint management, technical, and/or policy oversight
of the TSWG.

testing and evaluation of technologies for internal acquisition and
deployment

With respect to technologies being considered for internal use
Department-wide or within one or more of its constituent entities,
intelligent and well-coordinated testing, evaluation, procurement, and
deployment will be crucial given that the new Department will have
extensive technological needs, requirements, and dependencies. Too
often, government agencies are hampered and distracted from their
fundamental missions as a result of unstructured, technically
unsophisticated approaches to technology acquisition and deployment
that generate interoperability problems downstream. In order to
effectively carry out the requirement for the Under Secretary to
comprehensively conduct, direct, integrate, and coordinate the
demonstrating, testing, and evaluation activities of the Department as
articulated in Sections 302(4), 302(5), and 302(12), the Secretary and
the Under Secretary should implement procedures to ensure that new
technologies being considered for acquisition will be compatible and
interoperable with other existing or anticipated technologies. New
technologies should not be permitted to move to acquisition without the
Under Secretary's sign off on the prior stages in the innovation
process, particularly the demonstration, testing, and evaluation
stages. The Under Secretary is understood to occupy the role of the
Department's chief technology officer, and it is anticipated that he
will be provided with responsibilities and authorities befitting that
role. Accordingly, the Secretary shall act through the Under Secretary
to operationally test and evaluate all major systems targeted for
potential acquisition by any entity within the Department, and grant
the Under Secretary authority to approve or reject such systems in his
discretion. Nothing in this provision is to be construed as proscribing
other Departmental entities from undertaking testing and evaluation
activities so long as they do so in coordination with, and subject to
the final approval of, the Under Secretary. The Under Secretary should
also coordinate with the Department's Chief Information Officer, the
Under Secretary for Management, and other federal agencies in promoting
government-wide compatibility and interoperability of homeland security
technologies and systems.

By vesting in the Under Secretary the full and broad authority to
manage the Department's full spectrum of innovation, from basic
research [Sections 302(4), 302(5), 302(11), and 302(12)] through
demonstration, testing, and evaluation [Sections 302(4), 302(5), and
302(12)] to transition and deployment [Section 302(6)], the Under
Secretary will have the means and mandate to initiate a powerful,
systematic approach to innovation that generates new technologies for
combating terrorism and ensures integrated acquisition and use of such
technologies. Placing control of all the key innovation stages with the
Under Secretary is critical to assuring that research, development,
demonstration, testing, evaluation, and deployment in the Department do
not become disjointed and fractured so that a coherent innovation
process can prevail.

Research on Countermeasures for Biological and Chemical Threats

True preparation for future biological, chemical, radiological, and
nuclear attacks will depend upon the development of vaccines and
medicines to combat the most likely threats. At present, our nation is
woefully unprepared for this type of attack. In his June 28, 2002
testimony before the Senate Governmental Affairs Committee, Dr. J.
Leighton Read discussed the barriers to the development of a national
medical arsenal to combat terrorism. The federal government has a long
and successful history in conducting basic biomedical research. The
National Institutes of Health within the Department of Health and Human
Services (HHS) have served as an international model for funding and
conducting human health-related research. However, in facing biological
and chemical terrorism, we face a new challenge. In addition to
encouraging basic research and training the next generation of
scientists, the federal government will have to deliver actual
pharmaceutical products and will have to deliver them quickly. Unlike
the traditional pharmaceutical market, companies that choose to develop
drugs to fight bioterrorist attacks that may never occur will not be
able to rely on an existing market. Yet producing actual products to
meet biological and chemical threats will depend upon private sector
involvement. As a result, the Under Secretary should incorporate the
goal of engaging the private sector into develop biothreat
countermeasures into every level of his strategy, and adopt plans and
policies to enable such private sector participation to occur.
H.R. 5005 provides tools to accomplish this task. While Section
302(4) states generally that the Under Secretary's responsibilities do
not extend

[[Page S11415]]

to human health-related research and development activities, this
provision should be construed consistent with other specific provisions
in H.R. 5005 ascribing the Under Secretary a major role in addressing
biological and chemical threats related to terrorism, a role which will
require the Under Secretary to conduct specific types of human health-
related research and development activities. Section 302, therefore,
does not circumscribe the Under Secretary's authority to conduct
research necessary to implement the major biothreat-related functions
delineated in Sections 302(2) (requiring the Under Secretary to develop
a national policy and plan that addresses, among other things, chemical
and biological terrorist threats, and further requiring the Under
Secretary to coordinate the Federal Government's civilian efforts to
identify and develop countermeasures to chemical, biological,
radiological, nuclear, and other emerging terrorist threats), 302(5)
(requiring the Under Secretary to direct, fund, and conduct national
research and development for detecting, preventing, protecting against,
and responding to terrorist attacks, which perforce include those
involving biological or chemical agents), 302(8) (requiring the Under
Secretary to collaborate with the Secretary of Agriculture under the
Agricultural Bioterrorism Protection Act of 2002), 302(9) (requiring
the Under Secretary to collaborate with the Secretary of HHS in
determining biological agents and toxins to be listed as select
agents), 303(1)(A) (transferring control and management of certain
chemical and biological national security programs within the
Department of Energy into the Department of Homeland Security), and
Sections 303(2) and 1708 (establishing and transferring into the
Department a National Bio-Weapons Defense Analysis Center).
The National Bio-Weapons Defense Analysis Center (``Center'')
established and transferred in H.R. 5005 will, in particular, require
the Under Secretary to engage in extensive human health-related R&D.
The Center is intended to lead the Department's research efforts on
bioterrorism by developing ``countermeasures to potential attacks by
terrorists using weapons of mass destruction'' (Section 1708). The
Center will conduct research on bioterrorism, and by definition, this
should include study of the pathogenesis of bioterrorist agents, the
immune response to these pathogens, and research on vaccines, drugs,
and other medical antidotes. Since the Center is placed under the
direction and management of the Directorate, the Under Secretary is
conferred with substantial obligations to conduct human health-related
R&D.
While the Secretary clearly has the authority to conduct the type of
R&D discussed above internally, H.R. 5005 contemplates that the
civilian human health-related countermeasures research carried out by
HHS shall remain under the direction of the Secretary of HHS. Sections
304(a) and (b) mandate that while the Secretary of HHS shall retain
authority for such research, he shall collaborate with the Secretary of
Homeland Security in developing between the two Departments a
coordinated strategy and outcome measurements for these research
activities. As outlined in H.R. 5005, it is crucial that such research
reflect the overall national policy and strategic plan developed by the
Secretary and the Under Secretary under Section 302(2), and that the
efforts of the two Departments be fully in concert. In the biothreat
and chemical threat areas, the Secretary should work to ensure the
resulting policy, plan, and benchmarks mandated under Section 302(2)
reflect what is most needed and what pharmaceutical products can be
timely developed against the most likely and dangerous threats to the
public. Since this will require participation from the private sector,
the policy and plan, which will include a technology roadmap, must
necessarily include a strategy for translating basic science results
into product development within the private pharmaceutical and
biotechnology sectors.

Emergency Preparedness and Response

The Department will coordinate the federal response to disasters.
This responsibility will encompass natural and manmade disasters,
terrorist attacks and all incidents involving weapons of mass
destruction, and other large-scale emergencies. In addition, the
Department will assist the Secretaries of Health and Human Services and
the Department of Agriculture in responding to public health and
agricultural emergencies. The Directorate for Emergency Preparedness
and Response was designed to spearhead this effort within the
Department.
In order to accomplish these tasks the Department will need an
interdisciplinary, well funded, and well-organized Directorate of
Emergency Preparedness and Response. The initial design of this
directorate was established by the Senate Governmental Affairs
Committee in S. 1534. This original design was refined by the
Governmental Affairs Committee amendment, SA 4471, and further
explained by the Chairman's statement on September 4, 2002
(Congressional Record, pages S8162-S8164). Consistent with this
original design, H.R. 5005 establishes a Directorate that includes the
essential federal emergency response agencies and offices.
The Directorate shall build and direct a comprehensive national
incident management system and consolidate existing federal emergency
response plans into a single, coordinated national plan as outlined in
H.R. 5005, Sections 502(5), 502(6), and 507(b)(1-2). States and
localities should have access to and information about these systems
and plans to ensure optimal coordination during an emergency. These
plans should encompass all affected governmental entities and reflect
both local and national needs. The consolidated federal response plan,
outlined in Sections 502(6) and 507(b)(1-2), must interface with state
and local response plans and should utilize local resources wherever
possible.

Interoperability

The planning responsibilities of the Under Secretary shall include
the development of a comprehensive plan and effort for improving
communication interoperability during emergency response (H.R. 5005,
Section 502(7)). In developing the communication technology and
interoperability, the Under Secretary must pay particular attention to
the development, support and utilization of effective telemedicine
networks, as well as the application of advanced information technology
to effective training for and delivery of emergency medical services.

Standards

In order to implement the missions delineated in Section 502, the
Directorate shall establish and disseminate standards for equipment,
personnel, training, resources, and the resulting emergency response.
Standards shall be used as benchmarks for training and acquisition to
ensure a uniform quality and interoperability during a response. The
Under Secretary shall use these standards to provide recommendations
and guidance to state and local governments.

Public Health and Agricultural Emergencies

The Secretaries of Health and Human Services and the Department of
Agriculture shall retain the authority to oversee the federal response
to public health and agricultural emergencies, respectively. This
authority includes the authority to declare such emergencies. However,
these agencies shall fully collaborate with the new Department which
shall support these agencies in their response, especially with regards
to chemical, biological, radiological, and nuclear weapons. The
Department should serve as an active and involved resource during
bioterrorist and agroterrorist attacks. As outlined in Section 887 of
H.R. 5005, the Department shall work in conjunction with the Department
of Health and Human Services, the Federal Bureau of Investigation, and
other engaged federal agencies to optimize information sharing between
agencies commencing forthwith, as well as before and after the
declaration of a public health emergency. This provision was intended
to ensure that all involved agencies have all the information necessary
to effectively perform their role in the federal response. See also,
Section 892.

Training

In order to help ``ensure the effectiveness of emergency response
efforts'' as required in Section 502(1) of H.R. 5005, the Directorate
shall lead federal efforts to train first responders in disaster
response. The term, first responder, shall include law enforcement,

[[Page S11416]]

fire fighting, emergency medical, health care, and volunteer personnel.
To be effective, training shall encompass exercises, on-line computer
simulations, drills, courses, and other interactive learning
environments. Personnel should be trained in every aspect of emergency
response, including prevention/preparation, mitigation, active
response, and recovery efforts. Training should include utilization of
the Noble Training Center, transferred to the new Department as part of
the Office of Emergency Preparedness (Section 503(5)) and other
training sites and campuses within the Federal Emergency Management
System, as well as full coordination with the National Guard. Finally,
the Directorate shall improve, and train first responders in use of,
governmental on-line resources to ensure they have the latest
information available during a response.

Strategic National Stockpile

Authority to oversee the Strategic National Stockpile shall be
transferred to the new Department. In H.R. 5005, this transfer of
authority is described in Sections 502(3)(B), 503(6), and 1705. This
language clarifies that the existing structure of the Stockpile
program, as described in Section 121 of the Public Health Security and
Bioterrorism Preparedness and Response Act of 2002 (Public Law 107-
188), shall remain intact. The Stockpile shall continue to be a multi-
agency effort, with significant roles for the Department of Veterans
Affairs and the Department of Health and Human Services. In particular,
the Department should continue to incorporate the recommendations of
the Centers for Disease Control and Preparedness (CDC) and the Office
of the Assistant Secretary for Public Health Emergency Preparedness
(OPHEP), within the Department of Health and Human Services, in
determining the composition of the stockpile and the parameters for its
use. The Department shall consult the CDC and OPHEP in deciding which
medications, vaccines, and medical supplies are most appropriate for
the Stockpile (Section 1705(a)(1)(C)). The Department shall also
coordinate with the Secretary of Health and Human Services in
determining the need to deploy the stockpile, on an incident-by-
incident basis. The Under Secretary should continue to use the
resources of Department of Veterans' Affairs in procuring and storing
the contents of the Stockpile (Section 1705(a)(1)(B)). And the Under
Secretary shall call upon the Department of Defense and the National
Guard to help transport and secure the contents of the stockpile as
appropriate.

The Office of Emergency Preparedness

SA 4471 described, in detail, the transfer of the Office of Emergency
Preparedness (OEP) from the Department of Health and Human Services to
the Department. The transfer of OEP was retained in H.R. 5005 in
sections 502(3)(B) and 503(5). Since the Office of Emergency
Preparedness is not defined in statute, it should be clarified that the
transfer of OEP shall include the Office and all of its component
agencies. This includes the National Disaster Medical System, the
Metropolitan Medical Response System, the Noble Training Center, the
Special Events Disaster Response program, and all other programs
directed by OEP. Of course, nothing in the final legislation should be
construed to mean that the transfer of the OEP programs shall result in
the transfer of personnel whose primary duties reside outside of OEP.

The National Disaster Medical System

For example, the National Disaster Medical System (NDMS) is an inter-
agency program. It involves personnel, facilities, and equipment from
the Department of Health and Human Services, the Department of Veterans
Affairs, the Department of Defense, and other federal agencies. The
personnel and assets from these departments that are deployed by NDMS
during the an emergency response, but whose primary day to day roles
are central to the missions of agencies outside of the Department,
shall remain part of their home agencies. This includes members of the
Disaster Medial Assistance Teams (DMATs), the Disaster Mortuary
Assistance Teams (DMATs), and the Veterinary Medical Assistance Teams
(VMATs). The transfer of the NDMS component of OEP shall be restricted
to the management, organizational, and coordinating personnel,
functions, and assets.

The Metropolitan Medical Response System

Similarly, the transfer of the Metropolitan Medical Response System
(MMRS) does not include transfer of member hospitals. Rather it shall
consist of a transfer of the grant programs and related personnel. The
MMRS grants have been used to improve hospital and first responder
preparedness in select metropolitan regions across the country.
Administration of these ongoing grants will become part of the new
Department.
Although H.R. 5005 transfers the authority of the Secretary of the
Department of Health and Human Services and the Assistant Secretary for
Public Health Emergency Preparedness for OEP (Section 503(5)), the
Under Secretary shall at all times attempt to maximize communication
and interaction between OEP and its component programs and the
Department of Health and Human Services, which will be crucial in
meeting the Directorate's mission requirements. As the preceding
discussion illustrates, OEP will have to coordinate efforts of
personnel from several different agencies. But in addition, OEP and its
programs must remain integrated into the larger national public health
infrastructure. Particular efforts should be made to coordinate OEP
programs with the Office of the Assistant Secretary for Public Health
Emergency Preparedness. This office, within the Department of Health
and Human Services, is charged with coordinating intra and interagency
health preparedness efforts. OEP should remain a part of this larger
whole.

Conduct of Certain Public Health-Related Activities

Section 505 of H.R. 5005 addresses two critical issues. First, it is
imperative that the efforts to improve our public health infrastructure
and their emergency preparedness remain under the control of the
Secretary for Health and Human Services, although coordinated with the
Secretary. On June 28, 2002 the Governmental Affairs Committee heard
testimony from several public health experts. In their testimony, the
witnesses concurred that in order to be functional during an emergency,
public health preparedness efforts had to be integrated into the larger
public health system. This ``dual-use'' improves underlying public
health efforts while ensuring health providers remain familiar with
emergency preparedness networks and programs. Their testimony pointed
out that dual-use was particularly important during a response to a
biological attack. In this case, the terrorist attack may not be
immediately apparent and detection may depend upon the ability of
normal health care systems to detect unusual patterns of illness. H.R.
5005 also stressed this important theme through Section 505 and
language in Section 887, which calls for interaction between the
agencies before and after the declaration of a public health emergency.
Section 505 stipulates that the Department of Health and Human
Services shall retain primary authority over efforts to improve State,
local, and hospital preparedness and response to chemical, biological,
radiological, and nuclear and other emerging terrorist threats
``carried out by the Department of Health and Human Services.'' In this
regard, the Secretary of Health and Human Services shall have authority
to set priorities and preparedness goals. However, the Secretary of
Health and Human Services, working through the Assistant Secretary for
Public Health Emergency Preparedness, must develop a coordinated
strategy for these activities in collaboration with the Secretary
(Section 505(a)). In doing so, the Secretary of Health and Human
Services will also collaborate with the Secretary in establishing
benchmarks and outcome measures for success. Nothing in Section 505
should be interpreted as disrupting ongoing preparedness efforts within
the Department of Health and Human Services. All ongoing emergency
preparedness grants should continue. Selection criteria and the
evaluation of grant application shall continue to be determined by the
Department of Health and Human Services, consistent with Section 505
provisions.

Human Resources Management

H.R. 5005 contains two key provisions relating to employees at the
new Department--section 841, which governs

[[Page S11417]]

the establishment of a human resources management system, and section
842, which deals with labor-management relations at the Department.
These provisions have been among the most contentious in debate on this
legislation.
The Administration has consistently sought what it calls
``flexibility'' in the personnel area, by which it means a carte
blanche to waive civil service protections and union rights of the
employees at the Department. Sections 841 and 842 of H.R. 5005 are
significantly more protective in this regard than the provisions in the
President's original proposal (i.e., the one released June 18, 2002),
but these sections remain a major disappointment. A risk remains of
politicization, arbitrary treatment, and other personnel abuses in the
federal government, in a way that may damage the merit-based workplace
federal employees and the American people have come to depend on. I
hope what I fear does not come to pass, and that this Administration
and future Administrations will not overstep bounds, overexert
authority, and thereby undermine the effectiveness of the new
Department. I have summarized below the protections that sections 841
and 842 do provide.
Establishment of Human Resources Management System. Section 841
authorizes the Secretary, jointly with the Director of the Office of
Personnel Management (OPM), to prescribe a ``human resources management
system'' (HRMS) for the Department. The section provides that the HRMS
may waive certain provisions of the civil service statutes, and
specifies required procedures by which the system is to be developed,
negotiated, and adopted.
When it comes to the creation of a HRMS, the law still requires that
employees in the new Department will be hired, promoted, disciplined,
and fired in conformity with all merit system principles and in
violation of no prohibited personnel practices. If and when existing
civil service rights and protections come up for consideration in the
development of a HRMS, the Administration may waive, modify, or
otherwise affect such rights and protections only to the extent it can
clearly demonstrate that they clearly conflict with the homeland
security mission, and that they are not being waived merely in the
interest of administrative convenience. Fair and independent procedures
must be maintained for employees with grievances, such as those who
allege abuse or corruption within the Department. Changes to the system
must be carefully crafted through negotiation and collaboration with
employees and their representatives; and, if a disagreement arises, the
period of at least 30 days that section 841 requires for bargaining and
mediation between the Administration and the employee representatives
must be substantial and in good faith, not cosmetic.
The provisions in section 841 that allow a HRMS to waive statutes are
precisely drawn, detailing which parts of the United States Code may be
waived, modified, or otherwise affected and which parts may not. For
example, the legislation specifically forbids waiver of merit system
principles or prohibited personnel practices. Furthermore, as to
provisions referred to in 5 U.S.C. Sec. Sec. 2302(b)(1), (8) and (9),
the legislation forbids waiver not only of the provisions themselves,
but also of provisions implementing those protections through
affirmative action or through any right or remedy. Sections 2302(b)(1),
(8) and (9) include laws against discrimination, against reprisal for
whistleblowing, and retaliation for exercising rights. Section 841 thus
assures that the HRMS will not affect employees' ability to appeal a
personnel action to the Merit Systems Protection Board, under existing
law, in a case where the employee alleges a discrimination,
retaliation, or reprisal covered and referred to by
Sec. Sec. 2302(b)(1), (8) and (9). Section 841 also requires the HRMS
to ensure that employees may organize and bargain collectively, subject
only to exclusion from coverage or limitation on negotiability
established by 5 U.S.C. chapter 71 or other law.
Furthermore, the grant of waiver authority under section 841 refers
explicitly and only to part III of title 5, United States Code. Section
841 thus grants no authority to waive any provision of law outside of
part III. This means, for example, that the HRMS may not waive, modify,
or otherwise affect such government-wide employee rights and
protections as, for example: (1) the Office of Special Counsel's
authority to investigate any prohibited personnel practice and seek
corrective action or disciplinary action from the Merit Systems
Protection Board (MSPB) (5 U.S.C. Sec. Sec. 1211 et seq.); (2)
employees' right to seek corrective action from the MSPB in a case of
reprisal for whistleblowing (5 U.S.C. Sec. Sec. 1221-1222); (3) the
Ethics in Government Act of 1978 (Pub. L. 95-521, as amended; printed
as an appendix to 5 U.S.C.); (4) Veterans benefits (including appeal
rights to MSPB) (38 U.S.C.); and (5) the Fair Labor Standards Act of
1938 (29 U.S.C. Sec. Sec. 201 et seq.). Likewise, some of the right and
protections applicable to particular agencies or groups of employees
being transferred to the Department are set forth in portions of the
United States Code outside of part III of title 5, or were not enacted
by Congress as incorporated into the United States Code at all, and
these rights and protections may not be waived by the HRMS.
While the waiver authority granted by section 841 is broad, the
provisions noted above and other provisions that may not be waived
under section 841 can afford significant protections against
politicization, arbitrary action, and abuse. The Secretary and the
Director must be scrupulous in not attempting to waive, modify, or
otherwise affect any provisions of law that are beyond the express
waiver authority, because such an attempt would violate section 841.
Labor-Management Relations. 5 U.S.C. Sec. 7103(b)(1) states that the
President may issue an executive order excluding any agency from
coverage under the Federal Sector Labor-Management Relations Statute
(FSLMRS) if the President determines: that the agency has a primary
function in intelligence, counterintelligence, investigative, or
national security work, and that the provisions of the FSLMRS cannot be
applied consistent with national security. Section 842 of H.R. 5005
builds on that existing provision by stating that, for the President to
issue an executive order excluding an agency transferred to the
Department, not only must the criteria in 5 U.S.C. Sec. 7103(b)(1) be
satisfied, but also two additional clarifying criteria must be
satisfied: that the mission and responsibilities of the agency
materially changed, and that a majority of the employees in the agency
have as their primary duty intelligence, counterintelligence, or
investigative work directly related to terrorism investigation.
That provision would provide employees at the Department some
appropriate measure of stability in their labor relations, although the
provision is subject to a subsequent provision of section 842. The
President can override the earlier provision if he determines that the
earlier provision would have a substantial adverse impact on the
Department's ability to protect homeland security, and provides
Congress a detailed written finding explaining the reasons for the
determination. The President has to give the Congress 10 days' advance
notice by submitting the written explanation. At the expiration of the
ten day period, the President would then have the power to issue an
executive order under 5 U.S.C. Sec. 7103(b)(1) under the criteria of
that section only.
I still fail to understand why any President would need to remove
collective bargaining rights from federal employees, whose union rights
are very limited in comparison with the private sector, and who have a
long history of helping to protect the homeland and continue to do the
same protective work in the new Department. But if and when this
President or a future President does move to eliminate collective
bargaining within a unit of the Department, the President can take this
step only if it is truly essential to national security and homeland
security and not merely a convenience to management. This requires that
the Department's leadership must first make good-faith efforts to work
cooperatively with the unions before the President can determine that
union representation is incompatible with national security or homeland
security.
And the written explanation that the President is required to provide
to Congress must of course be thorough and specific. The requirement
reflects a bipartisan concern that this Administration and future
Administrations must

[[Page S11418]]

make the case for stripping workers of their right to bargain
collectively before issuing an Executive Order. The President must
provide Congress a comprehensive and specific explanation on the
threshold issue of how and why the right of workers in a particular
agency or subdivision to collectively bargain would have a substantial
adverse impact on homeland security.
Other provisions. Two other provisions of H.R. 5005 relating to human
resources management warrant comment.
Section 881 requires that the Secretary, in consultation with the
Director of OPM, shall review the pay and benefit plans of each agency
transferred to the Department and, within 90 days, submit a plan to
Congress for ensuring the elimination of disparities, especially among
law enforcement personnel. Nothing in section 881 provides for how the
elements of the plan shall be put into effect, however, so I believe it
would be desirable for the plan to identify the specific changes to
law, regulation, and policy that would be needed to eliminate the
disparities, and make specific recommendations for effecting those
changes.
Section 1512(e) states that the Secretary, in regulations prescribed
jointly with the Director of OPM, may adopt the rules, procedures,
terms and conditions established by statute, rule, or regulation before
the effective date of the Act in any agency transferred to the
Department under the Act. This section 1512 contains the Savings
Provisions for the reorganization effected by the Act, and subsection
(e) is intended to enable the Secretary to keep a transferred agency
subject to the same rules, procedures, terms and conditions that
applied to the agency before the transfer. This provision does not, of
course, provide authority to the Secretary to take a provision that was
applicable to one agency before the effective date and apply it to
another agency or other part of the Department.
Mr. THOMPSON. Madam President, putting a significant piece of
legislation like this bill together is a difficult and time-consuming
task. Many Senators have played important roles in this legislation,
but the contributions of our staff members have also been of great
significance. Without the aid of our staff members, little would get
done in this institution. I would like to take a moment to recognize
the hard work and dedication of just a few of the staff members who
contributed significantly to this legislation.
For the Majority, I want to recognize the contributions of Chairman
Lieberman's staff, especially his staff director, Joyce Rechtschaffen,
and Laurie Rubenstein, Mike Alexander, Kiersten Coon, Holly Idelson,
Kevin Landy, Larry Novey, and Susan Propper. Also, let me acknowledge
the contributions of staff to the other members of the Governmental
Affairs Committee and of Sarah Walter of Senator Breaux's staff, David
Culver of Senator Ben Nelson's staff, and Alex Albert of Senator
Miller's staff.
IOn the Republican side, I must single out the work of Rohit Kumar of
Senator Lott's Leadership staff. He has been the linchpin around whom
everything got done. We would have no bill without his persistence,
diligence, and intellect. Mike Solon of Senator Gramm's staff also
placed a crucial role in developing the Gramm-Miller amendment on which
much of the final legislation is based. David Morgenstern of Senator
Chafee's staff was also helpful.
Finally, let me recognize my own staff on the Governmental Affairs
Committee, who provided me with outstanding support. The successful
adoption of this legislation is due to their hard work and constant
efforts. Almost my entire staff was involved in some way or another
with this bill. I want to recognize the efforts of Richard Hertling, my
staff director on the Governmental Affairs Committee, who led the
effort, and Libby Wood Jarvis, my legislative director. Other members
of my staff whose assistance I wish to recognize are Ellen Brown, Bill
Outhier, Mason Alinger, Alison Bean, John Daggett, Johanna Hardy,
Stephanie Henning, Morgan Muchnick, Jayson Roehl, Jana Sinclair, and
Elizabeth VanDersarl, along with Allen Lomax, a fellow in my office
from the General Accounting Office.
Our staff members toil diligently and well, largely in anonymity. I
think it appropriate on occasion to recognize their work publicly, so
that Americans may share the knowledge of the members of this
institution about how well served they are by our staff members.
I thank the Presiding Officer for allowing me to take this brief time
to recognize the efforts of some of the staff members responsible for
this bill.
Mr. KENNEDY. Madam President, soon after the vicious attacks of
September 11, it became clear that Congress needed to act on a
bipartisan basis to win the war on terrorism and protect the country
from future attack. Congress quickly approved strong bipartisan
legislation authorizing the use of force against the terrorists and
those who harbor them. It also enacted bipartisan legislation to
provide aid to victims and their families, to improve airport security,
to give law enforcement and intelligence officials enhanced powers to
investigate and prevent terrorism, to improve border security, and to
strengthen our defenses against bioterrorism.
The September 11 attacks also demonstrated the need to consolidate
overlapping functions and establish clear and efficient organizational
structures within the Federal Government. I fully support these goals.
Reorganization without reform, however, will not work. It is not enough
to consolidate different agency functions, if the underlying problems
relating to management, information sharing, and coordination are not
also addressed. And we do the Nation a disservice if, in the course of
reorganizing the Government, we betray the ideals that America stands
for here at home and around the world.
We know that our Nation faces a very serious threat of terrorism. To
protect our national security in today's world, we need an immigration
system that can carefully screen foreign nationals seeking to enter the
United States and protect our Nation's borders. Our current Immigration
and Naturalization Service is not up to these challenges. For years,
INS has been unable to meet its dual responsibility to enforce our
immigration laws and to provide services to immigrants, refugees, and
aspiring citizens.
The Lieberman homeland security bill included bipartisan immigration
reforms that were carefully designed to correct these problems and
bring our immigration system into the 21st century. It untangled the
overlapping and often confusing structure of the INS and replaced it
with two clear lines of command--one for enforcement and the other for
services. It also included a strong chief executive officer to ensure
accountability, a uniform immigration policy, and effective
coordination between the service and the enforcement functions.
On these key issues, the Republican bill moves in exactly the wrong
direction. It transfers all immigration enforcement functions to the
Border and Transportation Security Directorate. Immigration service
functions are relegated to the Bureau of Citizenship and Immigration
Services, which lacks its own Under Secretary. These agencies will have
authority to issue conflicting policies and conflicting interpretations
of law. The formulation of immigration policy--our only chance to
achieve coordination between these dispersed functions--will be subject
to the conflicting views of various officials spread out in the new
Department. With its failure to provide centralized coordination and
lack of accountability, the Republican bill is a blueprint for failure.
The Republican bill also eliminates needed protections for children
who arrive alone in the United States. Often, these children have fled
from armed conflict and abuses of human rights. They are traumatized
and desperately need care and protection. The Lieberman bill included
safeguards, developed on a bipartisan basis, to ensure that
unaccompanied alien children have the assistance of counsel and
guardians in the course of their proceedings. Under this bill,
immigration proceedings will remain the only legal proceedings in the
United States in which children are not provided the assistance of a
guardian or court-appointed special advocate.
Finally, the Republican bill will seriously undermine the role of
immigration judges. Every day, immigration courts make life-altering
decisions.

[[Page S11419]]

The interests at stake are significant, especially for persons facing
persecution. We need an immigration court system that provides
individuals with a fair hearing before an impartial and independent
tribunal, and meaningful appellate review. The Republican bill
undermines the role and independence of the courts and the integrity of
the judicial process.
It vests the Attorney General with all-encompassing authority,
depriving immigration judges of their ability to exercise independent
judgement. Even more disturbing, the bill gives the Attorney General
the authority to change or even eliminate appellate review. This result
is a recipe for mistakes and abuse. An independent judicial system is
essential to our system of checks and balances. Immigrants who face the
severest of consequences deserve their day in court.
Today, many Americans are concerned about the preservation of basic
liberties protected by the Constitution. Clearly, as we work together
to bring terrorists to justice and enhance our security, we must also
act to preserve and protect our Constitution. Unfortunately, the
Republican bill undermines the civil rights and privacy safeguards that
Senator Feingold and I worked to include in the Lieberman bill. In
particular, I am disappointed that the civil rights officer in the new
Department will not be subject to Senate confirmation, and that there
will not be a designated official in the Inspector General's Office to
investigate civil rights violations.
These changes to the civil rights and privacy safeguards are
particularly disturbing in light of the fact that the bill explicitly
authorizes the new Department to engage in the controversial practice
of data mining. This practice allows the Government to establish a
massive data base containing public and private information, with files
on every American. The bill provides no language ensuring that the
Government acts in compliance with Federal privacy laws and the
Constitution.
On the issue of worker rights, we should remember that union members
risked and lost their lives and saved countless others through their
actions on September 11. We will never forget the fine example that
firefighters, construction workers, and many Government workers set
that day. Union workers have also shown great bravery and sacrificed
mightily in the service of homeland security since September 11. The
postal workers and the hospital worker killed as a result of
bioterrorism were all union members. The brave flight attendant whom
the President recognized in the State of the Union Address for
preventing terrorism was a member of a union.
The dedication and resolve of these union members truly represents
the best of America. Over 43,000 of the Federal workers affected by the
proposed Government reorganization are currently union members. On
September 11, unionized Federal workers played critical roles at both
the World Trade Center and the Pentagon as they worked round the clock
to make our homeland secure. These are the workers who risk their lives
each day to protect our Nation's borders.
This bill completely undermines the collective bargaining rights of
the unionized employees transferred to the new Department on whom our
security depends. It gives the President unlimited and unchecked
authority to eliminate those collective bargaining rights. He only
needs to claim that continued union rights would interfere with
homeland security. Federal workers will also have no opportunity to
meaningfully participate in creating the personnel system for the new
Department. Moreover, this bill does not include any Davis-Bacon
protections, despite longstanding Federal policy that workers should be
paid prevailing wages on Federal construction projects. This bill
displays a contempt for the Federal workers who serve with dedication
every day to keep our Nation Safe.
Denying Federal workers fundamental rights will also undermine our
Nation's homeland security at a time when we can ill afford it. Among
the many lessons we have learned since September 11 about lapses in
intelligence efforts connected with those events is that Federal
workers need protection to be able to speak out when they believe our
Nation's security is at risk. Without the protections afforded by a
union, Federal workers will be far less likely to speak out and protect
the public for fear of unjust retaliation.
The Republican bill's fundamental flaws were compounded to by the
last-minute addition of numerous special-interest provisions. These
provisions include the creation of new procedural barriers for the
issuance of emergency security rules deemed essential to protect
travelers by the Transportation Security Agency; an earmark for a new
homeland security research center program at Texas A&M; and an
exemption from the open-meetings requirement of the Federal Advisory
Committee Act. The bill gives broad liability protection to
manufacturers of ``anti-terrorism technology'' for claims arising from
acts of terrorism. This provision will reduce the incentive of industry
to produce effective antiterrorism products and limit the ability of
victims to recover if future terrorist acts occur. It also shields from
liability pharmaceutical companies that produce vaccine additives such
as Thimerosal--the subject of pending litigation initiated by parents
of autistic children. This provision has nothing to do with
bioterrorism preparedness or homeland security--and everything to do
with rewarding a large contributor to the Republican Party.
While I agree with my Republican colleagues that we need to
reorganize the Government in responses to the challenges that we now
face, I cannot support the deeply flawed bill now before the Senate. In
too many aspects, it misses the opportunity for real reform and is
likely to undermine, not strengthen, the security of our homeland.
Mr. WARNER. Madam President, I rise today to urge my colleagues to
reject the pending Lieberman amendment to the homeland security bill.
This amendment will prevent the President from gaining the authorities
he needs to effectively deal with the very real and growing threat to
our homeland. We should act, and act quickly. to give the President
this authority.
The current amendment would keep the President from addressing a key
issue in providing protection to our homeland, that is, the issue of
liability risk which must be resolved if the private sector is to
actively provide innovative homeland defense technologies and
solutions. Some form of indemnification or limitation of lability has
been a part of U.S., war efforts since World War II, as evidence by
congressional passage of the War Power Act of 1941 2 weeks after Pearl
Harbor, and, since 1958, the use of the National Defense Contracts Act,
or Public Law 85-804, to indemnify contracts issued by the Department
of Defense and other national security agencies.
To address the current terrorist threat, I have worked on the
liability issue with the High Technology Task Force under the
leadership of Senators Allen and Bennett to fashion various solutions
to enable America to access the best private sector products and
technologies to defend our homeland. This is particularly important to
those innovative small businesses who do not have the capital to
shoulder significant liability risk.
The Lieberman amendment would nullify the compromise recently worked
out with the House to limit this liability risk through limited tort
reform. The Lieberman amendment would not provide any alternative to
address the underlying problem. If this amendment passes what would be
the incentives for This amendment is contractors to provide innovative
solutions to our homeland security? For example, contractors will not
sell chemical/biological detectors already available to DOD to other
Federal agencies and State and local authorities because of the
liability risk. Some of our Nation's top defense contractors will not
sell these products because they are afraid to risk the future of their
company on a lawsuit. There is an urgent need for authority to address
this situation.
While my earlier proposal on indemnification, which is another
approach to addressing liability risk, is not included in the current
bill, I believe that the compromise language will go a long way to
addressing the problem. If it appears that additional authorities are
necessary to complement the language in this bill, I pledge to work in

[[Page S11420]]

the coming Congress to provide any necessary authority that the Present
needs to ensure that innovative homeland defense technologies and
solutions are available to the Federal State and local governments, as
well as to the private sector.
I would also like to remark on the importance of Section 882 in the
homeland security legislation to create an Office for National Capital
Region Coordination within the new Department. This office will enable
the Washington metropolitan region to prevent and respond to future
terrorist attacks by coordinating the efforts of the Federal Government
with state, local and regional authorities.
The September 11 attacks underscored the unique challenges the
National Capital Region faces. As the seat of our Nation's Government,
the location of many symbolic structures, the venue for many public
events attended by large numbers of people, a key tourism destination
point and home to thousands of Federal workers and lawmakers, it has
been and may continue to be a prime location for potential future
terrorist attacks.
The Washington metropolitan region needs a central Federal point of
coordination for the many entities in the region which must deal with
the Federal Government on issues of security. These authorities include
the Federal Government, Maryland, Virginia and the District of
Columbia, the Metropolitan Washington Council of Governments, the
Washington Metropolitan Area Transit Authority, the Metropolitan
Washington Airports Authority, the Military District of Washington, the
judicial branch, the business community and the U.S. Congress. In no
other area of the country must important decisionmaking and
coordination occur between an independent city, two States, seventeen
distinct local and regional authorities, including more than a dozen
local police and Federal protective forces, and numerous Federal
agencies.
A central Federal point of contact compliments the work of the
Metropolitan Washington Council of Governments, COG, which established
a comprehensive all-sector task force to improve communication and
coordination when an incident of regional impact occurs. Currently,
several Federal agencies have been involved in the task force,
including the Office of Homeland Security, FEMA, the Office of
Personnel Management, the Army Corps of Engineers, the Military
District of Washington, the Department of Health and Human Services,
the U.S. Public Health Service, and the Centers for Disease Control.
Without a central Federal point of contact, it has been difficult, if
not impossible, for effective coordination to occur among the region
and these many entities.

For example, the Continuity of Operations Plans for several federal
agencies are instructing employees to use Metrorail and Metrobus
service in the event of an emergency. There is not a central Federal
contact, however, for the Washington Metropolitan Area Transit
Authority, WMATA, to work with to ensure that the Federal Government's
needs are met and Federal employees are fully protected.
This new office within the Department of Homeland Security will
resolve this problem by providing a much needed central Federal point
of coordination. It will give all entities in the region a one-stop
shop for dealing with the Federal Government on security issues,
including plans and preparedness activities, including COG, WMATA, the
Greater Washington Board of Trade and the Potomac Electric Power
Company, PEPCO, whose statements have appeared in previous versions of
the Congressional Record.
On behalf on the region's 5 million residents, I commend the House
and Senate for recognizing the unique needs of our nation's capital in
preventing and responding to terrorism by supporting creation of the
Office for National Capital Region Coordination.
Passage of legislation to create a new Department of Homeland
Security is crucial to our Nation's ability to respond to and prevent
possible future terrorist attacks.
Mr. LEAHY. Madam President, the idea of coordinating homeland
security functions in a cabinet-level department is a constructive one
and a sounds one. In large part it originated in this body with
legislation offered by Senator Lieberman and Senator Specter, who
deserve great credit for their work. President Bush, after initially
opposing this idea, also deserves credit for coming to understand its
value and for reversing his administration's resistance to it.
In the several months that the Congress has spent in writing and
debating this complex bill, the issue has not been whether such a
department should be created, but how it should be created. The
Judiciary Committee, which I chair, has played a constructive role in
examining these issues in our hearings and in providing guidance in the
writing of this bill, and I have supported and helped to advance the
key objectives envisioned for this new department. The fact that we are
on the verge of enacting a charter for the new department is good for
the Nation and our efforts to defend the American people against the
threats of terrorism. Many of the ``hows'' that have found their way
into this bill, and the process by which that has happened, are a
needless blot on this charter. As we act to approve this charter, we
should also feel obligated to remedy many of these ill-advised and ill-
considered provisions in succeeding congressional sessions, through
corrective steps and through close oversight.
As they come to understand some of the imprudent extraneous additions
to this bill, many Americans will feel that their trust and goodwill
have been abused, and I share their disappointment about several
elements of this version of the bill that has been placed, without due
consideration, before the Senate. This deal, negotiated behind closed
doors by a few Republican leaders in the House and Senate and the White
House, has been presented to us as a done deal. It includes several
blatant flaws that should at the very least be debated. That is why I
could not vote for cloture to end debate on a bill almost 500-pages
long that was presented to us for the first time only five days ago, on
November 14.
The bill undertakes a significant restructuring of the Federal
Government by relocating in the new Department of Homeland Security
several agencies, including the Immigration and Naturalization Service,
the U.S. Secret Service, the Federal Emergency Management Agency, the
Office of Domestic Preparedness, the Transportation Security
Administration, the U.S. Customs Service, and the Coast Guard. In
addition, many functions of the Bureau of Alcohol, Tobacco, Firearms
and Explosives would be transferred to the Department of Justice.
Overall I support the President's conclusion that several government
functions should be reorganized to improve our effectiveness in
combating terrorism and preserving our national security, although he
has been responsible for leading all of these agencies and fulfilling
their responsibilities since assuming the Presidency in January 2001,
and the President himself opposed significant reorganization until
recently. Homeland security functions are now dispersed among more than
100 different governmental organizations. Testimony at a June 26, 2002,
Judiciary Committee hearing illuminated the problem of such a confusing
patchwork of agencies with none having homeland security as its sole or
even primary mission. I had thought that the Department of Justice and
FBI were the lead agencies responsible for the country's security in
2001 and 2002, but I understand why the President has come to realize
that the lack of a single agency responsible for homeland security
increases both the potential for mistakes and opportunities for
terrorists to exploit our vulnerabilities.

The bill will bring under one cabinet level officer agencies and
departments that share overlapping missions for protecting our border,
our financial and transportation infrastructure and responding to
crises. Having these agencies under a single cabinet level officer will
help coordinate their efforts and focus their mission with a single
line of authority to get the job done.
This is something that I support.
The bill also encourages information sharing. Our best defense
against terrorism is improved communication and coordination among
local, State, and Federal authorities; and between the U.S. and its
allies. Through these efforts, led by the Federal government and with
the active assistance of many

[[Page S11421]]

others in other levels of government and in the private sector, we can
enhance our prevention efforts, improve our response mechanisms, and at
the same time ensure that funds allotted for protection against
terrorism are being used most effectively.
The recent sniper rampage in the Washington, DC area demonstrated the
dire need for such coordination among Federal, State and local law
enforcement agencies. Fortunately, we were able to see the productive
results of effective information sharing and coordination with the
arrests of the two alleged snipers on October 31.
While we all support increased sharing of relevant information with
the new Department of Homeland Security by and among other Federal,
State and local agencies, we must be careful that information sharing
does not turn into information dumping. We want our law enforcement
officials to have the information they need to do their jobs
effectively and efficiently, with communications equipment that allows
different agencies to talk to each other and with the appropriate
training and tools so that multiple agencies are able to coordinate
their responses during emergencies. We know that large amounts of
information were collected, but never read or analyzed, before
September 11, and we know that translators and resources are what we
need to help make the already-gathered information useful.
There is no dispute that information sharing is critical, but we have
to make sure we do not go overboard. Information dumping is harmful to
our national security if the information is not accurate, complete, or
relevant, or if it is dumped in such a bulk fashion that end-users are
unable to determine its reliability. The legislation before us provides
very broad authority for information collection from and sharing with
not just Federal, State and local law enforcement authorities, but also
other government agencies, foreign government agencies and the private
sector. Highly sensitive grand jury information, criminal justice, and
electronic, wire, and oral interception information is authorized to be
shared to not just across this country but also around the world.
Without clear guidance, this sweeping new authority can be a recipe for
mischief. The Congress now will have an imperative to monitor
vigilantly and responsibly the implementation of this new authority to
ensure that the risks to the privacy of the American people and the
potential for abuse do not become a reality.

This bill contains several constructive provisions, including
establishment in the new Department of a Privacy Office and an Office
for Civil Rights and Civil Liberties. The bill also includes the
Sessions-Leahy bill, S. 3073, and whistleblower protections that the
administration's original proposal rejected. In addition, as I will
discuss in more detail in these remarks, the bill includes a
prohibition on both the TIPS Program and a national identification
system or card.
I am pleased the bill, in section 880, forbids the creation of
Operation TIPS, a proposed citizen reporting program theoretically
designed to prevent terrorism. The ill-designed program threatened to
turn neighbors into spies and to discredit valuable neighborhood watch
programs. When I questioned the Attorney General about the program
earlier this year, I found his answers to be incomplete and far from
reassuring. As such, I was prepared to offer an amendment in the Senate
to bar Operation TIPS, and I welcome the House's strong opposition to
the program that has made my amendment unnecessary.
Under the plan originally announced by the Justice Department,
Operation TIPS would have enlisted millions of Americans as volunteers
who would report their suspicions about their neighbors and customers
to the government. This plan was criticized by Republicans and
Democrats alike, and Justice Department officials then said they
planned to make the program smaller than originally anticipated. But
the Department never made clear how the program would work, what it
would cost, or how the privacy interests of American citizens would be
protected.
Indeed, the administration offered a constantly shifting set of
explanations to Congress and the public about how Operation TIPS would
work, leaving Congress unable even to evaluate a program that could
easily lead to the invasion of the privacy of our fellow Americans.
Even the Operations TIPS website offered differing explanations of how
the program would work, depending on what day a concerned user accessed
it. For example, before July 25, the web site said that Operation TIPS
``involving 1 million workers in the pilot stage, will be a national
reporting system that allows these workers, whose routines make them
well-positioned to recognize unusual events, to report suspicious
activity.'' By contrast, the July 25 version declared that ``the
program will involve the millions of American workers who, in the daily
course of their work, are in a unique position to see potentially
unusual or suspicious activity in public places.'' It was unclear
whether these changes reflected actual changes in the Justice
Department's plans, or whether they were simply cosmetic differences
designed to blunt opposition to the program raised by concerned
citizens, newspaper editorials, and Members of Congress.
The administration originally proposed Operation TIPS as ``a
nationwide program giving millions of American truckers, letter
carriers, train conductors, ship captains, utility employees, and
others a formal way to report suspicious terrorist activity.'' In other
words, the administration would recruit people whose jobs gave them
access to private homes to report on any ``suspicious'' activities they
discovered. Nor would this program start small; the Administration
planned a pilot program that alone would have enlisted 1 million
Americans.

We also never received a full understanding of how the Administration
planned to train Operation TIPS volunteers. The average citizen has
little knowledge of law enforcement methods, or of the sort of
information that is useful to those working to prevent terrorism. Such
a setup could have allowed unscrupulous participants to abuse their new
status to place innocent neighbors under undue scrutiny. The number of
people who would have abused this opportunity is undoubtedly small, but
the damage these relatively few could do would be very real and
potentially devastating. In addition, it was crucial that citizen
volunteers receive training about the permissible use of race and
ethnicity in their evaluation of whether a particular individual's
behavior is suspicious, but the Justice Department seemed not to have
considered the issue.
Even participants acting in good faith may have been prone to report
activity that would not be suspicious to a well-trained professional.
One law enforcement agencies are already operating under heavy burdens,
and I questioned the usefulness of bombarding them with countless tips
from millions of volunteers. As the Washington Post put it in a July
editorial: ``It is easy to imagine how such a program might produce
little or no useful information but would flood law enforcement with
endless suspicions that would divert authorities from more promising
investigative avenues.''
The administration's plan also raised important questions about how
and whether information submitted by TIPS volunteers would be retained.
Many of us were deeply concerned about the creation of a TIPS database
that would retain TIPS reports indefinitely. When he testified before
the Judiciary Committee in July, the Attorney General said that he,
too, was concerned about this. He told us that he had been given
assurances that there would be no database, but he could not tell us
who had given him those assurances. Many months later, the
administration's plans on this issue still are unclear. We simply
cannot allow a program that will use databases to store unsubstantiated
allegations against American citizens to move forward.
Opposition to Operation TIPS has been widespread. Representative
Armey, the House Majority Leader, has led the fight against it in the
House. The Postal Service refused to participate. The Boston Globe
called it a scheme Joseph Stalin would have loved. In an editorial, The
New York Times said: ``If TIPS is ever put into effect, the first
people who should be turned in as a threat to our way of life are the
Justice Department officials who thought up this most un-American of
programs.'' The Las Vegas Sun said that ``Operation TIPS has the
potential

[[Page S11422]]

of becoming a monster.'' The Washington Post said that the
Administration ``owes a fuller explanation before launch day.''
In evaluating TIPS, we need to remember our past experience with
enlisting citizen informants on such a grand scale. During World War I,
the Department of Justice established the American Protective League,
APL, which enrolled 250,000 citizens in at least 600 cities and towns
to report suspicious conduct and investigate fellow citizens. For
example, the League spied on workers and unions in thousands of
industrial plants with defense contracts and organized raids on German-
language newspapers. Members wore badges and carried ID cards that
showed their connection to the Justice Department and were even used to
make arrests. Members of the League used such methods as tar and
feathers, beatings, and forcing those who were suspected of disloyalty
to kiss the flag. The New York Bar Association issued a report after
the war stating of the APL: ``No other one cause contributed so much to
the oppression of innocent men as the systematic and indiscriminate
agitation against what was claimed to be an all-pervasive system of
German espionage.'' No one wants to relive those dark episodes or
anything close to them.

I am pleased that we have achieved bicameral and bipartisan agreement
that Operation TIPS goes too far, infringing on the liberties of the
American people while promising little benefit for law enforcement
efforts. If the administration comes to Congress with a limited,
common-sense proposal that respects liberties, Congress will likely
support it. But Congress cannot simply write a blank check for such a
troubled program.
I am also pleased that the bill, in section 1514, states clearly that
nothing in the legislation shall be construed to authorize the
development of a national identification system or card. Given the
other provisions in the bill that pose a risk to our privacy, this at
least is a line in the sand which I fully support.
The House-passed bill also includes, in section 601, a provision that
Senator Sessions and I introduced last month as S.3073. This provision
will facilitate private charitable giving for servicemen and other
Federal employees who are killed in the line of duty while engaged in
the fight against international terrorism. Under current law,
beneficiaries of members of the U.S. Armed Forces get paid only $6,000
in death benefits from the government, over any insurance that they may
have purchased. Moreover, these individuals may not be eligible for
payments from any existing victims' compensation program or charitable
organization. The Session-Leahy provision will provide much-needed
support for the families of those who have made the ultimate sacrifice
for their country. It encourages the establishment of charitable trusts
for the benefit of surviving spouses and dependents of military, CIA,
FBI, and other Federal Government employees who are killed in
operations or activities to curb international terrorism. This
provision also authorizes Federal officials to contact qualifying
trusts on behalf of surviving spouses and dependents, pursuant to
regulations to be prescribed by the Secretary of Defense. This will
help to inform survivors about benefits and to ensure that those who
are eligible have the opportunity to access the money. It will also
spare grieving widows the embarrassment of having to go to a charity
and ask for money. Finally, for the avoidance of doubt, this provision
makes clear that Federal officeholders and candidates may help raise
funds for qualifying trusts without running afoul of federal campaign
finance laws.
I am also pleased that, unlike the President's original, the current
bill would ensure that employees of the new Department of Homeland
Security will have all the same whistleblower protections as employees
in the rest of the Federal Government. As we saw during the many
FBI oversight hearings that the Judiciary Committee has held over the
last 15 months, strong whistleblower protection is an important
homeland security measure in itself.

Indeed, it was whistleblower revelations that helped lead to the
creation of this Department. The President was vehemently opposed to
creating the new Department of Homeland Security for 9 months after the
September 11 attacks. Then, just minutes before FBI whistleblower
Coleen Rowley came before the Judiciary Committee in a nationally
televised appearance to expose potential shortcomings in the FBI's
handling of the Zacarias Moussaoui case before 9/11, the White House
announced that it had changed its position and that the creation of a
new cabinet-level Department of Homeland Security was vital. Of course,
that made it all the more ironic that the President's original proposal
did not assure whistleblower protections in the new Department.
In any event, although the new Department has the same legal
protections as those that apply in the rest of the government, the
protections will mean nothing without the vigorous enforcement of these
laws by the administration. The leadership of the new Department and
the Office of Special Counsel must work to encourage a culture that
does not punish whistleblowers, and the Congress--including the
Judiciary Committee--must continue to vigorously oversee the new and
other administrative departments to make sure that this happens.
While I am glad that the many employees of the new Department will
have the same substantive and procedural whistleblower protections as
other government employees, I wish that we could have done more.
Unfortunately, a Federal court with a monopoly on whistleblower cases
that is hostile to such claims has improperly and narrowly interpreted
the provisions of the Whistleblower Protection Act. Senators Grassley,
Levin, Akaka and I had proposed a bipartisan amendment to this measure
that would have strengthened whistleblower protections in order to
protect national security. The amendment was similar to S. 995, of
which I am a cosponsor, and our amendment would have corrected some of
the anomalies in the current law. It is unfortunate for the success of
the Department and for the security of the American people that the
amendment was not part of the final measure, and I hope that we can
work to pass S. 995 in the 108th Congress.
The administration was slow to accept the idea for a cabinet-level
department to coordinate homeland security, but experience in the
months after the September 11 attacks helped in the evolution of the
Administration's position. Soon after the President invited Governor
Ridge to serve as the Director of an Office of Homeland Security within
the White House, I invited Governor Ridge in October, 2001, to testify
before the Judiciary Committee about how he would improve the
coordination of law enforcement and intelligence efforts and about his
views on the role of the National Guard in carrying out the homeland
security mission, but he declined our invitation at that time. The
administration would not allow Director Ridge to testify before
Congress.
Without Governor Ridge's input, the Judiciary Committee continued
oversight work that had begun in the summer of 2001, before the
terrorist attacks, on improving the effectiveness of the U.S.
Department of Justice, the lead Federal agency with responsibility for
domestic security. This task has involved oversight hearings with the
Attorney General and with officials of the Federal Bureau of
Investigation and the Immigration and Naturalization Service. In the
weeks immediately after the attacks, the committee turned its attention
to hearings on legislative proposals to enhance the legal tools
available to detect, investigate and prosecute those who threaten
Americans both here and abroad. Committee members worked in partnership
with the White House and the House to craft the new anti-terrorism law,
the USA PATRIOT Act, which was enacted on October 26, 2001.

We were prepared to include in the new anti-terrorism law provisions
creating a new cabinet-level officer heading a new Department of
Homeland Security, but we did not do so at the request of the White
House. Indeed, from September, 2001, until June, 2002, the
administration was steadfastly opposed to the creation of a cabinet-
level department to protect homeland security. Governor Ridge said in
an interview with National Journal reporters in May, 2001, that if
Congress put a bill on the President's desk to make his position
statutory, he would, ``probably

[[Page S11423]]

recommend that he veto it.'' That same month, White House spokesman Ari
Fleischer also objected to a new department, commenting that, ``You
still will have agencies within the Federal government that have to be
coordinated. So the answer is: Creating a Cabinet post doesn't solve
anything.''
In one respect, the White House was correct: Simply moving agencies
around among departments does not address the problems inside agencies
like the FBI or the INS--problems like outdated computers, hostility to
employees who report problems, lapses in intelligence sharing, and lack
of translation and analytical capabilities, along with what many have
termed ``cultural problems.'' The Judiciary Committee and its
subcommittees have been focusing on identifying those problems and
finding constructive solutions to fix them. We have worked hard to be
bipartisan and even nonpartisan in this regard. To that end, the
Committee unanimously reported the Leahy-Grassley FBI Reform Act, S.
1974, to improve the FBI, especially at this time when the country
needs the FBI to be as effective as it can be in the war against
terrorism. Unfortunately, that bill has been blocked on the Senate
floor since it was reported by the Judiciary Committee in April, 2002,
by an anonymous Republican hold.
The White House's about-face on June 6, 2002, announced just minutes
before the Judiciary Committee's oversight hearing with FBI Special
Agent Coleen Rowley, telegraphed the President's new support for the
formation of a new homeland Security Department along the lines that
Senator Lieberman and Senator Specter had long suggested.
Two weeks later, on June 18, 2002, Governor Ridge transmitted a
legislative proposal to create a new homeland security department. It
should be apparent that knitting together a new agency will not by
itself fix existing problems. In writing the charter for this new
department, we must be careful not to generate new management problems
and accountability issues. Yet the administration's early proposal
would have exempted the new department from many legal requirements
that apply to other agencies. The Freedom of Information Act would not
apply, nor would the conflicts of interest and accountability rules for
agency advisors. The new department head would have the power to
suspend the Whistleblower Protection Act and the normal procurement
rules and to intervene in Inspector General investigations. In these
respects, the administration asked us to put this new department above
the law and outside the checks and balances these laws are there to
ensure.

Exempting the new department from laws that ensure accountability to
the Congress and to the American people makes for soggy ground and a
tenuous start--not the sure footing we all want for the success and
endurance of this endeavor.
We all wanted to work with the President to meet his ambitious
timetable for setting up the new department. Senate Democrats worked
diligently to craft responsible legislation that would establish a new
department but would also make sure that it was not outside the laws.
We all knew that one sure way to slow up the legislation would be to
use the new department as the excuse to undermine or repeal laws not
liked by partisan interests, or to stick unrelated political items in
the bill under the heading of ``management flexibility.''
Unfortunately, the Republican leadership and the White House have been
unable to resist that temptation, even as they urge prompt passage of a
bill unveiled for the first time only 5 days ago.
This bill has its problems. As I will discuss in more detail in the
balance of my remarks, this legislation has five significant problems.
It would: (1) undermine Federal and State sunshine laws permitting the
American people to know what their government is doing, (2) threaten
privacy rights, (3) provide sweeping liability protections for
companies at the expense of consumers, (4) weaken rather than fix our
immigration enforcement problems, and (5) under the guise of
``management flexibility,'' it would authorize political cronyism
rather than professionalism within the new department. These problems
are unfortunate and entirely unnecessary to the overall objective of
establishing a new department of homeland security. Republican leaders
and the White House have forced on the Senate a process under which
these problem areas cannot be substantively and meaningfully addressed,
and that is highly regrettable and a needless blot on this charter.
Though I will support passage of this legislation in order to get the
new department up and running, the flaws in this legislation will
require our attention next year, when I hope to work with the
administration and my colleagues on both sides of the aisle to monitor
implementation of the new law and to craft corrective legislation.
First, the bill guts the FOIA at the expense of our national security
and public health and safety. This bill eliminates a bipartisan Senate
provision that I crafted with Senator Levin and Senator Bennett to
protect the public's right to use the Freedom of Information Act, FOIA,
in order to find out what our Government is doing, while simultaneously
providing security to those in the private sector that records
voluntarily submitted to help protect our critical infrastructures will
not be publicly disclosed. Encouraging cooperation between the private
sector and the government to keep our critical infrastructure systems
safe from terrorist attacks is a goal we all support. But the
appropriate way to meet this goal is a source of great debate--a debate
that has been all but ignored by the Republicans who crafted this
legislation.
The administration itself has flip-flopped on how to best approach
this issue. The administration's original June 18, 2002, legislative
proposal establishing a new department carved out of FOIA exemption, in
section 204, and required non-disclosure of any
``information'' ``voluntarily'' provided to the new Department of
Homeland Security by ``non-Federal entities or individuals'' pertaining
to ``infrastructure vulnerabilities or other vulnerabilities to
terrorism'' in the possession of, or that passed through, the new
department. Critical terms, such as ``voluntarily provided,'' were
undefined.

The Judiciary Committee had an opportunity to query Governor Ridge
about the administration's proposal on June 26, 2002, when the
administration reversed its long-standing position and allowed him to
testify in his capacity as the Director of the Transition Planning
Office.
Governor Ridge's testimony at that hearing is instructive. He seemed
to appreciate the concerns expressed by Members about the President's
June 18th proposal and to be willing to work with us in the legislative
process to find common ground. On the FOIA issue, he described the
Administration's goal to craft ``a limited statutory exemption to the
Freedom of Information Act'' to help ``the Department's most important
missions [which] will be to protect our Nation's critical
infrastructure.'' (June 26, 2002 Hearing, Tr., p. 24). Governor Ridge
explained that to accomplish this, the Department must be able to
``collect information, identifying key assets and components of that
infrastructure, evaluate vulnerabilities, and match threat assessments
against those vulnerabilities.'' (Id., at p. 23).
I do not understand why some have insisted that FOIA and our national
security are inconsistent. The FOIA already exempts from disclosure
matters that are classified; trade secret, commercial and financial
information, which is privileged and confidential; various law
enforcement records and information, including confidential source and
informant information; and FBI records pertaining to foreign
intelligence or counterintelligence, or international terrorism. These
already broad exemptions in the FOIA are designed to protect national
security and public safety and to ensure that the private sector can
provide needed information to the government.
Current law already exempts from disclosure any financial or
commercial information provided voluntarily to the government, if it is
of a kind that the provider would not customarily make available to the
public. Critical Mass Energy Project v. NRC, 975 F.2d 871 (D.C. Cir.
1992) (en banc). Such information enjoys even stronger nondisclosure
protections than does material that the government requests. Applying
this exception, Federal regulatory

[[Page S11424]]

agencies are today safeguarding the confidentiality of all kinds of
critical infrastructure information, like nuclear power plant safety
reports (Critical Mass, 975 F.2d at 874), information about product
manufacturing processes land internal security measures (Bowen v. Food
& Drug Admin., 925 F.2d 1225 (9th Cir. 1991), design drawings of
airplane parts (United Technologies Corp. by Pratt & Whitney v. F.A.A.,
102 F.3d 6878 (2d Cir. 1996)), and technical data for video
conferencing software (Gilmore v. Dept. of Energy, 4 F. Supp.2d 912
(N.D. Cal. 1998)).
The head of the FBI National Infrastructure Protection Center, NIPC,
testified more than 5 years ago, in September, 1998, that the ``FOIA
excuse'' used by some in the private sector for failing to share
information with the government was, in essence, baseless. He explained
the broad application of FOIA exemptions to protect from disclosure
information received in the context of a criminal investigation or a
``national security intelligence'' investigation, including information
submitted confidentially or even anonymously. [Sen. Judiciary
Subcommittee On Technology, Terrorism, and Government Information,
Hearing on Critical Infrastructure Protection: Toward a New Policy
Directive, S. HRG. 105-763, March 17 and June 10, 1998, at p. 107]
The FBI also used the confidential business record exemption under
(b)(4) ``to protect sensitive corporate information, and has, on
specific occasions, entered into agreements indicating that it would do
so prospectively with reference to information yet to be received.''
NIPC was developing policies ``to grant owners of information certain
opportunities to assist in the protection of the information (e.g.,
`sanitizing the information themselves') and to be involved in
decisions regarding further dissemination by the NIPC.'' Id. In short,
the former administration witness stated: ``Sharing between the private
sector and the government occasionally is hampered by a perception in
the private sector that the government cannot adequately protect
private sector information from disclosure under the Freedom of
Information Act (FOIA). The NIPC believes that this perception is
flawed in that both investigative and infrastructure protection
information submitted to NIPC are protected from FOIA disclosure under
current law.'' (Id.)
Nevertheless, for more than 5 years, businesses have continued to
seek a broad FOIA exemption that also comes with special legal
protections to limit their civil and criminal liability, and special
immunity from the antitrust laws. The Republicans are largely granting
this business wish-list in the legislation for the new Department of
Homeland Security.
At the Senate Judiciary Committee hearing with Governor Ridge, I
expressed my concern that an overly broad FOIA exemption would
encourage government complicity with private firms to keep secret
information about critical infrastructure vulnerabilities, reduce the
incentive to fix the problems and end up hurting rather than helping
our national security. In the end, more secrecy may undermine rather
than foster security.
Governor Ridge seemed to appreciate these risks, and said he was
``anxious to work with the Chairman and other members of the committee
to assure that the concerns that [had been] raised are properly
addressed.'' Id. at p. 24. He assured us that ``[t]his Administration
is ready to work together with you in partnership to get the job done.
This is our priority, and I believe it is yours as well.'' Id. at p.
25. This turned out to be an empty promise.
Almost before the ink was dry on the administration's earlier June
proposal, on July 10, 2002, the administration proposed to substitute a
much broader FOIA exemption that would (1) exempt from disclosure under
the FOIA critical infrastructure information voluntarily submitted to
the new department that was designated as confidential by the submitter
unless the submitter gave prior written consent, (2) provide limited
civil immunity for use of the information in civil actions against the
company, with the likely result that regulatory actions would be
preceded by litigation by companies that submitted designated
information to the department over whether the regulatory action was
prompted by a confidential disclosure, (3) preempt State sunshine laws
if the designated information is shared with State or local government
agencies, (4) impose criminal penalties of up to one year imprisonment
on Government employees who disclosed the designated information, and
(5) antitrust immunity for companies that joined together with agency
components designated by the President to promote critical
infrastructure security.
Despite the administration's promulgation of two separate proposals
for a new FOIA exemption in as many weeks, in July, Director Ridge's
Office of Homeland Security released The National Strategy for Homeland
Security, which appeared to call for more study of the issue before
legislating. Specifically, this report called upon the Attorney General
to ``convene a panel to propose any legal changes necessary to enable
sharing of essential homeland security information between the
government and the private sector.'' (p. 33)

The need for more study of the administration's proposed new FOIA
exemption was made amply clear by its possible adverse environmental,
public health and safety affects. Keeping secret problems in a variety
of critical infrastructures would simply remove public pressure to fix
the problems. Moreover, several environmental groups pointed out that,
under the administration's proposal, companies could avoid enforcement
action by ``voluntarily'' providing information about environmental
violations to the EPA, which would then be unable to use the
information to hold the company accountable and also would be required
to keep the information confidential. It would bar the government from
disclosing information about spills or other violations without the
written consent of the company that caused the pollution.
I worked on a bipartisan basis with many interested stakeholders from
environmental, civil liberties, human rights, business and government
watchdog groups to craft a compromise FOIA exemption that did not grant
the business sector's wish-list but did provide additional
nondisclosure protections for certain records without jeopardizing the
public health and safety. At the request of Chairman Lieberman for the
Judiciary Committee's views on the new department, I shared my concerns
about the administration's proposed FOIA exemption and then worked with
Members of the Governmental Affairs Committee, in particular Senator
Levin and Senator Bennett, to craft a more narrow and responsible
exemption that accomplishes the Administration's goal of encouraging
private companies to share records of critical infrastructure
vulnerabilities with the new Department of Homeland Security without
providing incentives to ``game'' the system of enforcement of
environmental and other laws designed to protect our nation's public
health and safety. We refined the FOIA exemption in a manner that
satisfied the Administration's stated goal, while limiting the risks of
abuse by private companies or government agencies.
This compromise solution was supported by the administration and
other members of the Committee on Governmental Affairs and was
unanimously adopted by that Committee at the markup of the Homeland
Security Department bill on July 24, 2002. The provision would exempt
from the FOIA certain records pertaining to critical infrastructure
threats and vulnerabilities that are furnished voluntarily to the new
Department and designated by the provider as confidential and not
customarily made available to the public. Notably, the compromise FOIA
exemption made clear that the exemption only covered ``records'' from
the private sector, not all `'information'' provided by the private
sector and thereby avoided the adverse result of government agency-
created and generated documents and databases being put off-limits to
the FOIA simply if private sector ``information'' is incorporated.
Moreover, the compromise FOIA exemption clearly defined what records
may be considered ``furnished voluntarily,'' which did not cover
records used ``to satisfy any legal requirement or obligation to obtain
any grant, permit, benefit (such as agency forbearances, loans, or
reduction or modifications of agency penalties or rulings), or other

[[Page S11425]]

approval from the Government.'' The FOIA compromise exemption further
ensured that portions of records that are not covered by the exemption
would be released pursuant to FOIA requests. This compromise did not
provide any civil liability or antitrust immunity that could be used to
immunize bad actors or frustrate regulatory enforcement enforcement
action, nor did the compromise preempt state or local sunshine laws.
Unfortunately, the new Republican version of this legislation that we
are voting on today jettisoned the bipartisan compromise on the FOIA
exemption, worked out in the Senate with the administration's support,
and replaced it with a big-business wish-list gussied up in security
garb. The Republican FOIA exemption would make off-limits to the FOIA
much broader categories of ``information'' and grant businesses the
legal immunities and liability protections they have sought so
vigorously for over 5 years. This bill goes far beyond what is needed
to achieve the laudable goal of encouraging private sector companies to
help protect our critical infrastructure. Instead, it will tie the
hands of the federal regulators and law enforcement agencies working to
protect the public from imminent threats. It will give a windfall to
companies who fail to follow Federal health and safety standards. Most
disappointingly, it will undermine the goals of openness in government
that the FOIA was designed to achieve. In short, the FOIA exemption in
this bill represents the most severe weakening of the Freedom of
Information Act in its 36-year history.
In the end, the broad secrecy protections provided to critical
infrastructure information in this bill will promote more secrecy which
may undermine rather than foster national security. In addition, the
immunity provisions in the bill will frustrate enforcement of the laws
that protect the public's health and safety.
Let me explain. The Republican FOIA exemption would allow companies
to stamp or designate certain information as ``Critical Infrastructure
Information'' or ``CII'' and then submit this information about their
operations to the government either in writing or orally, and thereby
obtain a blanket shield from FOIA's disclosure mandates as well as
other protections. A Federal agency may not disclose or use
voluntarily-submitted and CII-marked information, except for a limited
``informational purpose,'' such as ``analysis, warning,
interdependency, study, recovery, reconstitution,'' without the
company's consent. Even when using the information to warn the public
about potential threats to critical infrastructure, the bill requires
agencies to take steps to protect from disclosure the source of the CII
information and other ``business sensitive'' information.
The bill contains an unprecedented provision that threatens jail time
and job loss to any Government employee who happens to disclose any
critical infrastructure information that a company has submitted and
wants to keep secret. These penalties for using the CII information in
an unauthorized fashion or for failing to take steps to protect
disclosure of the source of the information are severe and will chill
any release of CII information not just when a FOIA request comes in,
but in all situations, no matter the circumstance. Criminalizing
disclosures--not of classified information or national security related
information, but of information that a company decides it does not want
public--is an effective way to quash discussion and debate over many
aspects of the Government's work. In fact, under this bill, CII
information would be granted more comprehensive protection under
Federal criminal laws than classified information.
This provision has potentially disastrous consequences. If an agency
is given information from an ISP about cyberattack vulnerabilities,
agency employees will have to think twice about sharing that
information with other ISPs for fear that, without the consent of the
ISP to use the information, even a warning might cost their jobs or
risk criminal prosecution.

This provision means that if a Federal regulatory agency needs to
issue a regulation to protect the public from threats of harm, it
cannot rely on any voluntarily submitted information--bringing the
normal regulatory process to a grinding halt. Public health and law
enforcement officials need the flexibility to decide how and when to
warn or prepare the public in the safest, most effective manner. They
should not have to get ``sign off'' from a Fortune 500 company to do
so.
While this legislation risks making it harder for the Government to
protect American families, it will make it much easier for companies to
escape responsibility when they violate the law by giving them
unprecedented immunity from civil and regulatory enforcement actions.
Once a business declares that information about its practices relates
to critical infrastructure and is ``voluntarily'' provided, it can then
prevent the Federal Government from disclosing it not just to the
public, but also to a court in a civil action. This means that an
agency receiving CII-marked submissions showing invasions of employee
or customer privacy, environmental pollution, or government contracting
fraud will be unable to use that information in a civil action to hold
that company accountable. Even if the regulatory agency obtains the
information necessary to bring an enforcement action from an
alternative source, the company will be able to tie the government up
in protracted litigation over the source of the information.
For example, if a company submits information that its factory is
leaching arsenic in ground water, that information may not be turned
over to local health authorities to use in any enforcement proceeding
nor turned over to neighbors who were harmed by drinking the water for
use in a civil tort action. Moreover, even if EPA tries to bring an
action to stop the company's wrongdoing, the ``use immunity'' provided
in the Republican bill will tie the agency up in litigation making it
prove where it got the information and whether it is tainted as ``fruit
of the poisonous tree''--i.e., obtained from the company under the
``critical infrastructure program.''
Similarly, if the new Department of Homeland Security receives
information from a bio-medical laboratory about its security
vulnerabilities, and anthrax is released from the lab three weeks
later, the Department will not be able to warn the public promptly
about how to protect itself without consulting with and trying to get
consent of the laboratory in order to avoid the risk of job loss or
criminal prosecution for a non-consensual disclosure. Moreover, if the
laboratory is violating any State, local or Federal regulation in its
handling of the anthrax, the Department will not be able to turn over
to another Federal agency, such as the EPA or the Department of Health
and Human Services, or to any State or local health officials,
information or documents relating to the laboratory's mishandling of
the anthrax for use in any enforcement proceedings against the
laboratory, or in any wrongful death action, should the laboratory's
mishandling of the anthrax result in the death of any person. The bill
specifically states that such CII-marked information ``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.'' [H.R. 5710, section 214(a)(1)(C)]
Most businesses are good citizens and take seriously their
obligations to the government and the public, but this ``disclose-and-
immunize'' provision is subject to abuse by those businesses that want
to exploit legal techniques to avoid regulatory guidelines. This bill
lays out the perfect blueprint to avoid legal liability: funnel
damaging information into this voluntary disclosure system and pre-empt
the Government or others harmed by the company's actions from being
able to use it against the company. This is not the kind of two-way
public-private cooperation that our country needs.

The scope of the information that would be covered by the new
Republican FOIA exemption is overly broad and would undermine the
openness in government that FOIA was intended to guarantee. Under this
legislation, information about virtually every important sector of our
economy that today the public has a right to see can shut off from
public view simply by labeling

[[Page S11426]]

it ``critical infrastructure information.'' Today, for example, under
current FOIA standards, courts have required Federal agencies to
disclose (1) pricing information in contract bids so citizens can make
sure the government is wisely spending their taxpayer dollars; (2)
compliance reports that allow constituents to insist that government
contractors comply with federal equal opportunity mandates; and (3)
banks' financial data so the public can ensure that federal agencies
properly approve bank mergers. Without access to this kind of
information, it will be harder for the public to hold its Government
accountable. Under this bill, all of this information may be marked CII
information and kept out of public view.
The Republican FOIA exemption goes so far in exempting such large
amount of material from FOIA's disclosure requirements that it
undermines Government openness without making any real gains in safety
for families in Vermont and across America. We do not keep America
safer by chilling Federal officials from warning the public about
threats to their health and safety. We do not ensure our nation's
security by refusing to tell the American people whether or not their
federal agencies are doing their jobs or their Government is spending
their hard earned tax dollars wisely. We do not encourage real two-way
cooperation by giving companies protection from civil liability when
they break the law. We do not respect the spirit of our democracy when
we cloak in secrecy the workings of our Government from the public we
are elected to serve.
Notably, another part of the bill, section 892, would further
undermine Government sunshine laws by authorizing the President to
prescribe and implement procedures requiring Federal agencies to
``identify and safeguard homeland security information that is
sensitive but unclassified'' The precise type of information that would
be covered by this new category of ``sensitive'' information that is
not classified but subject to carte blanche executive authority to keep
secret is not defined and no guidance is provided in the Republican
bill as to how far the President may go.
As the Rutland Herald so aptly put it in an editorial on November 16,
the Republicans ``are moving to cloak the Federal Government in an
unprecedented regime of secrecy.'' The argument over the scope of the
FOIA and unilateral executive power to shield matters from public
scrutiny goes to the heart of our fundamental right to be an educated
electorate aware of what our government is doing. The Rutland Herald
got it right in explaining. ``The battle was not over the right of the
government to hold sensitive, classified information secret. The
government has that right. Rather, the battle was over whether the
government would be required to release anything it sought to
withhold.''
Second, extraneous provisions added by the House also pose
significant privacy risks. As I noted before, increased information
sharing is necessary but also poses privacy risks if the government is
not properly focused on the information necessary to collect, the
people appropriate to target for surveillance and the necessary
controls to ensure that dissemination is confined to those with a need
to know.
Recent press reports have warned that this bill will turn it into a
``supersnoop's dream'' because it will allow creation of a huge
centralized grand database containing a dossier or profile of private
transactions and communications that each American has had within the
private sector and with the government. Indeed, in section 201, the
bill authorizes a new Directorate for Information Analysis and
Infrastructure Protection to collect and integrate information from
government and private sector entities and to ``establish and utilize .
. . data-mining and other advanced analytical tools.'' In addition, in
section 307, the bill authorizes $500,000,000 next year to be spent by
a new Homeland Security Advanced Research Projects Agency, HSARPA, to
make grants to develop new surveillance and other technologies for use
in detecting, preventing and responding to homeland security threats.
We do not want the Federal Government to become the proverbial ``big
brother'' while every local police and sheriff's office or foreign law
enforcement agency to become ``little brothers.'' How much information
should be collected, on what activities and on whom, and then shared
under what circumstances, are all important questions that should be
answered with clear guidelines understandable by all Americans and
monitored by Congress, in its oversight role, and by court review to
curb abuses.
Other provisions added in haste to the Republican House-passed bill
raise serious concerns about privacy protections for the sensitive
electronic communications of law-abiding Americans. In particular, the
so-called ``emergency disclosure'' amendment in section 225(d) would
greatly expand the ability of Internet service providers to reveal
private communications to Government agencies without any judicial
authority or any evidence of wrongdoing.
As Americans move their lives online, the privacy of their sensitive
e-mails, instant messages, and web traffic is of growing concern.
Current law protects the privacy of electronic communications by
prohibiting service providers from revealing the contents of those
communications to anyone without proper lawful orders. Emergency
disclosure provisions exist in the current law based on the reasonable
premise that ISPs who encounter an imminent threat of death or serious
injury should be able to reveal communications to law enforcement
agencies on an emergency basis, even without judicial oversight. We
just recently expanded that emergency exception a year ago in the USA
PATRIOT Act to provide even more flexibility for service providers.
In practice, however, the emergency disclosure authority is being
used in a different way. Reports in the press and from the field
indicate that ISP's university and libraries are approached by
Government agents and asked to disclose communications ``voluntarily''
for ongoing investigations. Providers are then faced with a terrible
choice--turn over the private communications of their customers without
any court order, or say ``no'' to a government request. Of course, many
comply with the requests. Small providers have few legal resources to
challenge such requests. The agents who are making the requests may be
the same agents to whom the providers will have to turn for help in the
event of hacking attacks on other problems. So without proper
restrictions, such ``voluntary disclosure'' provisions risk becoming a
major exception to the law. Section 225(d) takes this exception even
further and turns it into a loophole big enough to drive a truck
through. It would allow literally thousands of local, State and Federal
employees to seek private e-mails, instant messages, and other
sensitive communications without any judicial orders ad even a
subpoena. ISPs could turn over those communications based on vague
concerns of future injury to someone, even if those concerns are
totally unreasonable.

Section 225(d) makes three important changes to the already very
generous authorities for these extraordinary disclosures, which
Congress gave to law enforcement in the USA PATRIOT Act just one year
ago. First, it would remove the requirement that there be ``imminent''
danger of injury or death. Instead it would allow these extraordinary
disclosures when there is some danger, which might be far in the future
and far more hypothetical. As the Attorney General and the President
have warned us consistently over the last year, the entire country
faces some risk of future attack. Under this new language, there will
always be a rationale for using the so-called ``emergency'' disclosure
provision.
Second, section 225(d) would remove even the low hurdle that there be
a ``reasonable belief'' in danger on the part of the ISP. Instead, this
new provision would allow these sensitive disclosures if there is any
good faith belief--even if totally unreasonable--of danger. Vague,
incoherent, or even obviously fictitious threats of future danger could
all form the basis for disclosing our most private electronic
communications under this new provision of law.
Finally, section 225(d) would allow disclosure of sensitive
communications to any local, State or Federal Government entity, not
just law enforcement agents. That could include literally hundreds of
thousands of Government employees. The potential for abuse is

[[Page S11427]]

enormous. More importantly, in cases of real threats of death or
serious injury, it is law enforcement agencies--trained to deal with
such situations and cognizant of legal strictures--who should be the
first contact point for concerned citizens.
As a result of Section 225(d), many more disclosures of sensitive
communications would be permitted without any court oversight.
Moreover, these disclosures would happen without any notice to people--
even after the fact--that their communications have been revealed. It
would allow these disclosures to be requested by potentially thousands
of government employees, ranging from cotton inspectors to dogcatchers
to housing department administrators.
The public's most sensitive e-mails, web transactions, and instant
messages sent to love ones, business associates, doctors and lawyers,
and friends deserve the highest level of privacy we can provide. The
provisions of section 225(d) make a mockery of our privacy laws, and
the carefully crafted exceptions we have created in them, by allowing
disclosure of our most private communications to thousands of
Government officials based on the flimsiest of excuses. These
provisions were never approved by any committee in the Senate, are not
in the interests of the American people, and should not now be finding
there way into the law of the land.
Third, the bill provides liability protections for companies at the
expense of consumers. I am disappointed that the measure also contains
sweeping liability protection for corporate makers of vaccines and any
other products deemed to be ``anti-terrorism technology'' by the
Secretary of Homeland Security. This unprecedented executive authority
to unilaterally immunize corporations from accountability for their
products is irresponsible and endangers the consumers and our military
service men and women.
These provisions, for example, would apply to negligence, gross
negligence and even willful misconduct in producing vaccines, gas
masks, airport screening machines and any other ``anti-terrorism
technology'' used by the general public and our service men and women.
In addition, the bill would completely eliminate punitive damages
against the maker of such a defective product. Without the threat of
punitive damages, callous corporations can decide it is more cost-
effective to continue cutting corners despite the risk to American
lives. This would let private parties avoid accountability in cases of
wanton, willful, reckless, or malicious conduct.
There is no need to enact these special legal protections and take
away the rights of victims of defective products. At a time when the
American people are looking for Congress to take measured actions to
protect them from acts of terror, these ``tort reform'' proposals are
unprecedented, inappropriate, and irresponsible. At the very moment
that the President is calling on all Americans to be especially
vigilant, this legislation lets special interests avoid their
responsibility of vigilance under existing law.
I am disappointed that some may be taking advantage of the situation
to push ``tort reform'' proposals that have been rejected by Congress
for years. This smacks of political opportunism. I strongly oppose
rewriting the tort law of each of the 50 States for the benefit of
private industry and at the expense of consumers and our service men
and women, and their families.
Further, I am saddened that this so-called compromise provides
retroactive liability protection for some private airport security
firms involved in the September 11th terrorist attacks. Last year,
Congress explicitly excluded private airport security firms from the
liability limits for airlines in the Aviation and Transportation
Security Act because we did not know if any airport screening firm may
have contributed to the September 11th attacks through willful
misconduct or negligence. Unfortunately, we still do now know all the
facts regarding the 9/11 attacks because the Bush Administration has
opposed Congressional oversight and an independent commission to
investigate the attacks.
This special-interest provision in the so-called compromise is a
travesty to the families of the victims of September 11th. Indeed, I
have already been contacted by a family member of a 9/11 victim
outraged by this retroactive liability protection. I share their
outrage.
I also find it particularly galling, that just because ``the White
House wants it,'' this bill includes a provision that balantly puts the
interests of a few corporate pharmaceutical manufacturers before the
interests of thousands of consumers, parents, and children. Sections
714 through 716 give a ``get out of court free card'' to Eli Lilly and
other manufacturers of thimerasol. Let's be clear, this provision has
nothing to do with homeland security. Smallpox and anthrax vaccines do
not use thimerosal. Thimerasol is a mercury-based vaccine preservative
that was used until recently in children's vaccines for everything from
hepatitis B to diphtheria. By making changes to the Vaccine Injury
Compensation Program sought by the pharmaceutical industry, this
provision cuts the legs out from under thousands of parents currently
in court seeking compensation for the alleged harm caused by
thimerosal.
For years, I have been working to remove sources of mercury from our
environment because of the neurological effect of mercury on infants
and children. Although Eli Libby's own documents show that they knew of
the potential risks from mercury-based preservatives in the 1940s, its
use was not stopped until 1999 when pediatricians and the Public Health
Service acted. Instead of looking into why pharmaceutical companies and
the Federal Government failed to act for so long or improving the
current compensation system, the Homeland Security bill takes away the
legal options of parents and gives pharmaceutical companies new
protections from large penalties.
Fourth, the bill weakens immigration enforcement just when we need it
the most. The Republican House-passed bill fails to take important
steps to help fix and restructure our immigration agencies. This
Republican package abandons the close coordination between immigration
enforcement and immigration services that was included in the Lieberman
amendment to the Homeland Security bill. Instead, immigration
enforcement falls under the Undersecretary for Border and
Transportation Policy, while immigration services are relegated to a
bureau that lacks its own undersecretary. Apparently, the
Undersecretary for Border and Transportation Security is expected to be
an expert in immigration enforcement, FEMA, agriculture, and other
issues. Meanwhile, there is no one figure within the Homeland Security
Department who is responsible for immigration policy. Testimony before
the Judiciary Committee showed clearly the numerous links between the
enforcement of our immigration laws and provision of immigration
benefits--it is unfortunate that this bill fails to acknowledge those
links.
Unfortunately, this legislation fails to codify the Executive Office
of Immigration Review appropriately. Instead of defining the functions,
shape, and jurisdiction of the EOIR as the Lieberman amendment did, it
simply says there shall be an EOIR and the Attorney General shall have
complete discretion over it. It is critical that both immigrants and
the Government have a meaningful opportunity to appeal adverse
decisions, and we should have done more through this legislation to
guarantee it.
In addition, I am disappointed that provisions designed to guarantee
decent treatment for unaccompanied minors were not included in the
Republican amendment. Through Senator Feinstein's leadership, the
Lieberman substitute assured that unaccompanied alien minors received
counsel. The Judiciary Committee heard earlier this year from children
who had been mistreated by the immigration system, and we had a real
opportunity to solve that problem through this bill. We have failed to
take advantage of that opportunity.
I will continue to work to ensure that the reorganization of our
immigration service proceeds in as orderly and appropriate a fashion as
possible. I have spoken often about the valuable service provided by
employees of the Immigration and Naturalization Service in Vermont, and
the need to retain their expertise in any reshuffling of the agency's
functions. We will not make

[[Page S11428]]

our nation safer by alienating, underutilizing, or discarding
knowledgeable employees, and I will do what I can to prevent that
outcome.
Finally, the bill undermines the professionalism in favor of the
``management flexibility'' to engage in political cronyism at the new
Department. Although it has already received substantial comment, I
want to add my voice to those who have criticized the administration
for its heavy-handed and wrong-headed approach to the rights of
employees who will come under the new Department. At the same time we
are seeking to motivate the Government workers who will be moved to the
new Department with an enhanced security mission, the administration is
insisting on provisions that threaten the job security for these
hardworking Government employees.
The administration should not use this transition as an excuse to cut
the wages and current workplace security and rights of the brave
employees who have been defending the Nation. That is not the way to
encourage retention or recruitment of the vital human resources on
which we will need to rely.
I represent some of those employees and have firsthand knowledge of
their dedication to our nation and their jobs. Contrary to the
administration's pre-election rhetoric, where disputes over employment
conditions have had potential effects on the public safety, they have
been resolved quickly. I am disappointed that the bill we consider
today contains so few protections for these vital employees, and that
the White House chose to use these valuable public servants in an
election year tactic.
So our vote today will help answer the question of whether a new
Department of Homeland Security will be created--a question that has
never really been at issue or in doubt. Perhaps there are members of
the Senate who oppose creation of this Department, though I am not
aware of such opposition. But many troubling questions remain about the
``hows'' as we move forward to charter this massive new agency. A
process has been imposed on the Senate that prevents addressing them
adequately in the remaining hours of this session. But answering and
resolving these questions, in the interest of the security and privacy
and well-being of the American people, will be an imperative that the
administration and the next Congress must not shirk.

OFFICE OF DOMESTIC PREPAREDNESS

Mr. GREGG. Madam President, one of the Senate's highest priorities,
and one of my own personal priorities, has been ensuring that State and
local first responders are prepared to handle a terrorist attack,
especially one involving weapons of mass destruction. One of the
principal ways I have tried to do this is through the Office of
Domestic preparedness at the Department of Justice. Through the
Appropriations subcommittee that Senator Hollings and I oversee, the
Senate built ODP from a $5 million program into an $800 million program
in just five years. Since 1998, ODP has been the focal point within the
Federal Government for State and local jurisdictions to receive
equipment grants, training, technical assistance, and exercise support
for combating terrorism.
The original legislation creating the Department of Homeland Security
would have combined the preparedness functions of ODP and the response
functions of FEMA into a single Directorate, the Directorate of
emergency Preparedness and Response. The problem with this framework is
that the much larger FEMA would have dominated the new Directorate, and
its priorities and philosophies would have obscured those of ODP. ODP
possesses unique experience and expertise when it comes to preparing
the State and local jurisdictions to handle terrorism. FEMA has very
little experience with this side of the equation: its role has always
been to respond after an event occurs.
FEMA employs something called the ``all-hazards'' approach to
disaster response. Under the all-hazards approach, all disasters are
handled the same way. But we cannot treat terrorism the same way we
treat other disasters. The attack on the World Trade Center provides an
excellent case in point. On September 11, New York City first
responders treated the first explosion as a high-rise fire and set up
their command center in Tower II. Because the responders employed a
generic, all-hazards response, they did not anticipate the second
explosion in Tower II. Our approach to terrorism must be different from
our approach to natural disasters--it must be innovative and adaptive.
It must anticipate a predatory adversary that constantly devises new
ways to get around each new set of measures we take.
There are four key components, or ``pillars'', involved in combating
terrorism: prevention, preparedness, crisis management, and consequence
management. Justice has traditionally been responsible for
preparedness, and FEMA has traditionally been responsible for
consequence management, or disaster response. The Homeland Security
legislation, as originally written, would have lumped these components
together. However, the people who are responsible for responding in the
immediate aftermath of an attack cannot also be responsible for
carrying out sustained training, equipment, and exercise programs.
These are programmatic initiatives that must be executed day in and day
out. FEMA is a response agency. It will not be able to give terrorism
preparedness the time and attention it deserves because it must
constantly respond to disasters around the country.
The amendment I offered to the Homeland Security bill acknowledged
the importance of consolidating the preparedness and response functions
in the new Department of Homeland Security. However, the amendment set
them apart in order to preserve both FEMA's and ODP's areas of
expertise. The amendment created the Office for Domestic Preparedness
under the Directorate of Border and Transportation Security and
transferred terrorism preparedness functions to this new office from
both the Justice Department and FEMA. Specifically, the new Office for
Domestic Preparedness includes Justice's current Office for Domestic
Preparedness and parts of FEMA's Office of National Preparedness. ODP
will be responsible for all of our preparedness activities and FEMA
will continue to have the lead for consequence management. Under this
framework, the preparedness and response functions will be preserved,
yet will be closely coordinated by the Secretary of Homeland Security.
This is the best way to prevent FEMA's and ODP's critical functions
from being blurred within the Department of Homeland Security.
The responsibilities of the new Office for Domestic Preparedness will
be similar to what they are now under the Department of Justice:
coordinating terrorism preparedness at the Federal level; assisting
State and local jurisdictions with their preparedness efforts;
conducting strategic and operational planning; coordinating
communications at all levels of government; managing the preparedness
grants to State and local jurisdictions; and assisting them in the
implementation of the President's National Strategy. This is, in fact,
one of the key reasons why I have pushed for the creation of the Office
for Domestic Preparedness within the new Department. It ensures the
continuity of preparedness assistance for State and local
jurisdictions. The office they have looked to for the last five years
for equipment, training, and exercise assistance will continue to
exist, but under the leadership of the Undersecretary for Border and
Transportation Security.
If not for this amendment, ODP would most likely have been subsumed
by FEMA, and all of the work ODP has accomplished would have been lost.
ODP's successful methodologies for providing assistance to State and
local jurisdictions would have been scrapped in favor of FEMA's
undeveloped and untested approach. An example of one such successful
methodology is the system of accountability ODP established by
requiring States to have a terrorism preparedness strategy before they
could receive Federal funding. The State strategies have allowed ODP to
make informed and strategic decisions about how to allocate funding for
equipment, training, and exercises. FEMA has no such system in place.
By keeping ODP's and FEMA's activities distinct, we preserve the
progress each has made in their respective areas of expertise.
The amendment permits FEMA to concentrate on a mission that it is
uniquely equipped to perform: disaster response. This is extremely
important,

[[Page S11429]]

especially in light of the fact that there is an average of 34 major
disaster declarations per year in the U.S. I know that my coastal State
colleagues were very concerned that FEMA's natural disaster
responsibilities, in particular its mission of responding to
hurricanes, would be eclipsed by its new homeland security
responsibilities. I am certain that this concern is shared by Senators
from States that face the threat of earthquakes, floods, and wildfires.
This provision makes it clear that FEMA is out of the preparedness
business.
This was one of the primary reasons why I felt such an amendment was
necessary. It will help prevent competition between terrorism response
and natural disaster response within the new Department. Under the
original legislation, the Directorate of Emergency Preparedness and
Response would have been pressured on the one hand to focus its
resources and attention on natural disasters, and on the other hand on
combating terrorism. This competition would have weakened our level of
preparedness for either type of disaster. By setting them apart within
the new Department, we have built in a natural balance between these
two critical areas.
I was disappointed to learn that some at FEMA are already busy
planning ways to avoid having to execute the directive. I am told that
FEMA intends, during the next few weeks, to re-designate all of the
preparedness staff at the Office of National Preparedness as ``all-
hazards staff''. By renaming them all-hazards, FEMA could retain its
preparedness functions. These actions come despite the fact that at
least 38 U.S. Senators believe those functions should reside at the
Office for Domestic Preparedness and not at FEMA. These actions come
despite our having negotiated in good faith with the White House. These
actions come despite agreement among the Office of Homeland Security,
the House of Representatives, and the Senate.
On a different note, it has recently come to my attention that the
Office of Management and Budget is considering requiring State and
local jurisdictions to match the Federal preparedness grants. OMB
should not impose this requirement on State and local jurisdictions.
They do not have the fiscal resources to support such a requirement.
The equipment, training, and exercise initiatives that I have here
discussed are part of a comprehensive National preparedness program.
State and local jurisdictions will not be able to achieve the standards
or readiness that are required, especially at this time of increased
threat to our Nation, if they are forced to comply with matching
requirements. In point of fact, State and local governments already
bear most of the burden in protecting our Nation from terrorism. They--
the first responders, who willingly and courageously put themselves in
harm's way--protect the American people. Just after September 11, the
President duly acknowledged how critical first responders are to our
National security. We cannot shortchange them now. We are at war and
the Federal Government must fully support our State and local first
responders.
ODP has provided training to approximately 114,000 first responders
and exercise support to more than 100,000 first responders nationwide.
It has given out nearly $600 million in equipment grants to State and
local jurisdictions since its creation in 1998. It also executed the
largest terrorism exercise in U.S. history, TOPOFF. I have heard
reports that those who participated in the multi-venue TOPOFF were the
only ones truly prepared to handle the challenges presented on
September 11. The amendment acknowledges that we do have an effective
system in place and it preserves what has been accomplished.
The amendment I submitted acknowledges that the Office of Domestic
Preparedness and FEMA both perform critical roles and must work closely
together. I commend the administration for recognizing the need and
working with the Senate to get the job done. I would also like to thank
Senator Lott for his excellent work on this bill, as well as his
counsel Rohit Kumar. Finally, I would like to recognize Dean Kueter,
Jr., of the National Sheriffs Association for his tireless work in
generating grassroots support on this important issue.
Ms. MIKULSKI. Madam President, there is nothing more important than
America's national security. I will vote for the Homeland Security Act
because it organizes our Government to better detect, prevent and
respond to acts of terrorism.
This bill organizes twenty-two very different agencies into a one-
stop-shop for homeland security a single, mission-driven agency whose
primary goal is protection of the homeland. Why is this important?
Because it will improve our ability to detect terrorism before it
occurs, by strengthening immigration systems, better coordination of
intelligence. It will improve our ability to prevent terrorism, through
stronger port security, border security, transportation security. It
will improve our ability to respond to acts of terrorism through the
Federal Emergency Management Agency.
Yet I am disappointed that this legislation has been politicized in
addressing an issue as important as national security. Congress and the
President shouldn't be Democrats or Republicans. We should be the Red,
White, and Blue Party. In recent weeks, I've seen some cynical actions.
I've seen Federal employees treated as if they're the enemy. I've seen
a Vietnam War hero's patriotism questioned. I've seen this
administration claim that the creation of a Department of Homeland
Security was its idea and its priority, though we all know they long
opposed it--just as they opposed the creation of a national commission
to look at what went wrong on September 11. I've seen a package of
special interest goodies forced into a bill for no other reason than
pay-back politics.
Let's consider some of these issues. First, on Federal employees, I
resent that I am being forced to chose between Homeland Security and
protecting the rights of those who guard the homeland--our Federal
employees who have the constitutional right to organize, to have
freedom of assembly, to do collective bargaining. In standing up for
America, why aren't we also standing up for those who are protecting
America? Our brave and gallant Federal employees who are out there
every day on the front line wanting to do their job, whether they are
customs inspectors, border agents or FEMA's emergency workers.
Federal workers stand sentry every day to protect America. When our
firefighters ran up those burning buildings at the World Trade Center,
nobody asked if they were union. They didn't look at the clock or check
their work rules. When our emergency workers from Maryland dashed over
to be part of the mutual aid at the Pentagon, they were mission driven.
They were there because they were union members. They belong to a
union. They belong to a union called the United States of America.
That's the union that they belong to, and that's the union they put
first.
America is in the midst of a war against terrorism. We have a long
way to go. Yet instead of focusing on the war effort, we're waging war
on Federal employees. The administration must use this new flexibility
responsibly and judiciously. It is not a blank check. If anyone takes
undue advantage of this new flexibility, I will lead the charge to
change it. But it is sad and disgraceful that the rights of our Federal
employees were held hostage in an effort to make our Nation secure
against terrorism.
I'm also disappointed with the special interest provisions that were
added to this bill. The late Senator Wellstone added a provision on
companies that move overseas to avoid paying U.S. taxes. His amendment
would have prevented these corporations from being able to contract
with the new Department of Homeland Security. Why does the House of
Representatives insist on helping those companies who make their money
in the U.S. but then turn their backs on the U.S.? What about their
responsibility to the U.S.?
This legislation also provides immunity from liability for
manufacturers of products or technologies that harm Americans. Why did
the House think it's important to protect companies that are grossly
negligent, and how does this improve the security of Americans?
Another special interest provision would provide liability protection
for pharmaceutical companies that are being sued for using vaccine
preservatives that some people believe have

[[Page S11430]]

caused autism. This should be decided by scientists and the courts: not
by Members of the House of Representatives trying to sneak unrelated
provisions into a bill on homeland security. The list of special
interest pay backs goes on and on.
I strongly oppose the provisions of this bill that limit the rights
of Federal employees, as well as the administration's plan to privatize
much of the Federal workforce. I will continue to fight these
proposals. I'm also disappointed that the House Republicans have used
the need for homeland security to sneak so many special interest give
backs into the bill.
Yet despite the serious problems with this bill, I will vote for it
because it will enable our government to better detect, prevent and
respond to terrorism. Nothing the Senate does is more important than
providing security for America. That is why I will vote to create the
Department of Homeland Security--for America's national security.
I'm tired of the cynical manipulation of the legislative process. I'm
tired of the politicization of something as important as Homeland
Security. I hope this is the last time that an issue of national
security is politicized. Let's put these politics and hard feelings
behind us. Let us get our act together, and let's show America we can
govern. Let's show the bullies of the world we're willing to take them
on.
Mr. McCAIN. Madam President, I strongly support the creation of the
Department of Homeland Security. I am a cosponsor of the Gramm-Miller
substitute and the President's proposal, and have consistently voted to
overcome Democratic roadblocks to create a Homeland Security
Department. I want this legislation to be enacted, but the House-passed
bill includes a number of egregious special interest riders that should
not be part of this landmark measure.
If the legislative process had allowed us an opportunity to vote on
many of the provisions Senators Daschle and Lieberman are now seeking
to strike, I believe most of them would have been rejected.
Unfortunately, we now find ourselves in a ``take it or leave it''
situation. This is an artificial and unnecessary construct. The
Homeland Security legislation effectuates the most dramatic
restructuring of the Federal Government in half a century. With the
goal of safeguarding our citizens, it creates a 170,000-person cabinet-
level department that encompasses almost every governmental function
that contributes to protecting Americans against terrorism in the
United States. That the Senate is being told that the House will
effectively kill the entire bill if this body dare remove politically
motivated riders signals to me that the other chamber's priorities have
become grossly confused.
I do not approach this vote lightly, but I must vote my conscience,
just as each of my colleagues must do. I sincerely hope that upon
resolution of the vote, we can move forward expeditiously with the
House to resolve the differences and still send a bill to the President
by the end of the week.
The Daschle-Lieberman amendment would strike seven special interest
provisions that were included in this 484- page bill by the House.
Texas A&M: among them, the amendment proposes to strike a provision
that many believe is designed to provide an earmark for Texas A&M
University. Specifically, the House-passed bill requires the Secretary
to designate a university-based center or centers for homeland
security. However, the bill further stipulates 15 specific criteria to
be used in making this designation, criteria that many suspect are
tailored to describe only one university--Texas A&M. While the
provision allows the Secretary to expand the criteria, it doesn't
permit the Secretary to eliminate or alter the 15 criteria set forth in
the bill.
How many colleges have ``strong affiliations with animal and plant
diagnostic laboratories, expertise in water and wastewater operations,
and demonstrated expertise in port and waterway security,'' not to
mention 12 other requirements?
I have long opposed attempts in Congress to by-pass competitive,
merit-based selection processes. There is absolutely no justification
for attempting to do so in the Homeland Security bill for a function as
important as the one to be fulfilled by the university-based centers.
The Safety Act: the Daschle-Lieberman amendment strikes a provision
in the House-passed bill titled ``The SAFETY Act'', which purports to
provide reasonable liability protections for antiterrorism technologies
that would not be deployed in the absence of these protections.
I believe that real harm has been inflicted on our economy by trial
attorneys' abuse of our tort system. I have seen the unfathomable greed
of certain attorneys who use ``consumer protection'' as an excuse to
extort billions of dollars from corporations, and ultimately, the same
consumers they claim to protect. Outrageous awards that may benefit
only the lawyers have stifled innovation, kept products off the market,
and hurt consumers.
As chairman of the Commerce Committee, I have advanced legislation to
reform products liability litigation, and overseen the enactment of a
law to limit litigation and damages that might have arisen from the Y2K
bug. Despite its potential to kill the bill because of opposition from
trial lawyers, I voted to cap attorneys' fees on the comprehensive
tobacco legislation that I sponsored. I am appalled that the demise of
that bill opened the door for a private settlement under which a
handful of lawyers have received literally billions of dollars, and I
intend to ensure that these fees are closely examined in the Commerce
Committee next year. In addition, I have repeatedly voted for
limitations on damages for medical malpractice.
In short, I appreciate the need for legal reform and have long
supported it. Despite this, I cannot support the ``SAFETY Act'', which
never received a hearing in either chamber, and which was inserted into
the House Homeland Security bill late in that chamber's process when
Members decided that the government indemnification provisions
previously considered would be too costly.
This ill-considered ``SAFETY Act'', which I understand is supported
by defense contractors and others seeking liability protection, does
not provide reasonable limitations on liability. Intentionally or not,
it appears to eliminate all liability in tort claims against Sellers
for the failure of any ``antiterrorism technology.'' Whereas previous
tort reform measures have sought to limit the abuse of our system by
avaricious lawyers, while protecting plaintiffs' rights to obtain a
quick and reasonable award, no such balance is reflected in the
``SAFETY Act.''
While many of my Democratic colleagues object instinctively to
liability limitations such as those in the SAFETY Act, including the
creation of a Federal cause of action, the prohibition on punitive
damages, and the requirement for proportional liability for non-
economic damages, I have supported these concepts in the past, and
continue to support them in this context. What I find objectionable,
however, fatally so, is that the SAFETY Act was never the subject of
any hearing, was never considered by a committee in either chamber,
and, perhaps as a consequence, is to confused in its wording and
concepts as to be almost incomprehensible.
While the need for liability protection for manufacturers and sellers
of antiterrorism technologies may be very real, this is an issue of
significant import that deserves more careful consideration. At a
minimum, the SAFETY Act must be rewritten to ensure that its language
is consistent with what I understand to be its intent. At present, it
is not.
One particularly troublesome provision in the SAFETY Act appears to
transform a common law doctrine known as the ``government contractor's
defense,'' into an absolute defense to immunize the seller of an
antiterrorism technology of all liability. This is a dramatic departure
from current law and one that does not seem to have been well thought-
out.
Currently, the ``government contractor's defense'' provides immunity
from liability when the federal government has issued the
specifications for a product; the product meets those specifications;
and the manufacturer does not have any knowledge of problems with the
product that it does not share.
While I am told that the House advocates of the SAFETY Act did not
intend to provide protections for products whose specifications are not

[[Page S11431]]

issued by the government, or which do not meet these specifications,
the bill language indicates otherwise. It says ``Should a product
liability or other lawsuit be filed for claims . . . and such claims
result or may result in loss to the Seller, there shall be a rebuttable
presumption that the government contractor defense applies to such
lawsuit. This presumption shall only be overcome by evidence showing
that the Seller acted fraudulently or with willful misconduct in
submitting information to the Secretary during the course of the
Secretary's consideration of such technology under this subsection.''
What happens if the Seller submits proper information to the
Secretary, and the Secretary certifies a technology, such as a vaccine
or chemical detection device, but a year later there is a gross defect
in the manufacturing process, and as a result, the product doesn't work
and Americans are injured or killed in a terrorist attack. The language
in the bill suggests that the Seller still is not liable. But who is?
Can the injured victim seek compensation under the Federal Tort Claims
Act? The SAFETY Act does not say. Should they be able to? This is one
of many questions affecting plaintiffs that does not seem to have been
contemplated or considered when the SAFETY Act was included on the
House bill.
Clearly, Congress as a whole should work to address the legitimate
liability concerns that may be keeping protective technology off the
market. We should do this, however, thoughtfully, if swiftly, and
ensure that the language reflects our considered intent.
Prohibition on Contracts with Corporate Expatriates: the Homeland
Security bill prohibits the Secretary from contracting with any
``inverted domestic corporation'', which is an American corporation
that has reincorporated overseas. More and more U.S. companies are
using this highly profitable accounting scheme that allows a company to
move its legal residence to offshore tax havens such as Bermuda, where
there is no corporate income tax, and shield its profits from taxes.
I applaud efforts to discourage this practice. Already, at least 25
major corporations have reincorporated or established themselves in
Bermuda or the Cayman Islands in the past decade. Although I understand
that American tax policy has encouraged them to do so, corporations
that have moved their legal headquarters offshore to avoid taxes give
the appearance of ingratitude to the country whose sons and daughters
are risking their lives today to defend them.
This provision, however, has not escaped untouched by special
interests. Although the Senate adopted an amendment offered by the late
Senator Wellstone that flatly barred the Secretary of Homeland Security
from contracting with inverted domestic corporations unless doing so
was in the interest of national security, the measure being offered to
us on a ``take it or leave it'' basis contains loopholes you could
drive a truck through or an entire fleet of trucks to be supplied by a
relocated corporation. Although it generally prohibits the Secretary
from entering into contracts with inverted domestic corporations, the
House-passed measure allows the Secretary to waive this prohibition in
the interest of homeland security, or to ``to prevent the loss of any
jobs in the United States or prevent the Government from incurring any
additional costs that otherwise would not occur.''
The Daschle-Lieberman amendment tightens this loophole by permitting
the Secretary to waive the contracting limitation only in the interest
of homeland security. That is what this bill is about, it is not a jobs
bill, or a fiscal belt-tightening bill. The Senate determined, in
adopting the Wellstone amendment, that it was important to stop more
corporations from adopting corporate ``flags of convenience.'' We
should honor this.
Childhood Vaccines: among the most inappropriate provisions that the
Daschle-Lieberman amendment strikes is a modification to the Childhood
Vaccine Injury Act of 1986. The language included in the House-passed
bill has far-reaching consequences and is wholly unrelated to the
stated goals of this legislation. Inserted without debate in either
chamber, this language will primarily benefit large brand name
pharmaceutical companies which produce additives to children's vaccines
with substantial benefit to one company in particular. It has no
bearing whatsoever on domestic security.
The National Vaccine Injury Compensation, VIC, Program, established
under the Childhood Vaccine Injury Act of 1986, set up a no-fault
compensation program as an alternative to legal action to compensate
children injured or killed by a vaccine. The VIC Program was adopted in
response to a flood of plaintiffs' suits in the early 1980s which
ravaged the vaccine industry. Incentives, such as limitations on
damages, were established to encourage manufacturers to continue to
produce safer vaccines, while education programs and an adverse
reaction reporting system were established to ensure prevention of
future vaccine injuries.
The 1986 law did not define ``vaccine,'' and suits emerged between
families and manufacturers of vaccine additives, many of which are
still ongoing. The language contained within the House-passed Homeland
Security Act would modify the definition of a ``vaccine'' to include
additives. Originally contained within a well-rounded bill written by
my friend, Senator Frist, this language served a sound purpose.
However, I am concerned that the passage of these select provisions
which benefit pharmaceutical manufacturers will eliminate the incentive
to continue negotiations on the important reforms within Senator
Frist's bill which has been negotiated in the HELP Committee for close
to a year. Additionally, unlike the bill in Committee, this language
would intervene in ongoing litigation without modifying the statute of
limitations for bringing a claim under the Vaccine Act, and in so
doing, would leave families of some injured children with no available
recourse.
As I stated earlier, I am not opposed to reasonable legal reform. I
support a comprehensive reform package such as the bill sponsored by
Senator Frist, and hope that such a measure will pass early in the next
Congress. It is wrong, however, to cherry pick provisions beneficial to
industry and insert them in a Homeland Security bill and to leave for
another day those provisions that protect children.
Special interests have no place in any congressional action, least of
all one of this magnitude. For this reason, I am compelled to support
the Daschle-Lieberman amendment. This administration has worked
tirelessly with the House and Senate to produce an extraordinary
restructuring of Government to better protect the American people. They
have accomplished an amazing feat. Legislation of this gravity should
not be sullied by a few special interest riders. I urge my colleagues
to join me in striking them.
Mrs. FEINSTEIN. Madam President, today I voted for the Thompson
substitute amendment to the Homeland Security Act--the largest
restructuring of the Federal Government in over 50 years and perhaps
the most important legislation considered in this Congress.
This historic legislation would create a new department combining
some 22 Federal agencies with what would amount to about 200,000
Federal employees.
The bill would create one of the biggest departments in the U.S.
Government, with an initial annual budget of at least $37 billion.
I voted for this legislation because our current terrorism policy is
terribly disjointed and fragmented. I have long supported additional
efforts to consolidate and coordinate our terrorism policy.
Currently, homeland security functions are scattered among more than
100 different Government organizations. There is much unnecessary
overlap and duplication. There is also a failure to communicate and
share information--making it hard to for the law enforcement and
intelligence community to ``connect the dots'' to prevent a terrorist
attack.
I also voted for the bill because I believe our country is currently
at great risk. Terrorists are doing all they can to launch a
catastrophic attack on our homeland.
The status quo is simply unacceptable. For example, just last week, I
chaired a subcommittee hearing on a new report from released by
Senators Hart and Rudman.

[[Page S11432]]

Their report is chilling--and its conclusion distributing. It reads:

A year after September 11th, America remains dangerously
unprepared to prevent and respond to a catastrophic terrorist
attack on U.S. soil. In all likelihood, the next attack will
result in even greater casualties and widespread disruption
to American lives and the economy.

The creation of a Homeland Security Department is critical to our
efforts to try to prevent another devastating terrorist attack against
us.
Now, for the first time in our history, this Nation will have one
Federal agency charged with the primary mission of preventing terrorist
attacks within the United States, reducing the vulnerability of the
U.S. to terrorism at home, and minimizing damage and assisting in the
recovery from any attacks that may occur.
The new department will have four major divisions: border
transportation and security, emergency preparedness and response,
science and technology, and information analysis and infrastructure
protection.

The border directorate will include a number of key homeland security
agencies, including Customs and the Transportation Security Agency.
The emergency preparedness directorate will include FEMA and some
other smaller response agencies.
The science directorate will include a number of programs and
activities of the Department of Energy, Department of Agriculture, and
some agencies.
The information analysis directorate will synthesize and analyze
homeland security information from intelligence and land enforcement
agencies throughout the government.
This crucial division will identify and assess terrorist threats and
vulnerabilities, issue warnings, and act to prevent terrorist acts
against critical infrastructures such as bridges, dams, and electric
power grids.
Other agencies such as the Coast Guard and Secret Service will be
moved to the new department, and there will be an office to coordinate
with state and local governments. The legislation also creates a
Homeland Security Council in the White House to coordinate the domestic
response to terrorist threats.
I am very pleased that this legislation does not neglect State and
local law enforcement and first responders. No homeland security
solution can be just federal. The reality is the 650,000 State and
local law enforcement officers are additional eyes and ears in the war
on terrorism. They cannot operate deaf, dumb, and blind.
Moreover, in the event of a terrorist attack, the first people on the
scene will be local firefighters, emergency medical technicians,
National Guardsman, and other people in the local community. The need
proper information, organization, training, and equipment.
Thus, I am pleased that this legislation includes a measure I
introduced to increase state and local access to federally collected
terrorism information.
This legislation directs the President to establish procedures for
sharing homeland security information with state and local officials,
ensures that our current information sharing systems and computers are
capable of sharing such information, and increases communications
between government officials.
The bill also includes a broad exemption under the Freedom of
Information Act for cybercrime and cyberterrorism information. This
exemption will encourage the private companies that opoerate over 85
percent of our critical infrastructure to share information about
computer break-ins with law enforcement--so criminals and terrorists
can be stopped before they strike again and severely punished. I have
long advocated for such an exemption, and am pleased that it ended up
in the final bill.
While I strongly support the creation of a Homeland Security
Department, I am disappointed that the bill we passed today includes a
number of extraneous special interest provisions and lacks language to
ensure appropriate oversight and transparency.
In addition, there is nothing in this legislation addressing what is
perhaps the most pressing homeland security problem we face today: the
vulnerability of our ports to terrorism.
The issue of port security was left to separate legislation that was
passed last Thursday. In my view, that legislation does not go far
enough. I believe that Congress needs to return to this issue next year
and pass more comprehensive legislation.
The Hart-Rudman Independent Terrorism Task Force, for example,
recently issued a report describing major holes in the security of our
ports and endorsed such a comprehensive, layered approach.
This new comprehensive legislation would be based on S. 2895, the
Comprehensive Seaport and Container Security Act of 2002, which I
introduced last summer with Senators, Kyl, Hutchinson, and Snowe.
The Comprehensive Seaport and Container Security Act of 2002 is the
result of hearings we have had in the Technology, Terrorism, and
Government Information Subcommittee of the Senate Judiciary Committee
as well as my testimony two years ago to the Interagency Commission on
Crime and Security in U.S. Seaports.
The main section in the bill would create a Container Profiling Plan
that would focus our nation's limited inspection resources on high-risk
cargo.
In addition, the bill also contains provisions requiring: earlier and
more detailed container information; comprehensive radiation detection;
heightened container security measures--including high-security seals;
restricted access to ports; increased safety for sensitive port
information; enhanced inspection of cargo at foreign facilities;
stronger penalties for incorrect cargo information; improved crime data
collection; upgraded Customs service facilities; and better regulation
of ocean transport intermediaries.
Unfortunately, we were not able to get much of this Bill included in
the conference legislation that passed last week. Indeed, the
Conference Bill even omits a number of security provisions included in
S. 1214 as it passed the Senate.
That is why, in my view, we will need to revisit this issue early in
the 108th Congress. I plan to work with my colleagues to fine-tune my
legislation and reintroduce it. I hope that my colleagues will support
it.

I am also disappointed with this bill because it does not contain the
entire ``Unaccompanied Child Protection Act,'' bipartisan legislation I
introduced at the beginning of this Congress and that was included as
Title XII of the Lieberman substitute to H.R. 5005.
I have spoken on this issue in some detail already, but feel
compelled to reiterate a few points.
Last year, over 5300 children came to this country unaccompanied by a
parent or guardian and were held by the INS, many of them in detention
facilities. these children have no rights. Many of them can't speak
English, they can be detained for years, they have no resort to
counsel, and they don't understand the process.
We all remember the Elian Gonzalez case. Every year, there are
thousands of Elians. But unlike Elian, these children have no family
members to help them navigate the immigration process. They are
completely at the mercy of a complex bureaucratic and legal system they
cannot begin to understand.
The good news is that this bill transfers authority over the care and
custody of unaccompanied alien children from the INS to the Office of
Refugee Resettlement within the Department of Health and Human
Services.
The bad news is that almost all the ``help'' provisions for these
children are left out. This bill is lacking because it does not provide
either for a guardian ad litem, or pro bono legal assistance.
This is insufficient, and it is my full intention to reintroduce
legislation in the next session to redress this, and to include pro
bono counsel and guardian ad litem provisions.
Protecting children, on the one hand, must not prevent us from
devising an immigration policy that protects us from those that would
do America harm.
We do not want to burden the Secretary of Homeland Security with
policy issues unrelated to the threat of terrorism. The Department will
have a daunting mission as it is, and must never lose that focus.
Two positive steps regarding immigration include the transfer of the
visa issuance process from the State Department to the Department of
Homeland Security, thereby giving it the

[[Page S11433]]

regulatory and oversight authority over issuances and denials.
It also prohibits third-party visa processing, referred to as ``Visa
Express'', to ensure closer scrutiny of visa applications and to
preserve the integrity of the visa issuance process. These reforms are
essential.
Overall, while this legislation's shortcomings cause me serious
concern, I believe that they pale in comparison to the dangers facing
America, both immediately and in the long-term, at home and abroad.
The terrorist threat to the United States is far too real, and in our
freedom-loving country we must now do everything we can to protect our
people.
And this, after all, is the Federal Government's paramount task--
protecting our citizens. Further delay in creating a Department of
Homeland Security would only leave us increasingly vulnerable--and this
is something we simply cannot afford.
Ms. SNOWE. Madam President, I rise today in support of this
bipartisan legislation creating a new Department of Homeland Security.
Since the horrific terrorist attacks of September 11, we have acted
to increase our efforts to counter terrorism by strengthening borders,
improving information sharing among agencies, and giving our law
enforcement agencies the legal tools to investigate and prosecute
terrorists and those that help terrorists financially.
Congress has considered and passed both the USA PATRIOT Act and the
Enhanced Border Security and Visa Entry Reform Act which have both
changed laws to ensure that providing for our national security in
order to prevent future terrorist attacks is a top priority. This bill
also ensures that the 22 agencies with a substantial role in protecting
our homeland have the materials and resources they require.
This legislation is recognition that homeland security has taken on
an entirely new meaning since 9/11. What was once a concern with
terrorists acting against U.S. interests overseas has been realized and
expanded to include those same acts happening right here at home. The
war has been brought to the U.S. and we are now rising to the
challenge.
This was precisely the type of thinking demonstrated by President
Bush in the summer of 2001, when he instructed the intelligence
community to provide an assessment of the threat posed by al-Qaida
domestically rather than overseas. And President Bush did exactly the
right thing in the wake of last year's horrific attacks when he
established the Office of Homeland Security, now headed by Governor
Ridge, to coordinate counter-terrorism activities by the various U.S.
agencies and departments as well as develop an overall strategy. This
strategy has culminated in the proposal of a new Department of Homeland
Security.
As the principal advisor to the President on homeland security
issues, the service of Governor Ridge has been exemplary. The time has
come, however, for the perpetuity of purpose ensured by statutory
status for a new Department of Homeland Security.
A Department responsible for safeguarding our homeland defense must
not be dependent solely on the relationship between a particular
President and his or her Homeland Security director. Rather, it must be
run as efficiently and effectively as possible under the leadership of
a permanent, cabinet level official. That is the only way to achieve
the kind of ``continuity of urgency'' the security of our homeland
demands.
The fact of the matter is, we cannot afford a descent into
complacency when it comes to this life-or-death obligation to protect
the American people. If ever there were a Federal responsibility, this
is it.
And while my fervent hope and prayer is that we do not suffer another
attack on or anywhere near the scale of 9/11, the reality is that,
absent future tragedies and absent a cabinet-level homeland security
department, we don't know what kind of attention the issue will receive
5, 10, 20 years down the road. Because the tendency is to focus on the
most visible, pressing issues of the day, but we cannot allow ourselves
to let down our guard, not for a moment, not a decade from now, not a
quarter century from now, never.
So this initiative is not a knee-jerk reaction. It is not a passing
whim--far from it. There is no serious debate about the fact that we
are now in a new age that will not quickly pass. The threat will be
pervasive, and enduring. The level of our vigilance must be equally so.
Under a new cabinet-level department, responsibility would rest with
a Secretary of Homeland Security, a position created under law, who
would manage the vital day-to-day functioning of the new department.
Critically, this person would have their own budget, while they work
closely with the administration to develop and implement policy. It is
vital that this budgetary authority be granted--otherwise, the
department will become a paper tiger, without the teeth that we all
know a separate budget provides in terms of authority as well as the
ability to get things done.
The bottom line is, I support the creation of the Department of
Homeland Security--the largest re-organization of our Government since
WWII--because it will centralize our efforts to prevent and respond to
any future terrorist attack.
Currently, at least 22 agencies and departments play a direct role in
homeland security, encompassing over 170,000 people. This legislation
consolidates these various responsibilities into one Department which
will oversee border security, critical infrastructure protection, and
emergency preparedness and response.
Overall, the new Department, with the Secretary's leadership, will
integrate the vast number of government agencies that formulate,
support and carry out the functions critical to homeland security such
as the border patrol, the Transportation Security Administration, TSA,
and the Federal Emergency Management Agency, FEMA.
This new and dynamic Department will utilize all tools and resources
of our Government to enhance our homeland security by strengthening and
augmenting the preparation, communication, coordination and cooperation
of not only the agencies that will be included, but the rest of the
government including States and localities.
First, it is important to keep in mind that the functions of many of
the agencies that will soon become a part of the new Homeland Security
Department are integrated so that dividing them would be detrimental to
the purpose of that agency, many of which have non-homeland security
functions.
For example, as a member of the Finance Committee, I shared the
concerns raised by other members of the committee about any division of
the Customs Service when it relocates to the new Department. I
supported the Finance Committee's position that Customs move into
Homeland Security but that the Secretary of the Treasury maintain the
legal authority to issue regulations relating to the customs revenue
function.
Defending the country's borders and facilitating legitimate trade are
intertwined functions that should not be separated. By moving Customs
in its entirety into the Border and Transportation Directorate, this
legislation recognizes that the personnel who perform trade enforcement
and compliance activities at the border are the same personnel who
perform inspections for security and other enforcement purposes. In
addition, the information Customs receives from trade compliance
examinations and manifests is the same information used to assess
security risks for shipments. This information is the cornerstone of
many of Custom's counter-terrorism efforts.

This bill also maintains a cohesive and complete Border and
Transportation Security Directorate by transferring all key border and
transportation security agencies to this directorate, including the
Coast Guard, Customs, and TSA. This includes the Border Patrol and a
restructured INS which is not included in the Lieberman bill where it
is part of a separate Immigration Directorate. Thus, the Directorate
responsible for border security is not responsible for the Border
Patrol or inspecting aliens arriving at ports of entry.
The same is true for the Coast Guard. Since the terrorist attacks of
September 11, the Coast Guard has conducted its largest port security
operation since World War II to protect and defend our ports and
waterways. But this significant amount of effort is simply not enough.

[[Page S11434]]

The Coast Guard needs to be positioned with the other transportation
and border security agencies if we are going to improve interagency
coordination, maximize the effectiveness of our resources, and ensure
the Coast Guard receives the intelligence it needs. I strongly believe
the Coast Guard is an outstanding role model for Homeland Security and
will serve as a cornerstone upon which this new Department will be
built.
At the same time, these new priorities must not diminish the Coast
Guard's focus on its other traditional missions such as marine safety,
search and rescue, aids to navigation, fisheries law enforcement, and
marine environmental protection which are all critically important.
The legislative solution I developed with Senators Stevens and
Collins, that is included in the bill, strikes the proper balance and
ensures the Coast Guard's non-Homeland Security missions will not be
compromised by the transfer.
To the contrary, our language maintains the primacy of the Coast
Guard's diverse missions by assuring the Coast Guard Commandant will
report to the new Secretary of Homeland Security, rather than to a
deputy secretary; assures no Coast Guard personnel or assets will be
transferred to another agency; and provides a mechanism to annually
audit the Coast Guard's performance of its non-homeland security
missions.
I am pleased to see the inclusion of my amendment requiring the
administration to report to Congress within 90 days outlining the
benefits of accelerating the Coast Guard's Deepwater procurement
timeline from 20 years to 10. The Deepwater project, which will
recapitalize all of the Coast Guard assets used off of our coast, is
already underway. However, the Coast Guard must wait up to 20 years, in
some instances, to acquire already existing technology. We must
accelerate the Deepwater acquisition project and acquire much needed
assets for the Coast Guard now, not 20 years down the road.
Of course, securing our homeland requires that we figuratively ``push
out our borders'' as far as possible, and that means we must consider
the issuance of visas at our overseas embassies as another vital area
to be addressed by legislation. After all, consular officers represent
the first line of defense against terrorists seeking entry to the U.S.
Entering the U.S. is a privilege, not a right, and this must be the
attitude of those reviewing visa applications.
That is why I am pleased that this bill grants the Department of
Homeland Security the authority to determine regulations for issuing
visas and provides Homeland Security supervision of this process
through the stationing of Homeland Security Department personnel in
diplomatic and consular posts abroad.
This legislation also builds on a provision I included in the
Enhanced Border Security and Visa Entry Reform Act establishing
Terrorist Lookout Committees. These committees, comprised of law
enforcement and intelligence agency personnel in our embassies, meet
once a month to discuss names of terrorists or potential terrorists to
be added to the lookout list. The inclusion of Homeland Security
personnel to the Terrorist Lookout Committees will ensure that our
first line of defense also has the input of this new Department.
I introduced Terrorist Lookout Committee legislation in 1995 as part
of my efforts to strengthen our borders and increase information
sharing. This, and legislation I introduced to modernize the State
Department's antiquated microfiche lookout system, were a result of a
trail of errors by our agencies with regard to Sheikh Rahman, the
radical Egyptian cleric and mastermind of the 1993 World Trade Center
bombing.
In working on terrorism and embassy security issues on the House
Foreign Affairs International Operations Subcommittee, what we
discovered was startling. We found that the Sheikh had entered and
exited the country five times totally unimpeded, even after the State
Department formally revoked his visa and even after the INS granted him
permanent resident status. In fact, in March of 1992, the INS rescinded
that status which was granted in Newark, New Jersey about a year
before.
But then, unbelievably, the Sheikh requested asylum in a hearing
before an immigration judge in the very same city, got a second hearing
and continued to remain in the country even after the bombing with the
Justice Department rejecting holding Rahman in custody pending the
outcome of deportation proceedings and the asylum application, stating
that ``in the absence of concrete evidence that Rahman is participating
in or involved in planning acts of terrorism, the assumption of that
burden, upon the U.S. government, is considered unwarranted.''
Securing our visa process is the reason why legislation I have
introduced that requires the new Department to conduct a national
security study of the use of foreign nationals in handling and
processing visas has been included in this bill.
As was shown in Qatar this summer, foreign nationals handling visas
are entrusted with a great responsibility and we must make sure that
does not compromise our security. For instance, in July it was
discovered that several foreign employees at the U.S. Embassy in Qatar
may have been involved in a bribery scheme that allowed 71 Middle
Eastern men, some with possible ties to al-Qaida, to obtain U.S. visas.
To strengthen security, my provision requires the Department of
Homeland Security to review the specific role that foreign nationals
play in handling visas and determine the security impact this has at
each overseas mission and make recommendations as to the role foreign
national should have with regard to visas.
On this same note, I am also pleased that another provision of mine
to stop ``visa shopping'', the practice of a foreign national traveling
to different U.S. Embassies in order to find one that will grant a
visa, has also been included in this bill.

Now, current State Department regulations calling on consular
officers to enter a visa denial into the lookout list database so it
can be accessed by other Embassies will be codified in law. Seeing that
a foreign national has traveled to another Embassy and been denied will
make the decision of a consular officer on whether to grant a visa that
much simpler.
Ensuring that the new Department has its own capabilities to analyze
intelligence is critical to the functioning of the Directorate of
Information Analysis and Infrastructure Protection. The Directorate
will be responsible for accessing, receiving, and analyzing information
such as intelligence, law enforcement and other information from
agencies from Federal, State and local governments to detect and
identify threats to homeland security. The legislation also will ensure
that threat analysis, vulnerability assessments, and risk assessments
is the responsibility of one Directorate.
Also, the bill contains specific language authorizing the Secretary
to provide a staff of analysts with ``appropriate expertise and
experience'' to assist the Directorate in reviewing and analyzing
intelligence as well as making recommendations for improvements.
Moreover, the legislation contains specific language I advocated
authorizing the Department to hire its own analysts.
It is vital that clear language be included to ensure that the new
Department has its own people and does not rely solely on detailees
from other agencies. The bill also permits the new Department to have
personnel detailed for analytical duties from the intelligence
community. It is clear that in the beginning, intelligence analysts
will have to be detailees from other agencies until additional people
can be fully trained. However, this must not be a permanent situation.
That is why I worked with Senator Gramm to ensure the new Department
has its own intelligence analysts.
Finally, one of the most challenging hurdles to overcome in passing
this legislation was a provision of law that has been in statute for
almost a quarter-century. This provision referred to as the President's
``national security exclusion authority'' allows the President to
exclude agencies, or smaller subdivisions within agencies, from
collective bargaining agreements if he determines that the agency or
subdivision as a primary function intelligence, counterintelligence,
investigative or national security work.
During this debate, attempts to rescind the President's authority
which

[[Page S11435]]

has been in place since President Kennedy first allowed Federal
employees to unionize in 1962 and put into statute by President Carter
in 1978 stalled the consideration of the entire bill. I am pleased,
however, that both sides were ultimately able to come together to find
a workable solution that allows the President to maintain the national
security exclusion authority that every President has had since
President Kennedy.
Once again, the President was right to create a new Department of
Homeland Security and I applaud the efforts of Governor Ridge to
formulate this proposal and present it to Congress. We need to come to
grips with the reality that a repeat attack could happen at any time
and, accordingly, not only work to prevent it but also be prepared to
respond. The new Department of Homeland Security will bring us closer
to bringing all of our Nation's resources to bear in securing our
homeland.
This defining time, as the President has stressed, requires constant
vigilance as our permanent condition. Because in our war against
terrorism, to quote Churchill, ``Now is not the end. It is not even the
beginning of the end. But it is, perhaps, the end of the beginning.''
We have now begun a ``new normalcy'' and we can never again let down
our guard. We owe taking this historic step to the American people and
to future generations of Americans to ensure an enduring level of
security.
Mrs. BOXER. Madam President, there is not a person in this Chamber
who questions the importance of homeland security or the need to
improve the Federal Government's ability to protect our people from
terrorism. We all saw what happened on September 11th of last year:
There was not enough anticipation or coordination, and not enough
accountability. We can and must do better.
What happened last September 11th was a tragedy on a monumental
scale. It is a date that we will always remember. It is an anniversary
that we will always somberly commemorate.
But, as I have said before, we must learn from the tragedy of
September 11th and ensure that our Nation is never again subjected to
such horror. The events of that dark day should spur us to take the
necessary steps to establish the instruments and institutions that will
provide real protection for the American people. The lessons of
September 11th will mean little if we are unable to craft a concrete
response to terrorism that demonstrates our unwavering resolve to those
who would do us harm.
Since shortly after September 11, I have argued that we needed a
Cabinet-level Department to address these concerns. That is why, I have
decided to vote for the legislation now before the Senate.
We are faced with the choice of either this bill or no bill. And I
believe that we must move the process forward, and send the all-
important message to the people we represent that we are serious about
protecting them that we are serious about having better cooperation,
coordination, and preparation in the fight against terrorism.
That is not to say that I do not have reservations. This bill should
have been written differently. I supported an amendment proposed by
Senator Byrd that would have made the new department less bureaucratic
and would have provided more accountability, not less. It also would
have ensured that Congress played a greater role as the department got
up and running. Unfortunately, the Byrd amendment was defeated.
I was also shocked to see that several special interest riders were
added to this bill at the last minute, in the dark of night. I am
especially troubled by the new provision that holds harmless any
company that makes mercury-based preservatives for vaccines. One
example is Thimerosal, which, evidence shows, may be responsible for
causing autism in children.
What in the world does such a provision have to do with homeland
security? I believe this provision will create insecurity in our
homeland by sending a message to thousands and thousands of families
that their children's health takes a distant second place to the
interests of large corporations. This bill should be about homeland
security, not family insecurity.
With one call from the White House, these special interest additions
to the bill could have been eliminated. But that did not happen, and
the Daschle amendment to strip them from the bill, which I strongly
supported, was defeated. As a result, this bill has been perverted from
its original meaning and intent. I expect to work with my colleagues
next year to reverse these special interest riders.
I am troubled by this bill's treatment of the new department's
workers. It gives the President virtually unfettered authority to strip
even the most minimal worker protections affecting everything from job
classification, pay rates, rules for labor management relations, and
the process for firing and demoting employees. These provisions were
unnecessary and unfair.
Finally, I am concerned about the effect this legislation will have
on my State of California on matters that have nothing to do with
homeland security. Many existing Federal agencies will be moved lock,
stock and barrel into this new department, with little regard to the
services that those agencies provide to the American people and to the
people of California. The Department of Homeland Security is largely
about protection and enforcement. When vital services for the people of
this country such as FEMA disaster assistance and the Coast Guard's
search and rescue role are thrown into an agency whose mission and
purpose is primarily enforcement, I fear that these much-needed
services will suffer.
However, despite these reservations, I will vote for this bill. We
must move forward on protecting the American people from another
possible terrorist attack. And creating a new Cabinet-level Department
of Homeland Security, which I have supported for the past year, is an
important step in that direction.
Through my committee assignments and by enlisting the support of my
colleagues, I will keep a sharp eye on the new Department of Homeland
Security and work to make sure we take the additional steps necessary
to truly protect the security of the American people.
Mr. GRASSLEY. Mr. President, I rise in support of the homeland
security bill. I believe that today we are taking definitive action to
put the Government in a better position to prevent and respond to acts
of terrorism. The creation of a Department to oversee homeland security
has been a tremendous undertaking for the White House and Congress. It
has forced all of us to face multiple challenges, including overcoming
the various agencies' desire for self-preservation and the longstanding
turf battles we are all too familiar with. Regardless of these
difficulties, we have no choice but to strengthen our national
security. A Department of Homeland Security is our best answer, and I
have tried to do all that I could to enhance the effectiveness of the
New Department.
This new Department will have to improve and coordinate our
intelligence analysis and sharing functions, as well as our law
enforcement efforts. Our Nation needs to do everything possible to make
sure the attacks of a year ago never happen on American soil again. The
creation of the Department will help coordinate our homeland security
efforts and better protect the United States from terrorist attack.
The new Department will also identify and destroy barriers to
effective communication and cooperation between the many entities
involved in America's national security. It will identify our security
and intelligence shortcomings and resolve them appropriately. It should
also guarantee that the various infrastructure protection agencies
moving to it have a smooth and seamless transition, and that whistle
protections are given to each and every employee, without exception.
I was glad to have an opportunity to work with the sponsors of the
bill to secure adequate whistleblower rights for Department employees.
Because rights are worthless unless you have a process by which those
rights can be addressed, I worked with the sponsors to ensure that
whistleblowers have procedural remedies. The bill's whistleblower
protection language grants the Department's employees the same
Whistleblower Protection Act rights that are currently enjoyed by
almost all other Federal employees.

[[Page S11436]]

Another big part of (the homeland security bill includes provision to
restructure the Immigration and Naturalization Service. The new
Department will be instrumental in securing our border, but we will
have to steadily implement changes to improve the agency's service and
enforcement functions. Improvements to this agency are long overdue and
cannot be ignored after this bill passes. Just because we have
streamlined their management, the INS's performance will be scrutinized
in the years to come. The INS will be accountable to the American
people, and I look forward to seeing some changes in the way they do
their business.
I am pleased that I was able to work on an immigration reform measure
that will strengthen the Secretary's visa issuance powers. This
provision authorizes the DHS Secretary to put DHS agents at consular
posts or requires a finding that DHS agents aren't needed, and it gives
the DHS Secretary influence in the State Department personnel matters
relating to visa issuance. It also requires annual reports to the
Congress on security issues at each consular post. These changes will
help us avoid dangerous programs like visa express that let terrorists
in without any real screening.
I am also pleased that the homeland security bill we are considering
today incorporates a number of our recommendations to ensure that the
international trade functions of the Customs Service are not subsumed
by the need for strong law enforcement under the Department of Homeland
Security. In order to achieve this, we included a number of procedural
protections. However, even with these safeguards, I am somewhat
concerned that an attitude could prevail over time in which the trade
function of the Customs Service become nothing more than a tool for the
enforcement functions. I do not think this is an insignificant concern.
Today, Customs operates under the umbrella of the Treasury Department,
whose core mission it is to serve as a steward of the economy. Moving
the 200 year old agency to Homeland Security could fundamentally alter
the traditional mission and culture of the U.S. Customs Service. As the
ranking member of the Finance Committee, I plan to exercise my
oversight function diligently to make sure that this does not happen.

Another provision that I worked hard to secure, along with Senator
Herb Kohl of Wisconsin, is the transfer of ATF agents to the Justice
Department. The firearms and explosives experts will work alongside the
FBI and the DEA at Justice Department. The firearms and explosives
expert will work alongside the FBI and the DEA at Justice, and the
revenue-collection experts and auditors will stay at the Treasury
Department. This move will help coordinate criminal and antiterrorism
investigatives at the DOJ, but will keep the ATF's revenue-collection
duties at Treasury where they belong. So I thank the leadership for
making sure these important changes were made.
I also applaud the inclusion of language that I advocated requiring
the new Secretary to appoint a senior official to be responsible for
ensuring the adequacy of resources of drug interdiction. The smuggling,
transportation, and financing organizations that facilitate illegal
drug trafficking can just as easily smuggle terrorists or terror
weapons into the United States. Many of the agencies being moved into
the new Department were previously focused on the fight against
narcotics. By coordinating counternarcotics policy and operations, this
new official will ensure that our efforts to respond to future acts of
terrorism will not come at the price of relaxing our efforts against
the dehumanizing and painful effects of drug use on society and
families.
I was also pleased to work with Senators Lott and Bennett on FOIA
provisions that encourage the private sector to alert government
officials about risks to our critical national infrastructures. While
public disclosure laws such as FOIA are central to the policy of
preserving openness in government, they sometimes serve to inhibit our
ability to receive vitally important national security-related
information from information from businesses that fear unwarranted loss
of public confidence and use by competitors, criminals, and terrorists.
This new language will strike the dedicate balance between ``sunshine''
in government and the responsibility that we have to collect and share
sensitive information about infrastructure vulnerabilities in an
atmosphere of trust and confidence.
The ultimate goal here before us is to help our intelligence and law
enforcement communities at being the best they can be at protecting our
nation and the American people. But we can't build a new house with
broken blocks. If we don't fix the problems at the various agencies
that will make up the new Department, we won't see real homeland
security. A lot of work has been done, and I believe we are on the
right track. I believe this plan is indeed the answer for effective
homeland security, now and for the future. Let's move forward from here
and get it done.

Homeland Security

Mr. CONRAD. Madam President, I will vote for the bill before us
today, but I do so with some serious reservations.
First, and most importantly, I do not want the American public to
conclude that by passing this one bill we do not need to do anything
else in order to protect our homeland. While housing such agencies as
FEMA, the Customs Department, and the Border Patrol under one roof will
be advantageous, especially in the long run, little in this bill goes
the heart of what went wrong leading up to September 11. Simply put,
our country has been plagued, and we continue to be plagued, by a
myriad of intelligence shortcomings. We have not done an effective job
of gathering intelligence on al Qaeda cells residing right now in our
country, and, perhaps even more importantly, our intelligence agencies
have not been effectively sharing intelligence with each other. We hear
story upon story about a lack of analysts with language skills,
outdated computer systems, and turf battles.
And now we hear, for the first time, that the administration is
considering the need to create a new domestic intelligence agency. We
hear that our Nation's top national security officials met for 2 hours
this past Veterans Day to discuss this issue. Clearly, we need a plan
to deal with domestic terrorism surveillance and to implement systems,
procedures, and oversight to make sure that our intelligence agencies
are talking to each other. Unfortunately, the current bill is largely
silent on these issues.
Second, I have serious concerns that the administration will be
undertaking the most massive government reorganization in over 50 years
while we are in the middle of our war against terrorism. Osama Bin
Laden is still at large, and just last week he threatened new attacks.
Indeed, the administration recently has warned us about ``spectacular''
attacks against our country. We must take great care that this massive
reorganization does not compromise any of our ongoing efforts in our
campaign to protect our homeland.
Finally, I cannot stand silent about the egregious, superfluous,
special-interest giveaways put into this bill at the very last minute
by the administration acting in concert with Republican leaders in the
House and Senate, everything from shutting the courtroom doors to
families injured by pharmaceutical companies to allowing offshore tax
haven companies to compete for homeland security contracts.
So while I support the bill before us today, it is certainly not a
perfect bill. Even more importantly, our work has just begun. The
administration now needs to ensure that in creating this massive new
Department it does so in a way that does not compromise the vital and
ongoing work of the agencies involved. It is also imperative that we
fix the central problem with our Nation's homeland security defenses,
that of the lapses in our Nation's intelligence gathering and sharing
efforts, and that we do so now. I wish we would have dealt with this
more gaping security hole first, but all we can do now is to redouble
our efforts in this most vital pursuit.
Mrs. MURRAY. Madam President, the Senate today took an important step
to combat domestic terrorism and improve safety at home. The Department
of Homeland Security will help protect our communities by coordinating
prevention and response efforts throughout the country.

[[Page S11437]]

The legislation also maintains the integrity of the Coast Guard, so
that the important function of search and rescue, drug interdiction,
and environmental protection will not be degraded.
Throughout his tenure, I have found Governor Tom Ridge to be a
responsive member of this Administration, and I look forward to
continuing to work with him in a constructive manner.
While much of this legislation is important and necessary, I am
concerned about several of the provisions.
First, are the special interest gifts to the pharmaceutical and
manufacturing industries that House Republican leaders slipped into the
bill last week.
Second, are the new surveillance powers granted to the Federal
Government, and the potential impact on Americans' civil liberties. The
Administration has assured Congress and the American people that the
new authority will be used judiciously, and the Administration now must
act responsibly and prudently.
Third, I believe that men and women who serve their country in
uniform are entitled to the same civil service protections as other
federal workers, and I am disappointed that because of this bill, some
workers will lost important rights.
I intend to work with the new Department to protect Washington
State's interests and will continue to monitor the implementation of
this bill.
Mr. INHOFE. Madam President, our world has changed dramatically since
the tragic events of September 11, and by passing this bill, we are
taking a momentous step forward in providing for the security of
Americans at home. But I am concerned we might be missing an integral
component to this secure system. We have outlined parameters for
information security, privacy and authentication. But, how can we truly
ensure someone is who he/she says they are before we give them these
high-tech credentials? We have gone to great lengths to ensure the
security of these counterfeit-proof credentials, but we need to also
account for the validity of the information used to establish identity
in the first place. What happens if we give someone a secure document
with a biometric under a false name?
The events of September 11 were orchestrated by a group of foreign
individuals who used false information to receive legitimate U.S.
identification documents like visas, passports, driver's licenses, and
illegally entered this country. Identity fraud is no longer just a
crime perpetrated by a common criminal to steal a credit card. Identity
theft is now a tool employed by terrorist organizations to infiltrate
America and harm our citizens. Terrorists have been able to take
advantage of our ineffective and antiquated systems and assume false
identities.
In this bill, we establish an Under Secretary for Border and
Transportation Security with the charge of preventing terrorists from
entering this country. We need to make sure he or she has the tools
necessary to authenticate a person's identity. Authentication of non-
U.S. citizens entering the United States must be a top priority. We
have bipartisan support for such an effort and we must establish a
system that ensures the identity of foreign individuals upon initial
entrance into this country.
For years, identity authentication systems have been used in the U.S.
to prevent fraud in the consumer banking industry. Following the
terrorist attacks on September 11, these systems have been adapted for
national security purposes. These systems access a wide number of
identifiers in domestic public records and use scoring and modeling
methods to determine whether a particular person is who they say they
are. These systems must be expanded to include publicly available
information on individuals from foreign countries.
The President has said, ``This nation, in world war and in Cold War,
has never permitted the brutal and lawless to set history's course.
Now, as before, we will secure our nation, protect our freedom, and
help others to find freedom of their own.'' Let me be clear. There are
people who deserve to enter this country and there are people who don't
deserve to enter any country. We must have the ability to verify an
individual is who they say they are the first time they apply for a
visa. As we move forward, we must establish an identity authentication
system that targets the 26 nations designated by the State Department
as state sponsors of terrorism.
Mr. REED. Madam President, I rise to discuss the legislation before
the Senate to create a Department of Homeland Security. I have said
throughout the debate on this legislation that I support the creation
of a homeland security department, and despite my strong reservations
about many of the specific provisions in the bill, I intend to support
final passage today. The Senate has expressed its will through the
amendment process, and while I have been disappointed with the outcome
of many of the votes, the bill before us has the potential to improve
our government's ability to combat terrorism against our people.
Insuring domestic tranquility and providing for the common defense are
among the most sacred Constitutional duties our constituents sent us
here to fulfill, and on that basis alone this bill, while far from
perfect, deserves to move forward.
I will discuss many of the positive aspects of this legislation
shortly, but first I want to outline some of my concerns with the bill.
First, I am deeply disappointed that the House Republican leadership
inserted into this must-pass legislation to protect our homeland a host
of special interest giveways. The bill creates new liability protection
for pharmaceutical companies by wiping out pending litigation; guts the
Wellstone amendment that prohibited contracting with corporate
expatriates; reverses the aviation security bill by providing special
immunity to the companies that provided passenger and baggage screening
in airports--companies that may have violated numerous security
regulations on September 11; allows the Department to hold secret
advisory committee meetings with hand picked industry advisors, even on
non-sensitive matters, waiving the Federal Advisory Committee Act; and
provides immunity from liability for manufacturers of products or
technologies that cause harm to Americans.
I also have concerns about provisions in this bill that would
undermine the basic rights of federal employees to belong to unions and
to bargain collectively with management over working conditions.
Forty years ago, President Kennedy issued Executive Order 10988
granting federal employees the right to organize and bargain
collectively. President Nixon expanded employees' rights in 1969, and
these rights were subsequently codified in the 1978 Civil Service
Reform Act. These fundamental rights have never interfered with the
provision of government services, including homeland security, and in
fact I would argue they have strengthened our government by helping us
to recruit and retain highly qualified employees who might otherwise
look elsewhere for work. Union members are among our nation's most
patriotic, dedicated and selfless public servants. When the World Trade
Center was burning on September 11, the unionized firemen, police
officers, and emergency medical personnel in New York did not stop and
ask for a collective bargaining session. They went up the stairs, into
the fire, and gave their lives so that others might be saved.
Of the 170,000 federal employees who would likely be moved to the new
Department of Homeland Security, at least 40,000 belong to unions and
possess collective bargaining rights, including employees of the
Customs Service, Border Partrol, and other important agencies. Our
goal, as was proposed in the bill drafted by Senator Lieberman and
reported by the Senate Governmental Affairs Committee, was to ensure
that no federal employee who currently has the right to join a union
would lose that right under the homeland security reorganization.
Agencies where employees currently do not have collective bargaining
rights, such as the Transportation Security Administration and the
Secret Service, would not have been affected.

To maintain the existing rights of union members transferred into the
new Department, the Governmental Affairs Committee bill included a
bipartisan provision that would update this formula. Under that bill,
management could deprive transferred employees of their collective
bargaining rights if

[[Page S11438]]

their work is ``materially changed'' after the transfer; their
``primary job duty'' is ``intelligence, counterintelligence, or
investigative duties directly related to the investigation of
terrorism''; and their rights would ``clearly'' have a substantial
adverse effect on national security.'' This provision was carefully
crafted on a bipartisan basis to give the new Secretary of Homeland
Security the flexibility he or she needs while preserving the rights of
tens of thousands of employees who have possessed collective bargaining
rights for decades and will be performing exactly the same work under a
different letterhead.
Unfortunately, the House drafted bill before us today does away with
these protections. Under this bill, the President may waive existing
union rights if he determines they would have a substantial adverse
impact on the Department's ability to protect homeland security. He
must send a written explanation to the House and Senate at least 10
days in advance, but no Congressional approval is required.
Furthermore, the bill allows the Administration to waive existing civil
service protections over union objections. Although he would be
required to notify Congress and engage in a 30-day mediation
administered by the Federal Mediation and Conciliation Service, if
mediation is not successful the President could waive civil service
provisions notwithstanding union objections and act without
Congressional approval.
I am also concerned about the provisions related to the Vaccine
Injury Compensation Program, VICP. The VICP is a no-fault alternative
to the tort system for resolving claims resulting from naturally
occurring, adverse reactions to mandated childhood vaccines.
Over the years, the VICP has proven to be a successful component of
our National Immunization Program. It has protected vaccine
manufacturers, who play a critical role in the protection of public
health against unlimited liability while also providing injured parties
with an expeditious and relatively less contentious process by which to
seek compensation.
However, the provisions contained in this homeland security bill
consist of one page of a 26-page bill introduced by Senator Frist
earlier this year, S. 2053, the Improved Vaccine Affordability and
Availability Act. While it has been argued that these provisions are
needed to protect vaccine manufacturers, the fact is that manufacturers
are already protected under VICP.
Senator Frist's bill contains a number of provisions related to
increasing vaccine rates among adolescents and adults, bringing greater
stability to the vaccine market through the creation of a rigorous
stockpile of routine childhood vaccines and reforms to the Vaccine
Injury Compensation Program. Letters of support that have been cited on
the Senate floor, from the Advisory Committee on Childhood Vaccines and
the American Academy of Pediatrics, expressed support for these
provisions, but only in the context of the comprehensive legislation
set forth by Senator Frist, not on their own. The three sections that
have been inserted simply have no place in a homeland security bill.
These sections lack the thoughtful and comprehensive approach that is
required to address the myriad challenges facing our childhood
immunization program.
Finally, I am concerned with the immigration provisions in this
legislation. There is general agreement on the proposal to transfer all
functions of the Immigration and Naturalization Service into the new
Department. However, rather than establishing a single, accountable
director for immigration policy, the bill calls for enforcement
functions to be carried out by the new Bureau of Border Security within
the Border and Transportation Security Directorate, while immigration
service functions will be in a separate Bureau of Citizenship and
Immigration Services that reports directly to the Deputy Secretary.
While the bill does call for coordination among policymakers at each of
the bureaus, they will ultimately establish their own immigration
policy and interpretation of laws. I urge the Administration to ensure
that policy coordination among the enforcement and services bureaus is
comprehensive and consistent, so that the result for the nation's
immigration system is real reform and not a new period of disarray.

Nothwithstanding all of the concerns I have summarized, I believe
that this legislation and the new department it creates have the
potential to make the American people safer. The legislation will
consolidate more than two dozen disparate federal agencies, offices,
and programs into a focused and accountable Department of Homeland
Security. The bill will bring together into a single Border and
Transportation Security Directorate our Customs Service, the border
quarantine inspectors of the Animal and Plant Health Inspection Service
of the U.S. Department of Agriculture, the new Transportation Security
Administration, and the Federal Law Enforcement Training Center. Within
this directorate, the bill also creates an Office of Domestic
Preparedness to oversee our preparedness for terrorist attacks and to
provide equipment, exercises, and training to states. The Coast Guard
will also be in the new department, reporting directly to the Secretary
of Homeland Security.
The Directorate for Information Analysis and Infrastructure
Protection will enable the Department to ``connect the dots'' by
organizing analyzing, and integrating data it collects at ports and
points of entry with intelligence data from other parts of the
government. The bill also provides the Department with access to
unevaluated intelligence. It establishes separate Assistant Secretaries
for information analysis and infrastructure protection, and has
language making it clear that the Directorate's intelligence mandate is
broader than infrastructure protection and including deterring,
preempting, and responding to terrorist attacks.
The Directorate for Science and Technology will conduct and promote
long-term homeland security research and spearhead rapid technology
development and deployment. It will bring together scientific
capabilities now spread throughout the federal government to identify
and develop countermeasures to chemical, biological, radiological,
nuclear, and other emerging terrorist threats.
In addition, the bill establishes a directorate of Emergency
Preparedness and Response, with the Federal Emergency Management
Agency, FEMA at its core, which will help to ensure the effectiveness
of emergency response to terrorist attacks,major disasters and other
emergencies by bringing under the Department's directorate several
federal programs in addition to FEMA: the Domestic Emergency Support
Teams of the Department of Justice, and the Strategic National
Stockpile and the National Disaster Medical System of the Department of
Health and Human Services. The Department will also have the authority
to coordinate the response efforts of the Nuclear Incident Response
Team, made up of elements of the Environmental Protection Agency and
the Department of Energy. One of most important responsibilities of
this directorate will be to establish comprehensive programs for
developing interoperative communications technology, and to ensure that
emergency response providers acquire such technology.
These are all laudable and important goals, but because we have been
blocked from passing the appropriations bills that would provide the
resources the Department needs to perform its mission, our work is far
from complete. Providing these resources will be our task on homeland
security in the months ahead, and I hope my colleagues and the
President give this task the same attention and effort they gave to
creating a Department of Homeland Security.
Madam President, because I believe the people of Rhode Island and
Americans everywhere want to see the creation of a Homeland Security
Department that will improve our ability to prevent and respond to
terrorist attacks, I intend to support this legislation despite my
concerns about many of the specific provisions included in the House
draft of the bill before us today.
Mr. BUNNING. Madam President, I am pleased the Senate is able to pass
legislation to establish the Department of Homeland Security before
Congress adjourns the 107th Congress sine die. After the terror attacks
on September 11, 2001 it has been the mission of President Bush and
many in Congress to create this new Department, and it

[[Page S11439]]

is particularly pleasing to get this done now rather than waiting until
Congress starts up the 108th Congress in January of 2003. And I know as
well the American people are supportive of getting this legislation
passed now rather than later.
Those who oppose this legislation before us may have some legitimate
and principled concerns as to why they do not support this bill. By all
means, the bill is not entirely perfect and I think most members of
Congress would attest to that. But neither were the original bills to
create any other federal department or agency perfect on the first try.
That is why we have committee hearings on these issues, and I am sure
we will pass supplemental and technical bills over the years to
legislatively mold the new Department of Homeland Security so that it
is stronger and more efficient.
But we needed to get this bill rolling now. Every day is vital as we
fight this new war on terrorism. Delaying the creation of this new
department another three or four months could set America back in her
defenses. Every day that goes by without work being done to create and
organize this new department simply puts us back further and further.
We just can't afford to let that happen. This is serious business.
Although this bill may not be perfect and some may disagree with a
few of its provisions, it is not so controversial that the bill
deserves nor needs to be killed outright. We can come back and revisit
those extraneous provisions some of my colleagues have been talking
about. But we need to get the ball rolling. Agencies need to be
realigned. We need to get rid of some of the duplicity amongst some of
these agencies. Communication and information channels need to be
streamlined. There is a lot of work to be done and every day counts.
Earlier in this debate I came to the floor and spoke about the need
for President Bush and future presidents to be able to have the
authority and flexibility to hire and transfer employees, and even be
able to terminate some employees, within the new Department of Homeland
Security to ensure its mission can be undertaken. For weeks we had a
real disagreement on this issue. Some wanted to ensure that workers
were protected and preserved in their employment regardless of their
performance or real need.
Fortunately, in the end we have a piece of legislation that frees the
hands of the president by giving him the necessary management and
personnel flexibilities to integrate these new agencies into a more
effective whole. While providing this flexibility, we still preserve
the fundamental worker protections from unfair practices such as
discrimination, political coercion, and whistle-blower reprisal. This
flexibility and authority will better serve our president, the homeland
and Americans.
New provisions are also added to this bill to help protect our
borders. We do this by moving the Coast Guard, Customs Service,
Immigration and Naturalization Service, and border inspectors at Animal
Plant Health Inspection Services all under the new Department of
Homeland Security. This action is long overdue and a reminder to us
that the first step in defending America is to secure her borders.
As well, this bill helps to ensure that our communities and first
responders are prepared to address threats. This bill does this by
moving FEMA and the Secret Service under the new Department of Homeland
Security. By moving FEMA, we are clarifying who's in charge, and
response teams will be able to communicate clearly and work with one
another. We will also benefit by the Department of Homeland Security
being able to depend on the Secret Service's protective functions and
security expertise.
Some have voiced concerns that we are limiting and not protecting the
freedoms and privacy of Americans in this bill. I would say to my
colleagues that at the core, the real reason for this bill is to ensure
just the opposite, to provide security and protect our freedoms. We
have in this bill specific legal protections to ensure that our freedom
is not undermined. This bill prohibits the federal government from
having the authority to nationalize drivers' licenses and other ID
cards.
Also, the bill establishes a privacy officer. This is the first such
officer established by law in a cabinet department. Working as a close
advisor to the Secretary of the Department of Homeland Security, this
privacy officer will ensure technology research and new regulations
respect the civil liberties Americans enjoy.
There are many other vital provisions in this bill which are needed
to better protect our freedom and the homeland. It is a good and solid
bill. It may not be perfect, but rarely are there any perfect pieces of
legislation we pass here in the Senate. I am sure we will revisit this
legislation and issue again, in committee hearings as well as
considering technical and supplemental homeland legislation on the
Senate floor.
But it is imperative we pass this legislation now. We have worked
hard on this bill, too hard to just let it die in the 107th Congress.
We need to get it to President Bush's desk before we adjourn sine die.
The sooner we get it to him, the better it is for the protection of the
homeland and Americans.
Ms. CANTWELL. Madam President, I rise to express my support for the
creation of a Cabinet level Department of Homeland Security that better
enables our border security agencies to coordinate and work together. I
believe that if properly implemented such a Department will better
protect our country from the threat of terrorism.
The tragedy of September 11 demonstrated that our homeland security
apparatus is dangerously disorganized, and that our vulnerabilities
were real; we learned that we need organizational clarity and
accountability to face the crucial challenge of improving homeland
security.
On balance, the new Department of Homeland Security will reduce our
vulnerability to the terrorist threat and minimize the damage and help
recover from any attacks that do occur. However, we need to recognize
that this is only a first step. The challenge of homeland security will
require more than bureaucratic reorganization, we need to ensure that
our efforts are bolstered with a real commitment to the attention and
funding necessary to implement some of the goals of this legislation.
Although I will ultimately support the homeland security bill, I do
so with the recognition that no legislation is perfect. This
legislation is, indeed, not perfect and it will demand continued
attention and oversight by Congress to ensure that it lives up to its
aspirations in ensuring our homeland security, while not betraying our
principles of governance and freedom.
One area that I have particular concerns is in regards to our
continued efforts to address the issue of information and information
sharing within the careful balance of security goals and civil liberty
protections.
I am particularly concerned with provisions of the bill that fail to
explicitly address the broader concerns of privacy for American
citizens and that reduce our access to public information through the
FOIA process. I am particularly frustrated because both of these
troubling provisions, provisions to enhance sharing of information
about suspected terrorist activity with local law enforcement, and
provisions to limit access to sensitive information available under the
Freedom of Information Act, were negotiated and careful compromises
were arrived at in the earlier version of the Gramm-Miller Senate
substitute and in Senator Schumer's bill, S. 1615, the Federal-Local
Information Sharing Partnership Act.
The timely sharing of investigative information between various
enforcement and intelligence agencies can provide necessary
improvements in our nation's security. Unfortunately, the version that
is contained in this legislation provides absolutely no limitations on
how this information can be used or disseminated. This is particularly
troubling because we have already expanded the type and amount of
personal information available in federal databases. To greatly expand
access to personal information without providing any protections on its
use is a dangerous erosion of our valued right to privacy and has the
potential to eviscerate the protections that the Constitution
guarantees Americans against unfettered government intrusion into
privacy. I support greater access to information, and I believe that

[[Page S11440]]

it is primarily through appropriate use of information technology that
we are likely to make real improvements in our domestic security, but
greater access to personal information cannot come without offsetting
protections against its misuse.

The very broad language, inserted for the first time by the House,
offers no procedural mechanisms to assure the government adheres to
protections of privacy or civil liberties. Information sharing without
citizen recourse or correction, without adequate procedural safeguards,
has the potential to undermine the privacy of every citizen. The Senate
has already acted on this issue and language exists that can better
provide access to local law enforcement while also providing real
protections to our citizens. This legislation has already passed the
Judiciary Committee and I am committed to working with Senator Schumer
to passing this legislation next year.
In addition, this bill previously contained carefully crafted
language that protected sensitive information from discovery through
the Freedom of Information act. The Freedom of Information act is a
valuable tool in assuring open and accountable government and I believe
that any effort to alter it must be carefully considered. This careful
consideration produced the language in the original bill, a compromise
crafted by Senators Bennett, Levin and Leahy. As the editorial board of
the Olympian wrote today ``The public is already leery of government
and understands that public records are one means of keeping elected
and appointed officials in check'' Unfortunately, this bill contains a
very broad exemption which has the potential to protect much
information from public scrutiny. We must be cautious in taking steps
that reduce open access to government and I am concerned about the
broad nature of this language.
I am also very disappointed by how the Immigration and Naturalization
Service is reorganized within the Homeland Security Agency. By
completely separating the service and enforcement functions of the INS,
I believe that we will only be compounding the problems that already
plague this moribund agency. Coordination between the service and
enforcement arms of the INS is required to make the agency more
efficient and to ensure that its dual missions of enforcing the law
against those here illegally and facilitating residence and citizenship
for those here legally achieve the same level of support.
Last, a major stumbling block in passing this legislation has been
the concern with the rights of many talented employees already employed
by agencies who will be moving into the Homeland Defense Department. I
do not believe this legislation provides adequate safeguards for these
employees and I believe that the Congress will need to perform a great
deal of oversight to make certain that abuses do not occur in this
arena.
As I said before, no legislation is perfect, and our job in Congress
is not over with the passage of this bill. We need to remain dedicated
and focused in our task of ensuring that the implementation of this
bill is accomplished effectively and consistent with the principles and
rights that have made this country great.
Mr. REID. Mr. President, I want to discuss the bill before us dealing
with the creation of a department of Homeland Security.
I applaud Senator Lieberman for developing this idea of a new
department to protect our Nation against the horrible specter of
terrorist attacks on our cities and citizens.
The people of Nevada look to the Federal Government to make sure that
our State and our Nation are secure.
We all agree that our Federal Government can, and should, do much
better at preventing attacks, defending against attacks, and mitigating
the consequences of attacks.
In Nevada, we have already begun to help. The Nevada Test Site has
established itself as one of the premier centers for emergency
responder training. Under the new Department, this facility will only
flourish. The new Department will also help develop the burgeoning
counterterrorism programs at Nevada's major research institutions,
including the University of Nevada-Las Vegas and the University of
Nevada-Reno. The people of Nevada have a proud history of providing the
nation with the necessary skills, hard work and vision to protect our
Nation. I know Nevada will do the same for the war on terrorism.
A new department of Homeland Security will be a good start, but this
new Department is by no means the finish line in the effort to defense
our nation.
More important, this new Department must not be a distraction from
the job of protecting our Homeland. If it turns our that the
consolidated departments, agencies and bureaus are spending more time
looking for their new desks instead of hunting down Osama Bin Laden, I
will be the first one to work on legislation to fix it.
We must not believe that establishing this Department ends the need
for vigilant oversight, and we must not give in to the false security
that a new Department could provide. Protecting our Nation from the
horrors of terrorist attacks involves more than changing the name,
moving offices and shuffling desks around.
Protecting our Nation requires strengthening our intelligence
gathering and analysis--it means improving the communication between
many Federal departments and agencies--it means providing the funding
we need for research and technology investments--it means tapping the
resources of the American entrepreneur and the soul of the American
worker.
The proposed Department will address many of these concerns, but not
all of them.
I am voting to support this legislation, because the President claims
that it will be more than just a name change. I will be watching very
closely to make sure that it is.
There are several areas that I plan to keep a close eye on.
First, this new Department, though it has some new intelligence
sharing responsibilities, will not fix the problems at either the
Federal Bureau of Investigation or the Central Intelligence Agency or
the lack of coordination and cooperation between the two. Those
agencies were left out of the Department of Homeland Security, even
though they share tremendous responsibility for the Administration's
failure to properly interpret the intelligence warnings before
September 11.
Second, this bill gives tremendous authority to the executive branch
of the Government. With that authority comes tremendous responsibility.
In particular, this new strong authority presents a tremendous
potential for abuse and misuse. I am disappointed that such an
important piece of legislation would be used to weaken important
provisions of our law. This bill makes unnecessary attacks on the
ability of the American people to access Federal documents, and on the
protections afforded the people who work for the Federal Government.
The labor provisions of this bill still fall far short of what I'd
like to see. I still believe that it is entirely possible to reorganize
our homeland defense efforts and dramatically improve the state of our
Nation's security without stripping dedicated and loyal workers of
basic protections in their jobs. All across the country, there are
union members holding jobs that require flexible deployment, immediate
mobilization, quick response, and judicious use of sensitive
information. Police and firefighters have union protections, and their
ability to bargain collectively actually improves our ability to fight
crime and fires. The union protections make the jobs attractive enough
for talented individuals to want to stay in the positions for long
periods of time. We as a society gain because we are able to retain
skilled people to work on our behalf.
Senator Lieberman's bill was able to preserve a fair balance in this
respect. His legislation retained most labor rights, but in cases where
national security might otherwise be compromised, the President would
have the flexibility to do whatever was necessary to protect the
country.
This bill, on the other hand, will drive many talented individuals to
look for employment elsewhere, in positions that afford at least a
minimal level of job security and due process. I fear that over time we
will see a deterioration in the caliber of employees that join this
department, and I expect to revisit the labor provisions before many
years have passed.

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I am also deeply troubled by the efforts to allow this department to
operate in secrecy. We have seen the unfortunate impacts of secrecy in
the development of a national energy policy by the administration. This
bill would continue this dangerous trend on the part of the
administration. The administration appears to be more concerned with
protecting the corporations' bottom-line than defending the citizens
right-to-know.

I also have strong concerns about many of the provisions included in
this bill that do not relate directly to the creation of the department
of security.
A tax loophole has allowed dozens of U.S. corporations to move their
headquarters, on paper only, to tax haven countries to avoid paying
their fair share of U.S. taxes. Several months ago, Paul Wellstone and
I offered an amendment to bar the Department of Homeland Security from
awarding government contracts to these corporate tax runaways. The
Senate adopted that amendment unanimously, but this bill guts that
agreement. It is a sad reality that these corporate expatriations are
technically legal under current law. But legal or not, there is no
reason why the U.S. government should reward tax runaways with
lucrative government contracts.
Paul and I felt that if these corporations want Federal contracts so
badly, they should come home. Just come back to the United States, and
they'd be eligible to bid on homeland security contracts. And if they
didn't want to do that, then they should go lobby the Bermuda
government for contracts there. It should have been a priority of this
legislation to guarantee that the Department of Homeland Security
conduct its business with corporations who do their share to bear the
burdens of protecting this country. This legislation is more concerned
with window-dressing on this issue.
Although I agree that the agency primarily responsible for the
security and safeguarding of nuclear material, the Nuclear Regulatory
Commission, should not be in the new Department, the bill does not
address the important issues of chemical and nuclear power plant
security. Protecting our energy infrastructure involves challenges
related to the appropriate sharing of responsibility between the
private companies who own and operate these facilities and the Federal
Government. Our existing laws do not considered fully the implications
a terrorist attack would have on our ability to prevent and respond to
terrorist attacks on these facilities.
These concerns are real. In fact, the President raised the specter of
a terrorist attack on one of our nation's nuclear power plants in his
State of the Union address. And just a few days ago we were warned
again that these facilities are potential targets. The Department of
Homeland Security should work quickly with other federal agencies to
improve their security, until the Congress is able to enact appropriate
legislation to protect them.
Many of my colleagues have eloquently described the outrageous
special interest provisions that were included in this bill, so I won't
repeat many of those points. I do want to say that I am disappointed
that the administration chose to include these provisions. They knew
that this bill would pass, because it is so important to our country.
They knew they could try to sneak these outrageous provisions in. This
is not the way to increase the security of our country following the
horrendous attacks of September 11.
There are several provisions I am particularly pleased will be
enacted into law. These provisions deal primarily with the aviation
industry in the aftermath of September 11.
I am pleased that a provision to allow the Transportation Security
Administration flexibility to extend the baggage claim deadline for
airports was included in the legislation. This is extremely important
to Las Vegas McCurran and Reno/Tahoe International Airports in Nevada.
Las Vegas is the second leading airport in the nation for origination
and destination passengers. Only Los Angeles International airport
handles more. In fact, Las Vegas handles more luggage than most of the
nation's larger airports. Allowing TSA to work with selected airports
to implement the 100 percent baggage screening requirement over a
reasonable time period will in the long run be the most secure course
for the traveling public.
This legislation also includes language extending the time frame and
expanding the scope of War Risk Insurance made available to commercial
airlines under the FAA's War Risk Insurance program. This was a top
priority for the airline industry, described by leading industry
officials as the single most important and cost effective action
Congress could take at a time when commercial airlines are facing
enormous financial challenges. The provision in the bill should help
stabilize the insurance crisis resulting from the terrorist attacks of
September 11th. The War Risk Insurance provision of the bill mandates
extension of coverage through August 31st, with an option to extend War
Risk coverage through December 31, 2003. It also calls for expansion of
the scope of War Risk Insurance made available to airlines, adding
coverage for passengers and crew and loss of aircraft to the coverage
for third party liability currently made available by the FAA.
Finally, the bill reinstates a short term limitation of third party
liability in cases of terrorist acts involving commercial aircraft.
Last year's airline stabilization bill capped third party liability at
$100 million where the Secretary of Transportation certifies that an
air carrier was a victim of an act of terrorism. This short term
limitation of liability expired in March, however, and has now been
reinstated through the end of 2003.
Today I am supporting the creation of the Department of Homeland
security. Establishing a new department is an important way to ensure
we have a coordinated Federal response to potential terrorist attacks.
This legislation may have flaws, but the principle is correct. So
today I am choosing to support the legislation, but I will keep a close
eye on its implementation. If there are changes that need to be made, I
will work hard to fix the flaws.
Mrs. CLINTON. Madam President, in the months following September 11,
a new reality took hold in every corner of our country. We saw the
National Guard standing guard at our airports and in front of
Government buildings. Bioterrorism and border security were discussed
every day. The skies over New York and Washington, DC were patrolled by
our military. And every American believed that these new measures made
our Nation stronger and protected us against terrorist attacks.
But time has passed and that vigilance has faded. Not by our police
officers, firefighters, or emergency response personnel. Not by the
brave men and women who are serving in Afghanistan. Not by the workers
along our borders and in our ports. But by the Federal Government. We
have slipped into an almost piecemeal approach to Homeland Security and
that has to change, starting today.
``Are we safer today than we were on the morning of September 11,
2001?'' The answer is only marginally, because somewhere along the
line, we lost our way.
Those individuals who are sacrificing and working to do their best
and secure our country want to do more. But each day, despite some of
our efforts, we do less and less for them. We issue warnings about new
threats. We expect people and cities and towns to react accordingly,
but we do not provide enough funding, support, or guidance for them to
do their jobs. We need to redefine our focus on Homeland Security, and
one way to do that is to reorganize the way our Government works.
The votes we cast today for the creation of a new Homeland Security
Department are just that-votes for the creation of a department. Our
Nation and particularly the people I represent in New York, learned the
hard way on September 11, 2001--the status quo is unacceptable.
My hope is that approval of this bill sets in motion a necessary
reorganization process that will ultimately result in improved
coordination, information sharing, and a stronger and safer America. We
need to send a clear message that our Government is doing more than
simply talking about strengthening our homeland security; that we are
once again focused on concrete steps that will defeat the terrorists
and protect our people.
But we must be clear about what we are voting on today--this bill has
much

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to do with structural reorganization and very little to do with
enacting real steps that will protect our Nation against terrorist
attacks. There are many things in this bill that should not be; and
there are many things that should be in this bill that are not.
I am concerned that the American people will think that simply
because we have passed this bill that our Nation is safer. They need to
know that this measure does not increase patrols along our northern
borders.
It does not give our firefighters, police officers, and emergency
personnel the resources, training, and equipment they need to protect
our frontlines at home. It does not increase security measures at our
ports, along our railroads, and public transportation systems. It does
not increase our capabilities of detecting biological, chemical, and
nuclear weapons. What this bill does is it falls short on many counts,
especially when it comes to real measures that would improve our
security.
We had the opportunity to do this right. We had the opportunity to do
more than create a department, but we missed it. The Senate's original
bill included critical measures that would make our country safer today
than it was yesterday. But in the end, this Congress failed to put
safety first and special interests last.
There is a lot in this bill that secures the future for the special
interests and very little that secures our country. Those who are using
this legislation--this legislation that's about the security of our
Nation--as a vehicle for the special interests have done this country a
great disservice.
That is why Congress must not, cannot, stop here. Our job is far from
over. We must continue to fight to make sure that every substantive
part of the old bill that increased our security gets passed in the
next Congress.
Let's start with the obvious-supporting our first responders. They
are a critical part of our Homeland Security. Our firefighters, police
officers, and emergency personnel need direct funding, training, and
additional equipment to keep our Nation safe.
When it comes to Homeland Security, we need to listen to the
experts--our mayors, police commissioners, fire chiefs, and our public
health workers.
They continue to ask for direct funding, and that is why I proposed
legislation that would provide direct funding to local communities, the
Homeland Security Block Grant Act.
Since we began the war on terrorism, we have done everything to
ensure that our men and women in the military have the resources,
equipment and training they need to fight the war on terrorism, and
that's how it should be. But we are not doing the same at home. It is
unconscionable to me that a Homeland Security Bill such as this one
would not include support for our Nation's frontline defenders.
At the end of October, Senators Hart and Rudman released the
Terrorism Panel's report that clearly states that we are not doing
enough to support our first responders and keep our country safe. They
expressed grave concern that 650,000 local and state police officers
still operate without adequate US Intelligence information to combat
terrorists. We haven't done enough to help local and State officials
detect and respond to a biological attack. The report expressed concern
that our firefighters and local law enforcement agencies still do not
have the proper equipment to respond to a chemical and biological
attack. Their radios are outdated and do not allow them to communicate
in an emergency.
What kind of tribute is this to the heroes who lost their lives in
last September? What would the firefighters, police officers, and
emergency response workers who did not think twice about rushing to
Ground Zero to save lives say about the lack of progress that's been
made?
Additionally, the SAFER Act, a provision that allows our country to
hire 25,000 firefighters over the next couple of years has been
eliminated from this bill. This is the time for us to do more for our
first responders, not less. They are the most important link in our
Homeland defense, and to shortchange them in these difficult times is
incredibly shortsighted.
We must also act to better secure our Nation's nuclear power
infrastructure. While the Homeland Security Bill will create a new
department, it does not adequately address the very real threat of
terrorists' capabilities and desire to destroy our nuclear power
plants. Our efforts to protect our infrastructure is moving much too
slow. Last year, Senators Jeffords, Reid, and I introduced the Nuclear
Security Act. This summer, we succeeded in moving the Act through
Committee.
It is a shame that the Homeland Security Bill does not address
nuclear security and it should. These protections should be included in
this discussion, and the new Congress must work together to pass the
Nuclear Security Act promptly.
We must also better protect ourselves against the very real threat of
terrorists detonating a dirty bomb in our country. It is imperative
that we better secure our domestic radioactive materials. Every year,
highly active sources used in industrial, medical and research
applications are lost or stolen in America. This is why I introduced
the Dirty Bomb Act to strengthen these security measures and enhance
our security.
And, while we work in the Congress to pass security measures like
these, we will have to also work to get rid of provisions that do not
belong here.
As I described on the Senate floor and in a press conference last
week, this bill includes unrelated vaccine liability provisions.
Protecting manufacturers from liability can be appropriate as part of a
comprehensive vaccine bill that addresses a balanced range of important
goals, including strengthening vaccine supply and addressing families'
interest in compensation. But plucking out industry liability
protections and addressing only that side of the issue clearly
prioritizes manufacturers over families, and puts politics ahead of
homeland security.
The provisions protect one particular manufacturer by dismissing
existing lawsuits brought by parents of autistic children who believe
there may be some connection between the mercury-based preservative and
their child's illness. There may or may not be a connection, and the
tort system may or may not be the right solution.
However, enacting only provisions that help manufacturers, while
ignoring families concerns for compensation, and children's needs for a
strong vaccine supply not only fail to protect homeland security, they
fail to adequately protect children from preventable disease. All they
do is protect vaccine manufacturers against lawsuits and undermine our
bipartisan efforts to assure that every child is vaccinated safely.
While I believe the Congress should debate issues of tort reform and
reasonable arguments have been made, I am also concerned that some of
the tort provisions included in this legislation have nothing to do
with homeland security and have not been debated by the Senate. One
provision is the ``Support Anti-Terrorism by Fostering Effective
Technologies Act of 2002,'' ironically named the ``SAFETY Act.''
This measure lowers standards by giving manufacturers immunity from
liability for the products they make that our first responders will
use. How will this help America build a stronger homeland defense? It
doesn't--it just makes it easier for manufacturers to get away with
indefensible actions.
There is a provision in this bill that upsets the balance between the
public's right to know and the Government's responsibility to protect
certain information so that it can better secure our country.
The House-passed bill contains significant loopholes that would
provide protections for certain information by limiting access,
prohibiting its use in court, and even making it a crime to make such
information available. It appears that the bill may even allow
companies to decide for themselves what information should be afforded
such protections. This means certain protections could potentially be
extended to information that doesn't even have anything to do with
security, thereby shielding potentially damaging information from the
public and the courts.
While private entities should be encouraged to provide critical
infrastructure information to the Government in order to help assess
and address vulnerabilities to future terrorist attacks, it should not
come at the expense of the public's right to know.
I am also troubled by the so-called compromise over the civil service
and

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labor provisions in the new bill. The bill gives the President the
authority to waive civil service protections in six key areas including
rules for labor-management relations and appeals to the Merit Systems
Protection Board.
I am concerned that this will hinder the ability of the new
department to recruit and retain civil service employees who have
expertise in the agencies that will be shifted to the new Department.
This shortchanges the workers and shortchanges all Americans who
believe we should have the most qualified individuals working in this
new department.
The bill will also allow the Administration to strip workers of their
collective bargaining rights through a waiver authority. I must say
that we have every reason to believe that this Administration will take
advantage of this authority. It has already taken away these rights
from secretaries at the U.S. Attorney's offices. And I fully expect
that it will use this authority, if it is granted, to strip away the
rights from the more than 50,000 workers who will make up the newly
formed Department of Homeland Security.

As a Senator from New York, I have a particular interest in this new
department and have some specific concerns on behalf of my State. When
it comes to protecting New York and New York City, I do not believe
that this bill goes far enough and I will work to fix these provisions
so that they do. The bill ensures a special coordinator of homeland
security in the Capitol Region, DC, Maryland and Virginia, but does not
establish a similar coordinator for New York City's metropolitan
region.
Intelligence reports indicate that like Washington, DC, New York City
is a high-risk area, still a target for terrorists and a symbol of our
Nation. Even as we recover, we are still vulnerable, and the New York
region needs its own coordinator.
In the aftermath of September 11, FEMA was able to respond to an
unprecedented kind of disaster, precisely because it was a highly
functioning, well-run agency. All of us in New York are indebted to
Director Allbaugh and his staff for their good work. I am concerned
that transferring FEMA into the new department could force a highly
competent independent agency into a new bureaucracy that will have
challenging integration issues and thus diminish the effectiveness of
FEMA's ability to respond to crises of all kinds.
I also oppose moving Plum Island from the Department of Agriculture
into the new Department. Also, I fear that this move could be a
precursor to raising the biosafety level at the Plum Island facility.
This would allow research on life-threatening exotic animal diseases
and these harmful materials could be transmitted through the air. This
would pose too many risks to those in my State who live near the
facility, and I will strongly oppose any efforts to raise the biosafety
level at Plum Island.
As I have said throughout the last fourteen months, we need this new
department to better coordinate and share information. There is no
question we must change the way things work in Washington so that we
adapt to the post 9/11 world. There are many problems with this bill,
some of which I have outlined here. These problems will need to be
addressed in the months and years ahead.
Today, the Senate will also vote on a continuing resolution to fund
the Government at last year's funding levels from now through January
11th. While it is imperative we keep the Government running, it is
shameful, not to mention ironic, that we will depart without ensuring
that we fund homeland security. It is not enough to create a new
Department without investing in the necessary funding to protect
against bioterrorism, increase our port inspections, secure our
Nation's nuclear weapons plants, invest in technology so that our first
responders can communicate in a disaster.
At best, we are sending mixed messages to the American people about
our priorities; even more troubling is that these actions reflect what
actually are the Government's present priorities.
But at the end of the day, we must move forward with this bill.
Hopefully, it will spur us to focus once again with the same commitment
and vigilance we had in those weeks and months after that tragic day in
September. The threats continue to come in. Attacks occurred in Bali,
Yemen, and in Kuwait. A new tape reveals that Osama Bin Laden is most
likely alive. And al-Qaida is plotting all the while.
We do not have the time or the luxury to remain in this status quo.
This bill is the smallest step forward we can take, but it is a step
forward nonetheless and that is why I support it.
On its own, it will not make us safer but it pulls us out of this
piecemeal approach to Homeland Security and directs our Government to
pursue one fundamental goal--to make sure that we do everything in our
power to make America stronger and safer so that no other American life
is taken by the hands of a murderous few.
Mr. HOLLINGS. Madam President, I am voting against the legislation
before the Senate to institute a new Department of Homeland Security.
The President says we need a Department to prevent another September
11, but all this legislation does is produce an elephantine
bureaucracy. It does nothing to fund the people on the front lines, who
really could fight terrorism; instead funds will be spent in Washington
by bureaucrats for bureaucrats.
The proposed department excludes the very entities that failed on
September 11, but includes all the ones that did not. On September 11
the CIA dropped the ball on intelligence it possessed. So did the FBI.
Yet they aren't included. But the Coast Guard did not mess up on
September 11th, nor did FEMA, nor did the Agriculture Department's
Animal and Plant Health Inspection Service yet they are all included.
This is a game of musical chairs. It shuffles and reorganizes 170,000
employees, at 22 different agencies, involving more than 100 bureaus or
branches. Yet roughly 110,000 of the personnel scheduled to be moved
are already together. Airport, seaport, rail security, and the Coast
Guard are already part of the Transportation Department.
The legislation is loaded with items purporting to be helpful to our
national security, but which may have little effect or would even
hinder security. It rolls back the deadline for all airports to check
every passenger's luggage, not just the few dozen that may need some
additional time. It is crazy to call for the urgency of a new Homeland
Security Department, and then say to our highest profile targets,
``take your time.''
It lets pilots carry guns in cockpits, but doesn't require
impenetrable cockpit doors, which the Senate agreed was critically
needed. What more proof do we need then on Sunday, when the locked door
on an El Al airplane helped prevent the hijacker from flying into
skyscrapers in Tel Aviv?
The bill is full of payoffs and surprises the House leadership
included at midnight, right before they left town. Suddenly, we are
helping Eli Lilly--why? Suddenly, we are helping American companies
that went to Bermuda to avoid taxes. Suddenly, we are absolving private
aviation screening companies from liabilities related to their
September 11 failures. What does any of that have to do with homeland
security?
This legislation is supposed to create an independent commission to
determine what went wrong on September 11. Incredibly, the very
provisions Congress inserted to establish this Commission, freeing the
investigation from political hand wringing in the Select Committee on
Intelligence, were dropped by House leaders after the elections. The
so-called independent commission is now anything but independent.
And in nearly 500 pages, the legislation fails to contain a very
important item that would be immediately helpful. No where is the
National Security Council re-organized. September 11 was an
intelligence failure. It was not due to lack of information. As soon as
the terrorists struck we knew who they were. Immediately, we rounded up
suspects here and moved into Afghanistan. Instead, the problem was a
failure on the part of the National Security Council to coordinate,
analyze, and deliver the intelligence to the President.
The President should be able to get well-analyzed reports of domestic
threats on a timely basis. But how can he when his own National
Security Council does not even include the Attorney General or the
Director of the FBI? If Congress wants to re-organize, we should re-
organize the Council to

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include law enforcement and to make certain intelligence is shared with
Customs, INS, the Coast Guard, and the others who need to know. Equally
important, intelligence should be shared with and received from state
and local officials, but it's not here in this bill.
Right to the point: this Senator has not waited for a behemoth bill
to take action on homeland security. In the Commerce Committee, we
moved several concrete measures to improve our transportation security,
insofar as air and sea ports, and trains and buses that criss-cross the
country.
When Americans fly this holiday, they will see huge improvements in
the way security is provided. Congress just passed our legislation to
close the gaps that exist at ports along America's coasts, for the
first time creating a national system for securing our maritime
borders.
Is there more this Senator wants this Congress to do for those on the
front-lines of homeland security? Absolutely. We should provide for the
security of Amtrak's 23 million passengers. We should improve security
on buses and freight rail. We should finish the job at our airports and
at our seaports. We should prepare our hospitals and other first
responders to react to an act of bioterrorism.
But how can we when we are going to throw billions to shuffle
bureaucrats from one side of Washington to the other. Designing a new
logo is not going to help secure our homeland. Nor is renting office
space, or buying more desks, and everything else like that. We will be
paying more for nonsense redecorating than arming those on the front
lines.
We have our priorities messed up. A new Department of Homeland
Security is unnecessary. And the worse case is for the Department to be
set up and our country lulled into thinking we are all safe and secure.
A September 11 could still easily happen again.
Mr. FEINGOLD. Madam President, I regret that I am unable to support
the Department of Homeland Security bill. While this reorganization may
make sense, it should not have come at the expense of unnecessarily
undermining our privacy rights or weakening protections against
unwarranted government intrusion into the lives of ordinary Americans.
We need to be better able to review and identify critical
information, take more rapid steps to address terrorist threats and,
when necessary, share information quickly with local law enforcement. I
had hoped that the proposed creation of a new Department of Homeland
Security would have focused on those priorities.
Protecting the American people is the number one responsibility of
our government. As a result of the tragic events of September 11, we
all recognized that a major review of our government was needed. As we
have debated the need for, and the details of, the new Department of
Homeland Security, I have been guided by two principles: Will this
reorganization make all of us safer? And will it preserve our liberties
as Americans? Unfortunately, while there is much that is good in this
bill, there are a number of critical areas where the bill simply goes
too far, or falls short.
After careful review, I must conclude that this bill is not well
thought out. The American people would benefit from the Congress paying
closer attention to the details of this new version of the bill. This
proposal threatens to erode the fundamental civil liberties and privacy
of all Americans. It does not ensure that the new Department will be
able to effectively communicate and share information with agencies
like the FBI. It is weighed down with special interest provisions that
have nothing to do with the creation of the new department. It does not
give our first responders all of the tools and information necessary to
protect our communities. It lacks adequate civil rights oversight, and
it needlessly undermines the employment rights of the dedicated workers
in this new Department who will be protecting all Americans. At times,
the proposal reads like a dusted off copy of an earlier administration
wish list, much of which has nothing to do with our fight against
terrorism.
We need not unnecessarily sacrifice treasured civil liberties and
privacy in order to be secure. I fear that the bill we are voting on
today will authorize the federal government to maintain extensive files
on each and every American without limitations. The data mining
provisions in the bill encourage retired Rear Admiral John Poindexter's
massive government effort to create a computer file on the private life
of every American. The Total Information Awareness system now under
development needs active congressional oversight, particularly in these
early days of the program. Rather than giving further authorization to
this kind of effort in this bill, we should be demanding that the
administration immediately suspend the Total Information Awareness
initiative until Congress has conducted a thorough review and refrain
from implementing this program in the new Department.
In addition, the present proposal, in a section about cyber-security,
actually creates a sense of insecurity for all of us. The Federal
Government would have the right to obtain the contents of our private
computers without adequate judicial oversight. This bill weakens
important safeguards on government access to our e-mails and
information about what we do on the Internet without the need for a
court order. The Department should be focused on protecting us from our
enemies, not on snooping on innocent activity.
While the bill does make some progress toward enhancing communication
among many agencies that are charged with protecting Americans, it
falls short in ensuring that the essential work of agencies like the
FBI will be adequately shared with and utilized by the new department.
Overall, the proposal fails to enable the new department to be a full
participant in the intelligence community.
While our public safety must be our highest priority, we should not
turn a blind eye to the bottom line. And we should not aggravate our
budget problems by adding expensive special interest provisions that
have nothing to do with this new department.
Special interest provisions in the bill would cap liability for drug
companies for vaccine additives, give the Secretary of the new
department broad authority to designate certain technologies as so-
called ``qualified anti-terrorism technologies,'' thus entitling the
seller of that technology to broad liability protection no matter how
negligent the seller, and apparently earmark the university-based
homeland security research center for Texas A&M.
All of us know that local law enforcement, fire fighters, and other
first responders are on the front lines in the fight against terrorism.
The Department of Homeland Security needs to ensure that Federal, State
and local law enforcement agencies, fire fighters, and other first
responders are able to work together to adapt and respond to the
evolving challenges of terrorism. Unfortunately, the new department is
not organized in a manner that provides the maximum possible help to
those on our front lines. A Department of Homeland Security must ensure
that it provides our local first responders with the necessary
information, tools, and resources that are required to adapt and
respond to the evolving challenges facing our First Responders.
I am disappointed that my bill, the First Responder Support Act,
introduced with the Senator from Maine, Ms. Collins, is not part of the
present proposal. It had been included in the Lieberman bill, but was
stripped out of the bill last week without any warning by the House
leadership. The First Responder Support Act will help first responders
get the information and training they need from the Department of
Homeland Security, and that measure will be a top priority for me in
the next Congress.
I am also concerned with the proposal's disdain for the public's
right to open government. The bill would undermine the protections of
the Freedom of Information Act and exempt the proposed department's
advisory committees from the open meetings requirements of the Federal
Advisory Committee Act. Current law already provides adequate
protection for sensitive information. The broad language of this bill
is far too sweeping.
Finally, I believe that while this bill includes some civil rights
oversight, it offers weaker protections than are found in other federal
agencies. Steps should have been taken to strengthen

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the Civil Rights Office in the new department by requiring that the
head of that office be subject to confirmation by the Senate and
therefore accountable to the Congress and the American people. The bill
should have designated an official in the office of the Inspector
General to fully investigate allegations of civil rights violations.
This bill also should have included stronger protections for the
Americans who will be working in this new Department and protecting our
Nation. Congress owes these Americans the same employment rights that
other public servants enjoy.
We must not forget that we are having this debate because of what
happened on September 11. We need to learn from September 11 and ensure
that we do not fall victim to a similar tragedy in the future. I
believe that we could have given the American people a Department of
Homeland Security that would ensure their safety and security, and
protect their civil liberties. Unfortunately, this bill has too many
provisions that unnecessarily jeopardize our basic freedoms, and I
cannot support it.
Mrs. LINCOLN. Madam President, I rise tonight to strongly support the
creation of a Department of Homeland Security. By consolidating the
agencies responsible for protecting our borders and infrastructure, we
can make significant progress in ensuring the security of the American
people, and this body would be remiss if we were to fail in passing
this critical legislation before we adjourn.
Just this week we've learned that Osama bin Laden is still alive and
still posing a threat to American interests at home and abroad. Recent
activity and communications by his al-Qaida terrorist network, which we
have seen reported in the media, suggest that the threat is as serious
today as it was 14 months ago. These are glaring reminders that the War
on Terrorism is far from finished and that we must be vigilant both at
home and abroad to protect and defend this Nation.
I also want to reassure all Arkansans that the creation of this
Department is not the only step in the protection of this Nation.
Homeland security must be an ongoing process as we respond to new
threats and the inevitable needs to correct deficiencies in this
legislation--including modifications to this department over time. I
intend to continue to seek any and all ways that we can increase the
security of our homeland.
As I said in remarks on the Senate floor last week, I would like to
state for the record my disappointment with some provisions that were
added by the House of Representatives in the final hours without any
opportunity for debate.
Three provisions in particular give me pause: waivers that the
administration will be able to use to grant Federal contracts to
companies that reincorporate offshore to avoid paying U.S. taxes;
provisions that would broaden limits on lawsuits against vaccine makers
to manufacturers of other vaccine components, covering still-pending
litigation; and highly specific criteria that would be used to
designate universities as part of a homeland security research system.
A few of other provisions added by the House have merit, but they
deserve an open debate. For example, I believe that we need to limit
the liability of companies that make ``qualified anti-terrorism
technology'' against claims arising from acts of terrorism, but this
issue deserves more debate. We also ought to limit lawsuits against
companies that manufacture aviation security equipment. It's
unfortunate that these provisions, which may be perfectly worthy
legislative remedies, have been slipped in to the bill without full
consideration by Congress. I certainly hope each of these provisions
will be revisited and fully debated next year.
Again, I'm deeply disappointed by some special interest provisions
that were added to the homeland security bill. However, I believe that
the necessary creation of a Department of Homeland Security outweighs
the special interest provisions added to this legislation and I am
proud to aid in its creation. I'm casting my vote in order to serve the
higher good of protecting the American people from present and future
terrorist threats.
Mr. LEVIN. Madam President, I am a strong supporter of creating a new
department for homeland security, and I was glad to be able to
cosponsor the bipartisan legislation that passed out of the
Governmental Affairs Committee in July of this year. But this
legislation, now, falls so short of the promise of that committee-
passed bill, that I am compelled to vote no. The legislation the Senate
will pass tonight has numerous unrelated and inappropriate special
interest provisions, omits numerous related and appropriate homeland
security provisions, and fails to address probably the most central
question to our security the coordination and sharing of information
between the CIA and the FBI.
The homeland security bill that we are debating today is a dramatic
departure from the bipartisan legislation that passed out of the
Governmental Affairs Committee.
The new bill now has numerous provisions that no one had seen until
the Thompson amendment was presented to the Senate late last week, and
too many of the provisions have less to do with homeland security and
more to do with the access of special interests.
One of these provisions provides liability protection for
pharmaceutical companies that make a mercury-based vaccine preservative
that may cause autism in children.
Another provision guts the Wellstone amendment, which would prohibit
Federal agencies from contracting with corporations that have moved
offshore to avoid paying their fair share of U.S. taxes--taxes that are
used for important security agencies such as the FBI, Coast Guard,
Customs Service, the INS, and the Border Patrol.
Another provision provides an earmark to Texas A&M University for
research.
At the same time the Thompson amendment added weakening and special
interest provisions like these, it deleted important provisions that
would enhance our homeland security--including a grant program for
additional firefighters, a program to improve the security and safety
for the Nation's railroads, and a program to improve information flow
amongst key Federal and State agencies with responsibility for homeland
security. The bill completely removes key areas that we had come to
bipartisan agreement on at the committee level such as important
language relative to foreign intelligence analysis and the Freedom of
Information Act, FOIA.
Finally, it hands the President a blank check with regard to so-
called reforms of the civil service.
The over-reaching by the Republicans to include special interest
provisions and to exclude strong bipartisan provisions is nothing less
than shocking. The exclusion of strong bipartisan provisions addressing
key issues with respect to homeland security is nothing less than
dangerous to our security.
Let's back up and look how we got to where we are today. Senator
Lieberman initiated legislation to create a new Department of Homeland
Security last year shortly after the September 11 terrorist attacks. We
had hearings on the proposal and the first committee markup, and at
that time, President Bush opposed the creation of a new Department. As
a result, the vote to report the bill we reported from Governmental
Affairs was along party lines, with all of the Democrats, including
myself, voting for it and the Republicans voting against it.

In the spring, President Bush changed his mind and put forth his own
proposal for a new department. We in the Governmental Affairs Committee
then worked on a compromise committee amendment, merging most of what
the President wanted with the committee-passed bill. We reported that
to the floor at the end of July. A great deal of time went into
crafting that bill. Chairman Lieberman held 18 hearings on various
issues dealing with homeland security. We had a two day mark-up; we
considered dozens of amendments; and we passed the bill out of the
Governmental Affairs Committee by a 12-5 vote. We ultimately came up
with what I believe was a good bill.
However, the bill before us today takes some major step backwards.
For one, this bill muddles the issue of responsibility for foreign
intelligence analysis at precisely the time we should be clarifying it.
The intelligence issues we face are some of the most important issues
in this reorganization. Many of us on the Intelligence Committee have
been taking a

[[Page S11446]]

hard look at possible intelligence failures before 9/11. Whether or not
these failures, if they hadn't occurred, could have avoided 9/11 could
be the subject of endless speculation, and that is not the point. The
point is, we need to do a better job of coordinating our intelligence.
We need to give those who do coordinate our intelligence the resources
that they need, and we need to better define their roles and
responsibilities. The Governmental Affairs Committee passed bill
contains language I offered with respect to the new Department's role
in gathering and analyzing intelligence on possible terrorist attacks
in the United States. My language clarified the intelligence gathering
functions and assigned responsibility. The language in the Thompson
amendment leaves the intelligence community without clearly defined
roles and creates the possibility for unnecessary and costly
duplication of efforts. We cannot afford that kind of situation post 9/
11.
Let me explain. Right now we have an office at the CIA called the
Counter Terrorist Center or CTC, where all information, regardless of
source, about international terrorism is sent and analyzed. Whether it
is obtained overseas or in the U.S., the CTC is the central place for
counter terrorism intelligence.
The CTC, which has 250 analysts, receives 10,000 incoming
intelligence reports a month about international terrorism from the
State Department, Customs, local law enforcement, FBI, INS, and a range
of other sources. Representatives from the FBI, Department of Defense,
Department of State, Department of Justice and other agencies that are
involved in collecting and receiving information about international
terrorism, work at the CTC with CIA analysts. One of the questions we
faced in the Governmental Affairs Committee was how the
responsibilities of the new Department in terms of intelligence
gathering and analysis related to the ongoing role of the CTC.
My language in the Governmental Affairs passed bill kept the
principal responsibility for analyzing information about international
terrorism at the CTC. Under my language, the CTC would receive all
foreign intelligence, regardless of source, and would be primarily
responsible for its analysis. As defined by the National Security Act,
50 U.S.C. 401(a), ``foreign intelligence'' is ``information relating to
the capabilities, intentions or activities of foreign governments or
elements thereof, foreign organizations, or foreign persons, or
international terrorist activities.'' My language makes it clear that
the principal responsibility for collecting and analyzing information
about international terrorism would be at the CTC.
Under the Committee-passed bill the new Department of Homeland
Security would have a directorate of intelligence that would be
responsible for the receipt and analysis of all information relating to
acts of terrorism in the United States including the foreign
intelligence analyses from the CTC, as well as information and analyses
relating to terrorist activities of U.S. persons or organizations. The
new directorate would be responsible for linking all that information
and analyses to an assessment of vulnerabilities to acts of terrorism
on U.S. soil.
Under the Governmental Affairs Committee bill, the new Department
would, therefore, not only be responsible for the domestic terrorism
intelligence analyses, but it would fuse foreign intelligence analyses
with the domestic intelligence analyses and obtain an assessment of
vulnerabilities to terrorism existing in the U.S. In other words, the
new Department would, as many have used the phrase, ``connect the
dots''--intelligence analyses, foreign and domestic, and U.S.
vulnerabilities.
By maintaining the role of the CTC in international intelligence and
adding the role of the new Department in the overall analytical
responsibility with respect to terrorism in the United States, we would
avoid duplication and redundancy.
The Thompson amendment includes language that would appear to
duplicate the CTC at the new Department, and I cannot support that.
Duplicating the responsibility of analysis of foreign intelligence
would only waste valuable and limited resources and undermine our
objective of getting the best counter terrorism intelligence we can
get. According to the Congressional Research Service, the number of
experienced and trained analysts ``tends to be in short supply.'' We
just don't have the resources or the people to duplicate analyses of
foreign intelligence. It is important not to duplicate the CTC's
capability, but to strengthen it and keep the primary responsibility
for the analysis of information about international terrorism, from
wherever obtained, in one place.
Another reason that I am voting against this bill is because the
Bennett-Levin-Leahy compromise with respect to the Freedom of
Information Act, a compromise that the administration supported at the
Governmental Affairs Committee mark-up, is not in this bill.
One of the primary functions of the new Department will be to
safeguard the Nation's infrastructure, much of which is run by private
companies. The Department will need to work in partnership with private
companies to ensure that our critical infrastructure is secure. To do
so, the homeland security legislation asks companies to voluntarily
provide the new Department with information about their own
vulnerabilities, the hope being that one company's problems or
solutions to its problems will help other companies with similar
problems.
Some companies expressed concern that current law did not adequately
protect the confidential business information that they may be asked to
provide to the new Department from public disclosure under the Freedom
of Information Act. They argued that without a specific statutory
exemption they would be less likely to voluntarily submit information
to the new Department about critical infrastructure vulnerabilities.
We crafted a compromise to put into statute important protections
established in case law. The resulting compromise would protect from
public disclosure any record furnished voluntarily and submitted to the
new Department that:
First, pertains to the vulnerability of and threats to critical
infrastructure, such as attacks, response and recovery efforts;
Second, the provider would not customarily make available to the
public;
Third, are designated and certified by the provider as confidential
and not customarily made available to the public.
The Bennett-Levin-Leahy compromise made clear that records that an
agency obtains independently of the Department are not subject to the
protections I just enumerated. Thus, if the records currently are
subject to disclosure by another agency, they would remain available
under FOIA even if a private company submits the same information to
the new Department. The language also allowed the provider of
voluntarily submitted information to change a designation and
certification and to make the record subject to disclosure under FOIA.
The language required that the new Department develop procedures for
the receipt, designation, marking, certification, care and storage of
voluntarily provided information as well as the protection and
maintenance of the confidentiality of the voluntarily provided records.
The Bennett-Levin-Leahy compromise is not included in the Thompson
amendment. Instead, the bill cuts back on FOIA access by the public by
expanding the type of information that the new department can keep from
the public. The language in this bill could result in the issuance of
rules by the new Department based on information not included in the
rule making record. It could prevent the Federal Government from using
critical infrastructure information in a civil suit seeking to protect
public safety. Finally, the language in the Thompson amendment could
result in a criminal penalty against a whistle blower who leaks the
kind of information presented to the new Department on critical
infrastructure.
The principles of open government and the public's right-to-know are
cornerstones upon which our country was built. With this bill, we are
sacrificing them in the name of protecting them. The Bennett-Levin-
Leahy compromise would have balanced the need between openness and
security to protect these principles.
I will also be voting against this bill because of the civil service
provisions

[[Page S11447]]

that President Bush is calling ``flexibility'' but that I consider an
unnecessary blank check. There are really two issues here, one concerns
collective bargaining, and the other concerns the civil service in
general.
Under existing law, the President can issue an executive order
excluding any agency or subdivision of an agency from collective
bargaining if it is involved in a matter of ``national security.'' For
example, in January of this year, the President issued an executive
order which took collective bargaining rights away from hundreds of
Department of Justice employees, many of them clerical workers involved
in civil issues under the label of ``national security.''
But even without the national security exception, under current law,
in an emergency, the new Department could waive collective bargaining
rights, because under 5 U.S.C. 7106, ``nothing, in the chapter
establishing collective bargaining rights, shall affect the authority
of any management official of any agency . . . to take whatever actions
may be necessary to carry out the agency mission during emergencies.''
In addition, current law prohibits federal employees from striking
under any circumstances.
The Thompson bill would allow the President to waive collective
bargaining rights, whether or not there is an emergency, as long as he
gives 10 days notice and sends a written explanation to Congress. This
provision does not provide a standard under which the President's
authority is to be exercised. So in the most extreme example, under
this provision, the President could remove the collective bargaining
rights of every single employee who was transferred into the new
Department. That is unacceptable. What we tried to do in the
Governmental Affairs Committee bill was to allow workers with
collective bargaining rights transferred into the new Department to
maintain those rights if their job descriptions did not change. Given
the President's authority to act in an emergency under current law, I
believe that protected our national security without unnecessarily
trampling on rights of employees.
The Thompson amendment also allows the Secretary of the new
Department to alter civil service rules. If the Secretary does so, then
the employee unions would have 30 days to review the changes and make
recommendations to the Secretary. If the Secretary doesn't agree with
those suggestions, he or she could declare an impasse and send the
dispute to federal mediators. After another 30 days, the Secretary
could go ahead with the changes, regardless of what the mediator
suggests. The President argues that this process gives the unions a say
in any changes, but the reality is that the unions have no real
substantive remedy to the Secretary's proposed changes. No matter how
much the employees and unions oppose the new rules, how much they fight
against them, in the end, the Secretary has unilateral power to issue
the rules under the Thompson amendment.
I supported creating a Department of Homeland Security from the
beginning--like many of my Democratic colleagues well before the
President came on board. It's disheartening that the President and the
Republican leadership couldn't accept the bipartisan bill reported by
the Governmental Affairs Committee and work with that to develop a bill
without the major flaws described above. It's also distressing indeed
that the President and the Republican leadership chose to use the
Homeland Security Department legislation as a vehicle for unrelated
special interest legislation while leaving behind a number of very
important security-related provisions.
I would have been happy to stay here to work out the differences in
this legislation and develop the strongest legislation possible. But
with this vote, now, that is an impossibility. So, I hope in the next
Congress to work with my colleagues who share my views on some of these
provisions to make some needed changes to this legislation.
Let me add one more thing about how far astray we have gone with this
legislation. While the President has been holding out on passage of
this legislation in order to get the authority to waive collective
bargaining rights for employees at the new Department, the key agencies
in the Federal Government that are at the front lines of protecting our
homeland have gone underfunded in this fiscal year. According to the
House Appropriations Committee Staff: while we have authorized $38
billion for homeland defense, we have actually appropriated only $640
million to the new Department and other agencies; while we have
authorized an additional 200 immigration inspectors and 200 immigration
investigators, to date we have appropriated no money for these
positions; and while we have authorized $520 million for hospital
emergency rooms, we have only appropriated $135 million. The Republican
leadership in the House has failed to send us the appropriations bills
for fiscal year 2003 that would increase funding for the Customs
Service, the Border Patrol, the Coast Guard, the FBI, the CIA--all of
the agencies we need to have additional resources to stave off or
adequately respond to a terrorist attack. That is the unfortunate final
chapter to this story. By not taking up the appropriations bills for
next year, we are delaying the delivery of desperately needed dollars
to the very agencies charged with protecting us from terrorist attacks.
The misdirection of priorities involved is harrowing.
Mr. KOHL. Madam President, today the Senate will finally pass a
homeland security bill. This debate began in the Senate with Senator
Lieberman's efforts in the Government Affairs Committee last Spring,
and it ends today with the Senate left with no choice but to pass the
House of Representative's version of the bill. This is an imperfect
bill, and it has come to this point through an imperfect process. The
desire to create a domestic agency capable of protecting Americans from
terrorism is bipartisan--even universal. Unfortunately, the creation of
the bill to do that has been partisan and destructively political.
Few of us have had a chance to consider this new proposal carefully.
And what we have found has not been encouraging. The House version of
the homeland security bill includes too many special interest
provisions slipped in at the last minute. The Daschle-McCain amendment,
which I supported, would have eliminated the most egregious of these,
but the Senate narrowly rejected it. It is shameful that some used this
vital Government reorganization legislation to pay back unrelated
political debts.
I also must go on record strongly in opposition to the bill's
provisions on Federal employees and their rights to organize a union
and exercise their rights as members of a union. The President's
authority to manage the Federal workforce has never been an issue
before now. No one claimed that if the President had more flexibility
over the Federal workforce that the September 11 attacks would have
been avoided or that new work rules would have made it easier for the
CIA and FBI to exchange information. Again, these unprecedented
restrictions on workers' rights were inserted in must-pass legislation.
Again, it is shameful that this vehicle was used to pursue a political
agenda.
The House bill, however, at its core does take some needed steps to
make us all safer. The United States must better focus its counter-
terrorism efforts if we are to avoid future attacks. Too many agencies
and organizations inside the Government share responsibility for
responding to terrorism domestically. The old saying has been quoted on
the floor many times during this debate, but is worth doing it one more
time: ``When every one is in charge--no one is in charge.'' By making
one Cabinet level agency in charge of Homeland Security we will have
only one person in charge. The bureaucracy underneath the Secretary
will have only one unifying priority. The advantages of that change
cannot be overestimated.
However difficult the crafting of the homeland security legislation
has been, it was the easy part. Now we face the difficult and
monumental task of actually putting the parts together into a whole
greater than its sum. The offices that make up the Department of
Homeland Security cannot forget the other important missions they
perform. Organizations like the Coast Guard and the Animal and Plant
Health Inspection Service have valuable missions outside of their
homeland security function that cannot be overlooked.

[[Page S11448]]

The Congress's work on homeland security should not stop here. As the
transfer of offices begins, there will no doubt be changes necessary.
Congressional oversight is more important now than ever. With this bill
Congress has decided that the Executive Branch needs to take homeland
security more seriously. But Congress needs to take it seriously, too.
That means giving up our short-term political games in order to work
together--Republican and Democrat, White House and Congress--to build a
bipartisan, functioning agency that will deliver all Americans the
security they deserve.
Mr. KERRY. Madam President, since September 11, 2001, many in
Congress have been assiduously working to create a Department of
Homeland Security, and I am pleased that today we are finally
completing our work. After the terrorist attacks on New York and
Washington it became clear that to thwart future attacks on the United
States the Federal Government would have to do a better job gathering
and coordinating intelligence. Since September 11 I, along with several
colleagues, have believed that a reorganization of the Federal
Government is critical to improving the security of this country.
Though the President and many Congressional Republicans initially
opposed this major reorganization, there is now consensus on the need
to create a new department.
It is imperative that we move quickly and urgently to reorganize the
Federal Government. Vulnerabilities exist in our homeland security
infrastructure and we should not squander a single day addressing them.
An independent task force, chaired by former Senators Gary Hart and
Warren Rudman, recently advised that ``America remains dangerously
unprepared to prevent and respond to a catastrophic attack on U.S.
soil.'' There is also new evidence that Osama bin Laden is alive and
recently recorded an audio tape. We must act now to create this agency
and to ensure that the United States Government is doing everything in
its power to better protect its borders, coasts, cities, and towns.
The Transportation Security Agency continues to play a vital role in
our domestic security policy under this legislation. At no time in our
Nation's history has increased security for our transportation
infrastructure been as critical, and I am confident that as part of
this new department the TSA will perform up to task and help ease the
fears many Americans have concerning the safety of our airports,
trains, and ports.
The legislation also address the impending baggage screening
deadline. Although the Congress mandated a December 31, 2002 deadline
for screening all baggage at airports, deploying and installing the
necessary devices for the over 400 airports has proved to be a
monumental challenge and it is clear that many airports are unable to
meet this requirement. I am pleased that this legislation includes a
common sense provision to extend the deadline for the major airports
and strictly monitor their progress in screening baggage. The extension
through December 31, 2003 will also give the TSA more time to properly
train and deploy the 22,000 federal baggage screeners necessary to
staff the devices and oversee the screening process. Rushing this
process in anticipation of the deadline would have seriously
compromised the effectiveness of the enhanced security measures.
Also included in this legislation is a provision that will allow
financially strapped airlines to purchase ``war risk'' insurance from
the Government at a reasonable cost, alleviating some of the costs the
industry has incurred after September 11. This provision is critically
important, as many airlines have been forced to spend upwards of $100
million to insure their planes against war and the continued threat of
terrorism. Tens of thousands of aviation workers have lost their jobs
because of the financial crisis in the industry. It is my hope that
Government issued insurance will help expedite the recovery of this
important sector of our economy.
As Chairman of the Oceans, Atmosphere and Fisheries Subcommittee,
which has jurisdiction over the Coast Guard, I want to make a few
comments about the Coast Guard provisions in the legislation. The Coast
Guard is comprised of approximately 36,000 military personnel, roughly
the size of the New York City Police Department. Recently passed
legislation will expand the Coast Guard to 45,500 military personnel by
the end of this fiscal year. Expansion is important to homeland
security when you consider that the Coast Guard must patrol and protect
more than 1,000 harbor channels, and 25,000 miles of inland, intra
coastal, and coastal waterways that serve more than 300 ports. The
Coast Guard is also responsible for a number of non-homeland security
missions such as search and rescue, maintaining aids to navigation,
marine safety, marine environmental protection and fisheries law
enforcement.
I am pleased that this legislation does not split up the Coast Guard.
The Coast Guard is a multi-mission agency with personnel and assets
that are capable of performing a variety of missions with little or no
notice. The legislation preserves this flexibility by keeping the Coast
Guard in tact. In addition the bill ensures that the Coast Guard
receives the proper attention it deserves in the new Department by
requiring the commandant of the Coast Guard to report directly to the
new Secretary. The commandant has this authority within the Department
of Transportation, clearly he should have the same authority in the
Department of Homeland Security.
Since September 11, the Coast Guard has had to divert resources from
its non-homeland security missions in order to beef up homeland
security. I asked the General Accounting Office to document the change
in Coast Guard missions since September 11 and to make recommendations
on how best for the Coast Guard to operate under the ``new normalcy''
post September 11. The GAO just released its report and they note that
many of the Coast Guard's core missions, including enforcement of
fisheries and other environmental laws, are still not back to pre-
September 11 levels. The GAO recommends that the Coast Guard develop a
long-range strategic plan for achieving all of their missions, as well
as a means to easily monitor progress in achieving these goals.
Many of us are concerned, that the traditional non-homeland security
missions of the Coast Guard will suffer once the agency is transferred.
In response to these concerns this bill contains safeguards that will
ensure that non-homeland security missions will get done. I look
forward to working with the Coast Guard to ensure these missions are
getting done. Search and rescue, oil spill response and fisheries law
enforcement are important and we cannot afford to ignore or under fund
these missions.
This bill also includes a study on accelerating the Integrated
Deepwater System, a long overdue modernization of Coast Guard ships and
aircraft that operate off-shore in the deepwater environment. The Coast
Guard is operating World War II-era cutters in the deepwater
environment to perform environmental protection, national defense, and
law enforcement missions. Coast Guard aircraft, which are operated in a
maintenance intensive salt water environment, are reaching the end of
their useful lives as well. Besides high operating costs, these assets
are technologically and operationally obsolete. The Integrated
Deepwater System will not only reduce operational and maintenance
costs, but will significantly improve upon current command and control
capabilities in the deepwater environment. I support this study. I look
forward to reviewing the results of this study next year and if
acceleration makes sense, supporting that well.

While I support much of what this legislation does and while I
believe we should quickly move forward to create the Department, I have
serious concerns with particular provisions of the bill. First, I am
extremely disappointed that this legislation provides the
administration with the authority to rewrite civil service laws without
guaranteeing that Federal workers will receive fair treatment without
regard to political affiliation, equal pay for equal work, and
protection for whistleblowers. The hallmark of civil service is
protection from political influence through laws designed to ensure the
independent hiring, promotion, and firing of employees based
exclusively on merit. And by allowing the administration to rewrite the
civil service laws

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without guaranteeing these protections and without meaningful labor
union participation, we are putting these important protections at
risk.
I am also troubled by a provision in this legislation that gives the
President essentially unfettered discretion to forbid Department of
Homeland Security employees to belong to unions if he determines that
is necessary not only for the interest of national security but also to
protect the Department's ability to protect homeland security. I do not
object to working to reform how government operates, to make it easier
to manage and more effective. But what has been proposed in this
legislation is not an improvement in the system, it just takes rights
away from workers.
One of the most troubling provisions in this legislation deals with
protecting critical infrastructure information that is voluntarily
submitted to the Department, a worthy goal and one that I strongly
support. After all, companies will be unwilling to turn over
information about possible vulnerabilities if doing so would make them
subject to public disclosure or regulatory actions. To encourage
companies to provide this valuable information to the Department, the
legislation would exempt the information from public disclosure under
the Freedom of Information Act. The reason for my concern, is that the
definition of information is so broad that it could include any
information that a company turns over to Department of Homeland
Security. What this means is that information that is currently
available to the public would be barred from release if it is labeled
by the company as critical infrastructure. One can easily imagine a
company turning over incriminating documents to the Government so that
it would not be accessible by anyone else. I am discouraged by
inclusion of this provision, because earlier in this debate we
developed a compromise that more narrowly defined what information
could be exempt from FOIA, one that protected critical infrastructure
information without opening up a loophole for companies to avoid
Government regulation and public disclosure.
I am concerned by how the Immigration and Naturalization Service will
be treated in the new Department under this legislation. For years the
INS has been badly in need of reform and it seemed that creating the
Department of Homeland Security would provide an opportunity to make
improvements in enforcement and provide better visa and processing
services. Under the Lieberman proposal to create the Department of
Homeland Security, there was an Under Secretary for Immigration Affairs
who would act as a central authority to ensure a uniform immigration
policy and provide effective coordination between the service and
enforcement functions. The Republican legislation unfortunately does
not include an elevated immigration function headed by one under
secretary, and instead buries the immigration enforcement function
within the ``Border and Transportation Security'' division and places
the immigration services function with the Deputy Secretary of Homeland
Security.
There is no easy split between border enforcement and services. For
example, countering schemes for wrongful entry is not just a border
challenge, it requires close coordination among all units within
immigration responsibilities. Both functions rely on shared information
and intelligence. I am afraid, that with two people interpreting
immigration law and policy there are likely to be conflicting
interpretations, a situation that could exacerbate the current
coordination and communications problems that exist within INS.
I am extremely concerned that this legislation includes liability
protections inserted by the House for manufacturers of anti-terrorism
technology and childhood vaccines. The new provisions allow the
Secretary to designate equipment and technology used by the Department
as official ``anti-terrorism technology.'' In the event of a terrorist
attack this designation will prevent injured parties from seeking
compensation against manufacturers of such technology, even if a
manufacturer exercised gross negligence in marketing its product. The
same is true for manufacturers of childhood vaccines who will be exempt
from liability if a child dies or sustains injury as a result of
negligence stemming from the inclusion of a ``component or ingredient''
in any vaccine listed under the Vaccine Injury Table. This provision is
absolutely unconscionable. We should not give manufacturers an
incentive to experiment with questionable formulas or risky ingredients
for vaccines which are intended to immunize children from disease.
Likewise, we should not give manufacturers of anti-terrorism
technologies any incentive to sell a product they know to be below par.
Another provision added by the House would remove Senate-approved
legislation to bar Government contracts with corporations that have
moved their headquarters offshore to avoid U.S. taxes. The Republicans
say that this provision will unnecessarily interfere with our national
security. Well, I believe that it also affects our national security
when corporate use of tax havens and loopholes is at an all-time high.
Various estimates show that this sort of tax evasion is costing the
government tens of billions of dollars a year which means that tax
burdens must be higher on law-abiding citizens and small businesses
that pay by the rules. To remove this sound provision at the last
minute is not only bad policy, it also insults the memory of Senator
Wellstone, who worked so hard to ensure that this provision was passed.
Despite my concerns with particular provisions in this legislation, I
do support the creation of the Department of Homeland Security and
believe it is an important element in our efforts to protect the
American people from terrorism.
Mr. CRAPO. Madam President, providing for homeland security and
securing our Nation against the threat of terrorism must continue to be
our foremost challenge. However, many of my Senate colleagues and I
recognize the budgetary strains caused by the mounting expenditures of
our limited resources--and the potential future costs--of responding to
the multiple and varied threats of terrorism. Our State, county, and
local agencies are struggling to fund the prevention and mitigation of
every imaginable attack on our citizens and our critical
infrastructure. Further, providing multi-million dollar allocations at
the Federal level to prevent or mitigate all perceived threats to
homeland security, or to respond to each terrorism incident, could in
itself bankrupt our national economy.
The best management decisions at all levels of Government and
industry on allocating scarce resources to the war on terrorism need an
effective analytical approach to help understand the risks and to help
improve the strategic and operational decisions to address those risks.
Most current approaches to analyzing the ``terrorist threat'' are
limited to addressing the vulnerability of--or what will happen to--
critical infrastructure if it is attacked. These ``vulnerability
analyses'' generally produce long lists of security-related
deficiencies and equally long checklists of expensive things to do to
correct the deficiencies, but they do not help communities
appropriately allocate scarce resources, people, time, and money, in
the context of an organization's strategic-level goals and objectives.
A more robust approach is needed to support decision-making, one that
can enable Government officials and private company executives to
characterize the risks of rare, high-consequence events; to identify
those that pose the greatest threats; and to best evaluate mitigation
alternatives.
Mr. GRAHAM. Would Senator Crapo yield a minute of his time?
Mr. CRAPO. Yes.
Mr. GRAHAM. Recognizing the need for better decision support, the
leaders of Miami-Dade County established late last year a team
comprised of representatives from the departments of police, fire,
emergency management, general services, computer and communications
services, seaport, aviation, and administration. They were tasked to
work in concert with a consultant and a national laboratory to develop
a process for defining, identifying, and evaluating physical and
cyberterrorism threats and vulnerabilities; developing a consistent
basis for making meaningful comparisons among risks to county assets so
that the most important risks can be addressed first; using the
structure of the process to develop strategies and associated tactics
for mitigating threats and vulnerabilities; and

[[Page S11450]]

prioritizing mitigation activities so that the biggest gains for the
resources spent are implemented first, resulting in the fastest
possible reduction in risk for the limited resources available,
including not only dollar resources, but the key resources of people
and time. The initial work of the team, a pilot project, has been
successfully completed, and it has generated considerable interest both
in Florida and in Washington.
Mr. DURBIN. Would Senator Graham yield a minute of his time?
Mr. GRAHAM. Yes.
Mr. DURBIN. Argonne National Laboratory, The DecisionWorks, Inc.,
Idaho National Engineering and Environmental Laboratory, and Miami-Dade
County would like to build upon the results of the pilot project to
fully develop and to implement a comprehensive, risk-based
prioritization process that decision-makers could use to allocate
scarce national, State, and local resources to the War on Terrorism.
The development of this risk-based prioritization process would be
based on the methodology and results of the successful pilot project,
and the capability developed in the original pilot would be further
enhanced by the physical security, cybersecurity, critical
infrastructure, homeland security, decision analysis, and systems
engineering expertise resident in the project team.
Specifically, the purpose of the proposed risk-based prioritization
program for Homeland Security would be to develop and deliver a process
for helping decision-makers in both the public and private sectors to
assess the likelihood of a successful terrorist attack on critical
infrastructure and other assets; to understand the safety, economic,
and other consequences of a successful attack; to formulate and
evaluate alternatives for reducing or mitigating the risk of a
successful attack; and to select a portfolio of alternatives that
prioritizes the allocation of scarce resources to meet the threat of
terrorism. Using risk-based prioritization to manage non-traditional
risks like terrorism would have four important benefits. It would
provide an objective, defensible method for deciding how to allocate
resources, people, time, and money, across all risks and organizational
units. It would align resource allocations with an organization's
strategic objectives and its willingness and capacity to accept risk.
It would provide a way to evaluate the costs and benefits associated
with various alternatives for mitigating risk, from physically removing
the source of risk to actively retaining the risk internally. It would
improve the quality and relevance of information available to managers
at all levels of the organization.
Mr. CRAPO. Would Senator Durbin yield a minute of his time?
Mr. DURBIN. Yes.
Mr. CRAPO. The original amendment that Senator Lieberman submitted to
the underlying bill, H.R. 5005, to establish the Department of Homeland
Security, contained a section that would have established an Office of
Risk Analysis and Assessment within the Directorate of Science and
Technology. Recognizing the successes of this Miami-Dade County pilot
project and the tremendous contribution that a comprehensive, risk-
based prioritization process that decision-makers could use to allocate
scarce national, State, and local resources to the War on Terrorism,
Senator Durbin and I offered an amendment that would have enhanced and
strengthened this risk assessment function. This amendment would have
required the Department of Homeland Security to establish a
comprehensive, risk-based process for prioritizing and allocating the
Federal, State, and local activities and resources necessary to combat
terrorism and to provide for homeland security response. It also would
have authorized $15 million in appropriations for Fiscal Year 2003, and
such sums as necessary in subsequent years, for the development of the
risk-based prioritization process. Unfortunately, the current version
of the Homeland Security Act before the Senate does not contain our
amendment.
Mr. DURBIN. Would Senator Crapo yield a minute of his time?
Mr. CRAPO. Yes.
Mr. DURBIN. Although our amendment was not included, clearly the
risk-based prioritization process we have described has significantly
benefitted the local community in which it has been tested. Would
Senator Thompson concur that a comprehensive, risk-based process for
prioritizing and allocating the Federal, State, and local activities
and resources necessary to combat terrorism and to provide for homeland
security response should be given serious attention by the new
Department of Homeland Security?
Mr. THOMPSON. Would Senator Durbin yield a minute of his time?
Mr. DURBIN. Yes.
Mr. THOMPSON. As ranking member on the Senate Governmental Affairs
Committee, I appreciate your bringing this project to the committee's
attention. I am confident that the Department of Homeland Security will
give it fair consideration when reviewing grant applications in the
coming years.
Mr. CRAPO. Senator Durbin, Senator Graham, and I thank the Senator
for his consideration and support.
Mr. HATCH. Madam President, it has long been obvious that homeland
security was the most critical issue facing our nation today. I am
pleased and proud to speak today on the compromise that this body has
struck to approve of this measure through landmark legislation. We are
finally in a position to give the President the tools he needs to fight
the war against terrorism with every resource that this great nation
can muster. Our country will be safer because of the enormous hard work
and patriotism shared by members on both sides of the aisle.
The final bipartisan compromise is something that we can all be proud
of. It incorporates a crucial compromise on labor rights. I always have
believed that the President must be given the ability to hire and
retain the very best people to do the work of keeping our country safe.
While the final version of the bill gives the President sufficient
flexibility to effectively manage the employees in the new Department
of Homeland Security, it also provides sufficient procedures to protect
the rights of workers. This strikes, in my view, an appropriate
balance.
I also am pleased to note that the bill maximizes the new
Department's ability to take advantage of the tremendous resources and
expertise of America's private sector. It is perfectly clear that
America's businesses will play a vital role in enhancing our nation's
security. Private businesses, after all, own and operate most of our
infrastructure, and provide most of the cutting edge technologies that
will support our nation's defense efforts. The bill helps the private
sector help our nation by crafting some reasonable protections from
frivolous tort litigation, and such a measure will ultimately save
lives.
This legislation incorporates my proposal to stiffen the criminal
penalties for cyberterrorism and to provide law enforcement agencies
with new tools to use in emergency situations involving immediate
threats to our national security interests. The cyberterrorism section
of the bill also provides statutory authorization for the Office of
Science and Technology located within the National Institute of Justice
of the Department of Justice. The bill strikes language, contained in
earlier versions, that would have provided OST to be ``independent of
the National Institute of Justice.'' Accordingly, I understand subtitle
D to place operational authority over OST--as authorized by the bill--
in the NIJ Director in the same manner and to the same extent that the
NIJ Director currently exercises over OST--as it currently exists--and
that the NIJ Director's authority over grants, cooperative agreements,
and contracts for science and technology research and development, and
the publications that disseminate the results of that research and
development remain unchanged by this bill. Furthermore, I wish to make
clear that I do not understand the administrative language in the bill
that provides that certain publications decisions ``shall rest solely''
with the Director of the Office to affect the bill's overarching--and
controlling--provision that expressly places the new Office ``under the
general authority of the Assistant Attorney General.''
The bill likewise incorporates a drastic reorganization of the
Immigration and Naturalization Service, abolishing the INS as it
currently exists and separating the enforcement and service
responsibilities within the new Department. This new structure
recognizes

[[Page S11451]]

the importance of both functions, allows for coordination, and confers
appropriate funding and management to both enforcement and services.
This top-to-bottom reorganization of INS is something that numerous
members of the Judiciary Committee have worked tirelessly with me to do
and to do right. The Homeland Security Bill also includes a valuable
provision that will significantly reduce the availability of explosives
to certain prohibited persons, including terrorists and felons. Senator
Kohl and I have worked hard on this provision, which will improve law
enforcement's ability to track explosives purchases and help prevent
the criminal use and accidental misuse of explosives materials.
I want to conclude by taking a moment to discuss the ban on the TIPS
program that was inserted in the final version of the Homeland Security
Bill. Let me make clear that none of us wants an Orwellian version of
Big Brother watching over us at all times. I made my own concerns on
this issue very clear to Attorney General Ashcroft during an oversight
hearing a few months ago, as did other members of the Judiciary
Committee. I was concerned, for example, that the Department would keep
a historical database of such information, but the Attorney General
assured the Committee that this would not occur. Since then, I have
been gratified to learn that the Attorney General has taken our
concerns to heart, implementing fundamental changes to the program that
are designed to protect our privacies in a balanced manner. In fact,
the Department of Justice now has committed to not include within the
TIPS program any workers, such as postal or utility workers, whose work
puts them in contact with homes and private property.
I think all of us can agree that some type of voluntary reporting
program that permits but does not require concerned citizens to report
information is appropriate. This is, of course, exactly what drives the
highly successful results obtained by the popular TV program,
``America's Most Wanted.'' In fact, John Walsh, the host of that
program, has publicly endorsed the concept of a TIPS program. Moreover,
I fully support the Amber Alert Program, which was created in 1996
after a 9-year-old girl, Amber Hagerman, was kidnapped and murdered in
Texas. This program is a voluntary partnership between law-enforcement
and broadcasters to create a voluntary reporting program in child-
abduction cases. The Amber Alert system recently led to the rescue of
two teenage girls who were abducted in California; an anonymous tip
from a motorist who responded to the program ultimately led to the
girls' safe return. I am so convinced of this program's effectiveness
that I recently co-sponsored legislation to create a national Amber
Alert system.
In sum, we need to structure the TIPS program in a way that is
responsible and effective. We do not want big government to enlist
millions of Americans to snoop into the daily affairs of ordinary
citizens. But, just as importantly, we need to provide an avenue for
citizens to voluntarily alert law enforcement when they see things that
cause them concern. It very well may be the case that the next 9/11 is
averted because an accountant out walking his dog sees something
unusual in his neighborhood park. We need to let that person know who
he can call to report that information. As the Chairman-designate of
the Judiciary Committee, I think that we will need to consider what
type of voluntary reporting system would be acceptable to meet the real
concerns posed by terrorist activity when we return for the 108th
Congress.
We have debated this measure for many days now. I am delighted that
we have finally--and successfully--come to the end of the road. By
passing this legislation, we are taking a big step forward in helping
to defend our nation from terrorism. I support the final compromise
version of the Homeland Security Bill and hope that all of my
colleagues will do the same.
Mr. GRASSLEY. Madam President, I rise today to support the Homeland
Security Act of 2002, but must register my disappointment with the
scope of this bill's ban on granting Federal contracts to corporate
inverters.
In October of this year, Senator Baucus and I introduced the
Reclaiming Expatriated Contracts and Profits, RECAP, Act to address the
issue of inverting corporations that are awarded contracts by the
Federal Government. Inverting corporations set up a folder in a foreign
filing cabinet or a mail box overseas and call that their new foreign
``headquarters.'' This allows companies to escape millions of dollars
of federal taxes every year. In April of this year, Senator Baucus and
I introduced the Reversing the Expatriation of Profits Offshore, REPO,
Act to shut down these phony corporate inversions. Today, our REPO bill
has still not been enacted by the Senate.
You would think that the ``greed-grab'' of corporate inversions would
satisfy most companies, but unfortunately it is not enough. After these
corporations invert and save millions in taxes, they then come back
into the United States to obtain juicy contracts with the Federal
Government. They create phony foreign headquarters to escape taxes and
then use other peoples' taxes to turn a profit.
Chairman Baucus and I offered our bipartisan RECAP bill as a
complement to our earlier REPO bill on corporate inversions. For future
corporate inversions, our RECAP bill will bar the inverting company
from receiving Federal contracts. For the inversions that have already
gotten out before the REPO bill can be enacted, our RECAP bill will
make them send back their ill-gotten tax savings by forcing them to
lower their bids in order to obtain Government contracts.
Unfortunately, the Government contracting ban in the Homeland
Security Act of 2002 only applies prospectively to a narrow band of
inversions where 80 percent of the shareholders are the same before and
after the inversion. The homeland security ban bill does not address
the broader range inversion transactions involving less than 80 percent
of the shareholders. It also does not touch inverters that have gotten
out under the wire. This omission allows companies which have already
inverted to avoid millions in U.S. taxes while easily reducing their
taxable profits from Federal contracts by creating phony deductions
through their inversion structures. This failure to address inverted
companies gives them an unfair cost advantage over competing Federal
contractors that choose to stay and pay in the U.S.A.
So let me be clear. The Government contracting ban in the homeland
security bill is merely a down payment on this issue, and it isn't good
enough for me. The Homeland Security ban isn't half a loaf--it's barely
two slices of bread. So to everyone developing or contemplating one of
these inversion deals, you proceed at your own peril. We will continue
to pursue corporate expatriation abuse, and the abusers who seek fat
Government contracts while skirting their U.S. tax obligations. I will
continue this issue in the 108th Congress and beyond. I look forward to
enlisting the support of my colleagues with the Committee on
Governmental Affairs as we march forward to shut down this abuse in all
its forms.
Mr. BIDEN. Madam President, like many important decisions in the
Senate, we are today faced with something of a Hobson's choice. I agree
that the consolidation of agencies currently responsible for securing
the homeland will, if done right, result in greater security for the
Nation and I support establishing a Department of Homeland Security.
But, in my view, it would be better for us if we were implementing this
massive government reorganization more gradually. We are shifting close
to 200,000 workers under the new homeland security umbrella in this
bill, and it would make more sense to do so in stages. Here we are
trying to do too much at once and, if history is any guide, we will be
back at this department many, many times in the years to come with
amendments designed to fix what we enacted in haste this year.
What we are left with is the choice of doing nothing, or taking the
next best option of passing this bill and launching a new Federal
agency. After careful thought, I come to the conclusion that passing
this flawed bill is better than doing nothing. Consider our current
structure. Today, homeland security responsibilities are spread among
over 100 different government agencies. The structure of the Treasury
Department provides a good example of the problem. That agency houses
the U.S. Customs Service, an agency tasked with

[[Page S11452]]

monitoring the shipping containers that come into our country. Keeping
the Customs Service in the agency concerned primarily with fiscal
matters makes little sense when Customs' primary mission should know be
safeguarding those imports. Or consider the Coast Guard, an agency in
charge of patrolling our borders. The Coast Guard currently reports to
the Secretary of Transportation. The Immigration and Naturalization
Service is tasked with enforcing our immigration laws and securing our
borders, yet its director reports to the Nation's chief law enforcement
officer, the Attorney General. These examples are just the beginning.
The need for reorganization is clear.
Modern management principles teach that the agencies and functions of
government should be grouped together based on their major purposes and
missions, and the bill before us accomplishes that goal. Once it is
fully implemented, the Department of Homeland Security will be the one
Federal agency with the responsibility of securing our borders,
safeguarding our transportation systems, and defending our critical
infrastructures. One agency will be charged with synthesizing and
analyzing intelligence related to homeland security. One agency will be
responsible for equipping and training the police officers,
firefighters, and emergency medical technicians who are often the first
to respond to a terrorist incident.
These are constructive organizational changes, ones that I am hopeful
will help us better defend the country against attack. But should we be
rushing their implementation without thoughtful consideration? During
debate on this measure I voted in favor of an amendment offered by
Senator Byrd that would have required the Congress and the
Administration to work together to develop a staged implementation of
the new homeland security agency, an implementation far more deliberate
than the one we consider today. I am sorry Senator Byrd's amendment was
not adopted.
Without Senator Byrd's approach, I fear we are doing things in
reverse and I predict we will have to revisit this new Department's
structure several times before we get it right. The government
reorganization most similar to the one we consider today provides a
guide. In 1947, we enacted the National Security Act and created the
Department of Defense, the Central Intelligence Agency and the National
Security Council. That approach still had to be revisited several more
times, in 1949, 1953, 1958, and 1986, to perfect the structure.
Given the choice we now face, between the current state of homeland
security disorganization and this bill's approach, I am forced to vote
in favor of the bill. I do so with the understanding that vigorous
congressional oversight of the new agency will be critical to insure it
is not only accomplishing its primary mission of protecting our Nation
but also to guarantee that the vast new authorities we give to the
President here are not abused.
I will be watching to see if the administration abuses its authority
over workers in this new Department. We must be wary of the potential
politicization of our workforce. The employees of the new Department
must be highly dedicated professionals, free from political pressure.
We must be certain that the most expert and experienced employees are
free to speak their minds and to act quickly and aggressively to defend
our national security. They must not be looking over their shoulders,
concerned about the ins and outs of Washington politics. They must be
safe from the kinds of influence that could cause them to slant their
analysis or trim their opinions to fit what is popular. I will be
watchful that the employees of the new Department are free from the
threat of political retaliation, and secure in their jobs so that they
can perform their important tasks to the highest professional
standards.
I support the creation of a Department of Homeland Security, and I
will vote in favor of this bill today. The increased coordination and
communication that may result from the new governing structures created
in this bill could, if properly implemented, provide the Nation with
vastly improved security. But because of the speed with which we
considered this proposal, the rapid, sweeping reorganization it
immediately envisions, and the prospect for abuse in several of its
provisions, I fear this bill will need to be revisited several times
and its implementation will need to be closely monitored by Congress if
we hope to get it right. I will be closely watching the new agency's
creation, and I hope each of my colleagues does the same.
Mr. DASCHLE. Madam President, we are finally about to vote on a bill
to create a new Homeland Security Department. Many Senators worked long
and hard to get us to this point. But one man was indispensable. He is
the chairman of the Senate Government Affairs Committee, Joe Lieberman.
Under his leadership, the Government Affairs Committee held its first
hearing on homeland security 10 days after September 11. It was at that
hearing that former Senators Warren Rudman and Gary Hart, the co-chairs
of a bipartisan blue-ribbon commission, shared their recommendation
that the Government should create a permanent, cabinet-level Department
to protect the American people from terrorism. Three weeks later, on
the one-month anniversary of September 11, Senator Lieberman announced
his plan to create such a department. He had the vision to see what
needed to be done and the patience and flexibility to work through
disagreements and come up with workable, bipartisan alternatives. He
also had the courage to stand his ground for months while the President
threatened to veto any Homeland Security bill. I also want to thank
Democrats on the Governmental Affairs Committee for standing with
Chairman Lieberman.
There are some who would like to rewrite the history of this effort.
They want the American people to believe that Democratic opposition is
the reason it has taken this long for Congress to pass a Homeland
Security bill. That is simply not so. Creating a Homeland Security
Department was a Democratic idea to begin with. It was disturbing to
see that truth twisted in the recent campaigns. There are some who are
threatening publicly to try to exploit homeland security again for
partisan political advantage in the Louisiana Senate race next month.
For the sake of our Nation, I hope they do not. Our war is with
terrorism, not each other.
In the months since Senator Lieberman introduced his bill, we have
heard countless chilling reasons why a Homeland Security Department is
needed. We have heard about dots that were not connected, intelligence
reports that weren't shared and urgent warnings that were not heeded. I
will vote for this bill because I believe a Homeland Security
Department is right and necessary. I have thought so for more than a
year. But we need to be honest with the American people about what this
means.
I am very concerned about what I fear are false hopes and false
assurances being given by some of those who came late to this cause.
Many of the same people who claimed just a few months ago that
creating a Department of Homeland Security would detract from the war
on terrorism now seem to want the American people to believe that
creating this Department will solve the war on terrorism. They seem to
want people to believe that, once we pass this bill, there is nothing
else that needs to be done--no other changes that need to be made--to
prevent another September 11. This is worse than wishful thinking. It
is dangerous thinking. And it is not true.
Reorganizing parts of our Government in order to better connect the
dots is only part of the solution. A much greater and far more
comprehensive effort is still needed to protect America from terrorism.
That effort will be difficult, it will be complicated, it will be
costly. To pretend otherwise is a disservice to the American people.
Our public health system is still dangerously under-prepared for the
possibility of future biological or chemical attacks. Our borders are
still not secure as they need to be. Neither are our seaports; we still
search only 2 percent of the roughly 6 million containers that are
unloaded every year at America's ports. The U.S. has 150,000 miles of
train track plus rail yards, bridges, tunnels, and switches that are
all still vulnerable to terrorist attacks. This bill does not provide
the resources to

[[Page S11453]]

secure them. Our food supply--domestic and imported--remains highly
vulnerable to biological attacks. This bill does not change that fact.
A study last year by the Army Surgeon General warned that a terrorist
attack on a toxic chemical plant in a densely populated area could kill
2.4 million people. There are more than 120 such plants in America.
Even after we pass this bill, those plants will remain vulnerable to
terrorist attacks. The Department of Energy estimates that there are
603 tons of weapons-grade material inside the former Soviet republics--
enough to build 41,000 nuclear weapons. So far, only about a third of
this material has been properly secured. This bill alone won't keep
that deadly material out of the hands of terrorists who want to use it
to build ``dirty bombs.'' Last year, the President's budget cut the
programs that safeguard weapons of mass destruction. Fortunately, the
Senate reversed that decision. It is urgent that we continue to work
with Russia and with other nations to shut down the nuclear black
market. In addition, we know that there were intelligence failures
leading up to September 11. Yet, unlike the bill introduced by Senator
Lieberman and passed by the Governmental Affairs Committee, this bill
leaves most critical intelligence functions outside of the Homeland
Security Department. We need to do a much better job of coordinating
intelligence efforts regarding terrorism--or critical pieces of
information will continue to fall between cracks.
Nearly as troubling as what was left out of this bill is what was
added to it at the eleventh hour. The American people should know that
this is not the same Homeland Security bill that Congress was debating
before the election. It was re-written in secret after the election. It
has been stripped of a number of bipartisan, workable solutions that
had been worked out on difficult problems. It has also been used as a
Trojan horse for special interest giveaways that have little or nothing
to do with making America safer from terrorism.
We offered an amendment to strip out seven of these last-minute
changes--changes that have not been debated publicly. But the White
House lobbied hard to keep them, and the White House won. As a result,
this Homeland Security bill now rewards US companies that use Carribean
tax havens to avoid paying their fair share of taxes by allowing those
companies to compete for Government contracts with the Department of
Homeland Security. It says to those companies: Even if you refuse to
help pay for the war on terrorism, you can still profit from it. What
does that say about this administration's commitment to corporate
responsibility? You tell me. Better yet, tell the American people.
This bill now guts a critical part of the aviation security bill the
Senate passed last year by a vote of 100 to nothing. It does so by
providing special immunity for private companies that perform passenger
and baggage screening at airports. It is likely to slow enactment of
other new emergency transportation security rules that the
Transportation Security Administration has said are essential to
protect air and rail passengers, as well.
In the name of protecting Americans, this bill actually eliminates
some legal protections for ordinary Americans. It grants legal immunity
to countless private companies. All the Federal Government has to do is
designate a company's product an ``anti-terrorism technology'' and the
company can't be sued--even if it acts in ways that are grossly
negligent. This bill also provides special legal protections to the
maker of a mercury-based, vaccine additive that has been alleged to
harm children. For parents who are involved in class-action lawsuits
against the makers of that additive, this bill slams the courthouse
door in their face.
This bill abandons the bipartisan effort to make workplace rules in
the new Department more flexible without trampling worker protections
and making workers more vulnerable to partisan political pressure.
History has already shown that no one--no one--sacrificed more on
September 11th than did public workers. I believe history will also
show that using September 11 to justify taking away public employees'
basic rights is a mistake. I regret deeply that it is part of this
bill.
This bill also undermines the Federal Freedom of Information Act and
community right-to-know laws. It says that any information a company
offers voluntarily to the Homeland Security Department--or any
information a company gives to another government entity, which is then
turned over to the Homeland Security Department--is classified. And it
makes releasing such information a criminal offense. You don't have to
worry about shredding damaging documents anymore. If a company wants to
hide information from the public, all it has to do is give the
information to the Federal Government and releasing it becomes a
criminal offense. This is not necessary. The Freedom of Information Act
already allows exceptions for national security reasons. We will not
make America safer by denying people critical information or throwing
conscientious whistle-blowers in prison.
Finally, this bill authorizes the creation of a university-based
homeland security research center. That sounds like a good idea. But
this bill is now written in such a way that only one university in all
of America is eligible to compete for the research center: Texas A&M.
We shouldn't have to be here, working on this bill, on November 19.
It has been nearly 14 months since Senator Lieberman first proposed
creating a Department of Homeland Security. The Senate could have
passed a strong Homeland Security bill, and President Bush could have
signed it into law, long before the election. Democrats tried five
times to break the Republican filibuster on homeland security. The
reason we couldn't break the filibuster is because Republican leaders
wanted to use homeland security as an election issue. They wanted to be
able to blame Democrats for the impasse they created, and question the
patriotism of good and decent people. As I said, for the sake of the
American people and their security, I hope we have seen the last of
those tactics.
I will vote for this bill because there is no doubt that we need to
create a Department of Homeland Security. But we must be honest with
the American people. Passing this bill does not solve the problem of
terrorism on American soil. Creating a new Department of Homeland
Security is only one part of the solution. A much greater and far more
comprehensive effort is still needed to prevent future terrorist
attacks. That effort will be difficult, it will be complicated, it will
be costly. We should not pretend otherwise.
Last year, after September 11, this Senate put aside partisan
differences and acted quickly to protect America from terrorism. It is
deeply regrettable that much of that unity seems to have been lost, or
sacrificed for partisan advantage, in the closing months of this
Congress. We are capable of better. The American people deserved
better. And I hope that in the next Congress, we will give them better.
The PRESIDING OFFICER. The Senator from Connecticut.
Mr. LIEBERMAN. I thank the Chair. Madam President, it is a happy
twist of fate that the Senator from Pennsylvania is on the floor as I
rise to support final passage of this legislation, which would create
the unified and accountable Department of Homeland Security that the
American people urgently need to protect them.
It is a happy twist of fate because the legislative journey that
brings us to the eve of adoption of this critically important
legislation began on October 11, 2001, more than a year ago, but
clearly a month after September 11, 2001, when I was privileged, along
with Senator Specter, to introduce the first legislation that would
authorize the creation of this Department. I thank him for joining me
on that occasion and for working with us right through the road we have
traveled, which has been long and taken twists and turns we never could
have foreseen. We have even run into a few potholes along the way.
The important point is we are about to reach the destination, and we
are going to reach it together--in a broad, bipartisan statement of
support for this critically necessary new Department.
Giving credit where it is due, the journey actually began before
October 11 and September 11, more than 18 months ago, when the
visionary Commission on National Security in the

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21st Century, led by our former colleagues Gary Hart and Warren Rudman,
warned us of our vulnerabilities to terrorism with a painful
prescience, and urged the creation of exactly the kind of new
consolidated federal department to fight terrorism that we are about to
adopt.
As I say, we have reached our destination, and that, I believe, is
testament to the power of the basic idea underlying this legislation.
It is also a reflection that our history changed on September 11, our
vulnerabilities were exploited by our terrorist enemies, and we can
never let that happen again. Those vulnerabilities remain,
notwithstanding the improvements that have been made over the last
year.
We recognize that protecting ourselves from terrorism will take an
unprecedented commitment of people and resources. Building this
Department will involve no shortage of problems, as any massive
undertaking of this kind would--but we, after this initial act of
creation, must be ready to improve, to support, and ultimately to
protect the American people with this Department. We have no choice.
Obviously, as I have said earlier today and at other times in the
debate on the bill, the measure before us is not perfect. No
legislation ever is. There are parts of the legislation before us that
I think are not only unrelated to homeland security and unnecessary,
but unwise and unfair. Of course, we made an attempt to eliminate those
provisions with the motion to strike that came very close to passing
earlier today. But this is the legislative process here on Earth, not a
perfect process such as that which might exist in a heavenly location.
We do not always get what we want here.
Hopefully, though, through compromise, steadfastness, and hard work,
the American people will get what they need. And that, I think, is what
is happening with the adoption of this bill, which will occur in just a
few hours.
We must remember also--to say what is clear--that this bill will be
written in the law books. It is not written in stone. If we need to
make changes down the road, we can and we will.
Nonetheless, all of those caveats, conditions, and concerns about
certain elements of the legislation notwithstanding, we are about to be
part of an historic accomplishment. It is the largest reorganization of
the Federal Government since 1947, probably the most complex Federal
reorganization in history, but that is what our present circumstances
require to sustain our security.
When we pass this bill, we in Congress must then not turn away but
turn our attention toward overseeing the Department, with a clear
vision and commitment. We must provide the necessary resources, which
we still have not done, not just to this Department but to all of those
throughout America, the Federal, county, State, and local governments
who will partner with us to protect the security of the American
people.

Early next year, we will have to confirm the Department's leaders and
begin to review its strategies and objectives. I look forward to
playing an active oversight role under the new leadership of the new
chairman of the Governmental Affairs Committee, Senator Collins of
Maine, and in the Senate at large. Part of that oversight role must be
taking great care to make sure this administration and future
administrations use the authorities this bill gives them in a
constructive and constitutional manner.
The important thing to say is we are ending this journey mostly
together, certainly with a strong bipartisan vote. Though we have made
the twists and turns and had the obstacles along the way I have
referred to, the fact is, once we end this part of the journey, we
begin the next phase. On that phase, I hope and believe nonpartisanship
will be the rule, not the exception. I hope and believe that we will
oversee and support the historic new effort to achieve homeland
security in our new circumstances with as little partisanship as has
been demonstrated by those of us who have been privileged to work as
members of the Senate Armed Services Committee, where there are
disagreements, but rarely are they partisan.
That, I hope and believe, will characterize our work in support of
the new Department of Homeland Security.
I want to speak to some of the conditions this legislation will
correct. As I said earlier, we have made some progress over the past 14
months in trying to close the vulnerabilities September 11 revealed.
The Office of Homeland Security has been created. The FBI and CIA have
begun the process of reform. FEMA has focused more resources on
countering terrorism. Smallpox vaccines are stockpiled around the
country. We have begun efforts to link Federal law enforcement
authorities to State and local police and to give community first
responders some of the guidance, if not yet the resources, they so
critically need. But the fact is we remain fundamentally and
unacceptably disorganized, and that is why we need to restructure in
exactly the way this legislation will require.
Today, there are a lot of people and agencies in the government whose
responsibilities include homeland security. Their duties often overlap.
Everyone is in charge of their own domain and, therefore, no one is in
charge of the overall homeland security effort.
A year ago, we came to understand tragically, painfully, that the
status quo was untenable. We knew we had these gaps in preparedness,
but in the aftermath of September 11, there was no agreement on how to
move forward. Our Governmental Affairs Committee held 18 hearings, and
over time we grew more convinced our weaknesses were so profound they
cried out for fundamental reorganization.
We saw border patrol agencies that seemed unable to communicate with
each other, let alone to stop dangerous goods and people from entering
the United States of America.
We saw intelligence agencies, despite strong signals about a
potential terrorist attack of the type we sustained on September 11,
failing to put those pieces together.
We saw first responders around the country spread thinner than ever.
And we saw deviously creative terrorists acquiring and applying
technology to advance their own ends--but an American government that
had not yet sought to marshal the most innovative people, our people,
in the history of the world to meet this life-or-death challenge.
We did not like what we saw.
So we worked hard to better organize it, to make it more efficient,
to make it more focused, to create a bill that would empower a
Secretary with budget authority to get the agencies involved in
homeland security to work together. That is what led to our
introduction of the bill with Senator Specter and others, including
Senator Cleland, and ultimately to report the bill out of the
Governmental Affairs Committee in May.
I don't think we can count the ups and downs since then. The finished
product we are prepared to vote on today is, notwithstanding the
concerns I have expressed, a great leap forward for the security of the
American people. It is a great achievement to have reached agreement on
a governmental reorganization of this magnitude.
This is, after all, a very turf-conscious town, one in which we often
speak volumes about the need for change, but just as often, probably
more often, fail to deliver change. This bill will deliver change.
Former Senators Hart and Rudman, who ably led that commission I
referred to, this year were asked again to head an independent task
force created by the Council on Foreign Relations. The final report of
the task force, released October 24, 2002, was entitled titled
``America Still Unprepared--America Still in Danger.'' I read from the
conclusion.

Quickly mobilizing the nation to prepare for the worst is
an act of prudence, not fatalism. In the 21st century,
security and liberty are inseparable. The absence of adequate
security elevates the risk that laws will be passed
immediately in the wake of surprise terrorist attacks that
will be reactive, not deliberative. Predictably, the
consequence will be to compound the initial harm incurred by
a tragic event with measures that overreach in terms of
imposing costly new security mandates and the assumption of
new government authorities that may erode our freedoms.
Accordingly, aggressively pursuing America's homeland
security imperatives immediately may well be the most
important thing we can do to sustain our cherished freedoms
for future generations.

That is exactly what we will do when we adopt this legislation in a
few hours.

[[Page S11455]]

And pursuing America's homeland security imperatives is not only
critically important for future generations of Americans; let us also
realize that, as we adopt and create this new Department, we set a
powerful example for the nations of the world. Terrorists threaten
innocent lives everywhere. When we demonstrate that we are willing and
able to earn both security and more freedom, we will show free nations
that they can preserve their way of life without living in fear of
terror. And, equally important, we will demonstrate to those nations
remaining in the world whose people are not free that they can embrace
freedom and tolerance and democracy without compromising their safety.
There are few more important signals we can send by our example to
the nations of the world.
In 1919, Henry Cabot Lodge said famously: ``If the United States
fails, the best hopes of mankind fail with it.''
I add today, when the United States succeeds, the best hopes of
mankind succeed with it. When we succeed in protecting our homeland
security and preserving our freedom, we will show the way to nations
throughout the world.
This evening we say to the people of America: have confidence, your
government is organizing itself to protect your security. We need not
accept another September 11 type terrorist attack as inevitable. It is
not.

We are the strongest nation in the world. If we marshal our strength
as this new Department can, no future terrorist attack such as
September 11 will ever occur again.
Finally, I give credit and thanks to the Members of the Senate
Governmental Affairs Committee, and to the majority staff for their
passion, precision, and persistence. They were tireless, working day
and night, through recesses, weekends, and holidays, and they have
every right to be proud of this product of their labor: a new
Department that will better protect the American people for
generations. The names of the staff members, from both the Committee
and from my personal staff, are:
Holly Idelson, Mike Alexander, Larry Novey, Susan Propper, Kevin
Landy, Josh Greenman, Bill Bonvillian, Michelle McMurry, Kiersten Todt
Coon, Joyce Rechtschaffen, Laurie Rubenstein, Leslie Phillips, Fred
Downey, Adrian Erckenbrack, Yul Kwon, Thomas Holloman, Donny Williams,
Janet Burrell, Darla Cassell, Wendy Wang, Megan Finlayson, and Adam
Sedgewick.
I thank them all for their commitment.
I would also like to thank the numerous staff for other members who
have been so helpful throughout the process. On the Governmental
Affairs Committee, so many staff played an important role in this bill.
On Senator Durbin's Staff, Marianne Upton and Sue Hardesty. On Senator
Akaka's staff, Rick Kessler, Nanci Langley, Sherri Stephan and Jennifer
Tyree. On Senator Levin's staff, Laura Stuber. On Senator Cleland's
staff, Donni Turner. On Senator Carnahan's staff, Sandy Fried. On
Senator Carper's staff, John Kilvington. On Senator Dayton's staff, Bob
Hall. Senator Daschle's staff also has contributed greatly to the
enactment of this legislation; I'd like to thank in particular Andrea
LaRue.
From the Office of Legislative Counsel, I'd like to thank Tony Coe
and Matthew McGhie for their assistance and guidance.
I thank Senator Thompson, who is leaving the Senate soon--tonight,
presumably--for the pleasure of his company on this journey, and the
contributions he made to the historical accomplishment this legislation
represents.
I yield the floor.
The PRESIDING OFFICER (Mr. Dayton). The Senator from West Virginia
has 60 minutes.
Mr. BYRD. Mr. President, I understand the Senator from Kansas, Mr.
Brownback, wishes some time.
Mr. BROWNBACK. Mr. President, if the Senator would yield, yes, I
would like 5 minutes, if that is possible, to speak on the homeland
security bill.
Mr. BYRD. The Senator gets his time from whom?
Mr. BROWNBACK. From Senator Thompson. I believe he has some time
remaining.
The PRESIDING OFFICER. The Senator from Tennessee has 7 minutes
remaining.
Mr. BROWNBACK. I seek 5 of those 7 minutes.
Mr. BYRD. I promised to yield 5 minutes of my time to Mr. Jeffords,
after which I would yield for whatever time the Senator from Kansas
desires, after which, then, I will speak.
The PRESIDING OFFICER. The Senator from Vermont.
Mr. JEFFORDS. Mr. President, Mark Twain once said. ``Always do
right--this will gratify some people and astonish the rest.'' I rise
today to explain why I believe voting against this bill is the right
thing to do.
Of the may reasons to vote against the bill, I will focus on three--
the bill's treatment of the Federal Emergency Management Agency, the
bill's treatment of the Freedom of Information Act, and the process
used to create this new Department.
With the passage of this Homeland Security legislation, we will
destroy the Federal Emergency Management Agency, losing years of
progress toward a well-coordinated Federal response to disasters.
As it now exists, FEMA is a lean, flexible agency receiving
bipartisan praise as one of the most effective agencies in government.
But it hasn't always been that way.
Throughout the 1980s, FEMA's focus on Cold War civil defense
preparedness left the Agency ill-prepared to respond to natural
disasters.
The Congressional chorus of critics decried the Agency's misguided
focus and reached a crescendo after bungled responses to Hurricane Hugo
in 1989 and Hurricane Andrew in 1992.
One of FEMA's leading Congressional critics, then-Representative Tom
Ridge said in 1988, ``I was convinced that somewhere along the way, the
Federal Emergency Management Agency had lost its sense of mission.''
Over the last decade, refocusing the agency's mission and priorities
on natural disasters has left the agency well-equipped to respond to
all types of disasters. FEMA's stellar response to September 11th
provided this.
I cannot understand why, after years of frustration and failure, we
would jeopardize the Federal government's effective response to natural
disasters by dissolving FEMA into this monolithic Homeland Security
Department.
I fear that FEMA will no longer be able to adequately respond to
hurricanes, fires, floods, and earthquakes, begging the question, who
will?
Also of great concern to me are the new Freedom of Information Act
exemptions contained in the latest substitute.
Unfortunately, the current Homeland Security proposal chokes the
public's access to information under the Freedom of Information Act. I
ask, are we headed toward an Orwellian society with an all-knowing,
secretive big brother reigning over an unknowing public?
The bill defines information so broadly that almost anything
disclosed by a company to the Department of Homeland Security could be
considered secret and kept from the public. Although I believe the
current law contains an adequate national security exemption, in the
spirit of compromise I supported the carefully crafted bipartisan
Senate language contained in both the Lieberman substitute and the
Gramm-Miller substitute. The current bill ignores this compromise.

The process by which we received this substitute seems eerily similar
to the way the White House sprung its original proposal on Congress
some time ago. Late last week we received a bill that had magically
grown from 35 pages to an unwieldy 484 pages. There was no compromise
in arriving at the current substitute, only a mandate to pass the
substitute or be branded as weak on homeland security or, worse yet,
unpatriotic.
Still more troubling, the current bill places little emphasis on
correcting what went wrong on September 11, or addressing future
threats. Correcting intelligence failures should be our prime concern.
Instead, this bill recklessly reshuffles the bureaucratic deck.
Furthermore, as my colleague Senator Corzine stated earlier this
week, this bill does not address other vitally important issues such as
security at facilities that store or use dangerous chemicals. Without
provisions to address yet another gaping hole in our

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Nation's security, why are we now being more deliberate in our
approach?
In closing, I feel it is irresponsible to divert precious limited
resources from our fight against terrorism to create a dysfunctional
new bureaucracy that will only serve to give the American people a
false--false sense of security. I will vote against this bill because
it does nothing to address the massive intelligence failure that led up
to the September 11 attacks, it dismantles the highly effectively
Federal Emergency Management Agency, and creates dangerous new
exemptions to the Freedom of Information Act that threaten the
fundamental democratic principle of a well-informed citizenry.
I am sorry for having to take this position, but I believe so deeply
in what I have said that I must do it.
I am pleased to have been able to express myself, and I thank the
Senator from West Virginia, my faithful friend.
Mr. REID. Will the Senator from West Virginia allow me to direct a
statement, through the Chair, to the Senator.
The PRESIDING OFFICER. The Senator from Kansas has the floor.
Mr. REID. I am sorry, the Senator from Kansas.
Mr. BROWNBACK. I am happy to yield to the Senator from Nevada.
Mr. REID. I want to say, because the opportunity may not be right at
a subsequent time, how much I appreciate the days the Senator from West
Virginia has spent on the floor on this issue. Because of my having
responsibility to help move legislation along here, sometimes I was
concerned it was taking so much time. But in hindsight, this
legislation we are going to soon pass--it will pass sometime tonight--
is better legislation. And while it may not be--484 pages may not be
better, the knowledge of the American people of this legislation is so
much better than if we had passed this as people wanted on September
11.
So I want to commend and applaud the Senator from West Virginia for
educating the Senate and the American public about what is in this bill
and what is not in this bill. As I said, this legislation will pass.
But as a result of what the Senator has done over these many months
about this legislation, everyone is going to be looking at what is
taking place in this new agency that would not have taken place but for
the persistence of the Senator from West Virginia. The American public
owe you a tremendous debt of gratitude for your knowledge about
legislation and, most of all, for understanding what the Constitution
is all about and the role, in that Constitution, of the legislative
branch of Government.
Mr. BYRD. Mr. President, if I may just respond: First of all, I thank
the distinguished Senator, who is the majority whip in this body. I
deeply appreciate what he has said. I appreciate very much what he has
said.
May I say, in turn, that the American people don't owe me anything.
But I will say this, that the American people are listening. And with
respect to the resolution dealing with a war with Iraq, the American
people were listening. The American people heard what we said. As a
result of speeches--I made two or three speeches in that instance--as a
result of those two or three speeches that I made, my office received
21,000 telephone calls, and my office received over 50,000 e-mails.
That is an indication that there is somebody out there listening,
somebody cares, somebody is paying attention. That is gratifying to me.
So somebody heard. And I don't pay all that much attention to the
polls. I don't think they ask the right questions. What are the right
questions? I don't know what the right questions are. But those polls
reflect responses to questions. And whether they are the right
questions or the questions that ought to be asked, I cannot say.
But I can say the American people do listen. And somebody has to
fulfill the duty Woodrow Wilson was speaking about when he said the
informing function of the legislative branch is as important, if not
more so, than the legislative function.
I thank the Senator. I am well paid.
When Plato was about to pass away from this earthly sphere, he said:

I thank the Gods that I was born a man.

He said:

I thank the Gods that I was born a Greek.

And he said:

I am grateful to the Gods for the fact that I live--I live
in the same era in which Sophocles lived.

So, I am thankful to God, and to my angel mother and my father, and
to the people of West Virginia, for the fact that I have had this great
privilege to work in this body, now, for 44 years and I have been able
to contribute. God gives me my faculties almost as they were 50 years
ago, except for my feet. I was always told the first place will be your
feet; your feet and legs will give way. I am finding that to be pretty
true. But I thank heaven that I was able to be here, to say what I have
been able to say about the resolution dealing with Iraq and the
homeland security legislation.
I think we have performed a service. I said what I thought. I am on
no man's payroll. I am on the people's payroll. And I wear no man's
collar but my own. That may be kind of a small collar.
But, anyhow, I do what I think. I could leave here any moment and get
just as big a check as I get as being a Senator because I have paid in
the system, now, 50 years this coming January 3.
I am doing what I want to do. I don't have to do this. I probably
ought to be home with my wife. We will be married, in another 6 months,
66 years, if the Good Lord lets me live.
But I do think the Senator from Nevada, has made a tremendous
contribution himself. He has listened to what we had to say, to what
Paul Sarbanes and I and the distinguished Senator from Vermont, Mr.
Jeffords, and others have said. We have warned about this measure. We
have not been in agreement with the administration in connection with
this homeland security agency. We think we have legislated too fast. We
think we have been in too big a hurry. We think we have paid too much
attention to the polls, and that we ought to have taken more time in
this body.
It is said to be the greatest deliberative body in the history of the
world. It hasn't been very deliberative in this case. But I am glad
that, although the intent was to pass this bill in a hurry--I was told
down at White House, I say to the distinguished Senator from Maryland,
Mr. Sarbanes--I went down there at the invitation of the President. I
am not invited very often down there. But on this occasion the
President invited me down. He said:

I have got to go to St. Louis. I can only be here a few
minutes. So we had a picture taken. All the cameras came in
and took pictures. Then he sat down and said: I have this package here.
I thank the congressional leaders for their input into this package.

I scratched my head. What input is he talking about? I knew the
congressional leaders had not had one ounce of input into it--not one.
This thing was patched together down in the bowels of the White House
by four eminent public servants--not quite perhaps up to the caliber of
Thomas Jefferson and Benjamin Franklin. Who else was on that committee
that wrote the Declaration of Independence? Robert Livingston. And who
else? There was John Adams, and one more: Roger Sherman. So they
weren't quite up to that caliber.
But this bill was the egg that was hatched down at the White House. I
can just picture them walking around there with their shadows on the
walls of the subterranean caverns, walking around with lanterns or
candles. And they hatched this great idea down there all of a sudden to
get ahead of this Mack truck that was coming down upon them fast in the
appropriations bills which provided that the Director of Homeland
Security would have to be confirmed by the Senate. The purpose of that
was, as Senator Stevens and I intended, Mr. Director, when the Senate
confirms you, you will come before the Senate Appropriations Committee.
So much for that.
The thing that is being missed probably most in this deliberation is
the fact that the Appropriations Committee and the Senate and the
Congress have appropriated moneys for homeland security that will make
the country far more safe than will this piece of legislation. It is
going to take a year or 2 years for this legislation to be implemented
and to get this thing going. In the meantime, the people who are now
out there on the borders, who are protecting the nuclear facilities of

[[Page S11457]]

the country, the food lines, and the clean water are the same people
who will be here a year or two from now when this agency is supposed to
be full blown.
But the President has a year in which to send up his plan as to how
this organization is to be implemented. Imagine that--a year. He has a
year. In the meantime, I am afraid that the people who are out there
now at midday and midnight working to secure the safety of the American
people will be distracted. They are going to be worrying about where
their offices are going to be; What is going to be the label over my
office? Where will my typewriter be? Where is the telephone going to
be? What is going to be the vision and the objective of this new
agency?
These people are going to be distracted. I am afraid that is what
gives the terrorist a good opportunity to work havoc in some way.
I thank the distinguished Senator from Nevada for his kind words. I
also thank the distinguished Senator from Vermont who summed up in a
few words, in 5 minutes, what I could say in 30 minutes, the very good
reasons that we should oppose this bill. I admire him for that. I
admire him for his courage, his pluck, and for his good sense. He has
made my speech for me. I can just sit down. I thank the Senator from
Vermont.
I thank the distinguished Senator from Kansas for his unlimited
patience and for his consideration and always for his good humor.
I yield while he speaks.
The PRESIDING OFFICER. The Senator from Kansas is recognized for 5
minutes.
Mr. BROWNBACK. Thank you, Mr. President. I thank the distinguished
Senator from West Virginia for allowing me to take time previously
allocated on the floor to speak.
I want to make a couple of comments about homeland security, and in
particular about the INS.
I have been privileged to serve for the last couple of years as
ranking member on the Immigration Subcommittee of the Judiciary
Committee. Immigration is a subject on which we have focused.
We passed two major pieces of legislation already in this Congress
dealing with immigration issues--trying to strengthen our borders and
trying to give the enforcement agencies some better information, and
also better information for the INS and the State Department about
terrorists abroad before they get here. There are two good pieces of
legislation that we passed.
What we are attempting to do in this bill is to restructure the INS.
The reason I want to talk about the INS is that it is a troubled
agency, by anybody's definition--whether you are pro-immigration or
anti-immigration. I hear everybody complaining about the INS. It just
does not function well from any perspective that you look at. It may be
an impossible task. Some people may look at it as just impossible. We
have too many people seeking entry into the country each year. The
number varies. There are over 250 million entries into the country each
year by people who are legally seeking entry into the country. And 1
person may come in and out 10 times. That is 10 entries. But still, you
are talking about a large number of entries by people, who are not U.S.
citizens, into this country each year, making this a difficult job. It
is a troubled agency. It is not functioning well. We need to change it.
A lot of that is put in the bill.
I am pleased about some of the ideas that I and several others put
forward that are incorporated into the INS restructuring that is in the
homeland security bill. There is a clear distinction between the
enforcement and services functions at the INS. We recognize the
importance of keeping immigration enforcement and services in the same
department. Some people wanted to split them. I think that would work
poorly. I think you need to have the same functions together. They are
there. There are clear distinctions between the enforcement and
services functions, which clearly need to be delineated, but they need
to work together. Those are two positive features of this
reorganization.
I must be frank as well. I think there is some failing that we want
corrected in the INS restructuring portion of this homeland security
bill. I am concerned that the new Department be true and coordinated
well--both in the enforcement and services functions. It looks to me as
if some of the restructuring may not have good lines of clear
distinction in organization and functioning in the enforcement services
functions the way it is set up.
I am concerned about the services component of the Department of
Homeland Security being effectively coordinated with the enforcement. I
am troubled about how this is set up. I have communicated those
concerns to Governor Ridge, and I am hopeful that those concerns are
going to be taken seriously.
I think we need strong leadership at the head of the immigration
services office. It has to be a strong leader. That is a function of
who is picked--not a function of how it is structured. But if we weaken
that services component of it, and if we don't have somebody who has
knowledge, stature, and ability to communicate this going forward, I
think we are going to be left with a continuing troubled agency.

I think the leadership has to have the ear of the Secretary of the
new Department. Part of my concern is this is built to the side--not
built into the positive agency--to the side of the Secretary. If you do
not have a strong voice there, if they do not have the ear of the
Secretary, I think we are going to have some real problems in this
immigration portion.
We want strong and effective immigration enforcement. We don't want
the invaluable services of citizenship, family, and business petitions,
asylum, and the many public service components of immigration to be
forgotten. We don't want that. We want a strong enforcement, and we
want to provide homeland security. But we also are a nation of
immigrants. We need to take people who are legally here and build this
society.
We want strong security. We should never compromise our values or
lose sight of the immigration benefits to our culture or to our
economy. It is critical that we monitor the development of this new
Department to ensure the immigration services component receive the
attention and resources it deserves.
I have shared these concerns with Governor Ridge. I am comforted by
the fact that he is aware of those facts.
One of the other aspects I want to make note of is the issue of the
immigration courts. I want to quickly commend this legislation for
keeping the Executive Office for Immigration Review within the
Department of Justice. It didn't move over homeland security. I think
permitting the Attorney General to retain control of the immigration
court system is going to be positive.
I think those are some problems we need to revisit. We should do so
in the future.
It is time we pass the homeland security legislation.
I yield the floor.
The PRESIDING OFFICER. The Senator from West Virginia.
Mr. BYRD. Mr. President, we have come to the end of a long, long
road. For nearly 5 months, this Chamber has engaged in discussions
about homeland security. But for nearly as long a time as that, this
Congress has not engaged in seeing to it that there is actual funding
to make our people any safer from the threat of another horrific
terrorist attack. It has been over 4 months--over 4 months--since the
House of Representatives has seen fit to pass a single regular
appropriations bill.
Now, God created all of creation. He created the universe. He created
the Earth. He created man in 7 days, in the Book of Genesis. The
greatest scientific treatise that has ever been written can be found in
that first chapter of Genesis. Go to it. Those of you who are
scientists, look over that one, the first chapter of Genesis. Do you
have any problem with the chronological order in which the creation was
made possible, as set forth in that chapter? No. The scientists won't
have any objection to that chronological order, not any. I have four
physicists in my own family, and they agree with that, that
chronological order.
So 6 days, and God rested on the Sabbath.
How long has it taken for us to pass a regular appropriations bill?
The last regular appropriations bill came out of the House 4 months
ago. It has been over 4 months since the House of Representatives has
seen fit to pass a single regular appropriations bill.

[[Page S11458]]

Now, God would not have gotten very far in the creation of this
universe, would He, if it had taken Him that long at that pace?
We have talked a lot about homeland security. We have plenty of talk.
We just open our mouths, and it just rolls out--rolls out. So talk is
cheap.
But we have done very little. We have not given the cities and
municipalities, the police, the firemen, the hospital workers, the
first responders who are on the front line, we have not given these
people one red cent--I will say, one copper cent--not one, to help them
keep us safer from the madmen within our midst--in 4 months. Now, get
that.
Nothing was said about that during the campaign. The President went
all over this country--from the Pacific to the Atlantic, to the
Canadian border, to the Gulf of Mexico--talking about this great bill
here, this magnificent product of human genius in the bowels of the
White House. Not one word was said about these appropriations that have
been passed by the Senate and the House that have been on the
President's desk--$5.1 billion, in one instance, made available to the
President for homeland security. All that was needed was the President
to flourish the pen, attach his signature, and designate that money as
an emergency. The Congress has already done it. He said no.
So homeland security has gone wanting. That money has been there--
$2.5 billion for homeland security. That is two and a half dollars for
every minute since Jesus Christ was born, two and a half dollars for
every minute.
So it has been a little over a year and 2 months now since America
was jolted from its tranquility by the noise, the smoke, the flames of
two exploding commercial airlines as they smashed into the Twin Towers
in New York City. Yet in these intervening months--except for the
initial help that we provided to New York and to Washington to aid in
closing the hemorrhaging wounds of economic disruption and human
devastation caused by the terrorist attacks--not enough has changed
here at home.

It is true that we have chased bin Laden across the landscape of
Afghanistan. We have spent over $20 billion chasing him around in
Afghanistan. And now we don't actually know where he has been chased
to. We have chased bin Laden across the landscape of Afghanistan and
probably cleansed that nation of the training camps for terrorists, for
now.
We have made some progress, I am sure, in some disruption of the al-
Qaida network worldwide, but no one in this Chamber, and no one in this
city, can look the American people in the eye and say to them: ``Today
you are much safer here at home than you were 14 months ago.'' I can't
do it.
This Government continues to send out first one alert and then
another. Practically the whole litany of top people in this
administration has been out there at one time or another saying:
Something may happen here tomorrow. Something may happen here within
the next week. So the Nation has been put on alert after alert. So I
ask the question: Are you better off than you were a year ago?
Because of reckless disregard for the reality of the threat to our
domestic security, this administration and many in this Congress have
taken part in an irresponsible exercise in political chicanery.
The White House has pressured its Republican colleagues in the
Congress--and some of the Democrats as well--to reject billions of
dollars in money which could have added to the tangible safety of the
American people.
This White House has stopped--stopped--this year's normal funding
process in its tracks. I have never seen such action before. This White
House has stopped this year's normal funding process in its tracks.
This year--since 1976, when the beginning of the fiscal year was
changed from July 1 to October 1--only two appropriations bills have
passed the Congress and been sent to the White House--only two. That is
the most dismal record since 1976; the most dismal record, only two
bills. What a lousy record.
But this Senate Appropriations Committee reported out all 13
appropriations bills to the Senate no later than July--the best record
in years. And yet only two bills have been signed by the President.
Why? Because this administration, down there in the White House--we all
know who is in the White House--has told the Republican leadership in
the other body: Don't let any more appropriations bills pass.
This White House has stopped this year's normal funding process in
its tracks and even turned back funds for homeland security in
emergency spending bills that could have shored up existing mechanisms
to prevent or respond to another devastating blow by fanatics who hate
the United States.
They do not hate the United States because of its freedoms. The
President says they hate us because of our freedoms. I do not believe
that. I think they hate us because of our arrogance.
They have done this plain disservice to the people. They have done
this plain disservice to the people in order to gain some perceived
political advantage in a congressional election year, and in order to
be able to say that they were holding down spending.
So they kept 11 of the appropriations bills from coming down to the
White House. But you watch this administration after the turn of the
new year. You will never see such fast operating on appropriations
bills as we will see then. We have done our work on these bills. But
for the most part they have not been sent to the White House because
the administration said: We don't want them.
The administration told the Republican leadership in the other body:
We don't want them. Hold them up.
But once this new leadership takes over in January, you watch how
quickly they will say: Now send those bills on down. We want to show
the American people how fast we can appropriate money, how fast we can
move appropriations bills--when all the while the ``we'' they are
thinking about is the ``we'' that has held up those appropriations
bills and not let them come to the White House.
In order to avoid criticism of the too meager dollars for homeland
security, this White House suddenly did an about-face and embraced the
concept of a Department of Homeland Security. Don't send us your
appropriations for homeland security. Send that bill up there because
that is a great political hat trick. Send us the bill on homeland
security. Make the people think they are going to have more security in
their schools and their homes and their businesses and on their farms.
So the people are being offered a bureaucratic behemoth complete with
fancy top-heavy directorates, officious new titles, and noble sounding
missions instead of real tools to help protect them from death and
destruction. How utterly irresponsible. How utterly callous. How
cavalier.
With this debate about homeland security, politics in Washington has
reached the apogee of utter cynicism and the perigee of candor. No one
is telling our people the plain, unvarnished truth. It is simply this:
This Department is a bureaucratic behemoth cooked up by political
advisors to the President to satisfy several inside Washington agendas.
One, it is intended to protect the President from criticism and fault
should another attack occur.
Two, it is intended to eliminate large numbers of dedicated, trained,
experienced, loyal, patriotic Federal workers so that lucrative
contracts for their services may be awarded to favored private
entities. Watch. Watch and see.
Three, it would be used to channel Federal research moneys and grants
to big corporate contributors without the usual Federal procurement
standards that ensure fair competition and best value for the tax
dollar.
Four, it will foster easier spying and information gathering on
ordinary citizens which may be used in ways which could have nothing
whatsoever to do with homeland security. And now with this new bill,
with the blue ribbon that will be tied around it, the fancy trimmings
that will be around that bill when it goes down to the White House and
then to be invited--how wonderful, how glorious that will be, to be
invited. I haven't been down there in so long. It is called the Rose
Garden--into that Rose Garden, just to be there in the presence of the
chief executive, the Commander in Chief, when he signs this bill into
law, this new bill which showed up only last week on the doorstep of
the Senate, how wonderful that will be, how utterly wonderful that will
be.

[[Page S11459]]

Insult has been added to injury by provisions that further exploit
the already shamefully exploited issue of homeland security with pork
for certain States and certain businesses. My, my, my, how low we have
sunk.
Senators seem to be unaware or unconcerned about the transfer of
power that will take place under this bill. Some of the Senators who
have walked down to that table and who have voted aye on this bill and
who voted no on amendments that have been offered to improve it, they
will have room, they will have time to remember. They will have time to
remember how they were stampeded into voting without asking questions.
The most glaring example can be found in title XV of the bill which
requires the President to submit a reorganization plan to the Congress
which would outline how he plans to transfer to the new Department 28
agencies and offices authorized by the Congress. The authority granted
to the President under this title is very broad. The President can
reorganize, streamline, or consolidate the 28 agencies and offices
being transferred.
The President can determine which functions of the agencies being
transferred will be moved to the new Department and which will be left
behind. The President can determine how the functions transferred to
the new Department will be delegated among the officers within the new
Department. The President can set any effective date he wants for
transferring these agencies within a 12-month transition period. The
President can change his plan at any time before the plan takes effect.
The only requirement placed on the President is that heavy charter,
that great burdensome charge; namely, that he inform the Congress of
his plans before those plans take effect. My, what a heavy burden. The
Congress does not have the opportunity to approve or disapprove of the
President's plan. We have no mechanism by which to object to the
President's plan. The Congress is locked out by our own doing, forced
to watch from the sidelines as the administration implements this new
Department.
What a great Senate this is, in this hour of God. The Senate, I have
to say, has let the people down. The Senate has grown timid. It has
lost its nerve. I cannot for the life of me understand why the Congress
would cut itself out of the loop like that. Congress is authorizing the
President to reorganize, consolidate, or streamline any one of the 28
agencies and offices being moved to the new Department and to delegate
functions among the officers however he wishes. And the only
requirement placed on the President, as I say, is that he humble
himself enough just to let the Congress know what he plans to do.
After we pass this bill, the Congress will have abdicated its role in
the implementation of the new Department. We might as well just dive
under the bed and say: Here goes nothing.
I find this to be unacceptable and unwise. Other Senators should
agree.
Last September I offered an amendment that would have allowed the
Congress to stay involved and to help provide for a more orderly,
efficient, effective transition of agencies to this new Department. The
Congress would have had a mechanism in place to guard against abuses of
this authority that we are granting to the President, if my amendment
had been adopted.
The distinguished Senator from Minnesota, presently sitting in the
chair, voted for my amendment. But the Senate rejected my amendment--
incidentally, the Senator who sits in the chair had, I will say, a
kinsman who signed the Constitution of the United States. How many
signers were there? Thirty-nine. He was one of the signers; his name
was Jonathan Dayton. How old was he? He was the youngest member of the
convention, the youngest, younger than Charles Pinckney. I believe
Charles Pinckney was the next youngest. Dayton was the youngest, 24
years old, I believe, 25 or 26--24, I believe--choosing instead to
trust the administration to handle the implementation of the new
Department without congressional input.
That decision, in my view, was a disservice to our States and the
people who sent us here to look out for them. With passage of the new
House bill, we have in effect washed our hands of any further ability
to affect decisions regarding the way the Department is organized or
the functions that it will perform.
The Nation will have this unfortunate creature, this behemoth
bureaucratic bag of tricks, this huge Department of Homeland Security,
and it will hulk across the landscape of this city, touting its noble
mission, shining up its new seal, and eagerly gobbling up tax dollars
for all manner of things, some of which will have very little to do
with protecting or saving the lives of the American people.
Maybe in 5 years or so it will sort out its mission and shift around
its desks enough to actually make some real contribution to the safety
of our people. I sincerely hope so. But if the latest tape from bin
Laden is to be believed, we won't have time for all of that.
If the latest threat assessment from the FBI can be believed, we will
experience something catastrophic before that new Department even
finishes firing all of the Federal workers it wants to get rid of.
What does it take to wake us up? What does it take to make the
gamesmanship cease? When will we stop the political mud wrestling and
begin to wrestle with the most potentially destructive force ever to
challenge this Nation?
Let us hope that when the gavel bangs to close down this session of
Congress, it will awaken us to all of the dreadful consequences of
continued posturing and inaction.
I know that this administration, with its newfound majorities in both
Houses of Congress, will quickly pass the remaining 2003 bills, which
will provide at least some modicum of real security for our people as
soon as Congress reconvenes in January of the new year. They will want
to claim that they can get things done.
Although I deplore the motivation and the gamesmanship behind such
tactics, I wish them well and pledge my help. It is long past time for
us to finally do our best to prevent another deadly strike by those who
hate us and wish us ill. Terrorism is no plaything. Political service
is no game. Political office is no place for warring children.
The oath of office which we take is no empty pledge to be subjugated
to the tactics of election year chicanery perpetrated on a good and
trusting people.
Yesterday, a Federal appeals court upheld broad, new powers given to
the Justice Department to investigate and prosecute people suspected of
terrorism. The ruling of the special appeals court, which was created
by Congress to oversee secret Government actions involving national
security, will make it easier for the Justice Department to spy on U.S.
citizens by circumventing traditional constitutional protections. This
court decision gives the executive branch a green light to run
roughshod over the civil liberties of innocent Americans in the name of
national security.
The Justice Department argued that the expanded authority it is
claiming is nothing more than what Congress authorized in last year's
USA Patriot Act, in which Congress tore down the protective walls that
had previously separated foreign intelligence and domestic law
enforcement activities. A three-judge appeals panel agreed with the
Justice Department, concluding that the new antiterrorism law did have
the effect of weakening procedures that safeguard our civil liberties.
The Justice Department now wields dangerous, new power to conduct
secret surveillance on American citizens for potential criminal
prosecutions. This expanded power is a license for abuse, and Senators
should be concerned about the consequences for our constitutional
system.
But any of us who wants to point his finger at the administration for
overreaching its authority should also place that blame squarely on
himself or herself, because it was the actions of this Senate that set
the wheels in motion.
As the Washington Post points out in an editorial entitled ``Chipping
Away at Liberty'' from this morning's paper:

The fault for the problem . . . lies not with the court,
but with Congress, for the carelessness and haste with which
it passed the USA Patriot Act in the wake of the September 11
attacks, and for its unwillingness to push back against Bush
administration excesses.

The editorial goes on to explain that this new authority grants the
Government one more sphere in which it gets

[[Page S11460]]

to unilaterally choose the rules under which it will pursue the war on
terrorism. . . .Which parts of this system need to be reigned in is a
profoundly difficult question, one that Congress seems depressingly
uninterested in asking. This is a war, the administration has said,
without a foreseeable end, so the legal regime that handles these cases
may become a permanent feature of American justice. Such a regime
should be enacted deliberately, after careful inquiry by legislators--
an inquiry that has so far scarcely begun.

Mr. President, this Senate passed the USA Patriot Act in October of
2001 by a vote of 98 to 1. I voted for it. Ninety-eight Senators,
including myself, this Senator from West Virginia, voted for the bill.
Perhaps many of us now realize that we may indeed have acted too
hastily to hand over this unchecked power to the executive branch.
During the debate on that bill, one Senator stood up and pleaded with
us to take the time to consider the legislation more carefully before
we unleashed such a dangerous and uncontrolled threat to our civil
liberties. Senator Feingold stood alone in the path of that Mack truck
that was barreling through the Senate, warning that many of us would
come to regret our decision to stand out of the way and cheer on the
rumbling big rig.
I believe that Senator Feingold was right to caution the Senate
during that debate. I believe we did pass the Patriot Act too hastily.
As the media continue to uncover more stories about the lengths to
which this administration will go to shroud its actions in secrecy, I
hope other Senators will also come to the conclusion that these issues
deserve more attention from this Congress.
During this debate on homeland security, I have tried to convince the
Senate to slow down and look closely at this legislation before giving
the executive branch such a broad grant of virtually unchecked
authority. I have tried to draw attention to some of the problems in
this bill in the short time that we have had to examine it. I have
tried to persuade Senators not to give into the political pressures
that have loomed over our consideration of this bill before and after
this year's election.
So I hope that Senators will heed the warnings and vote against this
bill, although I do not really believe that will happen. I have seen
the handwriting on the wall, and I know that this bill has the votes to
pass. But I hope that those Senators who worry that we are acting too
hastily will have the courage to vote against the bill.
There will be a lot of work to be done in the next Congress to clean
up the mess we will make by enacting this homeland security
legislation. Congress will have already cut itself out of the loop with
regard to the implementation of this new Department. It will be
incumbent upon individual Members of the Senate to attempt to shed
light on the administration's actions whenever possible. It will be the
responsibility of individual Members to fight to defend the
constitutional powers of Congress and the constitutional protections of
our personal privacy and civil liberties.
There will be a lot left to do in the name of homeland security
during the next Congress. I hope each Senator will remember that when
he or she votes on this bill, and I hope the Senators do not treat this
vote as something to put behind them. When Senators cast their votes on
final passage of this homeland security legislation, I hope that they
will understand and think about what that vote will mean a year from
now when their voters ask them: Where were you when the Senate approved
this bill?
I urge those Senators who are troubled by this legislation, as I am,
to vote with me against the bill. I know where I will be when the
Senate votes to hand over this power, and my people will know that I
did what I could to put the brakes on this process. I hope that other
Senators will also send a message to the people they represent about
where they stand by voting against the final passage of the homeland
security bill.
Mr. President, how much time do I have remaining?
The PRESIDING OFFICER (Mr. Durbin). There are 12 minutes remaining.
Mr. BYRD. I reserve that time.

Farewell To Senator Fred Thompson

Mr. President, with the closing of the 107th Congress, the Senate
will be saying farewell to a very talented and successful and effective
colleague, a Senator who in a relatively short period of time has made
important contributions to this Chamber and to our country.
Senator Fred Thompson has accomplished so much that it is difficult
to realize he has only been here since 1995. As a Senator, he has
served on the Senate Finance Committee, the Senate Select Committee on
Intelligence, and the National Security Working Group. In 1997, he
became chairman of the Committee on Governmental Affairs where he
conducted a number of important and controversial investigations.
As a national lawmaker, Senator Fred Thompson has played an important
role in developing this Nation's trade policies, including pushing for
an export control policy to protect our country's national security and
proposing legislation to curb the proliferation of weapons of mass
destruction. He has been an active and important advocate for campaign
finance reform. He has authored legislation to protect Government
computers from outside infiltration. He has been a major force for
regulatory reform.
As chairman of the Governmental Affairs Committee, he helped lead the
fight to reduce waste, fraud, and abuse in Government, and along with
Senator Frist, Senator Thompson secured funding to establish a School
of Government at the University of Tennessee named in honor of
University of Tennessee graduate and one of my favorite Senators of all
time, Senator Howard Baker.
He is one of my favorite Senators of all time. He is a statesman. He
is not just a politician. He is a statesman. If it had not been for
Howard Baker, for his statesmanship, the Senate would never have
approved the Panama Canal treaties. It would never have done it. It
required a two-thirds vote, and all the polls showed the Senate was
swimming upstream. The majority of the people were against those
treaties. But Howard Baker stepped to the plate, at a political
sacrifice to himself, and stood for those treaties.
I was majority leader of the Senate at that time. Howard Baker was
the minority leader. I could not have gotten those treaties approved
but for the strong support of Howard Baker. It was kind of the same way
for Howard Baker as his father-in-law, Everett Dirksen. If Everett
Dirksen had not stepped to the plate, the Senate would never have
passed the 1964 Civil Rights Act. It was Everett Dirksen who joined
with Mike Mansfield and that legislation was passed.
I should point out that Senator Thompson has not always been
successful in his efforts. At times, his has been a lonely voice and a
lonely vote against popular measures that went against his sense of
federalism and his concern that the National Government was encroaching
upon the rights of the States. Even when I opposed him on some of these
issues, I admired the strength of his convictions.
I will miss him and his courage, and so will the people of Tennessee.
In 1996, the people of Tennessee cast more votes for him than for any
previous candidate for any office in the history of the State. Now how
about that? That is pretty remarkable.
In addition to his many legislative accomplishments, perhaps the
reason Senator Thompson seems to have been with us for a longer period
of time than is reflected by his actual years as Senator is that he is
so associated in the public mind with politics.

In 1973, when I was the majority whip in the Senate, Fred Thompson
served as minority counsel on the Senate Select Committee on
Presidential Campaign Activities, known as the Watergate Committee. He
was a very effective staff person. I can remember his work.
Many people have also seen him on the silver screen portraying a CIA
chief, an FBI Director, a White House Chief of Staff. I am not about to
ask which of these roles best prepared him for his real-life role as a
Senator.
This has truly been a remarkable career for the son of a used car
salesman who worked his way through law school while raising a family.
I applaud Fred Thompson, and I congratulate him. We will miss Senator
Thompson.
I have watched him during this short time when he has been in the
Senate. I

[[Page S11461]]

have admired him. I admire his bearing, his manner of talking, moving
about the Senate and doing his work. He is not a show horse here in the
Senate, but he has been a workhorse. I do not know of any enemies he
has made in this Senate on either side of the aisle.
We will miss him. I understand he will be resuming an acting career.
I can only say that the Senate's loss is Hollywood's gain. All of us
look forward to seeing him as he resumes his earlier career as a fine
actor. I do not watch TV much, and I have not been to a movie in the 50
years I have been in Congress. I have not been to a movie, not one. I
have watched some good movies on television. Alistair Cooke, for
example, used to have good movies. If I know Fred Thompson is going to
play, I will make a point to go and see him.

Retirement Of Senator Phil Gramm

Mr. President, seldom in all my years in the Senate have I
encountered a Senator for whom my feelings and attitudes have covered
such a wide spectrum as they have for Senator Phil Gramm. They have
ranged from intense opposition, as they did in our battles over the
Gramm-Rudman legislation, to close cooperation as we worked together
during his 6 years on the Appropriations Committee.
Always prepared, always thoughtful, he was always ready to speak on
any subject at the drop of a hat. Phil Gramm was always ready to talk
and, oh, was he ready to talk. I quickly learned he can talk about
anything, everything, and do so intelligently, and always with a good
humor, in the best of good humor.
It was during our years together on the Appropriations Committee that
I learned of his respect for the Senate and its role in our democratic
Republic. He once referred to his work in the Senate as doing the
Lord's work. He has often referred to it as doing the Lord's work. I
liked that. I wish I had said that first.
He has also demonstrated an understanding that fundamental power of
Congress is the power of the purse. For that, I applaud Senator Gramm,
and I thank him.
In addition to our work together on the Appropriations Committee, we
have worked together on important national legislation, including the
highway reauthorization bill, TEA-21. I saw that he has a remarkable
talent for grassroots organizing.
I watched him here today as he moved around the Chamber. I knew what
he was doing. He was talking with some of these Democratic Senators. I
knew what he was talking with them about. Someone said: That Senator,
you see Senator Gramm, that Democratic Senator will vote against the
amendment by Mr. Daschle and Mr. Lieberman. I knew what he was doing,
but I respected that.
During a difficult struggle on that highway bill, TEA-21, Phil and I
met with representatives from a number of organizations interested in
highway construction. I believe my friend from New Mexico was in on
some of those meetings.
Mr. DOMENICI. I was opposed.
Mr. BYRD. He was opposed. When the Senator from New Mexico is
opposed, I pay even more attention to him. Anyhow, after each meeting,
our friends would walk away with plans for spreading the good word in
favor of our plan, charged up with a pep talk by Phil Gramm. He also
has a talent, a great talent, for negotiating. Even when he wins a
negotiation and you have lost everything, he can make you feel like you
prevailed and he lost everything. Suddenly, on the way home you will
pinch yourself and say, wait a minute, that is not quite the way it
was.
So this is Phil Gramm, a biting, partisan bulldog one minute, and a
gentle, cuddly puppy the next. At times, it is difficult to decide if
you should jump back in fright or reach out and pet him.
He is one of those rare Members of Congress who has had a powerful
impact not only upon this institution but on our country and its
policies. Just last year, the National Review pointed out that no
Member of Congress--not Jack Kemp, not Newt Gingrich, not Bob Dole--
played a more decisive role in launching the Reagan agenda.
Phil Gramm is perhaps this country's most consistent and strongest
promoter of smaller taxes and smaller government. The legislation he
has authored, sponsored and promoted, from Gramm-Latta to Gramm-Rudman,
to the Bush tax cuts, give the lie to Emerson's observation that a
``foolish consistency is the hobgoblin'' of little minds. It is also
the hobgoblin of big minds.
Phil Gramm definitely has a big mind. I have learned so much from
him. I certainly learned a lot about his ``mamma.'' Among other things,
I learned she receives Social Security, that she carries a gun, and she
knows how to use it. That is what Phil says.
I certainly learned more than I ever wanted to know about Dicky
Flatt, the hard-working print shop owner in Mexia, TX, and how the
Government keeps taking away his money to spend on someone else.
I learned do not mess with Phil Gramm. He has an intellect second to
none. He has a tenaciousness and he has a razor tongue second to none.
But throughout it all, let me assure my colleagues that my
disagreements have never lessened my respect and my admiration for the
man and Senator. He was always straightforward and fair and always
sincerely dedicated to the cause he was espousing or supporting, and
that no doubt was because his positions on the most important issues
facing our Nation were always deeply thought out and heartfelt
convictions; not simply political calculations. That is why I came to
respect his integrity, his wisdom, and his courage.
In his book, ``Profiles in Courage,'' Senator John F. Kennedy wrote:

Surely in the United States of America, where brother once
fought brother, we did not judge a man's bravery under fire
by examining the banner under which he fought.

Senator Gramm and I have fought under different banners, but we have
always fought under and for the same flag. Whatever he did, whatever he
said, whatever he promoted, it came from his deep, undeviating love of
the United States of America. While he is always ready to tell you what
is wrong with our country, he will never hesitate to tell you what is
right with it. We will miss him.
There he is. I did not realize that while I was talking about the
man, he was sitting here listening, but I can say to the Senate that on
more than one occasion, Senator Phil Gramm has come to my office on
difficult matters, in which I may have had some interest, as in
mountaintop mining or the highway bill, whatever it was, and in many
instances he has proposed a compromise which enabled us to get over a
mountain, get over a hump, and get on with the business.

I appreciate the contributions he has made to legislation in this
body. I do not know of any Senator who has been a more knowledgeable
and able legislator. The Senator has exemplified reverence for the
Constitution, respect for the Senate, and an unbounded love for his
country.
While he will no longer be my colleague, Phil Gramm will always be my
friend.
I yield the floor.
The PRESIDING OFFICER. The Senator's time has expired.
The majority leader.
Mr. DASCHLE. Mr. President, what is the order?
The PRESIDING OFFICER. The majority leader has 5 minutes. The
minority retains 2 minutes of time.
Mr. DASCHLE. Mr. President, I will have more to say about our
departing colleagues tomorrow, but let me share as well my admiration
for our colleague Senator Gramm. He is a hardened legislative
adversary, but I have a great deal of respect for his ability and the
manner with which he conducts himself on the floor. I have fond
memories of the many years we have served together.
I recall so vividly our first days together riding a bus as freshmen
Congressman in 1979. So we wish him well. As I said, I will have much
more to say about him and about our colleagues tomorrow.
I wanted to come to the floor simply to express what I have said on
several occasions. It is with some misgivings that I will cast my vote
tonight in favor of the creation of this Department. I do so, fearful
we have not done the kind of work on this legislation I wish we could
have. I do so even though language has been inserted in the bill I
think we are going to regret, but I do so recognizing we have to start
rebuilding our infrastructure, reorganizing our Government, recognizing

[[Page S11462]]

more consequentially the threat that is now posed by terrorism within
our borders as well as without. I intend to support this legislation
with every expectation that this is the first in a long series of steps
which must be taken to better prepare our country and our Government. I
have no doubt we will be back next year addressing many of the
shortcomings we will be incorporating in this legislation tonight.
This bill still needs work. This Department needs work. But as much
work as it needs, not to have done anything in recognition of the
tremendous challenges we face as a country is something I could not
accept either. So I will support it, recognizing as well that it is
critical for us to provide the funding--and there is no funding. In
fact, if I have any regret about what we are doing tonight, it is that
we are not passing the requisite resources needed to get started in an
earnest and successful way. We are going to have to wait until next
year. The more we wait, the harder it will be. The more we wait, the
more complicated our mission. The more we wait, the more underfunded
will be our effort in so many other ways.
I regret we are not willing to commit the resources that match the
infrastructure we will be authorizing tonight.
Finally, let me say there are many people who deserve recognition and
thanks. I acknowledge especially the leadership of Senator Joe
Lieberman, the chair of the Governmental Affairs Committee. He and
others on the committee have done an outstanding job getting us to this
point, whether or not you agree with all of the components of the bill.
I congratulate Senator Thompson as the ranking member. They worked
oftentimes together, and where they could not work together, they
worked in a way that was not disagreeable.
I thank the whole Governmental Affairs Committee for the work they
did in getting us to this point over the many months they have been
involved.
Let me say I also thank Senator Byrd. He and I may come down on
different sides tonight, but he has done the Senate and the country a
real service. I have admired him for many reasons for many years. But
his powerful advocacy of his position, the extraordinary effort he has
made to enlighten us, to educate us, to sensitize us, and to ensure
that we are fully aware of all of the concerns he has about the
creation of this Department is something for which we all ought to
express our deep indebtedness to him. I thank him for what he has done
in adding to the debate, acknowledging as he has the inevitability of
our consideration and ultimately the passage of this legislation
tonight. There are many others, including Senator Harry Reid, our
extraordinary deputy Democratic leader, all the work he has done to
allow this opportunity to complete our work tonight.

As I said, we will be in session tomorrow and we will have much more
to say about many of these issues, reflecting back, but I close simply
by thanking our colleagues for the work they have done. I hope we can
complete our work and pass this legislation tonight.
I also ask, following the first vote, all subsequent votes be limited
to 10 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. DASCHLE. I yield the floor.
The PRESIDING OFFICER. The Senator from Texas.
Mr. GRAMM. Mr. President, it is my understanding we have 2 minutes
remaining.
The PRESIDING OFFICER. Two minutes.
Mr. GRAMM. I could hardly say what I feel in my heart in 2 minutes.
Too often, as people leave the Senate, they talk about things they are
unhappy about. I want people to know I am not discouraged; I am not
disillusioned; I am not disappointed. I am proud and I am honored. I am
proud to have had an opportunity to serve the greatest country in the
history of the world. I am proud to have served with extraordinary men
and women. I think we are so close to them and what they have done here
that it is hard to put it all in perspective. But someday when I am
sitting in a nursing home talking to my grandchildren, I think I will
have that perspective right and there will be names such as Senator
Byrd, Senator Domenici, and others that will flow from my lips as men I
was honored to know and to love.
I thank the people of Texas for giving me an opportunity to serve. I
conclude by reading a remark by, of all people, Aaron Burr. Senator
Byrd is familiar with it. It is wonderful and I want to conclude by
reading it. Aaron Burr was leaving the Senate, and he concluded with
these remarks:

. . . this house is a sanctuary and a citadel of law, of
order, of liberty--and it is here--it is here--in this
exalted--refuge, here, if anywhere will resistance be made to
the storms of popular phrenzy and the silent arts of
corruption:--And if the Constitution be destined ever to
perish by the sacrilegious hands of the demagogue of the
Usurper, which God avert, its expiring agonies will be
witnessed on this floor.

I am honored to have served here. I am honored to have served with
those who will be sure, in their efforts, in their work, that the
Constitution never expires.
I yield the floor.
The PRESIDING OFFICER. All time has expired. The question is on the
engrossment of the amendments and third reading of the bill.
The amendments were ordered to be engrossed and the bill to be read a
third time.
The bill was read a third time.
Mr. GRAMM. I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There is a sufficient second.
The bill having been read the third time, the question is, Shall the
bill pass?
The clerk will call the roll.
The assistant legislative clerk called the roll.
Mr. NICKLES. I announce that the Senator from Alaska (Mr. Murkowski)
is necessarily absent.
The PRESIDING OFFICER. Are there any other Senators in the Chamber
desiring to vote?
The result was announced--yeas 90, nays 9, as follows:
[Rollcall Vote No. 249 Leg.]

YEAS--90

Allard
Allen
Barkley
Baucus
Bayh
Bennett
Biden
Bingaman
Bond
Boxer
Breaux
Brownback
Bunning
Burns
Campbell
Cantwell
Carnahan
Carper
Chafee
Cleland
Clinton
Cochran
Collins
Conrad
Corzine
Craig
Crapo
Daschle
Dayton
DeWine
Dodd
Domenici
Dorgan
Durbin
Edwards
Ensign
Enzi
Feinstein
Fitzgerald
Frist
Graham
Gramm
Grassley
Gregg
Hagel
Harkin
Hatch
Helms
Hutchinson
Hutchison
Inhofe
Johnson
Kerry
Kohl
Kyl
Landrieu
Leahy
Lieberman
Lincoln
Lott
Lugar
McCain
McConnell
Mikulski
Miller
Murray
Nelson (FL)
Nelson (NE)
Nickles
Reed
Reid
Roberts
Rockefeller
Santorum
Schumer
Sessions
Shelby
Smith (NH)
Smith (OR)
Snowe
Specter
Stabenow
Stevens
Thomas
Thompson
Thurmond
Torricelli
Voinovich
Warner
Wyden

NAYS--9

Akaka
Byrd
Feingold
Hollings
Inouye
Jeffords
Kennedy
Levin
Sarbanes

NOT VOTING--1

Murkowski

The bill (H.R. 5005), as amended, was passed, as follows:
Resolved, That the bill from the House of Representatives
(H.R. 5005) entitled ``An Act to establish the Department of
Homeland Security, and for other purposes.'', do pass with
the following amendment:
Strike out all after the enacting clause and insert:

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

(a) Short Title.--This Act may be cited as the ``Homeland
Security Act of 2002''.
(b) Table of Contents.--The table of contents for this Act
is as follows:

Sec. 1. Short title; table of contents.
Sec. 2. Definitions.
Sec. 3. Construction; severability.
Sec. 4. Effective date.

TITLE I--DEPARTMENT OF HOMELAND SECURITY

Sec. 101. Executive department; mission.
Sec. 102. Secretary; functions.
Sec. 103. Other officers.

TITLE II--INFORMATION ANALYSIS AND INFRASTRUCTURE PROTECTION

Subtitle A--Directorate for Information Analysis and Infrastructure
Protection; Access to Information

Sec. 201. Directorate for Information Analysis and Infrastructure
Protection.
Sec. 202. Access to information.

Subtitle B--Critical Infrastructure Information

Sec. 211. Short title.

[[Page S11463]]

Sec. 212. Definitions.
Sec. 213. Designation of critical infrastructure protection program.
Sec. 214. Protection of voluntarily shared critical infrastructure
information.
Sec. 215. No private right of action.

Subtitle C--Information Security

Sec. 221. Procedures for sharing information.
Sec. 222. Privacy Officer.
Sec. 223. Enhancement of non-Federal cybersecurity.
Sec. 224. Net guard.
Sec. 225. Cyber Security Enhancement Act of 2002.

Subtitle D--Office of Science and Technology

Sec. 231. Establishment of office; Director.
Sec. 232. Mission of office; duties.
Sec. 233. Definition of law enforcement technology.
Sec. 234. Abolishment of Office of Science and Technology of National
Institute of Justice; transfer of functions.
Sec. 235. National Law Enforcement and Corrections Technology Centers.
Sec. 236. Coordination with other entities within Department of
Justice.
Sec. 237. Amendments relating to National Institute of Justice.

TITLE III--SCIENCE AND TECHNOLOGY IN SUPPORT OF HOMELAND SECURITY

Sec. 301. Under Secretary for Science and Technology.
Sec. 302. Responsibilities and authorities of the Under Secretary for
Science and Technology.
Sec. 303. Functions transferred.
Sec. 304. Conduct of certain public health-related activities.
Sec. 305. Federally funded research and development centers.
Sec. 306. Miscellaneous provisions.
Sec. 307. Homeland Security Advanced Research Projects Agency.
Sec. 308. Conduct of research, development, demonstration, testing and
evaluation.
Sec. 309. Utilization of Department of Energy national laboratories and
sites in support of homeland security activities.
Sec. 310. Transfer of Plum Island Animal Disease Center, Department of
Agriculture.
Sec. 311. Homeland Security Science and Technology Advisory Committee.
Sec. 312. Homeland Security Institute.
Sec. 313. Technology clearinghouse to encourage and support innovative
solutions to enhance homeland security.

TITLE IV--DIRECTORATE OF BORDER AND TRANSPORTATION SECURITY

Subtitle A--Under Secretary for Border and Transportation Security

Sec. 401. Under Secretary for Border and Transportation Security.
Sec. 402. Responsibilities.
Sec. 403. Functions transferred.

Subtitle B--United States Customs Service

Sec. 411. Establishment; Commissioner of Customs.
Sec. 412. Retention of customs revenue functions by Secretary of the
Treasury.
Sec. 413. Preservation of customs funds.
Sec. 414. Separate budget request for customs.
Sec. 415. Definition.
Sec. 416. GAO report to Congress.
Sec. 417. Allocation of resources by the Secretary.
Sec. 418. Reports to Congress.
Sec. 419. Customs user fees.

Subtitle C--Miscellaneous Provisions

Sec. 421. Transfer of certain agricultural inspection functions of the
Department of Agriculture.
Sec. 422. Functions of Administrator of General Services.
Sec. 423. Functions of Transportation Security Administration.
Sec. 424. Preservation of Transportation Security Administration as a
distinct entity.
Sec. 425. Explosive detection systems.
Sec. 426. Transportation security.
Sec. 427. Coordination of information and information technology.
Sec. 428. Visa issuance.
Sec. 429. Information on visa denials required to be entered into
electronic data system.
Sec. 430. Office for Domestic Preparedness.

Subtitle D--Immigration Enforcement Functions

Sec. 441. Transfer of functions to Under Secretary for Border and
Transportation Security.
Sec. 442. Establishment of Bureau of Border Security.
Sec. 443. Professional responsibility and quality review.
Sec. 444. Employee discipline.
Sec. 445. Report on improving enforcement functions.
Sec. 446. Sense of Congress regarding construction of fencing near San
Diego, California.

Subtitle E--Citizenship and Immigration Services

Sec. 451. Establishment of Bureau of Citizenship and Immigration
Services.
Sec. 452. Citizenship and Immigration Services Ombudsman.
Sec. 453. Professional responsibility and quality review.
Sec. 454. Employee discipline.
Sec. 455. Effective date.
Sec. 456. Transition.
Sec. 457. Funding for citizenship and immigration services.
Sec. 458. Backlog elimination.
Sec. 459. Report on improving immigration services.
Sec. 460. Report on responding to fluctuating needs.
Sec. 461. Application of Internet-based technologies.
Sec. 462. Children's affairs.

Subtitle F--General Immigration Provisions

Sec. 471. Abolishment of INS.
Sec. 472. Voluntary separation incentive payments.
Sec. 473. Authority to conduct a demonstration project relating to
disciplinary action.
Sec. 474. Sense of Congress.
Sec. 475. Director of Shared Services.
Sec. 476. Separation of funding.
Sec. 477. Reports and implementation plans.
Sec. 478. Immigration functions.

TITLE V--EMERGENCY PREPAREDNESS AND RESPONSE

Sec. 501. Under Secretary for Emergency Preparedness and Response.
Sec. 502. Responsibilities.
Sec. 503. Functions transferred.
Sec. 504. Nuclear incident response.
Sec. 505. Conduct of certain public health-related activities.
Sec. 506. Definition.
Sec. 507. Role of Federal Emergency Management Agency.
Sec. 508. Use of national private sector networks in emergency
response.
Sec. 509. Use of commercially available technology, goods, and
services.

TITLE VI--TREATMENT OF CHARITABLE TRUSTS FOR MEMBERS OF THE ARMED
FORCES OF THE UNITED STATES AND OTHER GOVERNMENTAL ORGANIZATIONS

Sec. 601. Treatment of charitable trusts for members of the Armed
Forces of the United States and other governmental
organizations.

TITLE VII--MANAGEMENT

Sec. 701. Under Secretary for Management.
Sec. 702. Chief Financial Officer.
Sec. 703. Chief Information Officer.
Sec. 704. Chief Human Capital Officer.
Sec. 705. Establishment of Officer for Civil Rights and Civil
Liberties.
Sec. 706. Consolidation and co-location of offices.

TITLE VIII--COORDINATION WITH NON-FEDERAL ENTITIES; INSPECTOR GENERAL;
UNITED STATES SECRET SERVICE; COAST GUARD; GENERAL PROVISIONS

Subtitle A--Coordination with Non-Federal Entities

Sec. 801. Office for State and Local Government Coordination.

Subtitle B--Inspector General

Sec. 811. Authority of the Secretary.
Sec. 812. Law enforcement powers of Inspector General agents.

Subtitle C--United States Secret Service

Sec. 821. Functions transferred.

Subtitle D--Acquisitions

Sec. 831. Research and development projects.
Sec. 832. Personal services.
Sec. 833. Special streamlined acquisition authority.
Sec. 834. Unsolicited proposals.
Sec. 835. Prohibition on contracts with corporate expatriates.

Subtitle E--Human Resources Management

Sec. 841. Establishment of Human Resources Management System.
Sec. 842. Labor-management relations.

Subtitle F--Federal Emergency Procurement Flexibility

Sec. 851. Definition.
Sec. 852. Procurements for defense against or recovery from terrorism
or nuclear, biological, chemical, or radiological attack.
Sec. 853. Increased simplified acquisition threshold for procurements
in support of humanitarian or peacekeeping operations or
contingency operations.
Sec. 854. Increased micro-purchase threshold for certain procurements.
Sec. 855. Application of certain commercial items authorities to
certain procurements.
Sec. 856. Use of streamlined procedures.
Sec. 857. Review and report by Comptroller General.
Sec. 858. Identification of new entrants into the Federal marketplace.

Subtitle G--Support Anti-terrorism by Fostering Effective Technologies
Act of 2002

Sec. 861. Short title.
Sec. 862. Administration.
Sec. 863. Litigation management.
Sec. 864. Risk management.
Sec. 865. Definitions.

Subtitle H--Miscellaneous Provisions

Sec. 871. Advisory committees.
Sec. 872. Reorganization.
Sec. 873. Use of appropriated funds.
Sec. 874. Future Year Homeland Security Program.
Sec. 875. Miscellaneous authorities.
Sec. 876. Military activities.
Sec. 877. Regulatory authority and preemption.
Sec. 878. Counternarcotics officer.
Sec. 879. Office of International Affairs.
Sec. 880. Prohibition of the Terrorism Information and Prevention
System.
Sec. 881. Review of pay and benefit plans.
Sec. 882. Office for National Capital Region Coordination.
Sec. 883. Requirement to comply with laws protecting equal employment
opportunity and providing whistleblower protections.

[[Page S11464]]

Sec. 884. Federal Law Enforcement Training Center.
Sec. 885. Joint Interagency Task Force.
Sec. 886. Sense of Congress reaffirming the continued importance and
applicability of the Posse Comitatus Act.
Sec. 887. Coordination with the Department of Health and Human Services
under the Public Health Service Act.
Sec. 888. Preserving Coast Guard mission performance.
Sec. 889. Homeland security funding analysis in President's budget.
Sec. 890. Air Transportation Safety and System Stabilization Act.

Subtitle I--Information Sharing

Sec. 891. Short title; findings; and sense of Congress.
Sec. 892. Facilitating homeland security information sharing
procedures.
Sec. 893. Report.
Sec. 894. Authorization of appropriations.
Sec. 895. Authority to share grand jury information.
Sec. 896. Authority to share electronic, wire, and oral interception
information.
Sec. 897. Foreign intelligence information.
Sec. 898. Information acquired from an electronic surveillance.
Sec. 899. Information acquired from a physical search.

TITLE IX--NATIONAL HOMELAND SECURITY COUNCIL

Sec. 901. National Homeland Security Council.
Sec. 902. Function.
Sec. 903. Membership.
Sec. 904. Other functions and activities.
Sec. 905. Staff composition.
Sec. 906. Relation to the National Security Council.

TITLE X--INFORMATION SECURITY

Sec. 1001. Information security.
Sec. 1002. Management of information technology.
Sec. 1003. National Institute of Standards and Technology.
Sec. 1004. Information Security and Privacy Advisory Board.
Sec. 1005. Technical and conforming amendments.
Sec. 1006. Construction.

TITLE XI--DEPARTMENT OF JUSTICE DIVISIONS

Subtitle A--Executive Office for Immigration Review

Sec. 1101. Legal status of EOIR.
Sec. 1102. Authorities of the Attorney General.
Sec. 1103. Statutory construction.

Subtitle B--Transfer of the Bureau of Alcohol, Tobacco and Firearms to
the Department of Justice

Sec. 1111. Bureau of Alcohol, Tobacco, Firearms, and Explosives.
Sec. 1112. Technical and conforming amendments.
Sec. 1113. Powers of agents of the Bureau of Alcohol, Tobacco,
Firearms, and Explosives.
Sec. 1114. Explosives training and research facility.
Sec. 1115. Personnel management demonstration project.

Subtitle C--Explosives

Sec. 1121. Short title.
Sec. 1122. Permits for purchasers of explosives.
Sec. 1123. Persons prohibited from receiving or possessing explosive
materials.
Sec. 1124. Requirement to provide samples of explosive materials and
ammonium nitrate.
Sec. 1125. Destruction of property of institutions receiving Federal
financial assistance.
Sec. 1126. Relief from disabilities.
Sec. 1127. Theft reporting requirement.
Sec. 1128. Authorization of appropriations.

TITLE XII--AIRLINE WAR RISK INSURANCE LEGISLATION

Sec. 1201. Air carrier liability for third party claims arising out of
acts of terrorism.
Sec. 1202. Extension of insurance policies.
Sec. 1203. Correction of reference.
Sec. 1204. Report.

TITLE XIII--FEDERAL WORKFORCE IMPROVEMENT

Subtitle A--Chief Human Capital Officers

Sec. 1301. Short title.
Sec. 1302. Agency Chief Human Capital Officers.
Sec. 1303. Chief Human Capital Officers Council.
Sec. 1304. Strategic human capital management.
Sec. 1305. Effective date.

Subtitle B--Reforms Relating to Federal Human Capital Management

Sec. 1311. Inclusion of agency human capital strategic planning in
performance plans and programs performance reports.
Sec. 1312. Reform of the competitive service hiring process.
Sec. 1313. Permanent extension, revision, and expansion of authorities
for use of voluntary separation incentive pay and
voluntary early retirement.
Sec. 1314. Student volunteer transit subsidy.

Subtitle C--Reforms Relating to the Senior Executive Service

Sec. 1321. Repeal of recertification requirements of senior executives.
Sec. 1322. Adjustment of limitation on total annual compensation.

Subtitle D--Academic Training

Sec. 1331. Academic training.
Sec. 1332. Modifications to National Security Education Program.

TITLE XIV--ARMING PILOTS AGAINST TERRORISM

Sec. 1401. Short title.
Sec. 1402. Federal Flight Deck Officer Program.
Sec. 1403. Crew training.
Sec. 1404. Commercial airline security study.
Sec. 1405. Authority to arm flight deck crew with less-than-lethal
weapons.
Sec. 1406. Technical amendments.

TITLE XV--TRANSITION

Subtitle A--Reorganization Plan

Sec. 1501. Definitions.
Sec. 1502. Reorganization plan.
Sec. 1503. Review of congressional committee structures.

Subtitle B--Transitional Provisions

Sec. 1511. Transitional authorities.
Sec. 1512. Savings provisions.
Sec. 1513. Terminations.
Sec. 1514. National identification system not authorized.
Sec. 1515. Continuity of Inspector General oversight.
Sec. 1516. Incidental transfers.
Sec. 1517. Reference.

TITLE XVI--CORRECTIONS TO EXISTING LAW RELATING TO AIRLINE
TRANSPORTATION SECURITY

Sec. 1601. Retention of security sensitive information authority at
Department of Transportation.
Sec. 1602. Increase in civil penalties.
Sec. 1603. Allowing United States citizens and United States nationals
as screeners.

TITLE XVII--CONFORMING AND TECHNICAL AMENDMENTS

Sec. 1701. Inspector General Act of 1978.
Sec. 1702. Executive Schedule.
Sec. 1703. United States Secret Service.
Sec. 1704. Coast Guard.
Sec. 1705. Strategic national stockpile and smallpox vaccine
development.
Sec. 1706. Transfer of certain security and law enforcement functions
and authorities.
Sec. 1707. Transportation security regulations.
Sec. 1708. National Bio-Weapons Defense Analysis Center.
Sec. 1709. Collaboration with the Secretary of Homeland Security.
Sec. 1710. Railroad safety to include railroad security.
Sec. 1711. Hazmat safety to include hazmat security.
Sec. 1712. Office of Science and Technology Policy.
Sec. 1713. National Oceanographic Partnership Program.
Sec. 1714. Clarification of definition of manufacturer.
Sec. 1715. Clarification of definition of vaccine-related injury or
death.
Sec. 1716. Clarification of definition of vaccine.
Sec. 1717. Effective date.

SEC. 2. DEFINITIONS.

In this Act, the following definitions apply:
(1) Each of the terms ``American homeland'' and
``homeland'' means the United States.
(2) The term ``appropriate congressional committee'' means
any committee of the House of Representatives or the Senate
having legislative or oversight jurisdiction under the Rules
of the House of Representatives or the Senate, respectively,
over the matter concerned.
(3) The term ``assets'' includes contracts, facilities,
property, records, unobligated or unexpended balances of
appropriations, and other funds or resources (other than
personnel).
(4) The term ``critical infrastructure'' has the meaning
given that term in section 1016(e) of Public Law 107-56 (42
U.S.C. 5195c(e)).
(5) The term ``Department'' means the Department of
Homeland Security.
(6) The term ``emergency response providers'' includes
Federal, State, and local emergency public safety, law
enforcement, emergency response, emergency medical (including
hospital emergency facilities), and related personnel,
agencies, and authorities.
(7) The term ``executive agency'' means an executive agency
and a military department, as defined, respectively, in
sections 105 and 102 of title 5, United States Code.
(8) The term ``functions'' includes authorities, powers,
rights, privileges, immunities, programs, projects,
activities, duties, and responsibilities.
(9) The term ``key resources'' means publicly or privately
controlled resources essential to the minimal operations of
the economy and government.
(10) The term ``local government'' means--
(A) a county, municipality, city, town, township, local
public authority, school district, special district,
intrastate district, council of governments (regardless of
whether the council of governments is incorporated as a
nonprofit corporation under State law), regional or
interstate government entity, or agency or instrumentality of
a local government;
(B) an Indian tribe or authorized tribal organization, or
in Alaska a Native village or Alaska Regional Native
Corporation; and
(C) a rural community, unincorporated town or village, or
other public entity.
(11) The term ``major disaster'' has the meaning given in
section 102(2) of the Robert T. Stafford Disaster Relief and
Emergency Assistance Act (42 U.S.C. 5122).
(12) The term ``personnel'' means officers and employees.
(13) The term ``Secretary'' means the Secretary of Homeland
Security.
(14) The term ``State'' means any State of the United
States, the District of Columbia, the

[[Page S11465]]

Commonwealth of Puerto Rico, the Virgin Islands, Guam,
American Samoa, the Commonwealth of the Northern Mariana
Islands, and any possession of the United States.
(15) The term ``terrorism'' means any activity that--
(A) involves an act that--
(i) is dangerous to human life or potentially destructive
of critical infrastructure or key resources; and
(ii) is a violation of the criminal laws of the United
States or of any State or other subdivision of the United
States; and
(B) appears to be intended--
(i) to intimidate or coerce a civilian population;
(ii) to influence the policy of a government by
intimidation or coercion; or
(iii) to affect the conduct of a government by mass
destruction, assassination, or kidnapping.
(16)(A) The term ``United States'', when used in a
geographic sense, means any State of the United States, the
District of Columbia, the Commonwealth of Puerto Rico, the
Virgin Islands, Guam, American Samoa, the Commonwealth of the
Northern Mariana Islands, any possession of the United
States, and any waters within the jurisdiction of the United
States.
(B) Nothing in this paragraph or any other provision of
this Act shall be construed to modify the definition of
``United States'' for the purposes of the Immigration and
Nationality Act or any other immigration or nationality law.

SEC. 3. CONSTRUCTION; SEVERABILITY.

Any provision of this Act held to be invalid or
unenforceable by its terms, or as applied to any person or
circumstance, shall be construed so as to give it the maximum
effect permitted by law, unless such holding shall be one of
utter invalidity or unenforceability, in which event such
provision shall be deemed severable from this Act and shall
not affect the remainder thereof, or the application of such
provision to other persons not similarly situated or to
other, dissimilar circumstances.

SEC. 4. EFFECTIVE DATE.

This Act shall take effect 60 days after the date of
enactment.

TITLE I--DEPARTMENT OF HOMELAND SECURITY

SEC. 101. EXECUTIVE DEPARTMENT; MISSION.

(a) Establishment.--There is established a Department of
Homeland Security, as an executive department of the United
States within the meaning of title 5, United States Code.
(b) Mission.--
(1) In general.--The primary mission of the Department is
to--
(A) prevent terrorist attacks within the United States;
(B) reduce the vulnerability of the United States to
terrorism;
(C) minimize the damage, and assist in the recovery, from
terrorist attacks that do occur within the United States;
(D) carry out all functions of entities transferred to the
Department, including by acting as a focal point regarding
natural and manmade crises and emergency planning;
(E) ensure that the functions of the agencies and
subdivisions within the Department that are not related
directly to securing the homeland are not diminished or
neglected except by a specific explicit Act of Congress;
(F) ensure that the overall economic security of the United
States is not diminished by efforts, activities, and programs
aimed at securing the homeland; and
(G) monitor connections between illegal drug trafficking
and terrorism, coordinate efforts to sever such connections,
and otherwise contribute to efforts to interdict illegal drug
trafficking.
(2) Responsibility for Investigating and Prosecuting
Terrorism.--Except as specifically provided by law with
respect to entities transferred to the Department under this
Act, primary responsibility for investigating and prosecuting
acts of terrorism shall be vested not in the Department, but
rather in Federal, State, and local law enforcement agencies
with jurisdiction over the acts in question.

SEC. 102. SECRETARY; FUNCTIONS.

(a) Secretary.--
(1) In general.--There is a Secretary of Homeland Security,
appointed by the President, by and with the advice and
consent of the Senate.
(2) Head of department.--The Secretary is the head of the
Department and shall have direction, authority, and control
over it.
(3) Functions vested in secretary.--All functions of all
officers, employees, and organizational units of the
Department are vested in the Secretary.
(b) Functions.--The Secretary--
(1) except as otherwise provided by this Act, may delegate
any of the Secretary's functions to any officer, employee, or
organizational unit of the Department;
(2) shall have the authority to make contracts, grants, and
cooperative agreements, and to enter into agreements with
other executive agencies, as may be necessary and proper to
carry out the Secretary's responsibilities under this Act or
otherwise provided by law; and
(3) shall take reasonable steps to ensure that information
systems and databases of the Department are compatible with
each other and with appropriate databases of other
Departments.
(c) Coordination With Non-Federal Entities.--With respect
to homeland security, the Secretary shall coordinate through
the Office of State and Local Coordination (established under
section 801) (including the provision of training and
equipment) with State and local government personnel,
agencies, and authorities, with the private sector, and with
other entities, including by--
(1) coordinating with State and local government personnel,
agencies, and authorities, and with the private sector, to
ensure adequate planning, equipment, training, and exercise
activities;
(2) coordinating and, as appropriate, consolidating, the
Federal Government's communications and systems of
communications relating to homeland security with State and
local government personnel, agencies, and authorities, the
private sector, other entities, and the public; and
(3) distributing or, as appropriate, coordinating the
distribution of, warnings and information to State and local
government personnel, agencies, and authorities and to the
public.
(d) Meetings of National Security Council.--The Secretary
may, subject to the direction of the President, attend and
participate in meetings of the National Security Council.
(e) Issuance of Regulations.--The issuance of regulations
by the Secretary shall be governed by the provisions of
chapter 5 of title 5, United States Code, except as
specifically provided in this Act, in laws granting
regulatory authorities that are transferred by this Act, and
in laws enacted after the date of enactment of this Act.
(f) Special Assistant to the Secretary.--The Secretary
shall appoint a Special Assistant to the Secretary who shall
be responsible for--
(1) creating and fostering strategic communications with
the private sector to enhance the primary mission of the
Department to protect the American homeland;
(2) advising the Secretary on the impact of the
Department's policies, regulations, processes, and actions on
the private sector;
(3) interfacing with other relevant Federal agencies with
homeland security missions to assess the impact of these
agencies' actions on the private sector;
(4) creating and managing private sector advisory councils
composed of representatives of industries and associations
designated by the Secretary to--
(A) advise the Secretary on private sector products,
applications, and solutions as they relate to homeland
security challenges; and
(B) advise the Secretary on homeland security policies,
regulations, processes, and actions that affect the
participating industries and associations;
(5) working with Federal laboratories, Federally funded
research and development centers, other Federally funded
organizations, academia, and the private sector to develop
innovative approaches to address homeland security challenges
to produce and deploy the best available technologies for
homeland security missions;
(6) promoting existing public-private partnerships and
developing new public-private partnerships to provide for
collaboration and mutual support to address homeland security
challenges; and
(7) assisting in the development and promotion of private
sector best practices to secure critical infrastructure.
(g) Standards Policy.--All standards activities of the
Department shall be conducted in accordance with section
12(d) of the National Technology Transfer Advancement Act of
1995 (15 U.S.C. 272 note) and Office of Management and Budget
Circular A-119.

SEC. 103. OTHER OFFICERS.

(a) Deputy Secretary; Under Secretaries.--There are the
following officers, appointed by the President, by and with
the advice and consent of the Senate:
(1) A Deputy Secretary of Homeland Security, who shall be
the Secretary's first assistant for purposes of subchapter
III of chapter 33 of title 5, United States Code.
(2) An Under Secretary for Information Analysis and
Infrastructure Protection.
(3) An Under Secretary for Science and Technology.
(4) An Under Secretary for Border and Transportation
Security.
(5) An Under Secretary for Emergency Preparedness and
Response.
(6) A Director of the Bureau of Citizenship and Immigration
Services.
(7) An Under Secretary for Management.
(8) Not more than 12 Assistant Secretaries.
(9) A General Counsel, who shall be the chief legal officer
of the department.
(b) Inspector General.--There is an Inspector General, who
shall be appointed as provided in section 3(a) of the
Inspector General Act of 1978.
(c) Commandant of the Coast Guard.--To assist the Secretary
in the performance of the Secretary's functions, there is a
Commandant of the Coast Guard, who shall be appointed as
provided in section 44 of title 14, United States Code, and
who shall report directly to the Secretary. In addition to
such duties as may be provided in this Act and as assigned to
the Commandant by the Secretary, the duties of the Commandant
shall include those required by section 2 of title 14, United
States Code.
(d) Other Officers.--To assist the Secretary in the
performance of the Secretary's functions, there are the
following officers, appointed by the President:
(1) A Director of the Secret Service.
(2) A Chief Information Officer.
(3) A Chief Human Capital Officer.
(4) A Chief Financial Officer.
(5) An Officer for Civil Rights and Civil Liberties.
(e) Performance of Specific Functions.--Subject to the
provisions of this Act, every officer of the Department shall
perform the functions specified by law for the official's
office or prescribed by the Secretary.

[[Page S11466]]

TITLE II--INFORMATION ANALYSIS AND INFRASTRUCTURE PROTECTION

Subtitle A--Directorate for Information Analysis and Infrastructure
Protection; Access to Information

SEC. 201. DIRECTORATE FOR INFORMATION ANALYSIS AND
INFRASTRUCTURE PROTECTION.

(a) Under Secretary of Homeland Security for Information
Analysis and Infrastructure Protection.--
(1) In general.--There shall be in the Department a
Directorate for Information Analysis and Infrastructure
Protection headed by an Under Secretary for Information
Analysis and Infrastructure Protection, who shall be
appointed by the President, by and with the advice and
consent of the Senate.
(2) Responsibilities.--The Under Secretary shall assist the
Secretary in discharging the responsibilities assigned by the
Secretary.
(b) Assistant Secretary for Information Analysis; Assistant
Secretary for Infrastructure Protection.--
(1) Assistant secretary for information analysis.--There
shall be in the Department an Assistant Secretary for
Information Analysis, who shall be appointed by the
President.
(2) Assistant secretary for infrastructure protection.--
There shall be in the Department an Assistant Secretary for
Infrastructure Protection, who shall be appointed by the
President.
(3) Responsibilities.--The Assistant Secretary for
Information Analysis and the Assistant Secretary for
Infrastructure Protection shall assist the Under Secretary
for Information Analysis and Infrastructure Protection in
discharging the responsibilities of the Under Secretary under
this section.
(c) Discharge of Information Analysis and Infrastructure
Protection.--The Secretary shall ensure that the
responsibilities of the Department regarding information
analysis and infrastructure protection are carried out
through the Under Secretary for Information Analysis and
Infrastructure Protection.
(d) Responsibilities of Under Secretary.--Subject to the
direction and control of the Secretary, the responsibilities
of the Under Secretary for Information Analysis and
Infrastructure Protection shall be as follows:
(1) To access, receive, and analyze law enforcement
information, intelligence information, and other information
from agencies of the Federal Government, State and local
government agencies (including law enforcement agencies), and
private sector entities, and to integrate such information in
order to--
(A) identify and assess the nature and scope of terrorist
threats to the homeland;
(B) detect and identify threats of terrorism against the
United States; and
(C) understand such threats in light of actual and
potential vulnerabilities of the homeland.
(2) To carry out comprehensive assessments of the
vulnerabilities of the key resources and critical
infrastructure of the United States, including the
performance of risk assessments to determine the risks posed
by particular types of terrorist attacks within the United
States (including an assessment of the probability of success
of such attacks and the feasibility and potential efficacy of
various countermeasures to such attacks).
(3) To integrate relevant information, analyses, and
vulnerability assessments (whether such information,
analyses, or assessments are provided or produced by the
Department or others) in order to identify priorities for
protective and support measures by the Department, other
agencies of the Federal Government, State and local
government agencies and authorities, the private sector, and
other entities.
(4) To ensure, pursuant to section 202, the timely and
efficient access by the Department to all information
necessary to discharge the responsibilities under this
section, including obtaining such information from other
agencies of the Federal Government.
(5) To develop a comprehensive national plan for securing
the key resources and critical infrastructure of the United
States, including power production, generation, and
distribution systems, information technology and
telecommunications systems (including satellites), electronic
financial and property record storage and transmission
systems, emergency preparedness communications systems, and
the physical and technological assets that support such
systems.
(6) To recommend measures necessary to protect the key
resources and critical infrastructure of the United States in
coordination with other agencies of the Federal Government
and in cooperation with State and local government agencies
and authorities, the private sector, and other entities.
(7) To administer the Homeland Security Advisory System,
including--
(A) exercising primary responsibility for public advisories
related to threats to homeland security; and
(B) in coordination with other agencies of the Federal
Government, providing specific warning information, and
advice about appropriate protective measures and
countermeasures, to State and local government agencies and
authorities, the private sector, other entities, and the
public.
(8) To review, analyze, and make recommendations for
improvements in the policies and procedures governing the
sharing of law enforcement information, intelligence
information, intelligence-related information, and other
information relating to homeland security within the Federal
Government and between the Federal Government and State and
local government agencies and authorities.
(9) To disseminate, as appropriate, information analyzed by
the Department within the Department, to other agencies of
the Federal Government with responsibilities relating to
homeland security, and to agencies of State and local
governments and private sector entities with such
responsibilities in order to assist in the deterrence,
prevention, preemption of, or response to, terrorist attacks
against the United States.
(10) To consult with the Director of Central Intelligence
and other appropriate intelligence, law enforcement, or other
elements of the Federal Government to establish collection
priorities and strategies for information, including law
enforcement-related information, relating to threats of
terrorism against the United States through such means as the
representation of the Department in discussions regarding
requirements and priorities in the collection of such
information.
(11) To consult with State and local governments and
private sector entities to ensure appropriate exchanges of
information, including law enforcement-related information,
relating to threats of terrorism against the United States.
(12) To ensure that--
(A) any material received pursuant to this Act is protected
from unauthorized disclosure and handled and used only for
the performance of official duties; and
(B) any intelligence information under this Act is shared,
retained, and disseminated consistent with the authority of
the Director of Central Intelligence to protect intelligence
sources and methods under the National Security Act of 1947
(50 U.S.C. 401 et seq.) and related procedures and, as
appropriate, similar authorities of the Attorney General
concerning sensitive law enforcement information.
(13) To request additional information from other agencies
of the Federal Government, State and local government
agencies, and the private sector relating to threats of
terrorism in the United States, or relating to other areas of
responsibility assigned by the Secretary, including the entry
into cooperative agreements through the Secretary to obtain
such information.
(14) To establish and utilize, in conjunction with the
chief information officer of the Department, a secure
communications and information technology infrastructure,
including data-mining and other advanced analytical tools, in
order to access, receive, and analyze data and information in
furtherance of the responsibilities under this section, and
to disseminate information acquired and analyzed by the
Department, as appropriate.
(15) To ensure, in conjunction with the chief information
officer of the Department, that any information databases and
analytical tools developed or utilized by the Department--
(A) are compatible with one another and with relevant
information databases of other agencies of the Federal
Government; and
(B) treat information in such databases in a manner that
complies with applicable Federal law on privacy.
(16) To coordinate training and other support to the
elements and personnel of the Department, other agencies of
the Federal Government, and State and local governments that
provide information to the Department, or are consumers of
information provided by the Department, in order to
facilitate the identification and sharing of information
revealed in their ordinary duties and the optimal utilization
of information received from the Department.
(17) To coordinate with elements of the intelligence
community and with Federal, State, and local law enforcement
agencies, and the private sector, as appropriate.
(18) To provide intelligence and information analysis and
support to other elements of the Department.
(19) To perform such other duties relating to such
responsibilities as the Secretary may provide.
(e) Staff.--
(1) In general.--The Secretary shall provide the
Directorate with a staff of analysts having appropriate
expertise and experience to assist the Directorate in
discharging responsibilities under this section.
(2) Private sector analysts.--Analysts under this
subsection may include analysts from the private sector.
(3) Security clearances.--Analysts under this subsection
shall possess security clearances appropriate for their work
under this section.
(f) Detail of Personnel.--
(1) In general.--In order to assist the Directorate in
discharging responsibilities under this section, personnel of
the agencies referred to in paragraph (2) may be detailed to
the Department for the performance of analytic functions and
related duties.
(2) Covered agencies.--The agencies referred to in this
paragraph are as follows:
(A) The Department of State.
(B) The Central Intelligence Agency.
(C) The Federal Bureau of Investigation.
(D) The National Security Agency.
(E) The National Imagery and Mapping Agency.
(F) The Defense Intelligence Agency.
(G) Any other agency of the Federal Government that the
President considers appropriate.
(3) Cooperative agreements.--The Secretary and the head of
the agency concerned may enter into cooperative agreements
for the purpose of detailing personnel under this subsection.
(4) Basis.--The detail of personnel under this subsection
may be on a reimbursable or non-reimbursable basis.
(g) Functions Transferred.--In accordance with title XV,
there shall be transferred to the Secretary, for assignment
to the Under Secretary for Information Analysis and
Infrastructure Protection under this section, the functions,
personnel, assets, and liabilities of the following:
(1) The National Infrastructure Protection Center of the
Federal Bureau of Investigation (other than the Computer
Investigations and Operations Section), including the
functions of the Attorney General relating thereto.

[[Page S11467]]

(2) The National Communications System of the Department of
Defense, including the functions of the Secretary of Defense
relating thereto.
(3) The Critical Infrastructure Assurance Office of the
Department of Commerce, including the functions of the
Secretary of Commerce relating thereto.
(4) The National Infrastructure Simulation and Analysis
Center of the Department of Energy and the energy security
and assurance program and activities of the Department,
including the functions of the Secretary of Energy relating
thereto.
(5) The Federal Computer Incident Response Center of the
General Services Administration, including the functions of
the Administrator of General Services relating thereto.
(h) Inclusion of Certain Elements of the Department as
Elements of the Intelligence Community.--Section 3(4) of the
National Security Act of 1947 (50 U.S.C. 401(a)) is amended--
(1) by striking ``and'' at the end of subparagraph (I);
(2) by redesignating subparagraph (J) as subparagraph (K);
and
(3) by inserting after subparagraph (I) the following new
subparagraph:
``(J) the elements of the Department of Homeland Security
concerned with the analyses of foreign intelligence
information; and''.

SEC. 202. ACCESS TO INFORMATION.

(a) In General.--
(1) Threat and vulnerability information.--Except as
otherwise directed by the President, the Secretary shall have
such access as the Secretary considers necessary to all
information, including reports, assessments, analyses, and
unevaluated intelligence relating to threats of terrorism
against the United States and to other areas of
responsibility assigned by the Secretary, and to all
information concerning infrastructure or other
vulnerabilities of the United States to terrorism, whether or
not such information has been analyzed, that may be
collected, possessed, or prepared by any agency of the
Federal Government.
(2) Other information.--The Secretary shall also have
access to other information relating to matters under the
responsibility of the Secretary that may be collected,
possessed, or prepared by an agency of the Federal Government
as the President may further provide.
(b) Manner of Access.--Except as otherwise directed by the
President, with respect to information to which the Secretary
has access pursuant to this section--
(1) the Secretary may obtain such material upon request,
and may enter into cooperative arrangements with other
executive agencies to provide such material or provide
Department officials with access to it on a regular or
routine basis, including requests or arrangements involving
broad categories of material, access to electronic databases,
or both; and
(2) regardless of whether the Secretary has made any
request or entered into any cooperative arrangement pursuant
to paragraph (1), all agencies of the Federal Government
shall promptly provide to the Secretary--
(A) all reports (including information reports containing
intelligence which has not been fully evaluated),
assessments, and analytical information relating to threats
of terrorism against the United States and to other areas of
responsibility assigned by the Secretary;
(B) all information concerning the vulnerability of the
infrastructure of the United States, or other vulnerabilities
of the United States, to terrorism, whether or not such
information has been analyzed;
(C) all other information relating to significant and
credible threats of terrorism against the United States,
whether or not such information has been analyzed; and
(D) such other information or material as the President may
direct.
(c) Treatment Under Certain Laws.--The Secretary shall be
deemed to be a Federal law enforcement, intelligence,
protective, national defense, immigration, or national
security official, and shall be provided with all information
from law enforcement agencies that is required to be given to
the Director of Central Intelligence, under any provision of
the following:
(1) The USA PATRIOT Act of 2001 (Public Law 107-56).
(2) Section 2517(6) of title 18, United States Code.
(3) Rule 6(e)(3)(C) of the Federal Rules of Criminal
Procedure.
(d) Access to Intelligence and Other Information.--
(1) Access by elements of federal government.--Nothing in
this title shall preclude any element of the intelligence
community (as that term is defined in section 3(4) of the
National Security Act of 1947 (50 U.S.C. 401a(4)), or other
any element of the Federal Government with responsibility for
analyzing terrorist threat information, from receiving any
intelligence or other information relating to terrorism.
(2) Sharing of information.--The Secretary, in consultation
with the Director of Central Intelligence, shall work to
ensure that intelligence or other information relating to
terrorism to which the Department has access is appropriately
shared with the elements of the Federal Government referred
to in paragraph (1), as well as with State and local
governments, as appropriate.

Subtitle B--Critical Infrastructure Information

SEC. 211. SHORT TITLE.

This subtitle may be cited as the ``Critical Infrastructure
Information Act of 2002''.

SEC. 212. DEFINITIONS.

In this subtitle:
(1) Agency.--The term ``agency'' has the meaning given it
in section 551 of title 5, United States Code.
(2) Covered federal agency.--The term ``covered Federal
agency'' means the Department of Homeland Security.
(3) Critical infrastructure information.--The term
``critical infrastructure information'' means information not
customarily in the public domain and related to the security
of critical infrastructure or protected systems--
(A) actual, potential, or threatened interference with,
attack on, compromise of, or incapacitation of critical
infrastructure or protected systems by either physical or
computer-based attack or other similar conduct (including the
misuse of or unauthorized access to all types of
communications and data transmission systems) that violates
Federal, State, or local law, harms interstate commerce of
the United States, or threatens public health or safety;
(B) the ability of any critical infrastructure or protected
system to resist such interference, compromise, or
incapacitation, including any planned or past assessment,
projection, or estimate of the vulnerability of critical
infrastructure or a protected system, including security
testing, risk evaluation thereto, risk management planning,
or risk audit; or
(C) any planned or past operational problem or solution
regarding critical infrastructure or protected systems,
including repair, recovery, reconstruction, insurance, or
continuity, to the extent it is related to such interference,
compromise, or incapacitation.
(4) Critical infrastructure protection program.--The term
``critical infrastructure protection program'' means any
component or bureau of a covered Federal agency that has been
designated by the President or any agency head to receive
critical infrastructure information.
(5) Information sharing and analysis organization.--The
term ``Information Sharing and Analysis Organization'' means
any formal or informal entity or collaboration created or
employed by public or private sector organizations, for
purposes of--
(A) gathering and analyzing critical infrastructure
information in order to better understand security problems
and interdependencies related to critical infrastructure and
protected systems, so as to ensure the availability,
integrity, and reliability thereof;
(B) communicating or disclosing critical infrastructure
information to help prevent, detect, mitigate, or recover
from the effects of a interference, compromise, or a
incapacitation problem related to critical infrastructure or
protected systems; and
(C) voluntarily disseminating critical infrastructure
information to its members, State, local, and Federal
Governments, or any other entities that may be of assistance
in carrying out the purposes specified in subparagraphs (A)
and (B).
(6) Protected system.--The term ``protected system''--
(A) means any service, physical or computer-based system,
process, or procedure that directly or indirectly affects the
viability of a facility of critical infrastructure; and
(B) includes any physical or computer-based system,
including a computer, computer system, computer or
communications network, or any component hardware or element
thereof, software program, processing instructions, or
information or data in transmission or storage therein,
irrespective of the medium of transmission or storage.
(7) Voluntary.--
(A) In general.--The term ``voluntary'', in the case of any
submittal of critical infrastructure information to a covered
Federal agency, means the submittal thereof in the absence of
such agency's exercise of legal authority to compel access to
or submission of such information and may be accomplished by
a single entity or an Information Sharing and Analysis
Organization on behalf of itself or its members.
(B) Exclusions.--The term ``voluntary''--
(i) in the case of any action brought under the securities
laws as is defined in section 3(a)(47) of the Securities
Exchange Act of 1934 (15 U.S.C. 78c(a)(47))--

(I) does not include information or statements contained in
any documents or materials filed with the Securities and
Exchange Commission, or with Federal banking regulators,
pursuant to section 12(i) of the Securities Exchange Act of
1934 (15 U.S.C. 781(I)); and
(II) with respect to the submittal of critical
infrastructure information, does not include any disclosure
or writing that when made accompanied the solicitation of an
offer or a sale of securities; and

(ii) does not include information or statements submitted
or relied upon as a basis for making licensing or permitting
determinations, or during regulatory proceedings.

SEC. 213. DESIGNATION OF CRITICAL INFRASTRUCTURE PROTECTION
PROGRAM.

A critical infrastructure protection program may be
designated as such by one of the following:
(1) The President.
(2) The Secretary of Homeland Security.

SEC. 214. PROTECTION OF VOLUNTARILY SHARED CRITICAL
INFRASTRUCTURE INFORMATION.

(a) Protection.--
(1) In general.--Notwithstanding any other provision of
law, critical infrastructure information (including the
identity of the submitting person or entity) that is
voluntarily submitted to a covered Federal agency for use by
that agency regarding the security of critical infrastructure
and protected systems, analysis, warning, interdependency
study, recovery, reconstitution, or other informational
purpose, when accompanied by an express statement specified
in paragraph (2)--
(A) shall be exempt from disclosure under section 552 of
title 5, United States Code (commonly referred to as the
Freedom of Information Act);

[[Page S11468]]

(B) shall not be subject to any agency rules or judicial
doctrine regarding ex parte communications with a decision
making official;
(C) shall not, without the written consent of the person or
entity submitting such information, be used directly by such
agency, any other Federal, State, or local authority, or any
third party, in any civil action arising under Federal or
State law if such information is submitted in good faith;
(D) shall not, without the written consent of the person or
entity submitting such information, be used or disclosed by
any officer or employee of the United States for purposes
other than the purposes of this subtitle, except--
(i) in furtherance of an investigation or the prosecution
of a criminal act; or
(ii) when disclosure of the information would be--

(I) to either House of Congress, or to the extent of matter
within its jurisdiction, any committee or subcommittee
thereof, any joint committee thereof or subcommittee of any
such joint committee; or
(II) to the Comptroller General, or any authorized
representative of the Comptroller General, in the course of
the performance of the duties of the General Accounting
Office.

(E) shall not, if provided to a State or local government
or government agency--
(i) be made available pursuant to any State or local law
requiring disclosure of information or records;
(ii) otherwise be disclosed or distributed to any party by
said State or local government or government agency without
the written consent of the person or entity submitting such
information; or
(iii) be used other than for the purpose of protecting
critical infrastructure or protected systems, or in
furtherance of an investigation or the prosecution of a
criminal act; and
(F) does not constitute a waiver of any applicable
privilege or protection provided under law, such as trade
secret protection.
(2) Express statement.--For purposes of paragraph (1), the
term ``express statement'', with respect to information or
records, means--
(A) in the case of written information or records, a
written marking on the information or records substantially
similar to the following: ``This information is voluntarily
submitted to the Federal Government in expectation of
protection from disclosure as provided by the provisions of
the Critical Infrastructure Information Act of 2002.''; or
(B) in the case of oral information, a similar written
statement submitted within a reasonable period following the
oral communication.
(b) Limitation.--No communication of critical
infrastructure information to a covered Federal agency made
pursuant to this subtitle shall be considered to be an action
subject to the requirements of the Federal Advisory Committee
Act (5 U.S.C. App. 2).
(c) Independently Obtained Information.--Nothing in this
section shall be construed to limit or otherwise affect the
ability of a State, local, or Federal Government entity,
agency, or authority, or any third party, under applicable
law, to obtain critical infrastructure information in a
manner not covered by subsection (a), including any
information lawfully and properly disclosed generally or
broadly to the public and to use such information in any
manner permitted by law.
(d) Treatment of Voluntary Submittal of Information.--The
voluntary submittal to the Government of information or
records that are protected from disclosure by this subtitle
shall not be construed to constitute compliance with any
requirement to submit such information to a Federal agency
under any other provision of law.
(e) Procedures.--
(1) In general.--The Secretary of the Department of
Homeland Security shall, in consultation with appropriate
representatives of the National Security Council and the
Office of Science and Technology Policy, establish uniform
procedures for the receipt, care, and storage by Federal
agencies of critical infrastructure information that is
voluntarily submitted to the Government. The procedures shall
be established not later than 90 days after the date of the
enactment of this subtitle.
(2) Elements.--The procedures established under paragraph
(1) shall include mechanisms regarding--
(A) the acknowledgement of receipt by Federal agencies of
critical infrastructure information that is voluntarily
submitted to the Government;
(B) the maintenance of the identification of such
information as voluntarily submitted to the Government for
purposes of and subject to the provisions of this subtitle;
(C) the care and storage of such information; and
(D) the protection and maintenance of the confidentiality
of such information so as to permit the sharing of such
information within the Federal Government and with State and
local governments, and the issuance of notices and warnings
related to the protection of critical infrastructure and
protected systems, in such manner as to protect from public
disclosure the identity of the submitting person or entity,
or information that is proprietary, business sensitive,
relates specifically to the submitting person or entity, and
is otherwise not appropriately in the public domain.
(f) Penalties.--Whoever, being an officer or employee of
the United States or of any department or agency thereof,
knowingly publishes, divulges, discloses, or makes known in
any manner or to any extent not authorized by law, any
critical infrastructure information protected from disclosure
by this subtitle coming to him in the course of this
employment or official duties or by reason of any examination
or investigation made by, or return, report, or record made
to or filed with, such department or agency or officer or
employee thereof, shall be fined under title 18 of the United
States Code, imprisoned not more than 1 year, or both, and
shall be removed from office or employment.
(g) Authority To Issue Warnings.--The Federal Government
may provide advisories, alerts, and warnings to relevant
companies, targeted sectors, other governmental entities, or
the general public regarding potential threats to critical
infrastructure as appropriate. In issuing a warning, the
Federal Government shall take appropriate actions to protect
from disclosure--
(1) the source of any voluntarily submitted critical
infrastructure information that forms the basis for the
warning; or
(2) information that is proprietary, business sensitive,
relates specifically to the submitting person or entity, or
is otherwise not appropriately in the public domain.
(h) Authority To Delegate.--The President may delegate
authority to a critical infrastructure protection program,
designated under section 213, to enter into a voluntary
agreement to promote critical infrastructure security,
including with any Information Sharing and Analysis
Organization, or a plan of action as otherwise defined in
section 708 of the Defense Production Act of 1950 (50 U.S.C.
App. 2158).

SEC. 215. NO PRIVATE RIGHT OF ACTION.

Nothing in this subtitle may be construed to create a
private right of action for enforcement of any provision of
this Act.

Subtitle C--Information Security

SEC. 221. PROCEDURES FOR SHARING INFORMATION.

The Secretary shall establish procedures on the use of
information shared under this title that--
(1) limit the redissemination of such information to ensure
that it is not used for an unauthorized purpose;
(2) ensure the security and confidentiality of such
information;
(3) protect the constitutional and statutory rights of any
individuals who are subjects of such information; and
(4) provide data integrity through the timely removal and
destruction of obsolete or erroneous names and information.

SEC. 222. PRIVACY OFFICER.

The Secretary shall appoint a senior official in the
Department to assume primary responsibility for privacy
policy, including--
(1) assuring that the use of technologies sustain, and do
not erode, privacy protections relating to the use,
collection, and disclosure of personal information;
(2) assuring that personal information contained in Privacy
Act systems of records is handled in full compliance with
fair information practices as set out in the Privacy Act of
1974;
(3) evaluating legislative and regulatory proposals
involving collection, use, and disclosure of personal
information by the Federal Government;
(4) conducting a privacy impact assessment of proposed
rules of the Department or that of the Department on the
privacy of personal information, including the type of
personal information collected and the number of people
affected; and
(5) preparing a report to Congress on an annual basis on
activities of the Department that affect privacy, including
complaints of privacy violations, implementation of the
Privacy Act of 1974, internal controls, and other matters.

SEC. 223. ENHANCEMENT OF NON-FEDERAL CYBERSECURITY.

In carrying out the responsibilities under section 201, the
Under Secretary for Information Analysis and Infrastructure
Protection shall--
(1) as appropriate, provide to State and local government
entities, and upon request to private entities that own or
operate critical information systems--
(A) analysis and warnings related to threats to, and
vulnerabilities of, critical information systems; and
(B) in coordination with the Under Secretary for Emergency
Preparedness and Response, crisis management support in
response to threats to, or attacks on, critical information
systems; and
(2) as appropriate, provide technical assistance, upon
request, to the private sector and other government entities,
in coordination with the Under Secretary for Emergency
Preparedness and Response, with respect to emergency recovery
plans to respond to major failures of critical information
systems.

SEC. 224. NET GUARD.

The Under Secretary for Information Analysis and
Infrastructure Protection may establish a national technology
guard, to be known as ``NET Guard'', comprised of local teams
of volunteers with expertise in relevant areas of science and
technology, to assist local communities to respond and
recover from attacks on information systems and
communications networks.

SEC. 225. CYBER SECURITY ENHANCEMENT ACT OF 2002.

(a) Short Title.--This section may be cited as the ``Cyber
Security Enhancement Act of 2002''.
(b) Amendment of Sentencing Guidelines Relating to Certain
Computer Crimes.--
(1) Directive to the united states sentencing commission.--
Pursuant to its authority under section 994(p) of title 28,
United States Code, and in accordance with this subsection,
the United States Sentencing Commission shall review and, if
appropriate, amend its guidelines and its policy statements
applicable to persons convicted of an offense under section
1030 of title 18, United States Code.
(2) Requirements.--In carrying out this subsection, the
Sentencing Commission shall--
(A) ensure that the sentencing guidelines and policy
statements reflect the serious nature of the offenses
described in paragraph (1), the

[[Page S11469]]

growing incidence of such offenses, and the need for an
effective deterrent and appropriate punishment to prevent
such offenses;
(B) consider the following factors and the extent to which
the guidelines may or may not account for them--
(i) the potential and actual loss resulting from the
offense;
(ii) the level of sophistication and planning involved in
the offense;
(iii) whether the offense was committed for purposes of
commercial advantage or private financial benefit;
(iv) whether the defendant acted with malicious intent to
cause harm in committing the offense;
(v) the extent to which the offense violated the privacy
rights of individuals harmed;
(vi) whether the offense involved a computer used by the
government in furtherance of national defense, national
security, or the administration of justice;
(vii) whether the violation was intended to or had the
effect of significantly interfering with or disrupting a
critical infrastructure; and
(viii) whether the violation was intended to or had the
effect of creating a threat to public health or safety, or
injury to any person;
(C) assure reasonable consistency with other relevant
directives and with other sentencing guidelines;
(D) account for any additional aggravating or mitigating
circumstances that might justify exceptions to the generally
applicable sentencing ranges;
(E) make any necessary conforming changes to the sentencing
guidelines; and
(F) assure that the guidelines adequately meet the purposes
of sentencing as set forth in section 3553(a)(2) of title 18,
United States Code.
(c) Study and Report on Computer Crimes.--Not later than
May 1, 2003, the United States Sentencing Commission shall
submit a brief report to Congress that explains any actions
taken by the Sentencing Commission in response to this
section and includes any recommendations the Commission may
have regarding statutory penalties for offenses under section
1030 of title 18, United States Code.
(d) Emergency Disclosure Exception.--
(1) In general.--Section 2702(b) of title 18, United States
Code, is amended--
(A) in paragraph (5), by striking ``or'' at the end;
(B) in paragraph (6)(A), by inserting ``or'' at the end;
(C) by striking paragraph (6)(C); and
(D) by adding at the end the following:
``(7) to a Federal, State, or local governmental entity, if
the provider, in good faith, believes that an emergency
involving danger of death or serious physical injury to any
person requires disclosure without delay of communications
relating to the emergency.''.
(2) Reporting of disclosures.--A government entity that
receives a disclosure under section 2702(b) of title 18,
United States Code, shall file, not later than 90 days after
such disclosure, a report to the Attorney General stating the
paragraph of that section under which the disclosure was
made, the date of the disclosure, the entity to which the
disclosure was made, the number of customers or subscribers
to whom the information disclosed pertained, and the number
of communications, if any, that were disclosed. The Attorney
General shall publish all such reports into a single report
to be submitted to Congress 1 year after the date of
enactment of this Act.
(e) Good Faith Exception.--Section 2520(d)(3) of title 18,
United States Code, is amended by inserting ``or 2511(2)(i)''
after ``2511(3)''.
(f) Internet Advertising of Illegal Devices.--Section
2512(1)(c) of title 18, United States Code, is amended--
(1) by inserting ``or disseminates by electronic means''
after ``or other publication''; and
(2) by inserting ``knowing the content of the advertisement
and'' before ``knowing or having reason to know''.
(g) Strengthening Penalties.--Section 1030(c) of title 18,
United States Code, is amended--
(1) by striking ``and'' at the end of paragraph (3);
(2) in each of subparagraphs (A) and (C) of paragraph (4),
by inserting ``except as provided in paragraph (5),'' before
``a fine under this title'';
(3) in paragraph (4)(C), by striking the period at the end
and inserting ``; and''; and
(4) by adding at the end the following:
``(5)(A) if the offender knowingly or recklessly causes or
attempts to cause serious bodily injury from conduct in
violation of subsection (a)(5)(A)(i), a fine under this title
or imprisonment for not more than 20 years, or both; and
``(B) if the offender knowingly or recklessly causes or
attempts to cause death from conduct in violation of
subsection (a)(5)(A)(i), a fine under this title or
imprisonment for any term of years or for life, or both.''.
(h) Provider Assistance.--
(1) Section 2703.--Section 2703(e) of title 18, United
States Code, is amended by inserting ``, statutory
authorization'' after ``subpoena''.
(2) Section 2511.--Section 2511(2)(a)(ii) of title 18,
United States Code, is amended by inserting ``, statutory
authorization,'' after ``court order'' the last place it
appears.
(i) Emergencies.--Section 3125(a)(1) of title 18, United
States Code, is amended--
(1) in subparagraph (A), by striking ``or'' at the end;
(2) in subparagraph (B), by striking the comma at the end
and inserting a semicolon; and
(3) by adding at the end the following:
``(C) an immediate threat to a national security interest;
or
``(D) an ongoing attack on a protected computer (as defined
in section 1030) that constitutes a crime punishable by a
term of imprisonment greater than one year;''.
(j) Protecting Privacy.--
(1) Section 2511.--Section 2511(4) of title 18, United
States Code, is amended--
(A) by striking paragraph (b); and
(B) by redesignating paragraph (c) as paragraph (b).
(2) Section 2701.--Section 2701(b) of title 18, United
States Code, is amended--
(A) in paragraph (1), by inserting ``, or in furtherance of
any criminal or tortious act in violation of the Constitution
or laws of the United States or any State'' after
``commercial gain'';
(B) in paragraph (1)(A), by striking ``one year'' and
inserting ``5 years'';
(C) in paragraph (1)(B), by striking ``two years'' and
inserting ``10 years''; and
(D) by striking paragraph (2) and inserting the following:
``(2) in any other case--
``(A) a fine under this title or imprisonment for not more
than 1 year or both, in the case of a first offense under
this paragraph; and
``(B) a fine under this title or imprisonment for not more
than 5 years, or both, in the case of an offense under this
subparagraph that occurs after a conviction of another
offense under this section.''.

Subtitle D--Office of Science and Technology

SEC. 231. ESTABLISHMENT OF OFFICE; DIRECTOR.

(a) Establishment.--
(1) In general.--There is hereby established within the
Department of Justice an Office of Science and Technology
(hereinafter in this title referred to as the ``Office'').
(2) Authority.--The Office shall be under the general
authority of the Assistant Attorney General, Office of
Justice Programs, and shall be established within the
National Institute of Justice.
(b) Director.--The Office shall be headed by a Director,
who shall be an individual appointed based on approval by the
Office of Personnel Management of the executive
qualifications of the individual.

SEC. 232. MISSION OF OFFICE; DUTIES.

(a) Mission.--The mission of the Office shall be--
(1) to serve as the national focal point for work on law
enforcement technology; and
(2) to carry out programs that, through the provision of
equipment, training, and technical assistance, improve the
safety and effectiveness of law enforcement technology and
improve access to such technology by Federal, State, and
local law enforcement agencies.
(b) Duties.--In carrying out its mission, the Office shall
have the following duties:
(1) To provide recommendations and advice to the Attorney
General.
(2) To establish and maintain advisory groups (which shall
be exempt from the provisions of the Federal Advisory
Committee Act (5 U.S.C. App.)) to assess the law enforcement
technology needs of Federal, State, and local law enforcement
agencies.
(3) To establish and maintain performance standards in
accordance with the National Technology Transfer and
Advancement Act of 1995 (Public Law 104-113) for, and test
and evaluate law enforcement technologies that may be used
by, Federal, State, and local law enforcement agencies.
(4) To establish and maintain a program to certify,
validate, and mark or otherwise recognize law enforcement
technology products that conform to standards established and
maintained by the Office in accordance with the National
Technology Transfer and Advancement Act of 1995 (Public Law
104-113). The program may, at the discretion of the Office,
allow for supplier's declaration of conformity with such
standards.
(5) To work with other entities within the Department of
Justice, other Federal agencies, and the executive office of
the President to establish a coordinated Federal approach on
issues related to law enforcement technology.
(6) To carry out research, development, testing,
evaluation, and cost-benefit analyses in fields that would
improve the safety, effectiveness, and efficiency of law
enforcement technologies used by Federal, State, and local
law enforcement agencies, including, but not limited to--
(A) weapons capable of preventing use by unauthorized
persons, including personalized guns;
(B) protective apparel;
(C) bullet-resistant and explosion-resistant glass;
(D) monitoring systems and alarm systems capable of
providing precise location information;
(E) wire and wireless interoperable communication
technologies;
(F) tools and techniques that facilitate investigative and
forensic work, including computer forensics;
(G) equipment for particular use in counterterrorism,
including devices and technologies to disable terrorist
devices;
(H) guides to assist State and local law enforcement
agencies;
(I) DNA identification technologies; and
(J) tools and techniques that facilitate investigations of
computer crime.
(7) To administer a program of research, development,
testing, and demonstration to improve the interoperability of
voice and data public safety communications.
(8) To serve on the Technical Support Working Group of the
Department of Defense, and on other relevant interagency
panels, as requested.
(9) To develop, and disseminate to State and local law
enforcement agencies, technical assistance and training
materials for law enforcement personnel, including
prosecutors.
(10) To operate the regional National Law Enforcement and
Corrections Technology Centers

[[Page S11470]]

and, to the extent necessary, establish additional centers
through a competitive process.
(11) To administer a program of acquisition, research,
development, and dissemination of advanced investigative
analysis and forensic tools to assist State and local law
enforcement agencies in combating cybercrime.
(12) To support research fellowships in support of its
mission.
(13) To serve as a clearinghouse for information on law
enforcement technologies.
(14) To represent the United States and State and local law
enforcement agencies, as requested, in international
activities concerning law enforcement technology.
(15) To enter into contracts and cooperative agreements and
provide grants, which may require in-kind or cash matches
from the recipient, as necessary to carry out its mission.
(16) To carry out other duties assigned by the Attorney
General to accomplish the mission of the Office.
(c) Competition Required.--Except as otherwise expressly
provided by law, all research and development carried out by
or through the Office shall be carried out on a competitive
basis.
(d) Information From Federal Agencies.--Federal agencies
shall, upon request from the Office and in accordance with
Federal law, provide the Office with any data, reports, or
other information requested, unless compliance with such
request is otherwise prohibited by law.
(e) Publications.--Decisions concerning publications issued
by the Office shall rest solely with the Director of the
Office.
(f) Transfer of Funds.--The Office may transfer funds to
other Federal agencies or provide funding to non-Federal
entities through grants, cooperative agreements, or contracts
to carry out its duties under this section.
(g) Annual Report.--The Director of the Office shall
include with the budget justification materials submitted to
Congress in support of the Department of Justice budget for
each fiscal year (as submitted with the budget of the
President under section 1105(a) of title 31, United States
Code) a report on the activities of the Office. Each such
report shall include the following:
(1) For the period of 5 fiscal years beginning with the
fiscal year for which the budget is submitted--
(A) the Director's assessment of the needs of Federal,
State, and local law enforcement agencies for assistance with
respect to law enforcement technology and other matters
consistent with the mission of the Office; and
(B) a strategic plan for meeting such needs of such law
enforcement agencies.
(2) For the fiscal year preceding the fiscal year for which
such budget is submitted, a description of the activities
carried out by the Office and an evaluation of the extent to
which those activities successfully meet the needs assessed
under paragraph (1)(A) in previous reports.

SEC. 233. DEFINITION OF LAW ENFORCEMENT TECHNOLOGY.

For the purposes of this title, the term ``law enforcement
technology'' includes investigative and forensic
technologies, corrections technologies, and technologies that
support the judicial process.

SEC. 234. ABOLISHMENT OF OFFICE OF SCIENCE AND TECHNOLOGY OF
NATIONAL INSTITUTE OF JUSTICE; TRANSFER OF
FUNCTIONS.

(a) Authority To Transfer Functions.--The Attorney General
may transfer to the Office any other program or activity of
the Department of Justice that the Attorney General, in
consultation with the Committee on the Judiciary of the
Senate and the Committee on the Judiciary of the House of
Representatives, determines to be consistent with the mission
of the Office.
(b) Transfer of Personnel and Assets.--With respect to any
function, power, or duty, or any program or activity, that is
established in the Office, those employees and assets of the
element of the Department of Justice from which the transfer
is made that the Attorney General determines are needed to
perform that function, power, or duty, or for that program or
activity, as the case may be, shall be transferred to the
Office.
(c) Report on Implementation.--Not later than 1 year after
the date of the enactment of this Act, the Attorney General
shall submit to the Committee on the Judiciary of the Senate
and the Committee on the Judiciary of the House of
Representatives a report on the implementation of this title.
The report shall--
(1) provide an accounting of the amounts and sources of
funding available to the Office to carry out its mission
under existing authorizations and appropriations, and set
forth the future funding needs of the Office; and
(2) include such other information and recommendations as
the Attorney General considers appropriate.

SEC. 235. NATIONAL LAW ENFORCEMENT AND CORRECTIONS TECHNOLOGY
CENTERS.

(a) In General.--The Director of the Office shall operate
and support National Law Enforcement and Corrections
Technology Centers (hereinafter in this section referred to
as ``Centers'') and, to the extent necessary, establish new
centers through a merit-based, competitive process.
(b) Purpose of Centers.--The purpose of the Centers shall
be to--
(1) support research and development of law enforcement
technology;
(2) support the transfer and implementation of technology;
(3) assist in the development and dissemination of
guidelines and technological standards; and
(4) provide technology assistance, information, and support
for law enforcement, corrections, and criminal justice
purposes.
(c) Annual Meeting.--Each year, the Director shall convene
a meeting of the Centers in order to foster collaboration and
communication between Center participants.
(d) Report.--Not later than 12 months after the date of the
enactment of this Act, the Director shall transmit to the
Congress a report assessing the effectiveness of the existing
system of Centers and identify the number of Centers
necessary to meet the technology needs of Federal, State, and
local law enforcement in the United States.

SEC. 236. COORDINATION WITH OTHER ENTITIES WITHIN DEPARTMENT
OF JUSTICE.

Section 102 of the Omnibus Crime Control and Safe Streets
Act of 1968 (42 U.S.C. 3712) is amended in subsection (a)(5)
by inserting ``coordinate and'' before ``provide''.

SEC. 237. AMENDMENTS RELATING TO NATIONAL INSTITUTE OF
JUSTICE.

Section 202(c) of the Omnibus Crime Control and Safety
Streets Act of 1968 (42 U.S.C. 3722(c)) is amended--
(1) in paragraph (3) by inserting ``, including cost
effectiveness where practical,'' before ``of projects''; and
(2) by striking ``and'' after the semicolon at the end of
paragraph (8), striking the period at the end of paragraph
(9) and inserting ``; and'', and by adding at the end the
following:
``(10) research and development of tools and technologies
relating to prevention, detection, investigation, and
prosecution of crime; and
``(11) support research, development, testing, training,
and evaluation of tools and technology for Federal, State,
and local law enforcement agencies.''.

TITLE III--SCIENCE AND TECHNOLOGY IN SUPPORT OF HOMELAND SECURITY

SEC. 301. UNDER SECRETARY FOR SCIENCE AND TECHNOLOGY.

There shall be in the Department a Directorate of Science
and Technology headed by an Under Secretary for Science and
Technology.

SEC. 302. RESPONSIBILITIES AND AUTHORITIES OF THE UNDER
SECRETARY FOR SCIENCE AND TECHNOLOGY.

The Secretary, acting through the Under Secretary for
Science and Technology, shall have the responsibility for--
(1) advising the Secretary regarding research and
development efforts and priorities in support of the
Department's missions;
(2) developing, in consultation with other appropriate
executive agencies, a national policy and strategic plan for,
identifying priorities, goals, objectives and policies for,
and coordinating the Federal Government's civilian efforts to
identify and develop countermeasures to chemical, biological,
radiological, nuclear, and other emerging terrorist threats,
including the development of comprehensive, research-based
definable goals for such efforts and development of annual
measurable objectives and specific targets to accomplish and
evaluate the goals for such efforts;
(3) supporting the Under Secretary for Information Analysis
and Infrastructure Protection, by assessing and testing
homeland security vulnerabilities and possible threats;
(4) conducting basic and applied research, development,
demonstration, testing, and evaluation activities that are
relevant to any or all elements of the Department, through
both intramural and extramural programs, except that such
responsibility does not extend to human health-related
research and development activities;
(5) establishing priorities for, directing, funding, and
conducting national research, development, test and
evaluation, and procurement of technology and systems for--
(A) preventing the importation of chemical, biological,
radiological, nuclear, and related weapons and material; and
(B) detecting, preventing, protecting against, and
responding to terrorist attacks;
(6) establishing a system for transferring homeland
security developments or technologies to federal, state,
local government, and private sector entities;
(7) entering into work agreements, joint sponsorships,
contracts, or any other agreements with the Department of
Energy regarding the use of the national laboratories or
sites and support of the science and technology base at those
facilities;
(8) collaborating with the Secretary of Agriculture and the
Attorney General as provided in section 212 of the
Agricultural Bioterrorism Protection Act of 2002 (7 U.S.C.
8401), as amended by section 1709(b);
(9) collaborating with the Secretary of Health and Human
Services and the Attorney General in determining any new
biological agents and toxins that shall be listed as ``select
agents'' in Appendix A of part 72 of title 42, Code of
Federal Regulations, pursuant to section 351A of the Public
Health Service Act (42 U.S.C. 262a);
(10) supporting United States leadership in science and
technology;
(11) establishing and administering the primary research
and development activities of the Department, including the
long-term research and development needs and capabilities for
all elements of the Department;
(12) coordinating and integrating all research,
development, demonstration, testing, and evaluation
activities of the Department;
(13) coordinating with other appropriate executive agencies
in developing and carrying out the science and technology
agenda of the Department to reduce duplication and identify
unmet needs; and
(14) developing and overseeing the administration of
guidelines for merit review of research and development
projects throughout the Department, and for the dissemination
of research conducted or sponsored by the Department.

SEC. 303. FUNCTIONS TRANSFERRED.

In accordance with title XV, there shall be transferred to
the Secretary the functions, personnel, assets, and
liabilities of the following entities:

[[Page S11471]]

(1) The following programs and activities of the Department
of Energy, including the functions of the Secretary of Energy
relating thereto (but not including programs and activities
relating to the strategic nuclear defense posture of the
United States):
(A) The chemical and biological national security and
supporting programs and activities of the nonproliferation
and verification research and development program.
(B) The nuclear smuggling programs and activities within
the proliferation detection program of the nonproliferation
and verification research and development program. The
programs and activities described in this subparagraph may be
designated by the President either for transfer to the
Department or for joint operation by the Secretary and the
Secretary of Energy.
(C) The nuclear assessment program and activities of the
assessment, detection, and cooperation program of the
international materials protection and cooperation program.
(D) Such life sciences activities of the biological and
environmental research program related to microbial pathogens
as may be designated by the President for transfer to the
Department.
(E) The Environmental Measurements Laboratory.
(F) The advanced scientific computing research program and
activities at Lawrence Livermore National Laboratory.
(2) The National Bio-Weapons Defense Analysis Center of the
Department of Defense, including the functions of the
Secretary of Defense related thereto.

SEC. 304. CONDUCT OF CERTAIN PUBLIC HEALTH-RELATED
ACTIVITIES.

(a) In General.--With respect to civilian human health-
related research and development activities relating to
countermeasures for chemical, biological, radiological, and
nuclear and other emerging terrorist threats carried out by
the Department of Health and Human Services (including the
Public Health Service), the Secretary of Health and Human
Services shall set priorities, goals, objectives, and
policies and develop a coordinated strategy for such
activities in collaboration with the Secretary of Homeland
Security to ensure consistency with the national policy and
strategic plan developed pursuant to section 302(2).
(b) Evaluation of Progress.--In carrying out subsection
(a), the Secretary of Health and Human Services shall
collaborate with the Secretary in developing specific
benchmarks and outcome measurements for evaluating progress
toward achieving the priorities and goals described in such
subsection.
(c) Administration of Countermeasures Against Smallpox.--
Section 224 of the Public Health Service Act (42 U.S.C. 233)
is amended by adding the following:
``(p) Administration of Smallpox Countermeasures by Health
Professionals.--
``(1) In general.--For purposes of this section, and
subject to other provisions of this subsection, a covered
person shall be deemed to be an employee of the Public Health
Service with respect to liability arising out of
administration of a covered countermeasure against smallpox
to an individual during the effective period of a declaration
by the Secretary under paragraph (2)(A).
``(2) Declaration by secretary concerning countermeasure
against smallpox.--
``(A) Authority to issue declaration.--
``(i) In general.--The Secretary may issue a declaration,
pursuant to this paragraph, concluding that an actual or
potential bioterrorist incident or other actual or potential
public health emergency makes advisable the administration of
a covered countermeasure to a category or categories of
individuals.
``(ii) Covered countermeasure.--The Secretary shall specify
in such declaration the substance or substances that shall be
considered covered countermeasures (as defined in paragraph
(8)(A)) for purposes of administration to individuals during
the effective period of the declaration.
``(iii) Effective period.--The Secretary shall specify in
such declaration the beginning and ending dates of the
effective period of the declaration, and may subsequently
amend such declaration to shorten or extend such effective
period, provided that the new closing date is after the date
when the declaration is amended.
``(iv) Publication.--The Secretary shall promptly publish
each such declaration and amendment in the Federal Register.
``(B) Liability of united states only for administrations
within scope of declaration.--Except as provided in paragraph
(5)(B)(ii), the United States shall be liable under this
subsection with respect to a claim arising out of the
administration of a covered countermeasure to an individual
only if--
``(i) the countermeasure was administered by a qualified
person, for a purpose stated in paragraph (7)(A)(i), and
during the effective period of a declaration by the Secretary
under subparagraph (A) with respect to such countermeasure;
and
``(ii)(I) the individual was within a category of
individuals covered by the declaration; or
``(II) the qualified person administering the
countermeasure had reasonable grounds to believe that such
individual was within such category.
``(C) Presumption of administration within scope of
declaration in case of accidental vaccinia inoculation.--
``(i) In general.--If vaccinia vaccine is a covered
countermeasure specified in a declaration under subparagraph
(A), and an individual to whom the vaccinia vaccine is not
administered contracts vaccinia, then, under the
circumstances specified in clause (ii), the individual--

``(I) shall be rebuttably presumed to have contracted
vaccinia from an individual to whom such vaccine was
administered as provided by clauses (i) and (ii) of
subparagraph (B); and
``(II) shall (unless such presumption is rebutted) be
deemed for purposes of this subsection to be an individual to
whom a covered countermeasure was administered by a qualified
person in accordance with the terms of such declaration and
as described by subparagraph (B).

``(ii) Circumstances in which presumption applies.--The
presumption and deeming stated in clause (i) shall apply if--

``(I) the individual contracts vaccinia during the
effective period of a declaration under subparagraph (A) or
by the date 30 days after the close of such period; or
``(II) the individual resides or has resided with an
individual to whom such vaccine was administered as provided
by clauses (i) and (ii) of subparagraph (B) and contracts
vaccinia after such date.

``(3) Exclusivity of remedy.--The remedy provided by
subsection (a) shall be exclusive of any other civil action
or proceeding for any claim or suit this subsection
encompasses.
``(4) Certification of action by attorney general.--
Subsection (c) applies to actions under this subsection,
subject to the following provisions:
``(A) Nature of certification.--The certification by the
Attorney General that is the basis for deeming an action or
proceeding to be against the United States, and for removing
an action or proceeding from a State court, is a
certification that the action or proceeding is against a
covered person and is based upon a claim alleging personal
injury or death arising out of the administration of a
covered countermeasure.
``(B) Certification of attorney general conclusive.--The
certification of the Attorney General of the facts specified
in subparagraph (A) shall conclusively establish such facts
for purposes of jurisdiction pursuant to this subsection.
``(5) Defendant to cooperate with united states.--
``(A) In general.--A covered person shall cooperate with
the United States in the processing and defense of a claim or
action under this subsection based upon alleged acts or
omissions of such person.
``(B) Consequences of failure to cooperate.--Upon the
motion of the United States or any other party and upon
finding that such person has failed to so cooperate--
``(i) the court shall substitute such person as the party
defendant in place of the United States and, upon motion,
shall remand any such suit to the court in which it was
instituted if it appears that the court lacks subject matter
jurisdiction;
``(ii) the United States shall not be liable based on the
acts or omissions of such person; and
``(iii) the Attorney General shall not be obligated to
defend such action.
``(6) Recourse against covered person in case of gross
misconduct or contract violation.--
``(A) In general.--Should payment be made by the United
States to any claimant bringing a claim under this
subsection, either by way of administrative determination,
settlement, or court judgment, the United States shall have,
notwithstanding any provision of State law, the right to
recover for that portion of the damages so awarded or paid,
as well as interest and any costs of litigation, resulting
from the failure of any covered person to carry out any
obligation or responsibility assumed by such person under a
contract with the United States or from any grossly
negligent, reckless, or illegal conduct or willful misconduct
on the part of such person.
``(B) Venue.--The United States may maintain an action
under this paragraph against such person in the district
court of the United States in which such person resides or
has its principal place of business.
``(7) Definitions.--As used in this subsection, terms have
the following meanings:
``(A) Covered countermeasure.--The term `covered
countermeasure', or `covered countermeasure against
smallpox', means a substance that is--
``(i)(I) used to prevent or treat smallpox (including the
vaccinia or another vaccine); or
``(II) vaccinia immune globulin used to control or treat
the adverse effects of vaccinia inoculation; and
``(ii) specified in a declaration under paragraph (2).
``(B) Covered person.--The term `covered person', when used
with respect to the administration of a covered
countermeasure, includes any person who is--
``(i) a manufacturer or distributor of such countermeasure;
``(ii) a health care entity under whose auspices such
countermeasure was administered;
``(iii) a qualified person who administered such
countermeasure; or
``(iv) an official, agent, or employee of a person
described in clause (i), (ii), or (iii).
``(C) Qualified person.--The term `qualified person', when
used with respect to the administration of a covered
countermeasure, means a licensed health professional or other
individual who is authorized to administer such
countermeasure under the law of the State in which the
countermeasure was administered.''.

SEC. 305. FEDERALLY FUNDED RESEARCH AND DEVELOPMENT CENTERS.

The Secretary, acting through the Under Secretary for
Science and Technology, shall have the authority to establish
or contract with 1 or more federally funded research and
development centers to provide independent analysis of
homeland security issues, or to carry out other
responsibilities under this Act, including coordinating and
integrating both the extramural and intramural programs
described in section 308.

SEC. 306. MISCELLANEOUS PROVISIONS.

(a) Classification.--To the greatest extent practicable,
research conducted or supported by the Department shall be
unclassified.

[[Page S11472]]

(b) Construction.--Nothing in this title shall be construed
to preclude any Under Secretary of the Department from
carrying out research, development, demonstration, or
deployment activities, as long as such activities are
coordinated through the Under Secretary for Science and
Technology.
(c) Regulations.--The Secretary, acting through the Under
Secretary for Science and Technology, may issue necessary
regulations with respect to research, development,
demonstration, testing, and evaluation activities of the
Department, including the conducting, funding, and reviewing
of such activities.
(d) Notification of Presidential Life Sciences
Designations.--Not later than 60 days before effecting any
transfer of Department of Energy life sciences activities
pursuant to section 303(1)(D) of this Act, the President
shall notify the appropriate congressional committees of the
proposed transfer and shall include the reasons for the
transfer and a description of the effect of the transfer on
the activities of the Department of Energy.

SEC. 307. HOMELAND SECURITY ADVANCED RESEARCH PROJECTS
AGENCY.

(a) Definitions.--In this section:
(1) Fund.--The term ``Fund'' means the Acceleration Fund
for Research and Development of Homeland Security
Technologies established in subsection (c).
(2) Homeland security research.--The term ``homeland
security research'' means research relevant to the detection
of, prevention of, protection against, response to,
attribution of, and recovery from homeland security threats,
particularly acts of terrorism.
(3) HSARPA.--The term ``HSARPA'' means the Homeland
Security Advanced Research Projects Agency established in
subsection (b).
(4) Under secretary.--The term ``Under Secretary'' means
the Under Secretary for Science and Technology.
(b) HSARPA.--
(1) Establishment.--There is established the Homeland
Security Advanced Research Projects Agency.
(2) Director.--HSARPA shall be headed by a Director, who
shall be appointed by the Secretary. The Director shall
report to the Under Secretary.
(3) Responsibilities.--The Director shall administer the
Fund to award competitive, merit-reviewed grants, cooperative
agreements or contracts to public or private entities,
including businesses, federally funded research and
development centers, and universities. The Director shall
administer the Fund to--
(A) support basic and applied homeland security research to
promote revolutionary changes in technologies that would
promote homeland security;
(B) advance the development, testing and evaluation, and
deployment of critical homeland security technologies; and
(C) accelerate the prototyping and deployment of
technologies that would address homeland security
vulnerabilities.
(4) Targeted competitions.--The Director may solicit
proposals to address specific vulnerabilities identified by
the Director.
(5) Coordination.--The Director shall ensure that the
activities of HSARPA are coordinated with those of other
relevant research agencies, and may run projects jointly with
other agencies.
(6) Personnel.--In hiring personnel for HSARPA, the
Secretary shall have the hiring and management authorities
described in section 1101 of the Strom Thurmond National
Defense Authorization Act for Fiscal Year 1999 (5 U.S.C. 3104
note; Public Law 105-261). The term of appointments for
employees under subsection (c)(1) of that section may not
exceed 5 years before the granting of any extension under
subsection (c)(2) of that section.
(7) Demonstrations.--The Director, periodically, shall hold
homeland security technology demonstrations to improve
contact among technology developers, vendors and acquisition
personnel.
(c) Fund.--
(1) Establishment.--There is established the Acceleration
Fund for Research and Development of Homeland Security
Technologies, which shall be administered by the Director of
HSARPA.
(2) Authorization of appropriations.--There are authorized
to be appropriated $500,000,000 to the Fund for fiscal year
2003 and such sums as may be necessary thereafter.
(3) Coast guard.--Of the funds authorized to be
appropriated under paragraph (2), not less than 10 percent of
such funds for each fiscal year through fiscal year 2005
shall be authorized only for the Under Secretary, through
joint agreement with the Commandant of the Coast Guard, to
carry out research and development of improved ports,
waterways and coastal security surveillance and perimeter
protection capabilities for the purpose of minimizing the
possibility that Coast Guard cutters, aircraft, helicopters,
and personnel will be diverted from non-homeland security
missions to the ports, waterways and coastal security
mission.

SEC. 308. CONDUCT OF RESEARCH, DEVELOPMENT, DEMONSTRATION,
TESTING AND EVALUATION.

(a) In General.--The Secretary, acting through the Under
Secretary for Science and Technology, shall carry out the
responsibilities under section 302(4) through both extramural
and intramural programs.
(b) Extramural Programs.--
(1) In general.--The Secretary, acting through the Under
Secretary for Science and Technology, shall operate
extramural research, development, demonstration, testing, and
evaluation programs so as to--
(A) ensure that colleges, universities, private research
institutes, and companies (and consortia thereof) from as
many areas of the United States as practicable participate;
(B) ensure that the research funded is of high quality, as
determined through merit review processes developed under
section 302(14); and
(C) distribute funds through grants, cooperative
agreements, and contracts.
(2) University-based centers for homeland security.--
(A) Establishment.--The Secretary, acting through the Under
Secretary for Science and Technology, shall establish within
1 year of the date of enactment of this Act a university-
based center or centers for homeland security. The purpose of
this center or centers shall be to establish a coordinated,
university-based system to enhance the Nation's homeland
security.
(B) Criteria for selection.--In selecting colleges or
universities as centers for homeland security, the Secretary
shall consider the following criteria:
(i) Demonstrated expertise in the training of first
responders.
(ii) Demonstrated expertise in responding to incidents
involving weapons of mass destruction and biological warfare.
(iii) Demonstrated expertise in emergency medical services.
(iv) Demonstrated expertise in chemical, biological,
radiological, and nuclear countermeasures.
(v) Strong affiliations with animal and plant diagnostic
laboratories.
(vi) Demonstrated expertise in food safety.
(vii) Affiliation with Department of Agriculture
laboratories or training centers.
(viii) Demonstrated expertise in water and wastewater
operations.
(ix) Demonstrated expertise in port and waterway security.
(x) Demonstrated expertise in multi-modal transportation.
(xi) Nationally recognized programs in information
security.
(xii) Nationally recognized programs in engineering.
(xiii) Demonstrated expertise in educational outreach and
technical assistance.
(xiv) Demonstrated expertise in border transportation and
security.
(xv) Demonstrated expertise in interdisciplinary public
policy research and communication outreach regarding science,
technology, and public policy.
(C) Discretion of secretary.--The Secretary shall have the
discretion to establish such centers and to consider
additional criteria as necessary to meet the evolving needs
of homeland security and shall report to Congress concerning
the implementation of this paragraph as necessary.
(D) Authorization of appropriations.--There are authorized
to be appropriated such sums as may be necessary to carry out
this paragraph.
(c) Intramural Programs.--
(1) Consultation.--In carrying out the duties under section
302, the Secretary, acting through the Under Secretary for
Science and Technology, may draw upon the expertise of any
laboratory of the Federal Government, whether operated by a
contractor or the Government.
(2) Laboratories.--The Secretary, acting through the Under
Secretary for Science and Technology, may establish a
headquarters laboratory for the Department at any laboratory
or site and may establish additional laboratory units at
other laboratories or sites.
(3) Criteria for headquarters laboratory.--If the Secretary
chooses to establish a headquarters laboratory pursuant to
paragraph (2), then the Secretary shall do the following:
(A) Establish criteria for the selection of the
headquarters laboratory in consultation with the National
Academy of Sciences, appropriate Federal agencies, and other
experts.
(B) Publish the criteria in the Federal Register.
(C) Evaluate all appropriate laboratories or sites against
the criteria.
(D) Select a laboratory or site on the basis of the
criteria.
(E) Report to the appropriate congressional committees on
which laboratory was selected, how the selected laboratory
meets the published criteria, and what duties the
headquarters laboratory shall perform.
(4) Limitation on operation of laboratories.--No laboratory
shall begin operating as the headquarters laboratory of the
Department until at least 30 days after the transmittal of
the report required by paragraph (3)(E).

SEC. 309. UTILIZATION OF DEPARTMENT OF ENERGY NATIONAL
LABORATORIES AND SITES IN SUPPORT OF HOMELAND
SECURITY ACTIVITIES.

(a) Authority to Utilize National Laboratories and Sites.--
(1) In general.--In carrying out the missions of the
Department, the Secretary may utilize the Department of
Energy national laboratories and sites through any 1 or more
of the following methods, as the Secretary considers
appropriate:
(A) A joint sponsorship arrangement referred to in
subsection (b).
(B) A direct contract between the Department and the
applicable Department of Energy laboratory or site, subject
to subsection (c).
(C) Any ``work for others'' basis made available by that
laboratory or site.
(D) Any other method provided by law.
(2) Acceptance and Performance by Labs and Sites.--
Notwithstanding any other law governing the administration,
mission, use, or operations of any of the Department of
Energy national laboratories and sites, such laboratories and
sites are authorized to accept and perform work for the
Secretary, consistent with resources provided, and perform
such work on an equal basis to other missions at the
laboratory and not on a noninterference basis with other
missions of such laboratory or site.
(b) Joint Sponsorship Arrangements.--

[[Page S11473]]

(1) Laboratories.--The Department may be a joint sponsor,
under a multiple agency sponsorship arrangement with the
Department of Energy, of 1 or more Department of Energy
national laboratories in the performance of work.
(2) Sites.--The Department may be a joint sponsor of a
Department of Energy site in the performance of work as if
such site were a federally funded research and development
center and the work were performed under a multiple agency
sponsorship arrangement with the Department.
(3) Primary sponsor.--The Department of Energy shall be the
primary sponsor under a multiple agency sponsorship
arrangement referred to in paragraph (1) or (2).
(4) Lead agent.--The Secretary of Energy shall act as the
lead agent in coordinating the formation and performance of a
joint sponsorship arrangement under this subsection between
the Department and a Department of Energy national laboratory
or site.
(5) Federal acquisition regulation.--Any work performed by
a Department of Energy national laboratory or site under a
joint sponsorship arrangement under this subsection shall
comply with the policy on the use of federally funded
research and development centers under the Federal
Acquisition Regulations.
(6) Funding.--The Department shall provide funds for work
at the Department of Energy national laboratories or sites,
as the case may be, under a joint sponsorship arrangement
under this subsection under the same terms and conditions as
apply to the primary sponsor of such national laboratory
under section 303(b)(1)(C) of the Federal Property and
Administrative Services Act of 1949 (41 U.S.C. 253 (b)(1)(C))
or of such site to the extent such section applies to such
site as a federally funded research and development center by
reason of this subsection.
(c) Separate Contracting.--To the extent that programs or
activities transferred by this Act from the Department of
Energy to the Department of Homeland Security are being
carried out through direct contracts with the operator of a
national laboratory or site of the Department of Energy, the
Secretary of Homeland Security and the Secretary of Energy
shall ensure that direct contracts for such programs and
activities between the Department of Homeland Security and
such operator are separate from the direct contracts of the
Department of Energy with such operator.
(d) Authority With Respect to Cooperative Research and
Development Agreements and Licensing Agreements.--In
connection with any utilization of the Department of Energy
national laboratories and sites under this section, the
Secretary may permit the director of any such national
laboratory or site to enter into cooperative research and
development agreements or to negotiate licensing agreements
with any person, any agency or instrumentality, of the United
States, any unit of State or local government, and any other
entity under the authority granted by section 12 of the
Stevenson-Wydler Technology Innovation Act of 1980 (15 U.S.C.
3710a). Technology may be transferred to a non-Federal party
to such an agreement consistent with the provisions of
sections 11 and 12 of that Act (15 U.S.C. 3710, 3710a).
(e) Reimbursement of Costs.--In the case of an activity
carried out by the operator of a Department of Energy
national laboratory or site in connection with any
utilization of such laboratory or site under this section,
the Department of Homeland Security shall reimburse the
Department of Energy for costs of such activity through a
method under which the Secretary of Energy waives any
requirement for the Department of Homeland Security to pay
administrative charges or personnel costs of the Department
of Energy or its contractors in excess of the amount that the
Secretary of Energy pays for an activity carried out by such
contractor and paid for by the Department of Energy.
(f) Laboratory Directed Research and Development by the
Department of Energy.--No funds authorized to be appropriated
or otherwise made available to the Department in any fiscal
year may be obligated or expended for laboratory directed
research and development activities carried out by the
Department of Energy unless such activities support the
missions of the Department of Homeland Security.
(g) Office for National Laboratories.--There is established
within the Directorate of Science and Technology an Office
for National Laboratories, which shall be responsible for the
coordination and utilization of the Department of Energy
national laboratories and sites under this section in a
manner to create a networked laboratory system for the
purpose of supporting the missions of the Department.
(h) Department of Energy Coordination on Homeland Security
Related Research.--The Secretary of Energy shall ensure that
any research, development, test, and evaluation activities
conducted within the Department of Energy that are directly
or indirectly related to homeland security are fully
coordinated with the Secretary to minimize duplication of
effort and maximize the effective application of Federal
budget resources.

SEC. 310. TRANSFER OF PLUM ISLAND ANIMAL DISEASE CENTER,
DEPARTMENT OF AGRICULTURE.

(a) In General.--In accordance with title XV, the Secretary
of Agriculture shall transfer to the Secretary of Homeland
Security the Plum Island Animal Disease Center of the
Department of Agriculture, including the assets and
liabilities of the Center.
(b) Continued Department of Agriculture Access.--On
completion of the transfer of the Plum Island Animal Disease
Center under subsection (a), the Secretary of Homeland
Security and the Secretary of Agriculture shall enter into an
agreement to ensure that the Department of Agriculture is
able to carry out research, diagnostic, and other activities
of the Department of Agriculture at the Center.
(c) Direction of Activities.--The Secretary of Agriculture
shall continue to direct the research, diagnostic, and other
activities of the Department of Agriculture at the Center
described in subsection (b).
(d) Notification.--
(1) In general.--At least 180 days before any change in the
biosafety level at the Plum Island Animal Disease Center, the
President shall notify Congress of the change and describe
the reasons for the change.
(2) Limitation.--No change described in paragraph (1) may
be made earlier than 180 days after the completion of the
transition period (as defined in section 1501.

SEC. 311. HOMELAND SECURITY SCIENCE AND TECHNOLOGY ADVISORY
COMMITTEE.

(a) Establishment.--There is established within the
Department a Homeland Security Science and Technology
Advisory Committee (in this section referred to as the
``Advisory Committee''). The Advisory Committee shall make
recommendations with respect to the activities of the Under
Secretary for Science and Technology, including identifying
research areas of potential importance to the security of the
Nation.
(b) Membership.--
(1) Appointment.--The Advisory Committee shall consist of
20 members appointed by the Under Secretary for Science and
Technology, which shall include emergency first-responders or
representatives of organizations or associations of emergency
first-responders. The Advisory Committee shall also include
representatives of citizen groups, including economically
disadvantaged communities. The individuals appointed as
members of the Advisory Committee--
(A) shall be eminent in fields such as emergency response,
research, engineering, new product development, business, and
management consulting;
(B) shall be selected solely on the basis of established
records of distinguished service;
(C) shall not be employees of the Federal Government; and
(D) shall be so selected as to provide representation of a
cross-section of the research, development, demonstration,
and deployment activities supported by the Under Secretary
for Science and Technology.
(2) National research council.--The Under Secretary for
Science and Technology may enter into an arrangement for the
National Research Council to select members of the Advisory
Committee, but only if the panel used by the National
Research Council reflects the representation described in
paragraph (1).
(c) Terms of Office.--
(1) In general.--Except as otherwise provided in this
subsection, the term of office of each member of the Advisory
Committee shall be 3 years.
(2) Original appointments.--The original members of the
Advisory Committee shall be appointed to three classes of
three members each. One class shall have a term of 1 year, 1
a term of 2 years, and the other a term of 3 years.
(3) Vacancies.--A member appointed to fill a vacancy
occurring before the expiration of the term for which the
member's predecessor was appointed shall be appointed for the
remainder of such term.
(d) Eligibility.--A person who has completed two
consecutive full terms of service on the Advisory Committee
shall thereafter be ineligible for appointment during the 1-
year period following the expiration of the second such term.
(e) Meetings.--The Advisory Committee shall meet at least
quarterly at the call of the Chair or whenever one-third of
the members so request in writing. Each member shall be given
appropriate notice of the call of each meeting, whenever
possible not less than 15 days before the meeting.
(f) Quorum.--A majority of the members of the Advisory
Committee not having a conflict of interest in the matter
being considered by the Advisory Committee shall constitute a
quorum.
(g) Conflict of Interest Rules.--The Advisory Committee
shall establish rules for determining when 1 of its members
has a conflict of interest in a matter being considered by
the Advisory Committee.
(h) Reports.--
(1) Annual report.--The Advisory Committee shall render an
annual report to the Under Secretary for Science and
Technology for transmittal to Congress on or before January
31 of each year. Such report shall describe the activities
and recommendations of the Advisory Committee during the
previous year.
(2) Additional reports.--The Advisory Committee may render
to the Under Secretary for transmittal to Congress such
additional reports on specific policy matters as it considers
appropriate.
(i) FACA Exemption.--Section 14 of the Federal Advisory
Committee Act shall not apply to the Advisory Committee.
(j) Termination.--The Department of Homeland Security
Science and Technology Advisory Committee shall terminate 3
years after the effective date of this Act.

SEC. 312. HOMELAND SECURITY INSTITUTE.

(a) Establishment.--The Secretary shall establish a
federally funded research and development center to be known
as the ``Homeland Security Institute'' (in this section
referred to as the ``Institute'').
(b) Administration.--The Institute shall be administered as
a separate entity by the Secretary.
(c) Duties.--The duties of the Institute shall be
determined by the Secretary, and may include the following:
(1) Systems analysis, risk analysis, and simulation and
modeling to determine the

[[Page S11474]]

vulnerabilities of the Nation's critical infrastructures and
the effectiveness of the systems deployed to reduce those
vulnerabilities.
(2) Economic and policy analysis to assess the distributed
costs and benefits of alternative approaches to enhancing
security.
(3) Evaluation of the effectiveness of measures deployed to
enhance the security of institutions, facilities, and
infrastructure that may be terrorist targets.
(4) Identification of instances when common standards and
protocols could improve the interoperability and effective
utilization of tools developed for field operators and first
responders.
(5) Assistance for Federal agencies and departments in
establishing testbeds to evaluate the effectiveness of
technologies under development and to assess the
appropriateness of such technologies for deployment.
(6) Design of metrics and use of those metrics to evaluate
the effectiveness of homeland security programs throughout
the Federal Government, including all national laboratories.
(7) Design of and support for the conduct of homeland
security-related exercises and simulations.
(8) Creation of strategic technology development plans to
reduce vulnerabilities in the Nation's critical
infrastructure and key resources.
(d) Consultation on Institute Activities.--In carrying out
the duties described in subsection (c), the Institute shall
consult widely with representatives from private industry,
institutions of higher education, nonprofit institutions,
other Government agencies, and federally funded research and
development centers.
(e) Use of Centers.--The Institute shall utilize the
capabilities of the National Infrastructure Simulation and
Analysis Center.
(f) Annual Reports.--The Institute shall transmit to the
Secretary and Congress an annual report on the activities of
the Institute under this section.
(g) Termination.--The Homeland Security Institute shall
terminate 3 years after the effective date of this Act.

SEC. 313. TECHNOLOGY CLEARINGHOUSE TO ENCOURAGE AND SUPPORT
INNOVATIVE SOLUTIONS TO ENHANCE HOMELAND
SECURITY.

(a) Establishment of Program.--The Secretary, acting
through the Under Secretary for Science and Technology, shall
establish and promote a program to encourage technological
innovation in facilitating the mission of the Department (as
described in section 101).
(b) Elements of Program.--The program described in
subsection (a) shall include the following components:
(1) The establishment of a centralized Federal
clearinghouse for information relating to technologies that
would further the mission of the Department for
dissemination, as appropriate, to Federal, State, and local
government and private sector entities for additional review,
purchase, or use.
(2) The issuance of announcements seeking unique and
innovative technologies to advance the mission of the
Department.
(3) The establishment of a technical assistance team to
assist in screening, as appropriate, proposals submitted to
the Secretary (except as provided in subsection (c)(2)) to
assess the feasibility, scientific and technical merits, and
estimated cost of such proposals, as appropriate.
(4) The provision of guidance, recommendations, and
technical assistance, as appropriate, to assist Federal,
State, and local government and private sector efforts to
evaluate and implement the use of technologies described in
paragraph (1) or (2).
(5) The provision of information for persons seeking
guidance on how to pursue proposals to develop or deploy
technologies that would enhance homeland security, including
information relating to Federal funding, regulation, or
acquisition.
(c) Miscellaneous Provisions.--
(1) In general.--Nothing in this section shall be construed
as authorizing the Secretary or the technical assistance team
established under subsection (b)(3) to set standards for
technology to be used by the Department, any other executive
agency, any State or local government entity, or any private
sector entity.
(2) Certain proposals.--The technical assistance team
established under subsection (b)(3) shall not consider or
evaluate proposals submitted in response to a solicitation
for offers for a pending procurement or for a specific agency
requirement.
(3) Coordination.--In carrying out this section, the
Secretary shall coordinate with the Technical Support Working
Group (organized under the April 1982 National Security
Decision Directive Numbered 30).

TITLE IV--DIRECTORATE OF BORDER AND TRANSPORTATION SECURITY

Subtitle A--Under Secretary for Border and Transportation Security

SEC. 401. UNDER SECRETARY FOR BORDER AND TRANSPORTATION
SECURITY.

There shall be in the Department a Directorate of Border
and Transportation Security headed by an Under Secretary for
Border and Transportation Security.

SEC. 402. RESPONSIBILITIES.

The Secretary, acting through the Under Secretary for
Border and Transportation Security, shall be responsible for
the following:
(1) Preventing the entry of terrorists and the instruments
of terrorism into the United States.
(2) Securing the borders, territorial waters, ports,
terminals, waterways, and air, land, and sea transportation
systems of the United States, including managing and
coordinating those functions transferred to the Department at
ports of entry.
(3) Carrying out the immigration enforcement functions
vested by statute in, or performed by, the Commissioner of
Immigration and Naturalization (or any officer, employee, or
component of the Immigration and Naturalization Service)
immediately before the date on which the transfer of
functions specified under section 441 takes effect.
(4) Establishing and administering rules, in accordance
with section 428, governing the granting of visas or other
forms of permission, including parole, to enter the United
States to individuals who are not a citizen or an alien
lawfully admitted for permanent residence in the United
States.
(5) Establishing national immigration enforcement policies
and priorities.
(6) Except as provided in subtitle C, administering the
customs laws of the United States.
(7) Conducting the inspection and related administrative
functions of the Department of Agriculture transferred to the
Secretary of Homeland Security under section 421.
(8) In carrying out the foregoing responsibilities,
ensuring the speedy, orderly, and efficient flow of lawful
traffic and commerce.

SEC. 403. FUNCTIONS TRANSFERRED.

In accordance with title XV (relating to transition
provisions), there shall be transferred to the Secretary the
functions, personnel, assets, and liabilities of--
(1) the United States Customs Service of the Department of
the Treasury, including the functions of the Secretary of the
Treasury relating thereto;
(2) the Transportation Security Administration of the
Department of Transportation, including the functions of the
Secretary of Transportation, and of the Under Secretary of
Transportation for Security, relating thereto;
(3) the Federal Protective Service of the General Services
Administration, including the functions of the Administrator
of General Services relating thereto;
(4) the Federal Law Enforcement Training Center of the
Department of the Treasury; and
(5) the Office for Domestic Preparedness of the Office of
Justice Programs, including the functions of the Attorney
General relating thereto.

Subtitle B--United States Customs Service

SEC. 411. ESTABLISHMENT; COMMISSIONER OF CUSTOMS.

(a) Establishment.--There is established in the Department
the United States Customs Service, under the authority of the
Under Secretary for Border and Transportation Security, which
shall be vested with those functions including, but not
limited to those set forth in section 415(7), and the
personnel, assets, and liabilities attributable to those
functions.
(b) Commissioner of Customs.--
(1) In General.--There shall be at the head of the Customs
Service a Commissioner of Customs, who shall be appointed by
the President, by and with the advice and consent of the
Senate.
(2) Compensation.--Section 5314 of title 5, United States
Code, is amended by striking
``Commissioner of Customs, Department of the Treasury''
and inserting
``Commissioner of Customs, Department of Homeland
Security.''.
(3) Continuation in office.--The individual serving as the
Commissioner of Customs on the day before the effective date
of this Act may serve as the Commissioner of Customs on and
after such effective date until a Commissioner of Customs is
appointed under paragraph (1).

SEC. 412. RETENTION OF CUSTOMS REVENUE FUNCTIONS BY SECRETARY
OF THE TREASURY.

(a) Retention of Customs Revenue Functions by Secretary of
the Treasury.--
(1) Retention of authority.--Notwithstanding section
403(a)(1), authority related to Customs revenue functions
that was vested in the Secretary of the Treasury by law
before the effective date of this Act under those provisions
of law set forth in paragraph (2) shall not be transferred to
the Secretary by reason of this Act, and on and after the
effective date of this Act, the Secretary of the Treasury may
delegate any such authority to the Secretary at the
discretion of the Secretary of the Treasury. The Secretary of
the Treasury shall consult with the Secretary regarding the
exercise of any such authority not delegated to the
Secretary.
(2) Statutes.--The provisions of law referred to in
paragraph (1) are the following: the Tariff Act of 1930;
section 249 of the Revised Statutes of the United States (19
U.S.C. 3); section 2 of the Act of March 4, 1923 (19 U.S.C.
6); section 13031 of the Consolidated Omnibus Budget
Reconciliation Act of 1985 (19 U.S.C. 58c); section 251 of
the Revised Statutes of the United States (19 U.S.C. 66);
section 1 of the Act of June 26, 1930 (19 U.S.C. 68); the
Foreign Trade Zones Act (19 U.S.C. 81a et seq.); section 1 of
the Act of March 2, 1911 (19 U.S.C. 198); the Trade Act of
1974; the Trade Agreements Act of 1979; the North American
Free Trade Area Implementation Act; the Uruguay Round
Agreements Act; the Caribbean Basin Economic Recovery Act;
the Andean Trade Preference Act; the African Growth and
Opportunity Act; and any

[[Page S11475]]

other provision of law vesting customs revenue functions in
the Secretary of the Treasury.
(b) Maintenance of Customs Revenue Functions.--
(1) Maintenance of functions.--Notwithstanding any other
provision of this Act, the Secretary may not consolidate,
discontinue, or diminish those functions described in
paragraph (2) performed by the United States Customs Service
(as established under section 411) on or after the effective
date of this Act, reduce the staffing level, or reduce the
resources attributable to such functions, and the Secretary
shall ensure that an appropriate management structure is
implemented to carry out such functions.
(2) Functions.--The functions referred to in paragraph (1)
are those functions performed by the following personnel, and
associated support staff, of the United States Customs
Service on the day before the effective date of this Act:
Import Specialists, Entry Specialists, Drawback Specialists,
National Import Specialist, Fines and Penalties Specialists,
attorneys of the Office of Regulations and Rulings, Customs
Auditors, International Trade Specialists, Financial Systems
Specialists.
(c) New Personnel.--The Secretary of the Treasury is
authorized to appoint up to 20 new personnel to work with
personnel of the Department in performing customs revenue
functions.

SEC. 413. PRESERVATION OF CUSTOMS FUNDS.

Notwithstanding any other provision of this Act, no funds
available to the United States Customs Service or collected
under paragraphs (1) through (8) of section 13031(a) of the
Consolidated Omnibus Budget Reconciliation Act of 1985 may be
transferred for use by any other agency or office in the
Department.

SEC. 414. SEPARATE BUDGET REQUEST FOR CUSTOMS.

The President shall include in each budget transmitted to
Congress under section 1105 of title 31, United States Code,
a separate budget request for the United States Customs
Service.

SEC. 415. DEFINITION.

In this subtitle, the term ``customs revenue function''
means the following:
(1) Assessing and collecting customs duties (including
antidumping and countervailing duties and duties imposed
under safeguard provisions), excise taxes, fees, and
penalties due on imported merchandise, including classifying
and valuing merchandise for purposes of such assessment.
(2) Processing and denial of entry of persons, baggage,
cargo, and mail, with respect to the assessment and
collection of import duties.
(3) Detecting and apprehending persons engaged in
fraudulent practices designed to circumvent the customs laws
of the United States.
(4) Enforcing section 337 of the Tariff Act of 1930 and
provisions relating to import quotas and the marking of
imported merchandise, and providing Customs Recordations for
copyrights, patents, and trademarks.
(5) Collecting accurate import data for compilation of
international trade statistics.
(6) Enforcing reciprocal trade agreements.
(7) Functions performed by the following personnel, and
associated support staff, of the United States Customs
Service on the day before the effective date of this Act:
Import Specialists, Entry Specialists, Drawback Specialists,
National Import Specialist, Fines and Penalties Specialists,
attorneys of the Office of Regulations and Rulings, Customs
Auditors, International Trade Specialists, Financial Systems
Specialists.
(8) Functions performed by the following offices, with
respect to any function described in any of paragraphs (1)
through (7), and associated support staff, of the United
States Customs Service on the day before the effective date
of this Act: the Office of Information and Technology, the
Office of Laboratory Services, the Office of the Chief
Counsel, the Office of Congressional Affairs, the Office of
International Affairs, and the Office of Training and
Development.

SEC. 416. GAO REPORT TO CONGRESS.

Not later than 3 months after the effective date of this
Act, the Comptroller General of the United States shall
submit to Congress a report that sets forth all trade
functions performed by the executive branch, specifying each
agency that performs each such function.

SEC. 417. ALLOCATION OF RESOURCES BY THE SECRETARY.

(a) In General.--The Secretary shall ensure that adequate
staffing is provided to assure that levels of customs revenue
services provided on the day before the effective date of
this Act shall continue to be provided.
(b) Notification of Congress.--The Secretary shall notify
the Committee on Ways and Means of the House of
Representatives and the Committee on Finance of the Senate at
least 90 days prior to taking any action which would--
(1) result in any significant reduction in customs revenue
services, including hours of operation, provided at any
office within the Department or any port of entry;
(2) eliminate or relocate any office of the Department
which provides customs revenue services; or
(3) eliminate any port of entry.
(c) Definition.--In this section, the term ``customs
revenue services'' means those customs revenue functions
described in paragraphs (1) through (6) and paragraph (8) of
section 415.

SEC. 418. REPORTS TO CONGRESS.

(a) Continuing Reports.--The United States Customs Service
shall, on and after the effective date of this Act, continue
to submit to the Committee on Ways and Means of the House of
Representatives and the Committee on Finance of the Senate
any report required, on the day before such the effective
date of this Act, to be so submitted under any provision of
law.
(b) Report on Conforming Amendments.--Not later than 60
days after the date of enactment of this Act, the Secretary
of the Treasury shall submit a report to the Committee on
Finance of the Senate and the Committee on Ways and Means of
the House of Representatives of proposed conforming
amendments to the statutes set forth under section 412(a)(2)
in order to determine the appropriate allocation of legal
authorities described under this subsection. The Secretary of
the Treasury shall also identify those authorities vested in
the Secretary of the Treasury that are exercised by the
Commissioner of Customs on or before the effective date of
this section.

SEC. 419. CUSTOMS USER FEES.

(a) In General.--Section 13031(f) of the Consolidated
Omnibus Budget Reconciliation Act of 1985 (19 U.S.C. 58c(f))
is amended--
(1) in paragraph (1), by striking subparagraph (B) and
inserting the following:
``(B) amounts deposited into the Customs Commercial and
Homeland Security Automation Account under paragraph (5).'';
(2) in paragraph (4), by striking ``(other than the excess
fees determined by the Secretary under paragraph (5))''; and
(3) by striking paragraph (5) and inserting the following:
``(5)(A) There is created within the general fund of the
Treasury a separate account that shall be known as the
`Customs Commercial and Homeland Security Automation
Account'. In each of fiscal years 2003, 2004, and 2005 there
shall be deposited into the Account from fees collected under
subsection (a)(9)(A), $350,000,000.
``(B) There is authorized to be appropriated from the
Account in fiscal years 2003 through 2005 such amounts as are
available in that Account for the development, establishment,
and implementation of the Automated Commercial Environment
computer system for the processing of merchandise that is
entered or released and for other purposes related to the
functions of the Department of Homeland Security. Amounts
appropriated pursuant to this subparagraph are authorized to
remain available until expended.
``(C) In adjusting the fee imposed by subsection (a)(9)(A)
for fiscal year 2006, the Secretary of the Treasury shall
reduce the amount estimated to be collected in fiscal year
2006 by the amount by which total fees deposited to the
Account during fiscal years 2003, 2004, and 2005 exceed total
appropriations from that Account.''.
(b) Conforming Amendment.--Section 311(b) of the Customs
Border Security Act of 2002 (Public Law 107-210) is amended
by striking paragraph (2).

Subtitle C--Miscellaneous Provisions

SEC. 421. TRANSFER OF CERTAIN AGRICULTURAL INSPECTION
FUNCTIONS OF THE DEPARTMENT OF AGRICULTURE.

(a) Transfer of Agricultural Import and Entry Inspection
Functions.--There shall be transferred to the Secretary the
functions of the Secretary of Agriculture relating to
agricultural import and entry inspection activities under the
laws specified in subsection (b).
(b) Covered Animal and Plant Protection Laws.--The laws
referred to in subsection (a) are the following:
(1) The Act commonly known as the Virus-Serum-Toxin Act
(the eighth paragraph under the heading ``Bureau of Animal
Industry'' in the Act of March 4, 1913; 21 U.S.C. 151 et
seq.).
(2) Section 1 of the Act of August 31, 1922 (commonly known
as the Honeybee Act; 7 U.S.C. 281).
(3) Title III of the Federal Seed Act (7 U.S.C. 1581 et
seq.).
(4) The Plant Protection Act (7 U.S.C. 7701 et seq.).
(5) The Animal Health Protection Act (subtitle E of title X
of Public Law 107-171; 7 U.S.C. 8301 et seq.).
(6) The Lacey Act Amendments of 1981 (16 U.S.C. 3371 et
seq.).
(7) Section 11 of the Endangered Species Act of 1973 (16
U.S.C. 1540).
(c) Exclusion of Quarantine Activities.--For purposes of
this section, the term ``functions'' does not include any
quarantine activities carried out under the laws specified in
subsection (b).
(d) Effect of Transfer.--
(1) Compliance with department of agriculture
regulations.--The authority transferred pursuant to
subsection (a) shall be exercised by the Secretary in
accordance with the regulations, policies, and procedures
issued by the Secretary of Agriculture regarding the
administration of the laws specified in subsection (b).
(2) Rulemaking coordination.--The Secretary of Agriculture
shall coordinate with the Secretary whenever the Secretary of
Agriculture prescribes regulations, policies, or procedures
for administering the functions transferred under subsection
(a) under a law specified in subsection (b).
(3) Effective administration.--The Secretary, in
consultation with the Secretary of Agriculture, may issue
such directives and guidelines as are necessary to ensure the
effective use of personnel of the Department of Homeland
Security to carry out the functions transferred pursuant to
subsection (a).

[[Page S11476]]

(e) Transfer Agreement.--
(1) Agreement required; revision.--Before the end of the
transition period, as defined in section 1501, the Secretary
of Agriculture and the Secretary shall enter into an
agreement to effectuate the transfer of functions required by
subsection (a). The Secretary of Agriculture and the
Secretary may jointly revise the agreement as necessary
thereafter.
(2) Required Terms.--The agreement required by this
subsection shall specifically address the following:
(A) The supervision by the Secretary of Agriculture of the
training of employees of the Secretary to carry out the
functions transferred pursuant to subsection (a).
(B) The transfer of funds to the Secretary under subsection
(f).
(3) Cooperation and reciprocity.--The Secretary of
Agriculture and the Secretary may include as part of the
agreement the following:
(A) Authority for the Secretary to perform functions
delegated to the Animal and Plant Health Inspection Service
of the Department of Agriculture regarding the protection of
domestic livestock and plants, but not transferred to the
Secretary pursuant to subsection (a).
(B) Authority for the Secretary of Agriculture to use
employees of the Department of Homeland Security to carry out
authorities delegated to the Animal and Plant Health
Inspection Service regarding the protection of domestic
livestock and plants.
(f) Periodic Transfer of Funds to Department of Homeland
Security.--
(1) Transfer of funds.--Out of funds collected by fees
authorized under sections 2508 and 2509 of the Food,
Agriculture, Conservation, and Trade Act of 1990 (21 U.S.C.
136, 136a), the Secretary of Agriculture shall transfer, from
time to time in accordance with the agreement under
subsection (e), to the Secretary funds for activities carried
out by the Secretary for which such fees were collected.
(2) Limitation.--The proportion of fees collected pursuant
to such sections that are transferred to the Secretary under
this subsection may not exceed the proportion of the costs
incurred by the Secretary to all costs incurred to carry out
activities funded by such fees.
(g) Transfer of Department of Agriculture Employees.--Not
later than the completion of the transition period defined
under section 1501, the Secretary of Agriculture shall
transfer to the Secretary not more than 3,200 full-time
equivalent positions of the Department of Agriculture.
(h) Protection of Inspection Animals.--Title V of the
Agricultural Risk Protection Act of 2000 (7 U.S.C. 2279e,
2279f) is amended--
(1) in section 501(a)--
(A) by inserting ``or the Department of Homeland Security''
after ``Department of Agriculture''; and
(B) by inserting ``or the Secretary of Homeland Security''
after ``Secretary of Agriculture'';
(2) by striking ``Secretary'' each place it appears (other
than in sections 501(a) and 501(e)) and inserting ``Secretary
concerned''; and
(3) by adding at the end of section 501 the following new
subsection:
``(e) Secretary Concerned Defined.--In this title, the term
`Secretary concerned' means--
``(1) the Secretary of Agriculture, with respect to an
animal used for purposes of official inspections by the
Department of Agriculture; and
``(2) the Secretary of Homeland Security, with respect to
an animal used for purposes of official inspections by the
Department of Homeland Security.''.

SEC. 422. FUNCTIONS OF ADMINISTRATOR OF GENERAL SERVICES.

(a) Operation, Maintenance, and Protection of Federal
Buildings and Grounds.--Nothing in this Act may be construed
to affect the functions or authorities of the Administrator
of General Services with respect to the operation,
maintenance, and protection of buildings and grounds owned or
occupied by the Federal Government and under the
jurisdiction, custody, or control of the Administrator.
Except for the law enforcement and related security functions
transferred under section 403(3), the Administrator shall
retain all powers, functions, and authorities vested in the
Administrator under chapter 10 of title 40, United States
Code, and other provisions of law that are necessary for the
operation, maintenance, and protection of such buildings and
grounds.
(b) Collection of Rents and Fees; Federal Buildings Fund.--
(1) Statutory construction.--Nothing in this Act may be
construed--
(A) to direct the transfer of, or affect, the authority of
the Administrator of General Services to collect rents and
fees, including fees collected for protective services; or
(B) to authorize the Secretary or any other official in the
Department to obligate amounts in the Federal Buildings Fund
established by section 490(f) of title 40, United States
Code.
(2) Use of transferred amounts.--Any amounts transferred by
the Administrator of General Services to the Secretary out of
rents and fees collected by the Administrator shall be used
by the Secretary solely for the protection of buildings or
grounds owned or occupied by the Federal Government.

SEC. 423. FUNCTIONS OF TRANSPORTATION SECURITY
ADMINISTRATION.

(a) Consultation With Federal Aviation Administration.--The
Secretary and other officials in the Department shall consult
with the Administrator of the Federal Aviation Administration
before taking any action that might affect aviation safety,
air carrier operations, aircraft airworthiness, or the use of
airspace. The Secretary shall establish a liaison office
within the Department for the purpose of consulting with the
Administrator of the Federal Aviation Administration.
(b) Report to Congress.--Not later than 60 days after the
date of enactment of this Act, the Secretary of
Transportation shall transmit to Congress a report containing
a plan for complying with the requirements of section
44901(d) of title 49, United States Code, as amended by
section 425 of this Act.
(c) Limitations on Statutory Construction.--
(1) Grant of authority.--Nothing in this Act may be
construed to vest in the Secretary or any other official in
the Department any authority over transportation security
that is not vested in the Under Secretary of Transportation
for Security, or in the Secretary of Transportation under
chapter 449 of title 49, United States Code, on the day
before the date of enactment of this Act.
(2) Obligation of aip funds.--Nothing in this Act may be
construed to authorize the Secretary or any other official in
the Department to obligate amounts made available under
section 48103 of title 49, United States Code.

SEC. 424. PRESERVATION OF TRANSPORTATION SECURITY
ADMINISTRATION AS A DISTINCT ENTITY.

(a) In General.--Notwithstanding any other provision of
this Act, and subject to subsection (b), the Transportation
Security Administration shall be maintained as a distinct
entity within the Department under the Under Secretary for
Border Transportation and Security.
(b) Sunset.--Subsection (a) shall cease to apply 2 years
after the date of enactment of this Act.

SEC. 425. EXPLOSIVE DETECTION SYSTEMS.

Section 44901(d) of title 49, United States Code, is
amended by adding at the end the following:
``(2) Deadline.--
``(A) In general.--If, in his discretion or at the request
of an airport, the Under Secretary of Transportation for
Security determines that the Transportation Security
Administration is not able to deploy explosive detection
systems required to be deployed under paragraph (1) at all
airports where explosive detection systems are required by
December 31, 2002, then with respect to each airport for
which the Under Secretary makes that determination--
``(i) the Under Secretary shall submit to the Senate
Committee on Commerce, Science, and Transportation and the
House of Representatives Committee on Transportation and
Infrastructure a detailed plan (which may be submitted in
classified form) for the deployment of the number of
explosive detection systems at that airport necessary to meet
the requirements of paragraph (1) as soon as practicable at
that airport but in no event later than December 31, 2003;
and
``(ii) the Under Secretary shall take all necessary action
to ensure that alternative means of screening all checked
baggage is implemented until the requirements of paragraph
(1) have been met.
``(B) Criteria for determination.--In making a
determination under subparagraph (A), the Under Secretary
shall take into account--
``(i) the nature and extent of the required modifications
to the airport's terminal buildings, and the technical,
engineering, design and construction issues;
``(ii) the need to ensure that such installations and
modifications are effective; and
``(iii) the feasibility and cost-effectiveness of deploying
explosive detection systems in the baggage sorting area or
other non-public area rather than the lobby of an airport
terminal building.
``(C) Response.--The Under Secretary shall respond to the
request of an airport under subparagraph (A) within 14 days
of receiving the request. A denial of request shall create no
right of appeal or judicial review.
``(D) Airport effort required.--Each airport with respect
to which the Under Secretary makes a determination under
subparagraph (A) shall--
``(i) cooperate fully with the Transportation Security
Administration with respect to screening checked baggage and
changes to accommodate explosive detection systems; and
``(ii) make security projects a priority for the obligation
or expenditure of funds made available under chapter 417 or
471 until explosive detection systems required to be deployed
under paragraph (1) have been deployed at that airport.
``(3) Reports.--Until the Transportation Security
Administration has met the requirements of paragraph (1), the
Under Secretary shall submit a classified report every 30
days after the date of enactment of this Act to the Senate
Committee on Commerce, Science, and Transportation and the
House of Representatives Committee on Transportation and
Infrastructure describing the progress made toward meeting
such requirements at each airport.''.

SEC. 426. TRANSPORTATION SECURITY.

(a) Transportation Security Oversight Board.--
(1) Establishment.--Section 115(a) of title 49, United
States Code, is amended by striking ``Department of
Transportation'' and inserting ``Department of Homeland
Security''.
(2) Membership.--Section 115(b)(1) of title 49, United
States Code, is amended--
(A) by striking subparagraph (G);
(B) by redesignating subparagraphs (A) through (F) as
subparagraphs (B) through (G), respectively; and
(C) by inserting before subparagraph (B) (as so
redesignated) the following:
``(A) The Secretary of Homeland Security, or the
Secretary's designee.''.
(3) Chairperson.--Section 115(b)(2) of title 49, United
States Code, is amended by striking ``Secretary of
Transportation'' and inserting ``Secretary of Homeland
Security''.
(b) Approval of AIP Grant Applications for Security
Activities.--Section 47106 of title

[[Page S11477]]

49, United States Code, is amended by adding at the end the
following:
``(g) Consultation With Secretary of Homeland Security.--
The Secretary shall consult with the Secretary of Homeland
Security before approving an application under this
subchapter for an airport development project grant for
activities described in section 47102(3)(B)(ii) only as they
relate to security equipment or section 47102(3)(B)(x) only
as they relate to installation of bulk explosive detection
system.''.

SEC. 427. COORDINATION OF INFORMATION AND INFORMATION
TECHNOLOGY.

(a) Definition of Affected Agency.--In this section, the
term ``affected agency'' means--
(1) the Department;
(2) the Department of Agriculture;
(3) the Department of Health and Human Services; and
(4) any other department or agency determined to be
appropriate by the Secretary.
(b) Coordination.--The Secretary, in coordination with the
Secretary of Agriculture, the Secretary of Health and Human
Services, and the head of each other department or agency
determined to be appropriate by the Secretary, shall ensure
that appropriate information (as determined by the Secretary)
concerning inspections of articles that are imported or
entered into the United States, and are inspected or
regulated by 1 or more affected agencies, is timely and
efficiently exchanged between the affected agencies.
(c) Report and Plan.--Not later than 18 months after the
date of enactment of this Act, the Secretary, in consultation
with the Secretary of Agriculture, the Secretary of Health
and Human Services, and the head of each other department or
agency determined to be appropriate by the Secretary, shall
submit to Congress--
(1) a report on the progress made in implementing this
section; and
(2) a plan to complete implementation of this section.

SEC. 428. VISA ISSUANCE.

(a) Definition.--In this subsection, the term ``consular
office'' has the meaning given that term under section
101(a)(9) of the Immigration and Nationality Act (8 U.S.C.
1101(a)(9)).
(b) In General.--Notwithstanding section 104(a) of the
Immigration and Nationality Act (8 U.S.C. 1104(a)) or any
other provision of law, and except as provided in subsection
(c) of this section, the Secretary--
(1) shall be vested exclusively with all authorities to
issue regulations with respect to, administer, and enforce
the provisions of such Act, and of all other immigration and
nationality laws, relating to the functions of consular
officers of the United States in connection with the granting
or refusal of visas, and shall have the authority to refuse
visas in accordance with law and to develop programs of
homeland security training for consular officers (in addition
to consular training provided by the Secretary of State),
which authorities shall be exercised through the Secretary of
State, except that the Secretary shall not have authority to
alter or reverse the decision of a consular officer to refuse
a visa to an alien; and
(2) shall have authority to confer or impose upon any
officer or employee of the United States, with the consent of
the head of the executive agency under whose jurisdiction
such officer or employee is serving, any of the functions
specified in paragraph (1).
(c) Authority of the Secretary of State.--
(1) In general.--Notwithstanding subsection (b), the
Secretary of State may direct a consular officer to refuse a
visa to an alien if the Secretary of State deems such refusal
necessary or advisable in the foreign policy or security
interests of the United States.
(2) Construction regarding authority.--Nothing in this
section, consistent with the Secretary of Homeland Security's
authority to refuse visas in accordance with law, shall be
construed as affecting the authorities of the Secretary of
State under the following provisions of law:
(A) Section 101(a)(15)(A) of the Immigration and
Nationality Act (8 U.S.C. 1101(a)(15)(A)).
(B) Section 204(d)(2) of the Immigration and Nationality
Act (8 U.S.C. 1154) (as it will take effect upon the entry
into force of the Convention on Protection of Children and
Cooperation in Respect to Inter-Country adoption).
(C) Section 212(a)(3)(B)(i)(IV)(bb) of the Immigration and
Nationality Act (8 U.S.C. 1182(a)(3)(B)(i)(IV)(bb)).
(D) Section 212(a)(3)(B)(i)(VI) of the Immigration and
Nationality Act (8 U.S.C. 1182(a)(3)(B)(i)(VI)).
(E) Section 212(a)(3)(B)(vi)(II) of the Immigration and
Nationality Act (8 U.S.C. 1182(a)(3)(B)(vi)(II)).
(F) Section 212(a)(3(C) of the Immigration and Nationality
Act (8 U.S.C. 1182(a)(3)(C)).
(G) Section 212(a)(10)(C) of the Immigration and
Nationality Act (8 U.S.C. 1182(a)(10)(C)).
(H) Section 212(f) of the Immigration and Nationality Act
(8 U.S.C. 1182(f)).
(I) Section 219(a) of the Immigration and Nationality Act
(8 U.S.C. 1189(a)).
(J) Section 237(a)(4)(C) of the Immigration and Nationality
Act (8 U.S.C. 1227(a)(4)(C)).
(K) Section 401 of the Cuban Liberty and Democratic
Solidarity (LIBERTAD) Act of 1996 (22 U.S.C. 6034; Public Law
104-114).
(L) Section 613 of the Departments of Commerce, Justice,
and State, the Judiciary and Related Agencies Appropriations
Act, 1999 (as contained in section 101(b) of division A of
Public Law 105-277) (Omnibus Consolidated and Emergency
Supplemental Appropriations Act, 1999); 112 Stat. 2681; H.R.
4328 (originally H.R. 4276) as amended by section 617 of
Public Law 106-553.
(M) Section 103(f) of the Chemical Weapon Convention
Implementation Act of 1998 (112 Stat. 2681-865).
(N) Section 801 of H.R. 3427, the Admiral James W. Nance
and Meg Donovan Foreign Relations Authorization Act, Fiscal
Years 2000 and 2001, as enacted by reference in Public Law
106-113.
(O) Section 568 of the Foreign Operations, Export
Financing, and Related Programs Appropriations Act, 2002
(Public Law 107-115).
(P) Section 51 of the State Department Basic Authorities
Act of 1956 (22 U.S.C. 2723).
(d) Consular Officers and Chiefs of Missions.--
(1) In general.--Nothing in this section may be construed
to alter or affect--
(A) the employment status of consular officers as employees
of the Department of State; or
(B) the authority of a chief of mission under section 207
of the Foreign Service Act of 1980 (22 U.S.C. 3927).
(2) Construction regarding delegation of authority.--
Nothing in this section shall be construed to affect any
delegation of authority to the Secretary of State by the
President pursuant to any proclamation issued under section
212(f) of the Immigration and Nationality Act (8 U.S.C.
1182(f)), consistent with the Secretary of Homeland
Security's authority to refuse visas in accordance with law.
(e) Assignment of Homeland Security Employees to Diplomatic
and Consular Posts.--
(1) In general.--The Secretary is authorized to assign
employees of the Department to each diplomatic and consular
post at which visas are issued, unless the Secretary
determines that such an assignment at a particular post would
not promote homeland security.
(2) Functions.--Employees assigned under paragraph (1)
shall perform the following functions:
(A) Provide expert advice and training to consular officers
regarding specific security threats relating to the
adjudication of individual visa applications or classes of
applications.
(B) Review any such applications, either on the initiative
of the employee of the Department or upon request by a
consular officer or other person charged with adjudicating
such applications.
(C) Conduct investigations with respect to consular matters
under the jurisdiction of the Secretary.
(3) Evaluation of consular officers.--The Secretary of
State shall evaluate, in consultation with the Secretary, as
deemed appropriate by the Secretary, the performance of
consular officers with respect to the processing and
adjudication of applications for visas in accordance with
performance standards developed by the Secretary for these
procedures.
(4) Report.--The Secretary shall, on an annual basis,
submit a report to Congress that describes the basis for each
determination under paragraph (1) that the assignment of an
employee of the Department at a particular diplomatic post
would not promote homeland security.
(5) Permanent assignment; participation in terrorist
lookout committee.--When appropriate, employees of the
Department assigned to perform functions described in
paragraph (2) may be assigned permanently to overseas
diplomatic or consular posts with country-specific or
regional responsibility. If the Secretary so directs, any
such employee, when present at an overseas post, shall
participate in the terrorist lookout committee established
under section 304 of the Enhanced Border Security and Visa
Entry Reform Act of 2002 (8 U.S.C. 1733).
(6) Training and hiring.--
(A) In general.--The Secretary shall ensure, to the extent
possible, that any employees of the Department assigned to
perform functions under paragraph (2) and, as appropriate,
consular officers, shall be provided the necessary training
to enable them to carry out such functions, including
training in foreign languages, interview techniques, and
fraud detection techniques, in conditions in the particular
country where each employee is assigned, and in other
appropriate areas of study.
(B) Use of center.--The Secretary is authorized to use the
National Foreign Affairs Training Center, on a reimbursable
basis, to obtain the training described in subparagraph (A).
(7) Report.--Not later than 1 year after the date of
enactment of this Act, the Secretary and the Secretary of
State shall submit to Congress--
(A) a report on the implementation of this subsection; and
(B) any legislative proposals necessary to further the
objectives of this subsection.
(8) Effective date.--This subsection shall take effect on
the earlier of--
(A) the date on which the President publishes notice in the
Federal Register that the President has submitted a report to
Congress setting forth a memorandum of understanding between
the Secretary and the Secretary of State governing the
implementation of this section; or
(B) the date occurring 1 year after the date of enactment
of this Act.
(f) No Creation of Private Right of Action.--Nothing in
this section shall be construed to create or authorize a
private right of action to challenge a decision of a consular
officer or other United States official or employee to grant
or deny a visa.
(g) Study Regarding Use of Foreign Nationals.--
(1) In general.--The Secretary of Homeland Security shall
conduct a study of the role of foreign nationals in the
granting or refusal of visas and other documents authorizing
entry of aliens into the United States. The study shall
address the following:
(A) The proper role, if any, of foreign nationals in the
process of rendering decisions on such grants and refusals.
(B) Any security concerns involving the employment of
foreign nationals.
(C) Whether there are cost-effective alternatives to the
use of foreign nationals.

[[Page S11478]]

(2) Report.--Not later than 1 year after the date of the
enactment of this Act, the Secretary shall submit a report
containing the findings of the study conducted under
paragraph (1) to the Committee on the Judiciary, the
Committee on International Relations, and the Committee on
Government Reform of the House of Representatives, and the
Committee on the Judiciary, the Committee on Foreign
Relations, and the Committee on Government Affairs of the
Senate.
(h) Report.--Not later than 120 days after the date of the
enactment of this Act, the Director of the Office of Science
and Technology Policy shall submit to Congress a report on
how the provisions of this section will affect procedures for
the issuance of student visas.
(i) Visa Issuance Program for Saudi Arabia.--
Notwithstanding any other provision of law, after the date of
the enactment of this Act all third party screening programs
in Saudi Arabia shall be terminated. On-site personnel of the
Department of Homeland Security shall review all visa
applications prior to adjudication.

SEC. 429. INFORMATION ON VISA DENIALS REQUIRED TO BE ENTERED
INTO ELECTRONIC DATA SYSTEM.

(a) In General.--Whenever a consular officer of the United
States denies a visa to an applicant, the consular officer
shall enter the fact and the basis of the denial and the name
of the applicant into the interoperable electronic data
system implemented under section 202(a) of the Enhanced
Border Security and Visa Entry Reform Act of 2002 (8 U.S.C.
1722(a)).
(b) Prohibition.--In the case of any alien with respect to
whom a visa has been denied under subsection (a)--
(1) no subsequent visa may be issued to the alien unless
the consular officer considering the alien's visa application
has reviewed the information concerning the alien placed in
the interoperable electronic data system, has indicated on
the alien's application that the information has been
reviewed, and has stated for the record why the visa is being
issued or a waiver of visa ineligibility recommended in spite
of that information; and
(2) the alien may not be admitted to the United States
without a visa issued in accordance with the procedures
described in paragraph (1).

SEC. 430. OFFICE FOR DOMESTIC PREPAREDNESS.

(a) In General.--The Office for Domestic Preparedness shall
be within the Directorate of Border and Transportation
Security.
(b) Director.--There shall be a Director of the Office for
Domestic Preparedness, who shall be appointed by the
President, by and with the advice and consent of the Senate.
The Director of the Office for Domestic Preparedness shall
report directly to the Under Secretary for Border and
Transportation Security.
(c) Responsibilities.--The Office for Domestic Preparedness
shall have the primary responsibility within the executive
branch of Government for the preparedness of the United
States for acts of terrorism, including--
(1) coordinating preparedness efforts at the Federal level,
and working with all State, local, tribal, parish, and
private sector emergency response providers on all matters
pertaining to combating terrorism, including training,
exercises, and equipment support;
(2) coordinating or, as appropriate, consolidating
communications and systems of communications relating to
homeland security at all levels of government;
(3) directing and supervising terrorism preparedness grant
programs of the Federal Government (other than those programs
administered by the Department of Health and Human Services)
for all emergency response providers;
(4) incorporating the Strategy priorities into planning
guidance on an agency level for the preparedness efforts of
the Office for Domestic Preparedness;
(5) providing agency-specific training for agents and
analysts within the Department, other agencies, and State and
local agencies and international entities;
(6) as the lead executive branch agency for preparedness of
the United States for acts of terrorism, cooperating closely
with the Federal Emergency Management Agency, which shall
have the primary responsibility within the executive branch
to prepare for and mitigate the effects of nonterrorist-
related disasters in the United States;
(7) assisting and supporting the Secretary, in coordination
with other Directorates and entities outside the Department,
in conducting appropriate risk analysis and risk management
activities of State, local, and tribal governments consistent
with the mission and functions of the Directorate; and
(8) those elements of the Office of National Preparedness
of the Federal Emergency Management Agency which relate to
terrorism, which shall be consolidated within the Department
in the Office for Domestic Preparedness established under
this section.
(d) Fiscal Years 2003 and 2004.--During fiscal year 2003
and fiscal year 2004, the Director of the Office for Domestic
Preparedness established under this section shall manage and
carry out those functions of the Office for Domestic
Preparedness of the Department of Justice (transferred under
this section) before September 11, 2001, under the same
terms, conditions, policies, and authorities, and with the
required level of personnel, assets, and budget before
September 11, 2001.

Subtitle D--Immigration Enforcement Functions

SEC. 441. TRANSFER OF FUNCTIONS TO UNDER SECRETARY FOR BORDER
AND TRANSPORTATION SECURITY.

In accordance with title XV (relating to transition
provisions), there shall be transferred from the Commissioner
of Immigration and Naturalization to the Under Secretary for
Border and Transportation Security all functions performed
under the following programs, and all personnel, assets, and
liabilities pertaining to such programs, immediately before
such transfer occurs:
(1) The Border Patrol program.
(2) The detention and removal program.
(3) The intelligence program.
(4) The investigations program.
(5) The inspections program.

SEC. 442. ESTABLISHMENT OF BUREAU OF BORDER SECURITY.

(a) Establishment of Bureau.--
(1) In general.--There shall be in the Department of
Homeland Security a bureau to be known as the ``Bureau of
Border Security''.
(2) Assistant secretary.--The head of the Bureau of Border
Security shall be the Assistant Secretary of the Bureau of
Border Security, who--
(A) shall report directly to the Under Secretary for Border
and Transportation Security; and
(B) shall have a minimum of 5 years professional experience
in law enforcement, and a minimum of 5 years of management
experience.
(3) Functions.--The Assistant Secretary of the Bureau of
Border Security--
(A) shall establish the policies for performing such
functions as are--
(i) transferred to the Under Secretary for Border and
Transportation Security by section 441 and delegated to the
Assistant Secretary by the Under Secretary for Border and
Transportation Security; or
(ii) otherwise vested in the Assistant Secretary by law;
(B) shall oversee the administration of such policies; and
(C) shall advise the Under Secretary for Border and
Transportation Security with respect to any policy or
operation of the Bureau of Border Security that may affect
the Bureau of Citizenship and Immigration Services
established under subtitle E, including potentially
conflicting policies or operations.
(4) Program to collect information relating to foreign
students.--The Assistant Secretary of the Bureau of Border
Security shall be responsible for administering the program
to collect information relating to nonimmigrant foreign
students and other exchange program participants described in
section 641 of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (8 U.S.C. 1372), including the
Student and Exchange Visitor Information System established
under that section, and shall use such information to carry
out the enforcement functions of the Bureau.
(5) Managerial rotation program.--
(A) In general.--Not later than 1 year after the date on
which the transfer of functions specified under section 441
takes effect, the Assistant Secretary of the Bureau of Border
Security shall design and implement a managerial rotation
program under which employees of such bureau holding
positions involving supervisory or managerial responsibility
and classified, in accordance with chapter 51 of title 5,
United States Code, as a GS-14 or above, shall--
(i) gain some experience in all the major functions
performed by such bureau; and
(ii) work in at least one local office of such bureau.
(B) Report.--Not later than 2 years after the date on which
the transfer of functions specified under section 441 takes
effect, the Secretary shall submit a report to the Congress
on the implementation of such program.
(b) Chief of Policy and Strategy.--
(1) In general.--There shall be a position of Chief of
Policy and Strategy for the Bureau of Border Security.
(2) Functions.--In consultation with Bureau of Border
Security personnel in local offices, the Chief of Policy and
Strategy shall be responsible for--
(A) making policy recommendations and performing policy
research and analysis on immigration enforcement issues; and
(B) coordinating immigration policy issues with the Chief
of Policy and Strategy for the Bureau of Citizenship and
Immigration Services (established under subtitle E), as
appropriate.
(c) Legal Advisor.--There shall be a principal legal
advisor to the Assistant Secretary of the Bureau of Border
Security. The legal advisor shall provide specialized legal
advice to the Assistant Secretary of the Bureau of Border
Security and shall represent the bureau in all exclusion,
deportation, and removal proceedings before the Executive
Office for Immigration Review.

SEC. 443. PROFESSIONAL RESPONSIBILITY AND QUALITY REVIEW.

The Under Secretary for Border and Transportation Security
shall be responsible for--
(1) conducting investigations of noncriminal allegations of
misconduct, corruption, and fraud involving any employee of
the Bureau of Border Security that are not subject to
investigation by the Inspector General for the Department;
(2) inspecting the operations of the Bureau of Border
Security and providing assessments of the quality of the
operations of such bureau as a whole and each of its
components; and
(3) providing an analysis of the management of the Bureau
of Border Security.

SEC. 444. EMPLOYEE DISCIPLINE.

The Under Secretary for Border and Transportation Security
may, notwithstanding any other provision of law, impose
disciplinary action, including termination of employment,
pursuant to policies and procedures applicable to employees
of the Federal Bureau of Investigation, on any employee of
the Bureau of Border Security who willfully deceives the
Congress or agency leadership on any matter.

SEC. 445. REPORT ON IMPROVING ENFORCEMENT FUNCTIONS.

(a) In General.--The Secretary, not later than 1 year after
being sworn into office, shall

[[Page S11479]]

submit to the Committees on Appropriations and the Judiciary
of the House of Representatives and of the Senate a report
with a plan detailing how the Bureau of Border Security,
after the transfer of functions specified under section 441
takes effect, will enforce comprehensively, effectively, and
fairly all the enforcement provisions of the Immigration and
Nationality Act (8 U.S.C. 1101 et seq.) relating to such
functions.
(b) Consultation.--In carrying out subsection (a), the
Secretary of Homeland Security shall consult with the
Attorney General, the Secretary of State, the Director of the
Federal Bureau of Investigation, the Secretary of the
Treasury, the Secretary of Labor, the Commissioner of Social
Security, the Director of the Executive Office for
Immigration Review, and the heads of State and local law
enforcement agencies to determine how to most effectively
conduct enforcement operations.

SEC. 446. SENSE OF CONGRESS REGARDING CONSTRUCTION OF FENCING
NEAR SAN DIEGO, CALIFORNIA.

It is the sense of the Congress that completing the 14-mile
border fence project required to be carried out under section
102(b) of the Illegal Immigration Reform and Immigrant
Responsibility Act of 1996 (8 U.S.C. 1103 note) should be a
priority for the Secretary.

Subtitle E--Citizenship and Immigration Services

SEC. 451. ESTABLISHMENT OF BUREAU OF CITIZENSHIP AND
IMMIGRATION SERVICES.

(a) Establishment of Bureau.--
(1) In general.--There shall be in the Department a bureau
to be known as the ``Bureau of Citizenship and Immigration
Services''.
(2) Director.--The head of the Bureau of Citizenship and
Immigration Services shall be the Director of the Bureau of
Citizenship and Immigration Services, who--
(A) shall report directly to the Deputy Secretary;
(B) shall have a minimum of 5 years of management
experience; and
(C) shall be paid at the same level as the Assistant
Secretary of the Bureau of Border Security.
(3) Functions.--The Director of the Bureau of Citizenship
and Immigration Services--
(A) shall establish the policies for performing such
functions as are transferred to the Director by this section
or this Act or otherwise vested in the Director by law;
(B) shall oversee the administration of such policies;
(C) shall advise the Deputy Secretary with respect to any
policy or operation of the Bureau of Citizenship and
Immigration Services that may affect the Bureau of Border
Security of the Department, including potentially conflicting
policies or operations;
(D) shall establish national immigration services policies
and priorities;
(E) shall meet regularly with the Ombudsman described in
section 452 to correct serious service problems identified by
the Ombudsman; and
(F) shall establish procedures requiring a formal response
to any recommendations submitted in the Ombudsman's annual
report to Congress within 3 months after its submission to
Congress.
(4) Managerial rotation program.--
(A) In general.--Not later than 1 year after the effective
date specified in section 455, the Director of the Bureau of
Citizenship and Immigration Services shall design and
implement a managerial rotation program under which employees
of such bureau holding positions involving supervisory or
managerial responsibility and classified, in accordance with
chapter 51 of title 5, United States Code, as a GS-14 or
above, shall--
(i) gain some experience in all the major functions
performed by such bureau; and
(ii) work in at least one field office and one service
center of such bureau.
(B) Report.--Not later than 2 years after the effective
date specified in section 455, the Secretary shall submit a
report to Congress on the implementation of such program.
(5) Pilot initiatives for backlog elimination.--The
Director of the Bureau of Citizenship and Immigration
Services is authorized to implement innovative pilot
initiatives to eliminate any remaining backlog in the
processing of immigration benefit applications, and to
prevent any backlog in the processing of such applications
from recurring, in accordance with section 204(a) of the
Immigration Services and Infrastructure Improvements Act of
2000 (8 U.S.C. 1573(a)). Such initiatives may include
measures such as increasing personnel, transferring personnel
to focus on areas with the largest potential for backlog, and
streamlining paperwork.
(b) Transfer of Functions From Commissioner.--In accordance
with title XV (relating to transition provisions), there are
transferred from the Commissioner of Immigration and
Naturalization to the Director of the Bureau of Citizenship
and Immigration Services the following functions, and all
personnel, infrastructure, and funding provided to the
Commissioner in support of such functions immediately before
the effective date specified in section 455:
(1) Adjudications of immigrant visa petitions.
(2) Adjudications of naturalization petitions.
(3) Adjudications of asylum and refugee applications.
(4) Adjudications performed at service centers.
(5) All other adjudications performed by the Immigration
and Naturalization Service immediately before the effective
date specified in section 455.
(c) Chief of Policy and Strategy.--
(1) In general.--There shall be a position of Chief of
Policy and Strategy for the Bureau of Citizenship and
Immigration Services.
(2) Functions.--In consultation with Bureau of Citizenship
and Immigration Services personnel in field offices, the
Chief of Policy and Strategy shall be responsible for--
(A) making policy recommendations and performing policy
research and analysis on immigration services issues; and
(B) coordinating immigration policy issues with the Chief
of Policy and Strategy for the Bureau of Border Security of
the Department.
(d) Legal Advisor.--
(1) In general.--There shall be a principal legal advisor
to the Director of the Bureau of Citizenship and Immigration
Services.
(2) Functions.--The legal advisor shall be responsible
for--
(A) providing specialized legal advice, opinions,
determinations, regulations, and any other assistance to the
Director of the Bureau of Citizenship and Immigration
Services with respect to legal matters affecting the Bureau
of Citizenship and Immigration Services; and
(B) representing the Bureau of Citizenship and Immigration
Services in visa petition appeal proceedings before the
Executive Office for Immigration Review.
(e) Budget Officer.--
(1) In general.--There shall be a Budget Officer for the
Bureau of Citizenship and Immigration Services.
(2) Functions.--
(A) In general.--The Budget Officer shall be responsible
for--
(i) formulating and executing the budget of the Bureau of
Citizenship and Immigration Services;
(ii) financial management of the Bureau of Citizenship and
Immigration Services; and
(iii) collecting all payments, fines, and other debts for
the Bureau of Citizenship and Immigration Services.
(f) Chief of Office of Citizenship.--
(1) In general.--There shall be a position of Chief of the
Office of Citizenship for the Bureau of Citizenship and
Immigration Services.
(2) Functions.--The Chief of the Office of Citizenship for
the Bureau of Citizenship and Immigration Services shall be
responsible for promoting instruction and training on
citizenship responsibilities for aliens interested in
becoming naturalized citizens of the United States, including
the development of educational materials.

SEC. 452. CITIZENSHIP AND IMMIGRATION SERVICES OMBUDSMAN.

(a) In General.--Within the Department, there shall be a
position of Citizenship and Immigration Services Ombudsman
(in this section referred to as the ``Ombudsman''). The
Ombudsman shall report directly to the Deputy Secretary. The
Ombudsman shall have a background in customer service as well
as immigration law.
(b) Functions.--It shall be the function of the Ombudsman--
(1) to assist individuals and employers in resolving
problems with the Bureau of Citizenship and Immigration
Services;
(2) to identify areas in which individuals and employers
have problems in dealing with the Bureau of Citizenship and
Immigration Services; and
(3) to the extent possible, to propose changes in the
administrative practices of the Bureau of Citizenship and
Immigration Services to mitigate problems identified under
paragraph (2).
(c) Annual Reports.--
(1) Objectives.--Not later than June 30 of each calendar
year, the Ombudsman shall report to the Committee on the
Judiciary of the House of Representatives and the Senate on
the objectives of the Office of the Ombudsman for the fiscal
year beginning in such calendar year. Any such report shall
contain full and substantive analysis, in addition to
statistical information, and--
(A) shall identify the recommendations the Office of the
Ombudsman has made on improving services and responsiveness
of the Bureau of Citizenship and Immigration Services;
(B) shall contain a summary of the most pervasive and
serious problems encountered by individuals and employers,
including a description of the nature of such problems;
(C) shall contain an inventory of the items described in
subparagraphs (A) and (B) for which action has been taken and
the result of such action;
(D) shall contain an inventory of the items described in
subparagraphs (A) and (B) for which action remains to be
completed and the period during which each item has remained
on such inventory;
(E) shall contain an inventory of the items described in
subparagraphs (A) and (B) for which no action has been taken,
the period during which each item has remained on such
inventory, the reasons for the inaction, and shall identify
any official of the Bureau of Citizenship and Immigration
Services who is responsible for such inaction;
(F) shall contain recommendations for such administrative
action as may be appropriate to resolve problems encountered
by individuals and employers, including problems created by
excessive backlogs in the adjudication and processing of
immigration benefit petitions and applications; and
(G) shall include such other information as the Ombudsman
may deem advisable.
(2) Report to be submitted directly.--Each report required
under this subsection shall be provided directly to the
committees described in paragraph (1) without any prior
comment or amendment from the Secretary, Deputy Secretary,
Director of the Bureau of Citizenship and Immigration
Services, or any other officer or employee of the Department
or the Office of Management and Budget.
(d) Other Responsibilities.--The Ombudsman--
(1) shall monitor the coverage and geographic allocation of
local offices of the Ombudsman;
(2) shall develop guidance to be distributed to all
officers and employees of the Bureau of Citizenship and
Immigration Services outlining the

[[Page S11480]]

criteria for referral of inquiries to local offices of the
Ombudsman;
(3) shall ensure that the local telephone number for each
local office of the Ombudsman is published and available to
individuals and employers served by the office; and
(4) shall meet regularly with the Director of the Bureau of
Citizenship and Immigration Services to identify serious
service problems and to present recommendations for such
administrative action as may be appropriate to resolve
problems encountered by individuals and employers.
(e) Personnel Actions.--
(1) In general.--The Ombudsman shall have the
responsibility and authority--
(A) to appoint local ombudsmen and make available at least
1 such ombudsman for each State; and
(B) to evaluate and take personnel actions (including
dismissal) with respect to any employee of any local office
of the Ombudsman.
(2) Consultation.--The Ombudsman may consult with the
appropriate supervisory personnel of the Bureau of
Citizenship and Immigration Services in carrying out the
Ombudsman's responsibilities under this subsection.
(f) Responsibilities of Bureau of Citizenship and
Immigration Services.--The Director of the Bureau of
Citizenship and Immigration Services shall establish
procedures requiring a formal response to all recommendations
submitted to such director by the Ombudsman within 3 months
after submission to such director.
(g) Operation of Local Offices.--
(1) In general.--Each local ombudsman--
(A) shall report to the Ombudsman or the delegate thereof;
(B) may consult with the appropriate supervisory personnel
of the Bureau of Citizenship and Immigration Services
regarding the daily operation of the local office of such
ombudsman;
(C) shall, at the initial meeting with any individual or
employer seeking the assistance of such local office, notify
such individual or employer that the local offices of the
Ombudsman operate independently of any other component of the
Department and report directly to Congress through the
Ombudsman; and
(D) at the local ombudsman's discretion, may determine not
to disclose to the Bureau of Citizenship and Immigration
Services contact with, or information provided by, such
individual or employer.
(2) Maintenance of independent communications.--Each local
office of the Ombudsman shall maintain a phone, facsimile,
and other means of electronic communication access, and a
post office address, that is separate from those maintained
by the Bureau of Citizenship and Immigration Services, or any
component of the Bureau of Citizenship and Immigration
Services.

SEC. 453. PROFESSIONAL RESPONSIBILITY AND QUALITY REVIEW.

(a) In General.--The Director of the Bureau of Citizenship
and Immigration Services shall be responsible for--
(1) conducting investigations of noncriminal allegations of
misconduct, corruption, and fraud involving any employee of
the Bureau of Citizenship and Immigration Services that are
not subject to investigation by the Inspector General for the
Department;
(2) inspecting the operations of the Bureau of Citizenship
and Immigration Services and providing assessments of the
quality of the operations of such bureau as a whole and each
of its components; and
(3) providing an analysis of the management of the Bureau
of Citizenship and Immigration Services.
(b) Special Considerations.--In providing assessments in
accordance with subsection (a)(2) with respect to a decision
of the Bureau of Citizenship and Immigration Services, or any
of its components, consideration shall be given to--
(1) the accuracy of the findings of fact and conclusions of
law used in rendering the decision;
(2) any fraud or misrepresentation associated with the
decision; and
(3) the efficiency with which the decision was rendered.

SEC. 454. EMPLOYEE DISCIPLINE.

The Director of the Bureau of Citizenship and Immigration
Services may, notwithstanding any other provision of law,
impose disciplinary action, including termination of
employment, pursuant to policies and procedures applicable to
employees of the Federal Bureau of Investigation, on any
employee of the Bureau of Citizenship and Immigration
Services who willfully deceives Congress or agency leadership
on any matter.

SEC. 455. EFFECTIVE DATE.

Notwithstanding section 4, sections 451 through 456, and
the amendments made by such sections, shall take effect on
the date on which the transfer of functions specified under
section 441 takes effect.

SEC. 456. TRANSITION.

(a) References.--With respect to any function transferred
by this subtitle to, and exercised on or after the effective
date specified in section 455 by, the Director of the Bureau
of Citizenship and Immigration Services, any reference in any
other Federal law, Executive order, rule, regulation, or
delegation of authority, or any document of or pertaining to
a component of government from which such function is
transferred--
(1) to the head of such component is deemed to refer to the
Director of the Bureau of Citizenship and Immigration
Services; or
(2) to such component is deemed to refer to the Bureau of
Citizenship and Immigration Services.
(b) Other Transition Issues.--
(1) Exercise of authorities.--Except as otherwise provided
by law, a Federal official to whom a function is transferred
by this subtitle may, for purposes of performing the
function, exercise all authorities under any other provision
of law that were available with respect to the performance of
that function to the official responsible for the performance
of the function immediately before the effective date
specified in section 455.
(2) Transfer and allocation of appropriations and
personnel.--The personnel of the Department of Justice
employed in connection with the functions transferred by this
subtitle (and functions that the Secretary determines are
properly related to the functions of the Bureau of
Citizenship and Immigration Services), and the assets,
liabilities, contracts, property, records, and unexpended
balance of appropriations, authorizations, allocations, and
other funds employed, held, used, arising from, available to,
or to be made available to, the Immigration and
Naturalization Service in connection with the functions
transferred by this subtitle, subject to section 202 of the
Budget and Accounting Procedures Act of 1950, shall be
transferred to the Director of the Bureau of Citizenship and
Immigration Services for allocation to the appropriate
component of the Department. Unexpended funds transferred
pursuant to this paragraph shall be used only for the
purposes for which the funds were originally authorized and
appropriated. The Secretary shall have the right to adjust or
realign transfers of funds and personnel effected pursuant to
this subtitle for a period of 2 years after the effective
date specified in section 455.

SEC. 457. FUNDING FOR CITIZENSHIP AND IMMIGRATION SERVICES.

Section 286(m) of the Immigration and Nationality Act (8
U.S.C. 1356(m)) is amended by striking ``services, including
the costs of similar services provided without charge to
asylum applicants or other immigrants.'' and inserting
``services.''.

SEC. 458. BACKLOG ELIMINATION.

Section 204(a)(1) of the Immigration Services and
Infrastructure Improvements Act of 2000 (8 U.S.C. 1573(a)(1))
is amended by striking ``not later than one year after the
date of enactment of this Act;'' and inserting ``1 year after
the date of the enactment of the Homeland Security Act of
2002;''.

SEC. 459. REPORT ON IMPROVING IMMIGRATION SERVICES.

(a) In General.--The Secretary, not later than 1 year after
the effective date of this Act, shall submit to the
Committees on the Judiciary and Appropriations of the House
of Representatives and of the Senate a report with a plan
detailing how the Bureau of Citizenship and Immigration
Services, after the transfer of functions specified in this
subtitle takes effect, will complete efficiently, fairly, and
within a reasonable time, the adjudications described in
paragraphs (1) through (5) of section 451(b).
(b) Contents.--For each type of adjudication to be
undertaken by the Director of the Bureau of Citizenship and
Immigration Services, the report shall include the following:
(1) Any potential savings of resources that may be
implemented without affecting the quality of the
adjudication.
(2) The goal for processing time with respect to the
application.
(3) Any statutory modifications with respect to the
adjudication that the Secretary considers advisable.
(c) Consultation.--In carrying out subsection (a), the
Secretary shall consult with the Secretary of State, the
Secretary of Labor, the Assistant Secretary of the Bureau of
Border Security of the Department, and the Director of the
Executive Office for Immigration Review to determine how to
streamline and improve the process for applying for and
making adjudications described in section 451(b) and related
processes.

SEC. 460. REPORT ON RESPONDING TO FLUCTUATING NEEDS.

Not later than 30 days after the date of the enactment of
this Act, the Attorney General shall submit to Congress a
report on changes in law, including changes in authorizations
of appropriations and in appropriations, that are needed to
permit the Immigration and Naturalization Service, and, after
the transfer of functions specified in this subtitle takes
effect, the Bureau of Citizenship and Immigration Services of
the Department, to ensure a prompt and timely response to
emergent, unforeseen, or impending changes in the number of
applications for immigration benefits, and otherwise to
ensure the accommodation of changing immigration service
needs.

SEC. 461. APPLICATION OF INTERNET-BASED TECHNOLOGIES.

(a) Establishment of Tracking System.--The Secretary, not
later than 1 year after the effective date of this Act, in
consultation with the Technology Advisory Committee
established under subsection (c), shall establish an
Internet-based system, that will permit a person, employer,
immigrant, or nonimmigrant who has filings with the Secretary
for any benefit under the Immigration and Nationality Act (8
U.S.C. 1101 et seq.), access to online information about the
processing status of the filing involved.
(b) Feasibility Study for Online Filing and Improved
Processing.--
(1) Online filing.--The Secretary, in consultation with the
Technology Advisory Committee established under subsection
(c), shall conduct a feasibility study on the online filing
of the filings described in subsection (a). The study shall
include a review of computerization and technology of the
Immigration and Naturalization Service relating to the
immigration services and processing of filings related to
immigrant services. The study shall also include an estimate
of the timeframe and cost and shall consider other factors in
implementing such a filing system, including the feasibility
of fee payment online.
(2) Report.--A report on the study under this subsection
shall be submitted to the Committees on the Judiciary of the
House of Representatives

[[Page S11481]]

and the Senate not later than 1 year after the effective date
of this Act.
(c) Technology Advisory Committee.--
(1) Establishment.--The Secretary shall establish, not
later than 60 days after the effective date of this Act, an
advisory committee (in this section referred to as the
``Technology Advisory Committee'') to assist the Secretary
in--
(A) establishing the tracking system under subsection (a);
and
(B) conducting the study under subsection (b).

The Technology Advisory Committee shall be established after
consultation with the Committees on the Judiciary of the
House of Representatives and the Senate.
(2) Composition.--The Technology Advisory Committee shall
be composed of representatives from high technology companies
capable of establishing and implementing the system in an
expeditious manner, and representatives of persons who may
use the tracking system described in subsection (a) and the
online filing system described in subsection (b)(1).

SEC. 462. CHILDREN'S AFFAIRS.

(a) Transfer of Functions.--There are transferred to the
Director of the Office of Refugee Resettlement of the
Department of Health and Human Services functions under the
immigration laws of the United States with respect to the
care of unaccompanied alien children that were vested by
statute in, or performed by, the Commissioner of Immigration
and Naturalization (or any officer, employee, or component of
the Immigration and Naturalization Service) immediately
before the effective date specified in subsection (d).
(b) Functions.--
(1) In general.--Pursuant to the transfer made by
subsection (a), the Director of the Office of Refugee
Resettlement shall be responsible for--
(A) coordinating and implementing the care and placement of
unaccompanied alien children who are in Federal custody by
reason of their immigration status, including developing a
plan to be submitted to Congress on how to ensure that
qualified and independent legal counsel is timely appointed
to represent the interests of each such child, consistent
with the law regarding appointment of counsel that is in
effect on the date of the enactment of this Act;
(B) ensuring that the interests of the child are considered
in decisions and actions relating to the care and custody of
an unaccompanied alien child;
(C) making placement determinations for all unaccompanied
alien children who are in Federal custody by reason of their
immigration status;
(D) implementing the placement determinations;
(E) implementing policies with respect to the care and
placement of unaccompanied alien children;
(F) identifying a sufficient number of qualified
individuals, entities, and facilities to house unaccompanied
alien children;
(G) overseeing the infrastructure and personnel of
facilities in which unaccompanied alien children reside;
(H) reuniting unaccompanied alien children with a parent
abroad in appropriate cases;
(I) compiling, updating, and publishing at least annually a
state-by-state list of professionals or other entities
qualified to provide guardian and attorney representation
services for unaccompanied alien children;
(J) maintaining statistical information and other data on
unaccompanied alien children for whose care and placement the
Director is responsible, which shall include--
(i) biographical information, such as a child's name,
gender, date of birth, country of birth, and country of
habitual residence;
(ii) the date on which the child came into Federal custody
by reason of his or her immigration status;
(iii) information relating to the child's placement,
removal, or release from each facility in which the child has
resided;
(iv) in any case in which the child is placed in detention
or released, an explanation relating to the detention or
release; and
(v) the disposition of any actions in which the child is
the subject;
(K) collecting and compiling statistical information from
the Department of Justice, the Department of Homeland
Security, and the Department of State on each department's
actions relating to unaccompanied alien children; and
(L) conducting investigations and inspections of facilities
and other entities in which unaccompanied alien children
reside.
(2) Coordination with other entities; no release on own
recognizance.--In making determinations described in
paragraph (1)(C), the Director of the Office of Refugee
Resettlement--
(A) shall consult with appropriate juvenile justice
professionals, the Director of the Bureau of Citizenship and
Immigration Services, and the Assistant Secretary of the
Bureau of Border Security to ensure that such determinations
ensure that unaccompanied alien children described in such
subparagraph--
(i) are likely to appear for all hearings or proceedings in
which they are involved;
(ii) are protected from smugglers, traffickers, or others
who might seek to victimize or otherwise engage them in
criminal, harmful, or exploitive activity; and
(iii) are placed in a setting in which they not likely to
pose a danger to themselves or others; and
(B) shall not release such children upon their own
recognizance.
(3) Duties with respect to foster care.--In carrying out
the duties described in paragraph (1)(G), the Director of the
Office of Refugee Resettlement is encouraged to use the
refugee children foster care system established pursuant to
section 412(d) of the Immigration and Nationality Act (8
U.S.C. 1522(d)) for the placement of unaccompanied alien
children.
(c) Rule of Construction.--Nothing in this section may be
construed to transfer the responsibility for adjudicating
benefit determinations under the Immigration and Nationality
Act (8 U.S.C. 1101 et seq.) from the authority of any
official of the Department of Justice, the Department of
Homeland Security, or the Department of State.
(d) Effective Date.--Notwithstanding section 4, this
section shall take effect on the date on which the transfer
of functions specified under section 441 takes effect.
(e) References.--With respect to any function transferred
by this section, any reference in any other Federal law,
Executive order, rule, regulation, or delegation of
authority, or any document of or pertaining to a component of
government from which such function is transferred--
(1) to the head of such component is deemed to refer to the
Director of the Office of Refugee Resettlement; or
(2) to such component is deemed to refer to the Office of
Refugee Resettlement of the Department of Health and Human
Services.
(f) Other Transition Issues.--
(1) Exercise of authorities.--Except as otherwise provided
by law, a Federal official to whom a function is transferred
by this section may, for purposes of performing the function,
exercise all authorities under any other provision of law
that were available with respect to the performance of that
function to the official responsible for the performance of
the function immediately before the effective date specified
in subsection (d).
(2) Savings provisions.--Subsections (a), (b), and (c) of
section 1512 shall apply to a transfer of functions under
this section in the same manner as such provisions apply to a
transfer of functions under this Act to the Department of
Homeland Security.
(3) Transfer and allocation of appropriations and
personnel.--The personnel of the Department of Justice
employed in connection with the functions transferred by this
section, and the assets, liabilities, contracts, property,
records, and unexpended balance of appropriations,
authorizations, allocations, and other funds employed, held,
used, arising from, available to, or to be made available to,
the Immigration and Naturalization Service in connection with
the functions transferred by this section, subject to section
202 of the Budget and Accounting Procedures Act of 1950,
shall be transferred to the Director of the Office of Refugee
Resettlement for allocation to the appropriate component of
the Department of Health and Human Services. Unexpended funds
transferred pursuant to this paragraph shall be used only for
the purposes for which the funds were originally authorized
and appropriated.
(g) Definitions.--As used in this section--
(1) the term ``placement'' means the placement of an
unaccompanied alien child in either a detention facility or
an alternative to such a facility; and
(2) the term ``unaccompanied alien child'' means a child
who--
(A) has no lawful immigration status in the United States;
(B) has not attained 18 years of age; and
(C) with respect to whom--
(i) there is no parent or legal guardian in the United
States; or
(ii) no parent or legal guardian in the United States is
available to provide care and physical custody.

Subtitle F--General Immigration Provisions

SEC. 471. ABOLISHMENT OF INS.

(a) In General.--Upon completion of all transfers from the
Immigration and Naturalization Service as provided for by
this Act, the Immigration and Naturalization Service of the
Department of Justice is abolished.
(b) Prohibition.--The authority provided by section 1502
may be used to reorganize functions or organizational units
within the Bureau of Border Security or the Bureau of
Citizenship and Immigration Services, but may not be used to
recombine the two bureaus into a single agency or otherwise
to combine, join, or consolidate functions or organizational
units of the two bureaus with each other.

SEC. 472. VOLUNTARY SEPARATION INCENTIVE PAYMENTS.

(a) Definitions.--For purposes of this section--
(1) the term ``employee'' means an employee (as defined by
section 2105 of title 5, United States Code) who--
(A) has completed at least 3 years of current continuous
service with 1 or more covered entities; and
(B) is serving under an appointment without time
limitation;

but does not include any person under subparagraphs (A)-(G)
of section 663(a)(2) of Public Law 104-208 (5 U.S.C. 5597
note);
(2) the term ``covered entity'' means--
(A) the Immigration and Naturalization Service;
(B) the Bureau of Border Security of the Department of
Homeland Security; and
(C) the Bureau of Citizenship and Immigration Services of
the Department of Homeland Security; and
(3) the term ``transfer date'' means the date on which the
transfer of functions specified under section 441 takes
effect.
(b) Strategic Restructuring Plan.--Before the Attorney
General or the Secretary obligates any resources for
voluntary separation incentive payments under this section,
such official shall submit to the appropriate committees of
Congress a strategic restructuring plan, which shall
include--
(1) an organizational chart depicting the covered entities
after their restructuring pursuant to this Act;

[[Page S11482]]

(2) a summary description of how the authority under this
section will be used to help carry out that restructuring;
and
(3) the information specified in section 663(b)(2) of
Public Law 104-208 (5 U.S.C. 5597 note).

As used in the preceding sentence, the ``appropriate
committees of Congress'' are the Committees on
Appropriations, Government Reform, and the Judiciary of the
House of Representatives, and the Committees on
Appropriations, Governmental Affairs, and the Judiciary of
the Senate.
(c) Authority.--The Attorney General and the Secretary may,
to the extent necessary to help carry out their respective
strategic restructuring plan described in subsection (b),
make voluntary separation incentive payments to employees.
Any such payment--
(1) shall be paid to the employee, in a lump sum, after the
employee has separated from service;
(2) shall be paid from appropriations or funds available
for the payment of basic pay of the employee;
(3) shall be equal to the lesser of--
(A) the amount the employee would be entitled to receive
under section 5595(c) of title 5, United States Code; or
(B) an amount not to exceed $25,000, as determined by the
Attorney General or the Secretary;
(4) may not be made except in the case of any qualifying
employee who voluntarily separates (whether by retirement or
resignation) before the end of--
(A) the 3-month period beginning on the date on which such
payment is offered or made available to such employee; or
(B) the 3-year period beginning on the date of the
enactment of this Act,

whichever occurs first;
(5) shall not be a basis for payment, and shall not be
included in the computation, of any other type of Government
benefit; and
(6) shall not be taken into account in determining the
amount of any severance pay to which the employee may be
entitled under section 5595 of title 5, United States Code,
based on any other separation.
(d) Additional Agency Contributions to the Retirement
Fund.--
(1) In general.--In addition to any payments which it is
otherwise required to make, the Department of Justice and the
Department of Homeland Security shall, for each fiscal year
with respect to which it makes any voluntary separation
incentive payments under this section, remit to the Office of
Personnel Management for deposit in the Treasury of the
United States to the credit of the Civil Service Retirement
and Disability Fund the amount required under paragraph (2).
(2) Amount required.--The amount required under this
paragraph shall, for any fiscal year, be the amount under
subparagraph (A) or (B), whichever is greater.
(A) First method.--The amount under this subparagraph
shall, for any fiscal year, be equal to the minimum amount
necessary to offset the additional costs to the retirement
systems under title 5, United States Code (payable out of the
Civil Service Retirement and Disability Fund) resulting from
the voluntary separation of the employees described in
paragraph (3), as determined under regulations of the Office
of Personnel Management.
(B) Second method.--The amount under this subparagraph
shall, for any fiscal year, be equal to 45 percent of the sum
total of the final basic pay of the employees described in
paragraph (3).
(3) Computations to be based on separations occurring in
the fiscal year involved.--The employees described in this
paragraph are those employees who receive a voluntary
separation incentive payment under this section based on
their separating from service during the fiscal year with
respect to which the payment under this subsection relates.
(4) Final basic pay defined.--In this subsection, the term
``final basic pay'' means, with respect to an employee, the
total amount of basic pay which would be payable for a year
of service by such employee, computed using the employee's
final rate of basic pay, and, if last serving on other than a
full-time basis, with appropriate adjustment therefor.
(e) Effect of Subsequent Employment with the Government.--
An individual who receives a voluntary separation incentive
payment under this section and who, within 5 years after the
date of the separation on which the payment is based, accepts
any compensated employment with the Government or works for
any agency of the Government through a personal services
contract, shall be required to pay, prior to the individual's
first day of employment, the entire amount of the incentive
payment. Such payment shall be made to the covered entity
from which the individual separated or, if made on or after
the transfer date, to the Deputy Secretary or the Under
Secretary for Border and Transportation Security (for
transfer to the appropriate component of the Department of
Homeland Security, if necessary).
(f) Effect on Employment Levels.--
(1) Intended effect.--Voluntary separations under this
section are not intended to necessarily reduce the total
number of full-time equivalent positions in any covered
entity.
(2) Use of voluntary separations.--A covered entity may
redeploy or use the full-time equivalent positions vacated by
voluntary separations under this section to make other
positions available to more critical locations or more
critical occupations.

SEC. 473. AUTHORITY TO CONDUCT A DEMONSTRATION PROJECT
RELATING TO DISCIPLINARY ACTION.

(a) In General.--The Attorney General and the Secretary may
each, during a period ending not later than 5 years after the
date of the enactment of this Act, conduct a demonstration
project for the purpose of determining whether one or more
changes in the policies or procedures relating to methods for
disciplining employees would result in improved personnel
management.
(b) Scope.--A demonstration project under this section--
(1) may not cover any employees apart from those employed
in or under a covered entity; and
(2) shall not be limited by any provision of chapter 43,
75, or 77 of title 5, United States Code.
(c) Procedures.--Under the demonstration project--
(1) the use of alternative means of dispute resolution (as
defined in section 571 of title 5, United States Code) shall
be encouraged, whenever appropriate; and
(2) each covered entity under the jurisdiction of the
official conducting the project shall be required to provide
for the expeditious, fair, and independent review of any
action to which section 4303 or subchapter II of chapter 75
of such title 5 would otherwise apply (except an action
described in section 7512(5) of such title 5).
(d) Actions Involving Discrimination.--Notwithstanding any
other provision of this section, if, in the case of any
matter described in section 7702(a)(1)(B) of title 5, United
States Code, there is no judicially reviewable action under
the demonstration project within 120 days after the filing of
an appeal or other formal request for review (referred to in
subsection (c)(2)), an employee shall be entitled to file a
civil action to the same extent and in the same manner as
provided in section 7702(e)(1) of such title 5 (in the matter
following subparagraph (C) thereof).
(e) Certain Employees.--Employees shall not be included
within any project under this section if such employees are--
(1) neither managers nor supervisors; and
(2) within a unit with respect to which a labor
organization is accorded exclusive recognition under chapter
71 of title 5, United States Code.

Notwithstanding the preceding sentence, an aggrieved employee
within a unit (referred to in paragraph (2)) may elect to
participate in a complaint procedure developed under the
demonstration project in lieu of any negotiated grievance
procedure and any statutory procedure (as such term is used
in section 7121 of such title 5).
(f) Reports.--The General Accounting Office shall prepare
and submit to the Committees on Government Reform and the
Judiciary of the House of Representatives and the Committees
on Governmental Affairs and the Judiciary of the Senate
periodic reports on any demonstration project conducted under
this section, such reports to be submitted after the second
and fourth years of its operation. Upon request, the Attorney
General or the Secretary shall furnish such information as
the General Accounting Office may require to carry out this
subsection.
(g) Definition.--In this section, the term ``covered
entity'' has the meaning given such term in section
472(a)(2).

SEC. 474. SENSE OF CONGRESS.

It is the sense of Congress that--
(1) the missions of the Bureau of Border Security and the
Bureau of Citizenship and Immigration Services are equally
important and, accordingly, they each should be adequately
funded; and
(2) the functions transferred under this subtitle should
not, after such transfers take effect, operate at levels
below those in effect prior to the enactment of this Act.

SEC. 475. DIRECTOR OF SHARED SERVICES.

(a) In General.--Within the Office of Deputy Secretary,
there shall be a Director of Shared Services.
(b) Functions.--The Director of Shared Services shall be
responsible for the coordination of resources for the Bureau
of Border Security and the Bureau of Citizenship and
Immigration Services, including--
(1) information resources management, including computer
databases and information technology;
(2) records and file management; and
(3) forms management.

SEC. 476. SEPARATION OF FUNDING.

(a) In General.--There shall be established separate
accounts in the Treasury of the United States for
appropriated funds and other deposits available for the
Bureau of Citizenship and Immigration Services and the Bureau
of Border Security.
(b) Separate Budgets.--To ensure that the Bureau of
Citizenship and Immigration Services and the Bureau of Border
Security are funded to the extent necessary to fully carry
out their respective functions, the Director of the Office of
Management and Budget shall separate the budget requests for
each such entity.
(c) Fees.--Fees imposed for a particular service,
application, or benefit shall be deposited into the account
established under subsection (a) that is for the bureau with
jurisdiction over the function to which the fee relates.
(d) Fees Not Transferable.--No fee may be transferred
between the Bureau of Citizenship and Immigration Services
and the Bureau of Border Security for purposes not authorized
by section 286 of the Immigration and Nationality Act (8
U.S.C. 1356).

SEC. 477. REPORTS AND IMPLEMENTATION PLANS.

(a) Division of Funds.--The Secretary, not later than 120
days after the effective date of this Act, shall submit to
the Committees on Appropriations and the Judiciary of the
House of Representatives and of the Senate a report on the
proposed division and transfer of funds, including unexpended
funds, appropriations, and fees, between the Bureau of
Citizenship and Immigration Services and the Bureau of Border
Security.

[[Page S11483]]

(b) Division of Personnel.--The Secretary, not later than
120 days after the effective date of this Act, shall submit
to the Committees on Appropriations and the Judiciary of the
House of Representatives and of the Senate a report on the
proposed division of personnel between the Bureau of
Citizenship and Immigration Services and the Bureau of Border
Security.
(c) Implementation Plan.--
(1) In general.--The Secretary, not later than 120 days
after the effective date of this Act, and every 6 months
thereafter until the termination of fiscal year 2005, shall
submit to the Committees on Appropriations and the Judiciary
of the House of Representatives and of the Senate an
implementation plan to carry out this Act.
(2) Contents.--The implementation plan should include
details concerning the separation of the Bureau of
Citizenship and Immigration Services and the Bureau of Border
Security, including the following:
(A) Organizational structure, including the field
structure.
(B) Chain of command.
(C) Procedures for interaction among such bureaus.
(D) Fraud detection and investigation.
(E) The processing and handling of removal proceedings,
including expedited removal and applications for relief from
removal.
(F) Recommendations for conforming amendments to the
Immigration and Nationality Act (8 U.S.C. 1101 et seq.).
(G) Establishment of a transition team.
(H) Methods to phase in the costs of separating the
administrative support systems of the Immigration and
Naturalization Service in order to provide for separate
administrative support systems for the Bureau of Citizenship
and Immigration Services and the Bureau of Border Security.
(d) Comptroller General Studies and Reports.--
(1) Status reports on transition.--Not later than 18 months
after the date on which the transfer of functions specified
under section 441 takes effect, and every 6 months
thereafter, until full implementation of this subtitle has
been completed, the Comptroller General of the United States
shall submit to the Committees on Appropriations and on the
Judiciary of the House of Representatives and the Senate a
report containing the following:
(A) A determination of whether the transfers of functions
made by subtitles D and E have been completed, and if a
transfer of functions has not taken place, identifying the
reasons why the transfer has not taken place.
(B) If the transfers of functions made by subtitles D and E
have been completed, an identification of any issues that
have arisen due to the completed transfers.
(C) An identification of any issues that may arise due to
any future transfer of functions.
(2) Report on management.--Not later than 4 years after the
date on which the transfer of functions specified under
section 441 takes effect, the Comptroller General of the
United States shall submit to the Committees on
Appropriations and on the Judiciary of the House of
Representatives and the Senate a report, following a study,
containing the following:
(A) Determinations of whether the transfer of functions
from the Immigration and Naturalization Service to the Bureau
of Citizenship and Immigration Services and the Bureau of
Border Security have improved, with respect to each function
transferred, the following:
(i) Operations.
(ii) Management, including accountability and
communication.
(iii) Financial administration.
(iv) Recordkeeping, including information management and
technology.
(B) A statement of the reasons for the determinations under
subparagraph (A).
(C) Any recommendations for further improvements to the
Bureau of Citizenship and Immigration Services and the Bureau
of Border Security.
(3) Report on fees.--Not later than 1 year after the date
of the enactment of this Act, the Comptroller General of the
United States shall submit to the Committees on the Judiciary
of the House of Representatives and of the Senate a report
examining whether the Bureau of Citizenship and Immigration
Services is likely to derive sufficient funds from fees to
carry out its functions in the absence of appropriated funds.

SEC. 478. IMMIGRATION FUNCTIONS.

(a) Annual Report.--
(1) In general.--One year after the date of the enactment
of this Act, and each year thereafter, the Secretary shall
submit a report to the President, to the Committees on the
Judiciary and Government Reform of the House of
Representatives, and to the Committees on the Judiciary and
Government Affairs of the Senate, on the impact the transfers
made by this subtitle has had on immigration functions.
(2) Matter included.--The report shall address the
following with respect to the period covered by the report:
(A) The aggregate number of all immigration applications
and petitions received, and processed, by the Department;
(B) Region-by-region statistics on the aggregate number of
immigration applications and petitions filed by an alien (or
filed on behalf of an alien) and denied, disaggregated by
category of denial and application or petition type.
(C) The quantity of backlogged immigration applications and
petitions that have been processed, the aggregate number
awaiting processing, and a detailed plan for eliminating the
backlog.
(D) The average processing period for immigration
applications and petitions, disaggregated by application or
petition type.
(E) The number and types of immigration-related grievances
filed with any official of the Department of Justice, and if
those grievances were resolved.
(F) Plans to address grievances and improve immigration
services.
(G) Whether immigration-related fees were used consistent
with legal requirements regarding such use.
(H) Whether immigration-related questions conveyed by
customers to the Department (whether conveyed in person, by
telephone, or by means of the Internet) were answered
effectively and efficiently.
(b) Sense of Congress Regarding Immigration Services.--It
is the sense of Congress that--
(1) the quality and efficiency of immigration services
rendered by the Federal Government should be improved after
the transfers made by this subtitle take effect; and
(2) the Secretary should undertake efforts to guarantee
that concerns regarding the quality and efficiency of
immigration services are addressed after such effective date.

TITLE V--EMERGENCY PREPAREDNESS AND RESPONSE

SEC. 501. UNDER SECRETARY FOR EMERGENCY PREPAREDNESS AND
RESPONSE.

There shall be in the Department a Directorate of Emergency
Preparedness and Response headed by an Under Secretary for
Emergency Preparedness and Response.

SEC. 502. RESPONSIBILITIES.

The Secretary, acting through the Under Secretary for
Emergency Preparedness and Response, shall include--
(1) helping to ensure the effectiveness of emergency
response providers to terrorist attacks, major disasters, and
other emergencies;
(2) with respect to the Nuclear Incident Response Team
(regardless of whether it is operating as an organizational
unit of the Department pursuant to this title)--
(A) establishing standards and certifying when those
standards have been met;
(B) conducting joint and other exercises and training and
evaluating performance; and
(C) providing funds to the Department of Energy and the
Environmental Protection Agency, as appropriate, for homeland
security planning, exercises and training, and equipment;
(3) providing the Federal Government's response to
terrorist attacks and major disasters, including--
(A) managing such response;
(B) directing the Domestic Emergency Support Team, the
Strategic National Stockpile, the National Disaster Medical
System, and (when operating as an organizational unit of the
Department pursuant to this title) the Nuclear Incident
Response Team;
(C) overseeing the Metropolitan Medical Response System;
and
(D) coordinating other Federal response resources in the
event of a terrorist attack or major disaster;
(4) aiding the recovery from terrorist attacks and major
disasters;
(5) building a comprehensive national incident management
system with Federal, State, and local government personnel,
agencies, and authorities, to respond to such attacks and
disasters;
(6) consolidating existing Federal Government emergency
response plans into a single, coordinated national response
plan; and
(7) developing comprehensive programs for developing
interoperative communications technology, and helping to
ensure that emergency response providers acquire such
technology.

SEC. 503. FUNCTIONS TRANSFERRED.

In accordance with title XV, there shall be transferred to
the Secretary the functions, personnel, assets, and
liabilities of the following entities:
(1) The Federal Emergency Management Agency, including the
functions of the Director of the Federal Emergency Management
Agency relating thereto.
(2) The Integrated Hazard Information System of the
National Oceanic and Atmospheric Administration, which shall
be renamed ``FIRESAT''.
(3) The National Domestic Preparedness Office of the
Federal Bureau of Investigation, including the functions of
the Attorney General relating thereto.
(4) The Domestic Emergency Support Teams of the Department
of Justice, including the functions of the Attorney General
relating thereto.
(5) The Office of Emergency Preparedness, the National
Disaster Medical System, and the Metropolitan Medical
Response System of the Department of Health and Human
Services, including the functions of the Secretary of Health
and Human Services and the Assistant Secretary for Public
Health Emergency Preparedness relating thereto.
(6) The Strategic National Stockpile of the Department of
Health and Human Services, including the functions of the
Secretary of Health and Human Services relating thereto.

SEC. 504. NUCLEAR INCIDENT RESPONSE.

(a) In General.--At the direction of the Secretary (in
connection with an actual or threatened terrorist attack,
major disaster, or other emergency in the United States), the
Nuclear Incident Response Team shall operate as an
organizational unit of the Department. While so operating,
the Nuclear Incident Response Team shall be subject to the
direction, authority, and control of the Secretary.
(b) Rule of Construction.--Nothing in this title shall be
construed to limit the ordinary responsibility of the
Secretary of Energy and the Administrator of the
Environmental Protection Agency for organizing, training,
equipping, and utilizing their respective entities in the
Nuclear Incident Response Team, or (subject to the provisions
of this title) from exercising direction, authority, and
control over them when they are not operating as a unit of
the Department.

[[Page S11484]]

SEC. 505. CONDUCT OF CERTAIN PUBLIC HEALTH-RELATED
ACTIVITIES.

(a) In General.--With respect to all public health-related
activities to improve State, local, and hospital preparedness
and response to chemical, biological, radiological, and
nuclear and other emerging terrorist threats carried out by
the Department of Health and Human Services (including the
Public Health Service), the Secretary of Health and Human
Services shall set priorities and preparedness goals and
further develop a coordinated strategy for such activities in
collaboration with the Secretary.
(b) Evaluation of Progress.--In carrying out subsection
(a), the Secretary of Health and Human Services shall
collaborate with the Secretary in developing specific
benchmarks and outcome measurements for evaluating progress
toward achieving the priorities and goals described in such
subsection.

SEC. 506. DEFINITION.

In this title, the term ``Nuclear Incident Response Team''
means a resource that includes--
(1) those entities of the Department of Energy that perform
nuclear or radiological emergency support functions
(including accident response, search response, advisory, and
technical operations functions), radiation exposure functions
at the medical assistance facility known as the Radiation
Emergency Assistance Center/Training Site (REAC/TS),
radiological assistance functions, and related functions; and
(2) those entities of the Environmental Protection Agency
that perform such support functions (including radiological
emergency response functions) and related functions.

SEC. 507. ROLE OF FEDERAL EMERGENCY MANAGEMENT AGENCY.

(a) In General.--The functions of the Federal Emergency
Management Agency include the following:
(1) All functions and authorities prescribed by the Robert
T. Stafford Disaster Relief and Emergency Assistance Act (42
U.S.C. 5121 et seq.).
(2) Carrying out its mission to reduce the loss of life and
property and protect the Nation from all hazards by leading
and supporting the Nation in a comprehensive, risk-based
emergency management program--
(A) of mitigation, by taking sustained actions to reduce or
eliminate long-term risk to people and property from hazards
and their effects;
(B) of planning for building the emergency management
profession to prepare effectively for, mitigate against,
respond to, and recover from any hazard;
(C) of response, by conducting emergency operations to save
lives and property through positioning emergency equipment
and supplies, through evacuating potential victims, through
providing food, water, shelter, and medical care to those in
need, and through restoring critical public services;
(D) of recovery, by rebuilding communities so individuals,
businesses, and governments can function on their own, return
to normal life, and protect against future hazards; and
(E) of increased efficiencies, by coordinating efforts
relating to mitigation, planning, response, and recovery.
(b) Federal Response Plan.--
(1) Role of fema.--Notwithstanding any other provision of
this Act, the Federal Emergency Management Agency shall
remain the lead agency for the Federal Response Plan
established under Executive Order 12148 (44 Fed. Reg. 43239)
and Executive Order 12656 (53 Fed. Reg. 47491).
(2) Revision of response plan.--Not later than 60 days
after the date of enactment of this Act, the Director of the
Federal Emergency Management Agency shall revise the Federal
Response Plan to reflect the establishment of and incorporate
the Department.

SEC. 508. USE OF NATIONAL PRIVATE SECTOR NETWORKS IN
EMERGENCY RESPONSE.

To the maximum extent practicable, the Secretary shall use
national private sector networks and infrastructure for
emergency response to chemical, biological, radiological,
nuclear, or explosive disasters, and other major disasters.

SEC. 509. USE OF COMMERCIALLY AVAILABLE TECHNOLOGY, GOODS,
AND SERVICES.

It is the sense of Congress that--
(1) the Secretary should, to the maximum extent possible,
use off-the-shelf commercially developed technologies to
ensure that the Department's information technology systems
allow the Department to collect, manage, share, analyze, and
disseminate information securely over multiple channels of
communication; and
(2) in order to further the policy of the United States to
avoid competing commercially with the private sector, the
Secretary should rely on commercial sources to supply the
goods and services needed by the Department.

TITLE VI--TREATMENT OF CHARITABLE TRUSTS FOR MEMBERS OF THE ARMED
FORCES OF THE UNITED STATES AND OTHER GOVERNMENTAL ORGANIZATIONS

SEC. 601. TREATMENT OF CHARITABLE TRUSTS FOR MEMBERS OF THE
ARMED FORCES OF THE UNITED STATES AND OTHER
GOVERNMENTAL ORGANIZATIONS.

(a) Findings.--Congress finds the following:
(1) Members of the Armed Forces of the United States defend
the freedom and security of our Nation.
(2) Members of the Armed Forces of the United States have
lost their lives while battling the evils of terrorism around
the world.
(3) Personnel of the Central Intelligence Agency (CIA)
charged with the responsibility of covert observation of
terrorists around the world are often put in harm's way
during their service to the United States.
(4) Personnel of the Central Intelligence Agency have also
lost their lives while battling the evils of terrorism around
the world.
(5) Employees of the Federal Bureau of Investigation (FBI)
and other Federal agencies charged with domestic protection
of the United States put their lives at risk on a daily basis
for the freedom and security of our Nation.
(6) United States military personnel, CIA personnel, FBI
personnel, and other Federal agents in the service of the
United States are patriots of the highest order.
(7) CIA officer Johnny Micheal Spann became the first
American to give his life for his country in the War on
Terrorism declared by President George W. Bush following the
terrorist attacks of September 11, 2001.
(8) Johnny Micheal Spann left behind a wife and children
who are very proud of the heroic actions of their patriot
father.
(9) Surviving dependents of members of the Armed Forces of
the United States who lose their lives as a result of
terrorist attacks or military operations abroad receive a
$6,000 death benefit, plus a small monthly benefit.
(10) The current system of compensating spouses and
children of American patriots is inequitable and needs
improvement.
(b) Designation of Johnny Micheal Spann Patriot Trusts.--
Any charitable corporation, fund, foundation, or trust (or
separate fund or account thereof) which otherwise meets all
applicable requirements under law with respect to charitable
entities and meets the requirements described in subsection
(c) shall be eligible to characterize itself as a ``Johnny
Micheal Spann Patriot Trust''.
(c) Requirements for the Designation of Johnny Micheal
Spann Patriot Trusts.--The requirements described in this
subsection are as follows:
(1) Not taking into account funds or donations reasonably
necessary to establish a trust, at least 85 percent of all
funds or donations (including any earnings on the investment
of such funds or donations) received or collected by any
Johnny Micheal Spann Patriot Trust must be distributed to
(or, if placed in a private foundation, held in trust for)
surviving spouses, children, or dependent parents,
grandparents, or siblings of 1 or more of the following:
(A) members of the Armed Forces of the United States;
(B) personnel, including contractors, of elements of the
intelligence community, as defined in section 3(4) of the
National Security Act of 1947;
(C) employees of the Federal Bureau of Investigation; and
(D) officers, employees, or contract employees of the
United States Government,

whose deaths occur in the line of duty and arise out of
terrorist attacks, military operations, intelligence
operations, or law enforcement operations or accidents
connected with activities occurring after September 11, 2001,
and related to domestic or foreign efforts to curb
international terrorism, including the Authorization for Use
of Military Force (Public Law 107-40; 115 Stat. 224).
(2) Other than funds or donations reasonably necessary to
establish a trust, not more than 15 percent of all funds or
donations (or 15 percent of annual earnings on funds invested
in a private foundation) may be used for administrative
purposes.
(3) No part of the net earnings of any Johnny Micheal Spann
Patriot Trust may inure to the benefit of any individual
based solely on the position of such individual as a
shareholder, an officer or employee of such Trust.
(4) None of the activities of any Johnny Micheal Spann
Patriot Trust shall be conducted in a manner inconsistent
with any law that prohibits attempting to influence
legislation.
(5) No Johnny Micheal Spann Patriot Trust may participate
in or intervene in any political campaign on behalf of (or in
opposition to) any candidate for public office, including by
publication or distribution of statements.
(6) Each Johnny Micheal Spann Patriot Trust shall comply
with the instructions and directions of the Director of
Central Intelligence, the Attorney General, or the Secretary
of Defense relating to the protection of intelligence sources
and methods, sensitive law enforcement information, or other
sensitive national security information, including methods
for confidentially disbursing funds.
(7) Each Johnny Micheal Spann Patriot Trust that receives
annual contributions totaling more than $1,000,000 must be
audited annually by an independent certified public
accounting firm. Such audits shall be filed with the Internal
Revenue Service, and shall be open to public inspection,
except that the conduct, filing, and availability of the
audit shall be consistent with the protection of intelligence
sources and methods, of sensitive law enforcement
information, and of other sensitive national security
information.
(8) Each Johnny Micheal Spann Patriot Trust shall make
distributions to beneficiaries described in paragraph (1) at
least once every calendar year, beginning not later than 12
months after the formation of such Trust, and all funds and
donations received and earnings not placed in a private
foundation dedicated to such beneficiaries must be
distributed within 36 months after the end of the fiscal year
in which such funds, donations, and earnings are received.
(9)(A) When determining the amount of a distribution to any
beneficiary described in paragraph (1), a Johnny Micheal
Spann Patriot Trust should take into account the amount of
any collateral source compensation that the beneficiary has
received or is entitled to receive as a result of the death
of an individual described in paragraph (1).
(B) Collateral source compensation includes all
compensation from collateral sources, including life
insurance, pension funds, death benefit programs, and
payments by Federal, State, or local governments related to
the death of an individual described in paragraph (1).

[[Page S11485]]

(d) Treatment of Johnny Micheal Spann Patriot Trusts.--Each
Johnny Micheal Spann Patriot Trust shall refrain from
conducting the activities described in clauses (i) and (ii)
of section 301(20)(A) of the Federal Election Campaign Act of
1971 so that a general solicitation of funds by an individual
described in paragraph (1) of section 323(e) of such Act will
be permissible if such solicitation meets the requirements of
paragraph (4)(A) of such section.
(e) Notification of Trust Beneficiaries.--Notwithstanding
any other provision of law, and in a manner consistent with
the protection of intelligence sources and methods and
sensitive law enforcement information, and other sensitive
national security information, the Secretary of Defense, the
Director of the Federal Bureau of Investigation, or the
Director of Central Intelligence, or their designees, as
applicable, may forward information received from an
executor, administrator, or other legal representative of the
estate of a decedent described in subparagraph (A), (B), (C),
or (D) of subsection (c)(1), to a Johnny Micheal Spann
Patriot Trust on how to contact individuals eligible for a
distribution under subsection (c)(1) for the purpose of
providing assistance from such Trust; provided that, neither
forwarding nor failing to forward any information under this
subsection shall create any cause of action against any
Federal department, agency, officer, agent, or employee.
(f) Regulations.--Not later than 90 days after the date of
enactment of this Act, the Secretary of Defense, in
coordination with the Attorney General, the Director of the
Federal Bureau of Investigation, and the Director of Central
Intelligence, shall prescribe regulations to carry out this
section.

TITLE VII--MANAGEMENT

SEC. 701. UNDER SECRETARY FOR MANAGEMENT.

(a) In General.--The Secretary, acting through the Under
Secretary for Management, shall be responsible for the
management and administration of the Department, including
the following:
(1) The budget, appropriations, expenditures of funds,
accounting, and finance.
(2) Procurement.
(3) Human resources and personnel.
(4) Information technology and communications systems.
(5) Facilities, property, equipment, and other material
resources.
(6) Security for personnel, information technology and
communications systems, facilities, property, equipment, and
other material resources.
(7) Identification and tracking of performance measures
relating to the responsibilities of the Department.
(8) Grants and other assistance management programs.
(9) The transition and reorganization process, to ensure an
efficient and orderly transfer of functions and personnel to
the Department, including the development of a transition
plan.
(10) The conduct of internal audits and management analyses
of the programs and activities of the Department.
(11) Any other management duties that the Secretary may
designate.
(b) Immigration.--
(1) In general.--In addition to the responsibilities
described in subsection (a), the Under Secretary for
Management shall be responsible for the following:
(A) Maintenance of all immigration statistical information
of the Bureau of Border Security and the Bureau of
Citizenship and Immigration Services. Such statistical
information shall include information and statistics of the
type contained in the publication entitled ``Statistical
Yearbook of the Immigration and Naturalization Service''
prepared by the Immigration and Naturalization Service (as in
effect immediately before the date on which the transfer of
functions specified under section 441 takes effect),
including region-by-region statistics on the aggregate number
of applications and petitions filed by an alien (or filed on
behalf of an alien) and denied by such bureau, and the
reasons for such denials, disaggregated by category of denial
and application or petition type.
(B) Establishment of standards of reliability and validity
for immigration statistics collected by such bureaus.
(2) Transfer of functions.--In accordance with title XV,
there shall be transferred to the Under Secretary for
Management all functions performed immediately before such
transfer occurs by the Statistics Branch of the Office of
Policy and Planning of the Immigration and Naturalization
Service with respect to the following programs:
(A) The Border Patrol program.
(B) The detention and removal program.
(C) The intelligence program.
(D) The investigations program.
(E) The inspections program.
(F) Adjudication of immigrant visa petitions.
(G) Adjudication of naturalization petitions.
(H) Adjudication of asylum and refugee applications.
(I) Adjudications performed at service centers.
(J) All other adjudications performed by the Immigration
and Naturalization Service.

SEC. 702. CHIEF FINANCIAL OFFICER.

The Chief Financial Officer shall report to the Secretary,
or to another official of the Department, as the Secretary
may direct.

SEC. 703. CHIEF INFORMATION OFFICER.

The Chief Information Officer shall report to the
Secretary, or to another official of the Department, as the
Secretary may direct.

SEC. 704. CHIEF HUMAN CAPITAL OFFICER.

The Chief Human Capital Officer shall report to the
Secretary, or to another official of the Department, as the
Secretary may direct and shall ensure that all employees of
the Department are informed of their rights and remedies
under chapters 12 and 23 of title 5, United States Code, by--
(1) participating in the 2302(c) Certification Program of
the Office of Special Counsel;
(2) achieving certification from the Office of Special
Counsel of the Department's compliance with section 2302(c)
of title 5, United States Code; and
(3) informing Congress of such certification not later than
24 months after the date of enactment of this Act.

SEC. 705. ESTABLISHMENT OF OFFICER FOR CIVIL RIGHTS AND CIVIL
LIBERTIES.

(a) In General.--The Secretary shall appoint in the
Department an Officer for Civil Rights and Civil Liberties,
who shall--
(1) review and assess information alleging abuses of civil
rights, civil liberties, and racial and ethnic profiling by
employees and officials of the Department; and
(2) make public through the Internet, radio, television, or
newspaper advertisements information on the responsibilities
and functions of, and how to contact, the Officer.
(b) Report.--The Secretary shall submit to the President of
the Senate, the Speaker of the House of Representatives, and
the appropriate committees and subcommittees of Congress on
an annual basis a report on the implementation of this
section, including the use of funds appropriated to carry out
this section, and detailing any allegations of abuses
described under subsection (a)(1) and any actions taken by
the Department in response to such allegations.

SEC. 706. CONSOLIDATION AND CO-LOCATION OF OFFICES.

Not later than 1 year after the date of the enactment of
this Act, the Secretary shall develop and submit to Congress
a plan for consolidating and co-locating--
(1) any regional offices or field offices of agencies that
are transferred to the Department under this Act, if such
officers are located in the same municipality; and
(2) portions of regional and field offices of other Federal
agencies, to the extent such offices perform functions that
are transferred to the Secretary under this Act.

TITLE VIII--COORDINATION WITH NON-FEDERAL ENTITIES; INSPECTOR GENERAL;
UNITED STATES SECRET SERVICE; COAST GUARD; GENERAL PROVISIONS

Subtitle A--Coordination with Non-Federal Entities

SEC. 801. OFFICE FOR STATE AND LOCAL GOVERNMENT COORDINATION.

(a) Establishment.--There is established within the Office
of the Secretary the Office for State and Local Government
Coordination, to oversee and coordinate departmental programs
for and relationships with State and local governments.
(b) Responsibilities.--The Office established under
subsection (a) shall--
(1) coordinate the activities of the Department relating to
State and local government;
(2) assess, and advocate for, the resources needed by State
and local government to implement the national strategy for
combating terrorism;
(3) provide State and local government with regular
information, research, and technical support to assist local
efforts at securing the homeland; and
(4) develop a process for receiving meaningful input from
State and local government to assist the development of the
national strategy for combating terrorism and other homeland
security activities.

Subtitle B--Inspector General

SEC. 811. AUTHORITY OF THE SECRETARY.

(a) In General.--Notwithstanding the last two sentences of
section 3(a) of the Inspector General Act of 1978, the
Inspector General shall be under the authority, direction,
and control of the Secretary with respect to audits or
investigations, or the issuance of subpoenas, that require
access to sensitive information concerning--
(1) intelligence, counterintelligence, or counterterrorism
matters;
(2) ongoing criminal investigations or proceedings;
(3) undercover operations;
(4) the identity of confidential sources, including
protected witnesses;
(5) other matters the disclosure of which would, in the
Secretary's judgment, constitute a serious threat to the
protection of any person or property authorized protection by
section 3056 of title 18, United States Code, section 202 of
title 3 of such Code, or any provision of the Presidential
Protection Assistance Act of 1976; or
(6) other matters the disclosure of which would, in the
Secretary's judgment, constitute a serious threat to national
security.
(b) Prohibition of Certain Investigations.--With respect to
the information described in subsection (a), the Secretary
may prohibit the Inspector General from carrying out or
completing any audit or investigation, or from issuing any
subpoena, after such Inspector General has decided to
initiate, carry out, or complete such audit or investigation
or to issue such subpoena, if the Secretary determines that
such prohibition is necessary to prevent the disclosure of
any information described in subsection (a), to preserve the
national security, or to prevent a significant impairment to
the interests of the United States.
(c) Notification Required.--If the Secretary exercises any
power under subsection (a) or (b), the Secretary shall notify
the Inspector General of the Department in writing stating
the reasons for such exercise. Within 30 days after receipt
of any such notice, the Inspector General shall transmit a
copy of such notice and a written response thereto that
includes--
(1) a statement as to whether the Inspector General agrees
or disagrees with such exercise; and

[[Page S11486]]

(2) the reasons for any disagreement, to the President of
the Senate and the Speaker of the House of Representatives
and to appropriate committees and subcommittees of Congress.
(d) Access to Information by Congress.--The exercise of
authority by the Secretary described in subsection (b) should
not be construed as limiting the right of Congress or any
committee of Congress to access any information it seeks.
(e) Oversight Responsibility--The Inspector General Act of
1978 (5 U.S.C. App.) is amended by inserting after section 8I
the following:

``special provisions concerning the department of homeland security

``Sec. 8J. Notwithstanding any other provision of law, in
carrying out the duties and responsibilities specified in
this Act, the Inspector General of the Department of Homeland
Security shall have oversight responsibility for the internal
investigations performed by the Office of Internal Affairs of
the United States Customs Service and the Office of
Inspections of the United States Secret Service. The head of
each such office shall promptly report to the Inspector
General the significant activities being carried out by such
office.''.

SEC. 812. LAW ENFORCEMENT POWERS OF INSPECTOR GENERAL AGENTS.

(a) In General.--Section 6 of the Inspector General Act of
1978 (5 U.S.C. App.) is amended by adding at the end the
following:
``(e)(1) In addition to the authority otherwise provided by
this Act, each Inspector General appointed under section 3,
any Assistant Inspector General for Investigations under such
an Inspector General, and any special agent supervised by
such an Assistant Inspector General may be authorized by the
Attorney General to--
``(A) carry a firearm while engaged in official duties as
authorized under this Act or other statute, or as expressly
authorized by the Attorney General;
``(B) make an arrest without a warrant while engaged in
official duties as authorized under this Act or other
statute, or as expressly authorized by the Attorney General,
for any offense against the United States committed in the
presence of such Inspector General, Assistant Inspector
General, or agent, or for any felony cognizable under the
laws of the United States if such Inspector General,
Assistant Inspector General, or agent has reasonable grounds
to believe that the person to be arrested has committed or is
committing such felony; and
``(C) seek and execute warrants for arrest, search of a
premises, or seizure of evidence issued under the authority
of the United States upon probable cause to believe that a
violation has been committed.
``(2) The Attorney General may authorize exercise of the
powers under this subsection only upon an initial
determination that--
``(A) the affected Office of Inspector General is
significantly hampered in the performance of responsibilities
established by this Act as a result of the lack of such
powers;
``(B) available assistance from other law enforcement
agencies is insufficient to meet the need for such powers;
and
``(C) adequate internal safeguards and management
procedures exist to ensure proper exercise of such powers.
``(3) The Inspector General offices of the Department of
Commerce, Department of Education, Department of Energy,
Department of Health and Human Services, Department of
Homeland Security, Department of Housing and Urban
Development, Department of the Interior, Department of
Justice, Department of Labor, Department of State, Department
of Transportation, Department of the Treasury, Department of
Veterans Affairs, Agency for International Development,
Environmental Protection Agency, Federal Deposit Insurance
Corporation, Federal Emergency Management Agency, General
Services Administration, National Aeronautics and Space
Administration, Nuclear Regulatory Commission, Office of
Personnel Management, Railroad Retirement Board, Small
Business Administration, Social Security Administration, and
the Tennessee Valley Authority are exempt from the
requirement of paragraph (2) of an initial determination of
eligibility by the Attorney General.
``(4) The Attorney General shall promulgate, and revise as
appropriate, guidelines which shall govern the exercise of
the law enforcement powers established under paragraph (1).
``(5)(A) Powers authorized for an Office of Inspector
General under paragraph (1) may be rescinded or suspended
upon a determination by the Attorney General that any of the
requirements under paragraph (2) is no longer satisfied or
that the exercise of authorized powers by that Office of
Inspector General has not complied with the guidelines
promulgated by the Attorney General under paragraph (4).
``(B) Powers authorized to be exercised by any individual
under paragraph (1) may be rescinded or suspended with
respect to that individual upon a determination by the
Attorney General that such individual has not complied with
guidelines promulgated by the Attorney General under
paragraph (4).
``(6) A determination by the Attorney General under
paragraph (2) or (5) shall not be reviewable in or by any
court.
``(7) To ensure the proper exercise of the law enforcement
powers authorized by this subsection, the Offices of
Inspector General described under paragraph (3) shall, not
later than 180 days after the date of enactment of this
subsection, collectively enter into a memorandum of
understanding to establish an external review process for
ensuring that adequate internal safeguards and management
procedures continue to exist within each Office and within
any Office that later receives an authorization under
paragraph (2). The review process shall be established in
consultation with the Attorney General, who shall be provided
with a copy of the memorandum of understanding that
establishes the review process. Under the review process, the
exercise of the law enforcement powers by each Office of
Inspector General shall be reviewed periodically by another
Office of Inspector General or by a committee of Inspectors
General. The results of each review shall be communicated in
writing to the applicable Inspector General and to the
Attorney General.
``(8) No provision of this subsection shall limit the
exercise of law enforcement powers established under any
other statutory authority, including United States Marshals
Service special deputation.''.
(b) Promulgation of Initial Guidelines.--
(1) Definition.--In this subsection, the term ``memoranda
of understanding'' means the agreements between the
Department of Justice and the Inspector General offices
described under section 6(e)(3) of the Inspector General Act
of 1978 (5 U.S.C. App) (as added by subsection (a) of this
section) that--
(A) are in effect on the date of enactment of this Act; and
(B) authorize such offices to exercise authority that is
the same or similar to the authority under section 6(e)(1) of
such Act.
(2) In general.--Not later than 180 days after the date of
enactment of this Act, the Attorney General shall promulgate
guidelines under section 6(e)(4) of the Inspector General Act
of 1978 (5 U.S.C. App) (as added by subsection (a) of this
section) applicable to the Inspector General offices
described under section 6(e)(3) of that Act.
(3) Minimum requirements.--The guidelines promulgated under
this subsection shall include, at a minimum, the operational
and training requirements in the memoranda of understanding.
(4) No lapse of authority.--The memoranda of understanding
in effect on the date of enactment of this Act shall remain
in effect until the guidelines promulgated under this
subsection take effect.
(c) Effective Dates.--
(1) In general.--Subsection (a) shall take effect 180 days
after the date of enactment of this Act.
(2) Initial guidelines.--Subsection (b) shall take effect
on the date of enactment of this Act.

Subtitle C--United States Secret Service

SEC. 821. FUNCTIONS TRANSFERRED.

In accordance with title XV, there shall be transferred to
the Secretary the functions, personnel, assets, and
obligations of the United States Secret Service, which shall
be maintained as a distinct entity within the Department,
including the functions of the Secretary of the Treasury
relating thereto.

Subtitle D--Acquisitions

SEC. 831. RESEARCH AND DEVELOPMENT PROJECTS.

(a) Authority.--During the 5-year period following the
effective date of this Act, the Secretary may carry out a
pilot program under which the Secretary may exercise the
following authorities:
(1) In general.--When the Secretary carries out basic,
applied, and advanced research and development projects,
including the expenditure of funds for such projects, the
Secretary may exercise the same authority (subject to the
same limitations and conditions) with respect to such
research and projects as the Secretary of Defense may
exercise under section 2371 of title 10, United States Code
(except for subsections (b) and (f)), after making a
determination that the use of a contract, grant, or
cooperative agreement for such project is not feasible or
appropriate. The annual report required under subsection (b)
of this section, as applied to the Secretary by this
paragraph, shall be submitted to the President of the Senate
and the Speaker of the House of Representatives.
(2) Prototype projects.--The Secretary may, under the
authority of paragraph (1), carry out prototype projects in
accordance with the requirements and conditions provided for
carrying out prototype projects under section 845 of the
National Defense Authorization Act for Fiscal Year 1994
(Public Law 103-160). In applying the authorities of that
section 845, subsection (c) of that section shall apply with
respect to prototype projects under this paragraph, and the
Secretary shall perform the functions of the Secretary of
Defense under subsection (d) thereof.
(b) Report.--Not later than 2 years after the effective
date of this Act, and annually thereafter, the Comptroller
General shall report to the Committee on Government Reform of
the House of Representatives and the Committee on
Governmental Affairs of the Senate on--
(1) whether use of the authorities described in subsection
(a) attracts nontraditional Government contractors and
results in the acquisition of needed technologies; and
(2) if such authorities were to be made permanent, whether
additional safeguards are needed with respect to the use of
such authorities.
(c) Procurement of Temporary and Intermittent Services.--
The Secretary may--
(1) procure the temporary or intermittent services of
experts or consultants (or organizations thereof) in
accordance with section 3109(b) of title 5, United States
Code; and
(2) whenever necessary due to an urgent homeland security
need, procure temporary (not to exceed 1 year) or
intermittent personal services, including the services of
experts or consultants (or organizations thereof), without
regard to the pay limitations of such section 3109.
(d) Definition of Nontraditional Government Contractor.--In
this section, the term ``nontraditional Government
contractor'' has the same meaning as the term
``nontraditional defense contractor'' as defined in section
845(e) of the National Defense Authorization Act for Fiscal
Year 1994 (Public Law 103-160; 10 U.S.C. 2371 note).

SEC. 832. PERSONAL SERVICES.

The Secretary--

[[Page S11487]]

(1) may procure the temporary or intermittent services of
experts or consultants (or organizations thereof) in
accordance with section 3109 of title 5, United States Code;
and
(2) may, whenever necessary due to an urgent homeland
security need, procure temporary (not to exceed 1 year) or
intermittent personal services, including the services of
experts or consultants (or organizations thereof), without
regard to the pay limitations of such section 3109.

SEC. 833. SPECIAL STREAMLINED ACQUISITION AUTHORITY.

(a) Authority.--
(1) In general.--The Secretary may use the authorities set
forth in this section with respect to any procurement made
during the period beginning on the effective date of this Act
and ending September 30, 2007, if the Secretary determines in
writing that the mission of the Department (as described in
section 101) would be seriously impaired without the use of
such authorities.
(2) Delegation.--The authority to make the determination
described in paragraph (1) may not be delegated by the
Secretary to an officer of the Department who is not
appointed by the President with the advice and consent of the
Senate.
(3) Notification.--Not later than the date that is 7 days
after the date of any determination under paragraph (1), the
Secretary shall submit to the Committee on Government Reform
of the House of Representatives and the Committee on
Governmental Affairs of the Senate--
(A) notification of such determination; and
(B) the justification for such determination.
(b) Increased Micro-Purchase Threshold For Certain
Procurements.--
(1) In general.--The Secretary may designate certain
employees of the Department to make procurements described in
subsection (a) for which in the administration of section 32
of the Office of Federal Procurement Policy Act (41 U.S.C.
428) the amount specified in subsections (c), (d), and (f) of
such section 32 shall be deemed to be $7,500.
(2) Number of employees.--The number of employees
designated under paragraph (1) shall be--
(A) fewer than the number of employees of the Department
who are authorized to make purchases without obtaining
competitive quotations, pursuant to section 32(c) of the
Office of Federal Procurement Policy Act (41 U.S.C. 428(c));
(B) sufficient to ensure the geographic dispersal of the
availability of the use of the procurement authority under
such paragraph at locations reasonably considered to be
potential terrorist targets; and
(C) sufficiently limited to allow for the careful
monitoring of employees designated under such paragraph.
(3) Review.--Procurements made under the authority of this
subsection shall be subject to review by a designated
supervisor on not less than a monthly basis. The supervisor
responsible for the review shall be responsible for no more
than 7 employees making procurements under this subsection.
(c) Simplified Acquisition Procedures.--
(1) In general.--With respect to a procurement described in
subsection (a), the Secretary may deem the simplified
acquisition threshold referred to in section 4(11) of the
Office of Federal Procurement Policy Act (41 U.S.C. 403(11))
to be--
(A) in the case of a contract to be awarded and performed,
or purchase to be made, within the United States, $200,000;
and
(B) in the case of a contract to be awarded and performed,
or purchase to be made, outside of the United States,
$300,000.
(2) Conforming amendments.--Section 18(c)(1) of the Office
of Federal Procurement Policy Act is amended--
(A) by striking ``or'' at the end of subparagraph (F);
(B) by striking the period at the end of subparagraph (G)
and inserting ``; or''; and
(C) by adding at the end the following:
``(H) the procurement is by the Secretary of Homeland
Security pursuant to the special procedures provided in
section 833(c) of the Homeland Security Act of 2002.''.
(d) Application of Certain Commercial Items Authorities.--
(1) In general.--With respect to a procurement described in
subsection (a), the Secretary may deem any item or service to
be a commercial item for the purpose of Federal procurement
laws.
(2) Limitation.--The $5,000,000 limitation provided in
section 31(a)(2) of the Office of Federal Procurement Policy
Act (41 U.S.C. 427(a)(2)) and section 303(g)(1)(B) of the
Federal Property and Administrative Services Act of 1949 (41
U.S.C. 253(g)(1)(B)) shall be deemed to be $7,500,000 for
purposes of property or services under the authority of this
subsection.
(3) Certain authority.--Authority under a provision of law
referred to in paragraph (2) that expires under section
4202(e) of the Clinger-Cohen Act of 1996 (divisions D and E
of Public Law 104-106; 10 U.S.C. 2304 note) shall,
notwithstanding such section, continue to apply for a
procurement described in subsection (a).
(e) Report.--Not later than 180 days after the end of
fiscal year 2005, the Comptroller General shall submit to the
Committee on Governmental Affairs of the Senate and the
Committee on Government Reform of the House of
Representatives a report on the use of the authorities
provided in this section. The report shall contain the
following:
(1) An assessment of the extent to which property and
services acquired using authorities provided under this
section contributed to the capacity of the Federal workforce
to facilitate the mission of the Department as described in
section 101.
(2) An assessment of the extent to which prices for
property and services acquired using authorities provided
under this section reflected the best value.
(3) The number of employees designated by each executive
agency under subsection (b)(1).
(4) An assessment of the extent to which the Department has
implemented subsections (b)(2) and (b)(3) to monitor the use
of procurement authority by employees designated under
subsection (b)(1).
(5) Any recommendations of the Comptroller General for
improving the effectiveness of the implementation of the
provisions of this section.

SEC. 834. UNSOLICITED PROPOSALS.

(a) Regulations Required.--Within 1 year of the date of
enactment of this Act, the Federal Acquisition Regulation
shall be revised to include regulations with regard to
unsolicited proposals.
(b) Content of Regulations.--The regulations prescribed
under subsection (a) shall require that before initiating a
comprehensive evaluation, an agency contact point shall
consider, among other factors, that the proposal--
(1) is not submitted in response to a previously published
agency requirement; and
(2) contains technical and cost information for evaluation
and overall scientific, technical or socioeconomic merit, or
cost-related or price-related factors.

SEC. 835. PROHIBITION ON CONTRACTS WITH CORPORATE
EXPATRIATES.

(a) In General.--The Secretary may not enter into any
contract with a foreign incorporated entity which is treated
as an inverted domestic corporation under subsection (b).
(b) Inverted Domestic Corporation.--For purposes of this
section, a foreign incorporated entity shall be treated as an
inverted domestic corporation if, pursuant to a plan (or a
series of related transactions)--
(1) the entity completes after the date of enactment of
this Act, the direct or indirect acquisition of substantially
all of the properties held directly or indirectly by a
domestic corporation or substantially all of the properties
constituting a trade or business of a domestic partnership;
(2) after the acquisition at least 80 percent of the stock
(by vote or value) of the entity is held--
(A) in the case of an acquisition with respect to a
domestic corporation, by former shareholders of the domestic
corporation by reason of holding stock in the domestic
corporation; or
(B) in the case of an acquisition with respect to a
domestic partnership, by former partners of the domestic
partnership by reason of holding a capital or profits
interest in the domestic partnership; and
(3) the expanded affiliated group which after the
acquisition includes the entity does not have substantial
business activities in the foreign country in which or under
the law of which the entity is created or organized when
compared to the total business activities of such expanded
affiliated group.
(c) Definitions and Special Rules.--
(1) Rules for application of subsection (b).--In applying
subsection (b) for purposes of subsection (a), the following
rules shall apply:
(A) Certain stock disregarded.--There shall not be taken
into account in determining ownership for purposes of
subsection (b)(2)--
(i) stock held by members of the expanded affiliated group
which includes the foreign incorporated entity; or
(ii) stock of such entity which is sold in a public
offering related to the acquisition described in subsection
(b)(1).
(B) Plan deemed in certain cases.--If a foreign
incorporated entity acquires directly or indirectly
substantially all of the properties of a domestic corporation
or partnership during the 4-year period beginning on the date
which is after the date of enactment of this Act and which is
2 years before the ownership requirements of subsection
(b)(2) are met, such actions shall be treated as pursuant to
a plan.
(C) Certain transfers disregarded.--The transfer of
properties or liabilities (including by contribution or
distribution) shall be disregarded if such transfers are part
of a plan a principal purpose of which is to avoid the
purposes of this section.
(D) Special rule for related partnerships.--For purposes of
applying subsection (b) to the acquisition of a domestic
partnership, except as provided in regulations, all domestic
partnerships which are under common control (within the
meaning of section 482 of the Internal Revenue Code of 1986)
shall be treated as I partnership.
(E) Treatment of certain rights.--The Secretary shall
prescribe such regulations as may be necessary to--
(i) treat warrants, options, contracts to acquire stock,
convertible debt instruments, and other similar interests as
stock; and
(ii) treat stock as not stock.
(2) Expanded affiliated group.--The term ``expanded
affiliated group'' means an affiliated group as defined in
section 1504(a) of the Internal Revenue Code of 1986 (without
regard to section 1504(b) of such Code), except that section
1504 of such Code shall be applied by substituting ``more
than 50 percent'' for ``at least 80 percent'' each place it
appears.
(3) Foreign incorporated entity.--The term ``foreign
incorporated entity'' means any entity which is, or but for
subsection (b) would be, treated as a foreign corporation for
purposes of the Internal Revenue Code of 1986.
(4) Other definitions.--The terms ``person'', ``domestic'',
and ``foreign'' have the meanings given such terms by
paragraphs (1), (4), and (5) of section 7701 (a) of the
Internal Revenue Code of 1986, respectively.
(d) Waivers.--The Secretary shall waive subsection (a) with
respect to any specific contract if the Secretary determines
that the waiver is required in the interest of homeland
security, or to

[[Page S11488]]

prevent the loss of any jobs in the United States or prevent
the Government from incurring any additional costs that
otherwise would not occur.

Subtitle E--Human Resources Management

SEC. 841. ESTABLISHMENT OF HUMAN RESOURCES MANAGEMENT SYSTEM.

(a) Authority.--
(1) Sense of congress.--It is the sense of Congress that--
(A) it is extremely important that employees of the
Department be allowed to participate in a meaningful way in
the creation of any human resources management system
affecting them;
(B) such employees have the most direct knowledge of the
demands of their jobs and have a direct interest in ensuring
that their human resources management system is conducive to
achieving optimal operational efficiencies;
(C) the 21st century human resources management system
envisioned for the Department should be one that benefits
from the input of its employees; and
(D) this collaborative effort will help secure our
homeland.
(2) In general.--Subpart I of part III of title 5, United
States Code, is amended by adding at the end the following:

``CHAPTER 97--DEPARTMENT OF HOMELAND SECURITY

``Sec.
``9701. Establishment of human resources management system.

``Sec. 9701. Establishment of human resources management
system

``(a) In General.--Notwithstanding any other provision of
this part, the Secretary of Homeland Security may, in
regulations prescribed jointly with the Director of the
Office of Personnel Management, establish, and from time to
time adjust, a human resources management system for some or
all of the organizational units of the Department of Homeland
Security.
``(b) System Requirements.--Any system established under
subsection (a) shall--
``(1) be flexible;
``(2) be contemporary;
``(3) not waive, modify, or otherwise affect--
``(A) the public employment principles of merit and fitness
set forth in section 2301, including the principles of hiring
based on merit, fair treatment without regard to political
affiliation or other nonmerit considerations, equal pay for
equal work, and protection of employees against reprisal for
whistleblowing;
``(B) any provision of section 2302, relating to prohibited
personnel practices;
``(C)(i) any provision of law referred to in section
2302(b)(1), (8), and (9); or
``(ii) any provision of law implementing any provision of
law referred to in section 2302(b)(1), (8), and (9) by--
``(I) providing for equal employment opportunity through
affirmative action; or
``(II) providing any right or remedy available to any
employee or applicant for employment in the civil service;
``(D) any other provision of this part (as described in
subsection (c)); or
``(E) any rule or regulation prescribed under any provision
of law referred to in any of the preceding subparagraphs of
this paragraph;
``(4) ensure that employees may organize, bargain
collectively, and participate through labor organizations of
their own choosing in decisions which affect them, subject to
any exclusion from coverage or limitation on negotiability
established by law; and
``(5) permit the use of a category rating system for
evaluating applicants for positions in the competitive
service.
``(c) Other Nonwaivable Provisions.--The other provisions
of this part as referred to in subsection (b)(3)(D), are (to
the extent not otherwise specified in subparagraph (A), (B),
(C), or (D) of subsection (b)(3))--
``(1) subparts A, B, E, G, and H of this part; and
``(2) chapters 41, 45, 47, 55, 57, 59, 72, 73, and 79, and
this chapter.
``(d) Limitations Relating to Pay.--Nothing in this section
shall constitute authority--
``(1) to modify the pay of any employee who serves in--
``(A) an Executive Schedule position under subchapter II of
chapter 53 of title 5, United States Code; or
``(B) a position for which the rate of basic pay is fixed
in statute by reference to a section or level under
subchapter II of chapter 53 of such title 5;
``(2) to fix pay for any employee or position at an annual
rate greater than the maximum amount of cash compensation
allowable under section 5307 of such title 5 in a year; or
``(3) to exempt any employee from the application of such
section 5307.
``(e) Provisions to Ensure Collaboration With Employee
Representatives.--
``(1) In general.--In order to ensure that the authority of
this section is exercised in collaboration with, and in a
manner that ensures the participation of employee
representatives in the planning, development, and
implementation of any human resources management system or
adjustments to such system under this section, the Secretary
of Homeland Security and the Director of the Office of
Personnel Management shall provide for the following:
``(A) Notice of proposal.--The Secretary and the Director
shall, with respect to any proposed system or adjustment--
``(i) provide to each employee representative representing
any employees who might be affected, a written description of
the proposed system or adjustment (including the reasons why
it is considered necessary);
``(ii) give each representative 30 calendar days (unless
extraordinary circumstances require earlier action) to review
and make recommendations with respect to the proposal; and
``(iii) give any recommendations received from any such
representatives under clause (ii) full and fair consideration
in deciding whether or how to proceed with the proposal.
``(B) Pre-implementation congressional notification,
consultation, and mediation.--Following receipt of
recommendations, if any, from employee representatives with
respect to a proposal described in subparagraph (A), the
Secretary and the Director shall accept such modifications to
the proposal in response to the recommendations as they
determine advisable and shall, with respect to any parts of
the proposal as to which they have not accepted the
recommendations--
``(i) notify Congress of those parts of the proposal,
together with the recommendations of employee
representatives;
``(ii) meet and confer for not less than 30 calendar days
with any representatives who have made recommendations, in
order to attempt to reach agreement on whether or how to
proceed with those parts of the proposal; and
``(iii) at the Secretary's option, or if requested by a
majority of the employee representatives who have made
recommendations, use the services of the Federal Mediation
and Conciliation Service during such meet and confer period
to facilitate the process of attempting to reach agreement.
``(C) Implementation.--
``(i) Any part of the proposal as to which the
representatives do not make a recommendation, or as to which
their recommendations are accepted by the Secretary and the
Director, may be implemented immediately.
``(ii) With respect to any parts of the proposal as to
which recommendations have been made but not accepted by the
Secretary and the Director, at any time after 30 calendar
days have elapsed since the initiation of the congressional
notification, consultation, and mediation procedures set
forth in subparagraph (B), if the Secretary determines, in
the Secretary's sole and unreviewable discretion, that
further consultation and mediation is unlikely to produce
agreement, the Secretary may implement any or all of such
parts, including any modifications made in response to the
recommendations as the Secretary determines advisable.
``(iii) The Secretary shall promptly notify Congress of the
implementation of any part of the proposal and shall furnish
with such notice an explanation of the proposal, any changes
made to the proposal as a result of recommendations from
employee representatives, and of the reasons why
implementation is appropriate under this subparagraph.
``(D) Continuing collaboration.--If a proposal described in
subparagraph (A) is implemented, the Secretary and the
Director shall--
``(i) develop a method for each employee representative to
participate in any further planning or development which
might become necessary; and
``(ii) give each employee representative adequate access to
information to make that participation productive.
``(2) Procedures.--Any procedures necessary to carry out
this subsection shall be established by the Secretary and the
Director jointly as internal rules of departmental procedure
which shall not be subject to review. Such procedures shall
include measures to ensure--
``(A) in the case of employees within a unit with respect
to which a labor organization is accorded exclusive
recognition, representation by individuals designated or from
among individuals nominated by such organization;
``(B) in the case of any employees who are not within such
a unit, representation by any appropriate organization which
represents a substantial percentage of those employees or, if
none, in such other manner as may be appropriate, consistent
with the purposes of the subsection;
``(C) the fair and expeditious handling of the consultation
and mediation process described in subparagraph (B) of
paragraph (1), including procedures by which, if the number
of employee representatives providing recommendations exceeds
5, such representatives select a committee or other unified
representative with which the Secretary and Director may meet
and confer; and
``(D) the selection of representatives in a manner
consistent with the relative number of employees represented
by the organizations or other representatives involved.
``(f) Provisions Relating to Appellate Procedures.--
(1) Sense of congress.--It is the sense of Congress that--
``(A) employees of the Department are entitled to fair
treatment in any appeals that they bring in decisions
relating to their employment; and
``(B) in prescribing regulations for any such appeals
procedures, the Secretary and the Director of the Office of
Personnel Management--
``(i) should ensure that employees of the Department are
afforded the protections of due process; and
``(ii) toward that end, should be required to consult with
the Merit Systems Protection Board before issuing any such
regulations.
``(2) Requirements.--Any regulations under this section
which relate to any matters within the purview of chapter
77--
``(A) shall be issued only after consultation with the
Merit Systems Protection Board;
``(B) shall ensure the availability of procedures which
shall--
``(i) be consistent with requirements of due process; and
``(ii) provide, to the maximum extent practicable, for the
expeditious handling of any matters involving the Department;
and
``(C) shall modify procedures under chapter 77 only insofar
as such modifications are designed to further the fair,
efficient, and expeditious resolution of matters involving
the employees of the Department.

[[Page S11489]]

``(g) Provisions Relating to Labor-Management Relations.--
Nothing in this section shall be construed as conferring
authority on the Secretary of Homeland Security to modify any
of the provisions of section 842 of the Homeland Security Act
of 2002.
``(h) Sunset Provision.--Effective 5 years after the
conclusion of the transition period defined under section
1501 of the Homeland Security Act of 2002, all authority to
issue regulations under this section (including regulations
which would modify, supersede, or terminate any regulations
previously issued under this section) shall cease to be
available.''.
(3) Technical and conforming amendment.--The table of
chapters for part III of title 5, United States Code, is
amended by adding at the end of the following:

``97. Department of Homeland Security.......................9701''.....

(b) Effect on Personnel.--
(1) Nonseparation or nonreduction in grade or compensation
of full-time personnel and part-time personnel holding
permanent positions.--Except as otherwise provided in this
Act, the transfer under this Act of full-time personnel
(except special Government employees) and part-time personnel
holding permanent positions shall not cause any such employee
to be separated or reduced in grade or compensation for 1
year after the date of transfer to the Department.
(2) Positions compensated in accordance with executive
schedule.--Any person who, on the day preceding such person's
date of transfer pursuant to this Act, held a position
compensated in accordance with the Executive Schedule
prescribed in chapter 53 of title 5, United States Code, and
who, without a break in service, is appointed in the
Department to a position having duties comparable to the
duties performed immediately preceding such appointment shall
continue to be compensated in such new position at not less
than the rate provided for such position, for the duration of
the service of such person in such new position.
(3) Coordination rule.--Any exercise of authority under
chapter 97 of title 5, United States Code (as amended by
subsection (a)), including under any system established under
such chapter, shall be in conformance with the requirements
of this subsection.

SEC. 842. LABOR-MANAGEMENT RELATIONS.

(a) Limitation on Exclusionary Authority.--
(1) In general.--No agency or subdivision of an agency
which is transferred to the Department pursuant to this Act
shall be excluded from the coverage of chapter 71 of title 5,
United States Code, as a result of any order issued under
section 7103(b)(1) of such title 5 after June 18, 2002,
unless--
(A) the mission and responsibilities of the agency (or
subdivision) materially change; and
(B) a majority of the employees within such agency (or
subdivision) have as their primary duty intelligence,
counterintelligence, or investigative work directly related
to terrorism investigation.

(2) Exclusions allowable.--Nothing in paragraph (1) shall
affect the effectiveness of any order to the extent that such
order excludes any portion of an agency or subdivision of an
agency as to which--
(A) recognition as an appropriate unit has never been
conferred for purposes of chapter 71 of such title 5; or
(B) any such recognition has been revoked or otherwise
terminated as a result of a determination under subsection
(b)(1).
(b) Provisions Relating to Bargaining Units.--
(1) Limitation relating to appropriate units.--Each unit
which is recognized as an appropriate unit for purposes of
chapter 71 of title 5, United States Code, as of the day
before the effective date of this Act (and any subdivision of
any such unit) shall, if such unit (or subdivision) is
transferred to the Department pursuant to this Act, continue
to be so recognized for such purposes, unless--
(A) the mission and responsibilities of such unit (or
subdivision) materially change; and
(B) a majority of the employees within such unit (or
subdivision) have as their primary duty intelligence,
counterintelligence, or investigative work directly related
to terrorism investigation.
(2) Limitation relating to positions or employees.--No
position or employee within a unit (or subdivision of a unit)
as to which continued recognition is given in accordance with
paragraph (1) shall be excluded from such unit (or
subdivision), for purposes of chapter 71 of such title 5,
unless the primary job duty of such position or employee--
(A) materially changes; and
(B) consists of intelligence, counterintelligence, or
investigative work directly related to terrorism
investigation.
In the case of any positions within a unit (or subdivision)
which are first established on or after the effective date of
this Act and any employees first appointed on or after such
date, the preceding sentence shall be applied disregarding
subparagraph (A).
(c) Waiver.--If the President determines that the
application of subsections (a), (b), and (d) would have a
substantial adverse impact on the ability of the Department
to protect homeland security, the President may waive the
application of such subsections 10 days after the President
has submitted to Congress a written explanation of the
reasons for such determination.
(d) Coordination Rule.--No other provision of this Act or
of any amendment made by this Act may be construed or applied
in a manner so as to limit, supersede, or otherwise affect
the provisions of this section, except to the extent that it
does so by specific reference to this section.
(e) Rule of construction.--Nothing in section 9701(e) of
title 5, United States Code, shall be considered to apply
with respect to any agency or subdivision of any agency,
which is excluded from the coverage of chapter 71 of title 5,
United States Code, by virtue of an order issued in
accordance with section 7103(b) of such title and the
preceding provisions of this section (as applicable), or to
any employees of any such agency or subdivision or to any
individual or entity representing any such employees or any
representatives thereof.

Subtitle F--Federal Emergency Procurement Flexibility

SEC. 851. DEFINITION.

In this subtitle, the term ``executive agency'' has the
meaning given that term under section 4(1) of the Office of
Federal Procurement Policy Act (41 U.S.C. 403(1)).

SEC. 852. PROCUREMENTS FOR DEFENSE AGAINST OR RECOVERY FROM
TERRORISM OR NUCLEAR, BIOLOGICAL, CHEMICAL, OR
RADIOLOGICAL ATTACK.

The authorities provided in this subtitle apply to any
procurement of property or services by or for an executive
agency that, as determined by the head of the executive
agency, are to be used to facilitate defense against or
recovery from terrorism or nuclear, biological, chemical, or
radiological attack, but only if a solicitation of offers for
the procurement is issued during the 1-year period beginning
on the date of the enactment of this Act.

SEC. 853. INCREASED SIMPLIFIED ACQUISITION THRESHOLD FOR
PROCUREMENTS IN SUPPORT OF HUMANITARIAN OR
PEACEKEEPING OPERATIONS OR CONTINGENCY
OPERATIONS.

(a) Temporary Threshold Amounts.--For a procurement
referred to in section 852 that is carried out in support of
a humanitarian or peacekeeping operation or a contingency
operation, the simplified acquisition threshold definitions
shall be applied as if the amount determined under the
exception provided for such an operation in those definitions
were--
(1) in the case of a contract to be awarded and performed,
or purchase to be made, inside the United States, $200,000;
or
(2) in the case of a contract to be awarded and performed,
or purchase to be made, outside the United States, $300,000.
(b) Simplified Acquisition Threshold Definitions.--In this
section, the term ``simplified acquisition threshold
definitions'' means the following:
(1) Section 4(11) of the Office of Federal Procurement
Policy Act (41 U.S.C. 403(11)).
(2) Section 309(d) of the Federal Property and
Administrative Services Act of 1949 (41 U.S.C. 259(d)).
(3) Section 2302(7) of title 10, United States Code.
(c) Small Business Reserve.--For a procurement carried out
pursuant to subsection (a), section 15(j) of the Small
Business Act (15 U.S.C. 644(j)) shall be applied as if the
maximum anticipated value identified therein is equal to the
amounts referred to in subsection (a).

SEC. 854. INCREASED MICRO-PURCHASE THRESHOLD FOR CERTAIN
PROCUREMENTS.

In the administration of section 32 of the Office of
Federal Procurement Policy Act (41 U.S.C. 428) with respect
to a procurement referred to in section 852, the amount
specified in subsections (c), (d), and (f) of such section 32
shall be deemed to be $7,500.

SEC. 855. APPLICATION OF CERTAIN COMMERCIAL ITEMS AUTHORITIES
TO CERTAIN PROCUREMENTS.

(a) Authority.--
(1) In general.--The head of an executive agency may apply
the provisions of law listed in paragraph (2) to a
procurement referred to in section 852 without regard to
whether the property or services are commercial items.
(2) Commercial item laws.--The provisions of law referred
to in paragraph (1) are as follows:
(A) Sections 31 and 34 of the Office of Federal Procurement
Policy Act (41 U.S.C. 427, 430).
(B) Section 2304(g) of title 10, United States Code.
(C) Section 303(g) of the Federal Property and
Administrative Services Act of 1949 (41 U.S.C. 253(g)).
(b) Inapplicability of Limitation on Use of Simplified
Acquisition Procedures.--
(1) In general.--The $5,000,000 limitation provided in
section 31(a)(2) of the Office of Federal Procurement Policy
Act (41 U.S.C. 427(a)(2)), section 2304(g)(1)(B) of title 10,
United States Code, and section 303(g)(1)(B) of the Federal
Property and Administrative Services Act of 1949 (41 U.S.C.
253(g)(1)(B)) shall not apply to purchases of property or
services to which any of the provisions of law referred to in
subsection (a) are applied under the authority of this
section.
(2) OMB guidance.--The Director of the Office of Management
and Budget shall issue guidance and procedures for the use of
simplified acquisition procedures for a purchase of property
or services in excess of $5,000,000 under the authority of
this section.
(c) Continuation of Authority for Simplified Purchase
Procedures.--Authority under a provision of law referred to
in subsection (a)(2) that expires under section 4202(e) of
the Clinger-Cohen Act of 1996 (divisions D and E of Public
Law 104-106; 10 U.S.C. 2304 note) shall, notwithstanding such
section, continue to apply for use by the head of an
executive agency as provided in subsections (a) and (b).

SEC. 856. USE OF STREAMLINED PROCEDURES.

(a) Required Use.--The head of an executive agency shall,
when appropriate, use streamlined acquisition authorities and
procedures authorized by law for a procurement referred to in
section 852, including authorities and procedures that are
provided under the following provisions of law:

[[Page S11490]]

(1) Federal property and administrative services act of
1949.--In title III of the Federal Property and
Administrative Services Act of 1949:
(A) Paragraphs (1), (2), (6), and (7) of subsection (c) of
section 303 (41 U.S.C. 253), relating to use of procedures
other than competitive procedures under certain circumstances
(subject to subsection (e) of such section).
(B) Section 303J (41 U.S.C. 253j), relating to orders under
task and delivery order contracts.
(2) Title 10, united states code.--In chapter 137 of title
10, United States Code:
(A) Paragraphs (1), (2), (6), and (7) of subsection (c) of
section 2304, relating to use of procedures other than
competitive procedures under certain circumstances (subject
to subsection (e) of such section).
(B) Section 2304c, relating to orders under task and
delivery order contracts.
(3) Office of federal procurement policy act.--Paragraphs
(1)(B), (1)(D), and (2) of section 18(c) of the Office of
Federal Procurement Policy Act (41 U.S.C. 416(c)), relating
to inapplicability of a requirement for procurement notice.
(b) Waiver of Certain Small Business Threshold
Requirements.--Subclause (II) of section 8(a)(1)(D)(i) of the
Small Business Act (15 U.S.C. 637(a)(1)(D)(i)) and clause
(ii) of section 31(b)(2)(A) of such Act (15 U.S.C.
657a(b)(2)(A)) shall not apply in the use of streamlined
acquisition authorities and procedures referred to in
paragraphs (1)(A) and (2)(A) of subsection (a) for a
procurement referred to in section 852.

SEC. 857. REVIEW AND REPORT BY COMPTROLLER GENERAL.

(a) Requirements.--Not later than March 31, 2004, the
Comptroller General shall--
(1) complete a review of the extent to which procurements
of property and services have been made in accordance with
this subtitle; and
(2) submit a report on the results of the review to the
Committee on Governmental Affairs of the Senate and the
Committee on Government Reform of the House of
Representatives.
(b) Content of Report.--The report under subsection (a)(2)
shall include the following matters:
(1) Assessment.--The Comptroller General's assessment of--
(A) the extent to which property and services procured in
accordance with this title have contributed to the capacity
of the workforce of Federal Government employees within each
executive agency to carry out the mission of the executive
agency; and
(B) the extent to which Federal Government employees have
been trained on the use of technology.
(2) Recommendations.--Any recommendations of the
Comptroller General resulting from the assessment described
in paragraph (1).
(c) Consultation.--In preparing for the review under
subsection (a)(1), the Comptroller shall consult with the
Committee on Governmental Affairs of the Senate and the
Committee on Government Reform of the House of
Representatives on the specific issues and topics to be
reviewed. The extent of coverage needed in areas such as
technology integration, employee training, and human capital
management, as well as the data requirements of the study,
shall be included as part of the consultation.

SEC. 858. IDENTIFICATION OF NEW ENTRANTS INTO THE FEDERAL
MARKETPLACE.

The head of each executive agency shall conduct market
research on an ongoing basis to identify effectively the
capabilities, including the capabilities of small businesses
and new entrants into Federal contracting, that are available
in the marketplace for meeting the requirements of the
executive agency in furtherance of defense against or
recovery from terrorism or nuclear, biological, chemical, or
radiological attack. The head of the executive agency shall,
to the maximum extent practicable, take advantage of
commercially available market research methods, including use
of commercial databases, to carry out the research.

Subtitle G--Support Anti-terrorism by Fostering Effective Technologies
Act of 2002

SEC. 861. SHORT TITLE.

This subtitle may be cited as the ``Support Anti-terrorism
by Fostering Effective Technologies Act of 2002'' or the
``SAFETY Act''.

SEC. 862. ADMINISTRATION.

(a) In General.--The Secretary shall be responsible for the
administration of this subtitle.
(b) Designation of Qualified Anti-Terrorism Technologies.--
The Secretary may designate anti-terrorism technologies that
qualify for protection under the system of risk management
set forth in this subtitle in accordance with criteria that
shall include, but not be limited to, the following:
(1) Prior United States government use or demonstrated
substantial utility and effectiveness.
(2) Availability of the technology for immediate deployment
in public and private settings.
(3) Existence of extraordinarily large or extraordinarily
unquantifiable potential third party liability risk exposure
to the Seller or other provider of such anti-terrorism
technology.
(4) Substantial likelihood that such anti-terrorism
technology will not be deployed unless protections under the
system of risk management provided under this subtitle are
extended.
(5) Magnitude of risk exposure to the public if such anti-
terrorism technology is not deployed.
(6) Evaluation of all scientific studies that can be
feasibly conducted in order to assess the capability of the
technology to substantially reduce risks of harm.
(7) Anti-terrorism technology that would be effective in
facilitating the defense against acts of terrorism, including
technologies that prevent, defeat or respond to such acts.
(c) Regulations.--The Secretary may issue such regulations,
after notice and comment in accordance with section 553 of
title 5, United States, Code, as may be necessary to carry
out this subtitle.

SEC. 863. LITIGATION MANAGEMENT.

(a) Federal Cause of Action.--
(1) In general.--There shall exist a Federal cause of
action for claims arising out of, relating to, or resulting
from an act of terrorism when qualified anti-terrorism
technologies have been deployed in defense against or
response or recovery from such act and such claims result or
may result in loss to the Seller. The substantive law for
decision in any such action shall be derived from the law,
including choice of law principles, of the State in which
such acts of terrorism occurred, unless such law is
inconsistent with or preempted by Federal law. Such Federal
cause of action shall be brought only for claims for injuries
that are proximately caused by sellers that provide qualified
anti-terrorism technology to Federal and non-Federal
government customers.
(2) Jurisdiction.--Such appropriate district court of the
United States shall have original and exclusive jurisdiction
over all actions for any claim for loss of property, personal
injury, or death arising out of, relating to, or resulting
from an act of terrorism when qualified anti-terrorism
technologies have been deployed in defense against or
response or recovery from such act and such claims result or
may result in loss to the Seller.
(b) Special Rules.--In an action brought under this section
for damages the following provisions apply:
(1) Punitive damages.--No punitive damages intended to
punish or deter, exemplary damages, or other damages not
intended to compensate a plaintiff for actual losses may be
awarded, nor shall any party be liable for interest prior to
the judgment.
(2) Noneconomic damages.--
(A) In general.--Noneconomic damages may be awarded against
a defendant only in an amount directly proportional to the
percentage of responsibility of such defendant for the harm
to the plaintiff, and no plaintiff may recover noneconomic
damages unless the plaintiff suffered physical harm.
(B) Definition.--For purposes of subparagraph (A), the term
``noneconomic damages'' means damages for losses for physical
and emotional pain, suffering, inconvenience, physical
impairment, mental anguish, disfigurement, loss of enjoyment
of life, loss of society and companionship, loss of
consortium, hedonic damages, injury to reputation, and any
other nonpecuniary losses.
(c) Collateral Sources.--Any recovery by a plaintiff in an
action under this section shall be reduced by the amount of
collateral source compensation, if any, that the plaintiff
has received or is entitled to receive as a result of such
acts of terrorism that result or may result in loss to the
Seller.
(d) Government Contractor Defense.--
(1) In general.--Should a product liability or other
lawsuit be filed for claims arising out of, relating to, or
resulting from an act of terrorism when qualified anti-
terrorism technologies approved by the Secretary, as provided
in paragraphs (2) and (3) of this subsection, have been
deployed in defense against or response or recovery from such
act and such claims result or may result in loss to the
Seller, there shall be a rebuttable presumption that the
government contractor defense applies in such lawsuit. This
presumption shall only be overcome by evidence showing that
the Seller acted fraudulently or with willful misconduct in
submitting information to the Secretary during the course of
the Secretary's consideration of such technology under this
subsection. This presumption of the government contractor
defense shall apply regardless of whether the claim against
the Seller arises from a sale of the product to Federal
Government or non-Federal Government customers.
(2) Exclusive responsibility.--The Secretary will be
exclusively responsible for the review and approval of anti-
terrorism technology for purposes of establishing a
government contractor defense in any product liability
lawsuit for claims arising out of, relating to, or resulting
from an act of terrorism when qualified anti-terrorism
technologies approved by the Secretary, as provided in this
paragraph and paragraph (3), have been deployed in defense
against or response or recovery from such act and such claims
result or may result in loss to the Seller. Upon the Seller's
submission to the Secretary for approval of anti-terrorism
technology, the Secretary will conduct a comprehensive review
of the design of such technology and determine whether it
will perform as intended, conforms to the Seller's
specifications, and is safe for use as intended. The Seller
will conduct safety and hazard analyses on such technology
and will supply the Secretary with all such information.
(3) Certificate.--For anti-terrorism technology reviewed
and approved by the Secretary, the Secretary will issue a
certificate of conformance to the Seller and place the anti-
terrorism technology on an Approved Product List for Homeland
Security.
(e) Exclusion.--Nothing in this section shall in any way
limit the ability of any person to seek any form of recovery
from any person, government, or other entity that--
(1) attempts to commit, knowingly participates in, aids and
abets, or commits any act of terrorism, or any criminal act
related to or resulting from such act of terrorism; or
(2) participates in a conspiracy to commit any such act of
terrorism or any such criminal act.

SEC. 864. RISK MANAGEMENT.

(a) In General.--
(1) Liability insurance required.--Any person or entity
that sells or otherwise provides a qualified anti-terrorism
technology to Federal

[[Page S11491]]

and non-Federal government customers (``Seller'') shall
obtain liability insurance of such types and in such amounts
as shall be required in accordance with this section and
certified by the Secretary to satisfy otherwise compensable
third-party claims arising out of, relating to, or resulting
from an act of terrorism when qualified anti-terrorism
technologies have been deployed in defense against or
response or recovery from such act.
(2) Maximum amount.--For the total claims related to 1 such
act of terrorism, the Seller is not required to obtain
liability insurance of more than the maximum amount of
liability insurance reasonably available from private sources
on the world market at prices and terms that will not
unreasonably distort the sales price of Seller's anti-
terrorism technologies.
(3) Scope of coverage.--Liability insurance obtained
pursuant to this subsection shall, in addition to the Seller,
protect the following, to the extent of their potential
liability for involvement in the manufacture, qualification,
sale, use, or operation of qualified anti-terrorism
technologies deployed in defense against or response or
recovery from an act of terrorism:
(A) contractors, subcontractors, suppliers, vendors and
customers of the Seller.
(B) contractors, subcontractors, suppliers, and vendors of
the customer.
(4) Third party claims.--Such liability insurance under
this section shall provide coverage against third party
claims arising out of, relating to, or resulting from the
sale or use of anti-terrorism technologies.
(b) Reciprocal Waiver of Claims.--The Seller shall enter
into a reciprocal waiver of claims with its contractors,
subcontractors, suppliers, vendors and customers, and
contractors and subcontractors of the customers, involved in
the manufacture, sale, use or operation of qualified anti-
terrorism technologies, under which each party to the waiver
agrees to be responsible for losses, including business
interruption losses, that it sustains, or for losses
sustained by its own employees resulting from an activity
resulting from an act of terrorism when qualified anti-
terrorism technologies have been deployed in defense against
or response or recovery from such act.
(c) Extent of Liability.--Notwithstanding any other
provision of law, liability for all claims against a Seller
arising out of, relating to, or resulting from an act of
terrorism when qualified anti-terrorism technologies have
been deployed in defense against or response or recovery from
such act and such claims result or may result in loss to the
Seller, whether for compensatory or punitive damages or for
contribution or indemnity, shall not be in an amount greater
than the limits of liability insurance coverage required to
be maintained by the Seller under this section.

SEC. 865. DEFINITIONS.

For purposes of this subtitle, the following definitions
apply:
(1) Qualified anti-terrorism technology.--For purposes of
this subtitle, the term ``qualified anti-terrorism
technology'' means any product, equipment, service (including
support services), device, or technology (including
information technology) designed, developed, modified, or
procured for the specific purpose of preventing, detecting,
identifying, or deterring acts of terrorism or limiting the
harm such acts might otherwise cause, that is designated as
such by the Secretary.
(2) Act of terrorism.--(A) The term ``act of terrorism''
means any act that the Secretary determines meets the
requirements under subparagraph (B), as such requirements are
further defined and specified by the Secretary.
(B) Requirements.--An act meets the requirements of this
subparagraph if the act--
(i) is unlawful;
(ii) causes harm to a person, property, or entity, in the
United States, or in the case of a domestic United States air
carrier or a United States-flag vessel (or a vessel based
principally in the United States on which United States
income tax is paid and whose insurance coverage is subject to
regulation in the United States), in or outside the United
States; and
(iii) uses or attempts to use instrumentalities, weapons or
other methods designed or intended to cause mass destruction,
injury or other loss to citizens or institutions of the
United States.
(3) Insurance carrier.--The term ``insurance carrier''
means any corporation, association, society, order, firm,
company, mutual, partnership, individual aggregation of
individuals, or any other legal entity that provides
commercial property and casualty insurance. Such term
includes any affiliates of a commercial insurance carrier.
(4) Liability insurance.--
(A) In general.--The term ``liability insurance'' means
insurance for legal liabilities incurred by the insured
resulting from--
(i) loss of or damage to property of others;
(ii) ensuing loss of income or extra expense incurred
because of loss of or damage to property of others;
(iii) bodily injury (including) to persons other than the
insured or its employees; or
(iv) loss resulting from debt or default of another.
(5) Loss.--The term ``loss'' means death, bodily injury, or
loss of or damage to property, including business
interruption loss.
(6) Non-federal government customers.--The term ``non-
Federal Government customers'' means any customer of a Seller
that is not an agency or instrumentality of the United States
Government with authority under Public Law 85-804 to provide
for indemnification under certain circumstances for third-
party claims against its contractors, including but not
limited to State and local authorities and commercial
entities.

Subtitle H--Miscellaneous Provisions

SEC. 871. ADVISORY COMMITTEES.

(a) In General.--The Secretary may establish, appoint
members of, and use the services of, advisory committees, as
the Secretary may deem necessary. An advisory committee
established under this section may be exempted by the
Secretary from Public Law 92-463, but the Secretary shall
publish notice in the Federal Register announcing the
establishment of such a committee and identifying its purpose
and membership. Notwithstanding the preceding sentence,
members of an advisory committee that is exempted by the
Secretary under the preceding sentence who are special
Government employees (as that term is defined in section 202
of title 18, United States Code) shall be eligible for
certifications under subsection (b)(3) of section 208 of
title 18, United States Code, for official actions taken as a
member of such advisory committee.
(b) Termination.--Any advisory committee established by the
Secretary shall terminate 2 years after the date of its
establishment, unless the Secretary makes a written
determination to extend the advisory committee to a specified
date, which shall not be more than 2 years after the date on
which such determination is made. The Secretary may make any
number of subsequent extensions consistent with this
subsection.

SEC. 872. REORGANIZATION.

(a) Reorganization.--The Secretary may allocate or
reallocate functions among the officers of the Department,
and may establish, consolidate, alter, or discontinue
organizational units within the Department, but only--
(1) pursuant to section 1502(b); or
(2) after the expiration of 60 days after providing notice
of such action to the appropriate congressional committees,
which shall include an explanation of the rationale for the
action.
(b) Limitations.--
(1) In general.--Authority under subsection (a)(1) does not
extend to the abolition of any agency, entity, organizational
unit, program, or function established or required to be
maintained by this Act.
(2) Abolitions.--Authority under subsection (a)(2) does not
extend to the abolition of any agency, entity, organizational
unit, program, or function established or required to be
maintained by statute.

SEC. 873. USE OF APPROPRIATED FUNDS.

(a) Disposal of Property.--
(1) Strict compliance.--If specifically authorized to
dispose of real property in this or any other Act, the
Secretary shall exercise this authority in strict compliance
with section 204 of the Federal Property and Administrative
Services Act of 1949 (40 U.S.C. 485).
(2) Deposit of proceeds.--The Secretary shall deposit the
proceeds of any exercise of property disposal authority into
the miscellaneous receipts of the Treasury in accordance with
section 3302(b) of title 31, United States Code.
(b) Gifts.--Gifts or donations of services or property of
or for the Department may not be accepted, used, or disposed
of unless specifically permitted in advance in an
appropriations Act and only under the conditions and for the
purposes specified in such appropriations Act.
(c) Budget Request.--Under section 1105 of title 31, United
States Code, the President shall submit to Congress a
detailed budget request for the Department for fiscal year
2004, and for each subsequent fiscal year.

SEC. 874. FUTURE YEAR HOMELAND SECURITY PROGRAM.

(a) In General.--Each budget request submitted to Congress
for the Department under section 1105 of title 31, United
States Code, shall, at or about the same time, be accompanied
by a Future Years Homeland Security Program.
(b) Contents.--The Future Years Homeland Security Program
under subsection (a) shall be structured, and include the
same type of information and level of detail, as the Future
Years Defense Program submitted to Congress by the Department
of Defense under section 221 of title 10, United States Code.
(c) Effective Date.--This section shall take effect with
respect to the preparation and submission of the fiscal year
2005 budget request for the Department and for any subsequent
fiscal year, except that the first Future Years Homeland
Security Program shall be submitted not later than 90 days
after the Department's fiscal year 2005 budget request is
submitted to Congress.

SEC. 875. MISCELLANEOUS AUTHORITIES.

(a) Seal.--The Department shall have a seal, whose design
is subject to the approval of the President.
(b) Participation of Members of the Armed Forces.--With
respect to the Department, the Secretary shall have the same
authorities that the Secretary of Transportation has with
respect to the Department of Transportation under section 324
of title 49, United States Code.
(c) Redelegation of Functions.--Unless otherwise provided
in the delegation or by law, any function delegated under
this Act may be redelegated to any subordinate.

SEC. 876. MILITARY ACTIVITIES.

Nothing in this Act shall confer upon the Secretary any
authority to engage in warfighting, the military defense of
the United States, or other military activities, nor shall
anything in this Act limit the existing authority of the
Department of Defense or the Armed Forces to engage in
warfighting, the military defense of the United States, or
other military activities.

SEC. 877. REGULATORY AUTHORITY AND PREEMPTION.

(a) Regulatory Authority.--Except as otherwise provided in
sections 306(c), 862(c), and 1706(b), this Act vests no new
regulatory authority in the Secretary or any other Federal
official, and transfers to the Secretary or another Federal
official only such regulatory authority

[[Page S11492]]

as exists on the date of enactment of this Act within any
agency, program, or function transferred to the Department
pursuant to this Act, or that on such date of enactment is
exercised by another official of the executive branch with
respect to such agency, program, or function. Any such
transferred authority may not be exercised by an official
from whom it is transferred upon transfer of such agency,
program, or function to the Secretary or another Federal
official pursuant to this Act. This Act may not be construed
as altering or diminishing the regulatory authority of any
other executive agency, except to the extent that this Act
transfers such authority from the agency.
(b) Preemption of State or Local Law.--Except as otherwise
provided in this Act, this Act preempts no State or local
law, except that any authority to preempt State or local law
vested in any Federal agency or official transferred to the
Department pursuant to this Act shall be transferred to the
Department effective on the date of the transfer to the
Department of that Federal agency or official.

SEC. 878. COUNTERNARCOTICS OFFICER.

The Secretary shall appoint a senior official in the
Department to assume primary responsibility for coordinating
policy and operations within the Department and between the
Department and other Federal departments and agencies with
respect to interdicting the entry of illegal drugs into the
United States, and tracking and severing connections between
illegal drug trafficking and terrorism. Such official shall--
(1) ensure the adequacy of resources within the Department
for illicit drug interdiction; and
(2) serve as the United States Interdiction Coordinator for
the Director of National Drug Control Policy.

SEC. 879. OFFICE OF INTERNATIONAL AFFAIRS.

(a) Establishment.--There is established within the Office
of the Secretary an Office of International Affairs. The
Office shall be headed by a Director, who shall be a senior
official appointed by the Secretary.
(b) Duties of the Director.--The Director shall have the
following duties:
(1) To promote information and education exchange with
nations friendly to the United States in order to promote
sharing of best practices and technologies relating to
homeland security. Such exchange shall include the following:
(A) Exchange of information on research and development on
homeland security technologies.
(B) Joint training exercises of first responders.
(C) Exchange of expertise on terrorism prevention,
response, and crisis management.
(2) To identify areas for homeland security information and
training exchange where the United States has a demonstrated
weakness and another friendly nation or nations have a
demonstrated expertise.
(3) To plan and undertake international conferences,
exchange programs, and training activities.
(4) To manage international activities within the
Department in coordination with other Federal officials with
responsibility for counter-terrorism matters.

SEC. 880. PROHIBITION OF THE TERRORISM INFORMATION AND
PREVENTION SYSTEM.

Any and all activities of the Federal Government to
implement the proposed component program of the Citizen Corps
known as Operation TIPS (Terrorism Information and Prevention
System) are hereby prohibited.

SEC. 881. REVIEW OF PAY AND BENEFIT PLANS.

Notwithstanding any other provision of this Act, the
Secretary shall, in consultation with the Director of the
Office of Personnel Management, review the pay and benefit
plans of each agency whose functions are transferred under
this Act to the Department and, within 90 days after the date
of enactment, submit a plan to the President of the Senate
and the Speaker of the House of Representatives and the
appropriate committees and subcommittees of Congress, for
ensuring, to the maximum extent practicable, the elimination
of disparities in pay and benefits throughout the Department,
especially among law enforcement personnel, that are
inconsistent with merit system principles set forth in
section 2301 of title 5, United States Code.

SEC. 882. OFFICE FOR NATIONAL CAPITAL REGION COORDINATION.

(a) Establishment.--
(1) In general.--There is established within the Office of
the Secretary the Office of National Capital Region
Coordination, to oversee and coordinate Federal programs for
and relationships with State, local, and regional authorities
in the National Capital Region, as defined under section
2674(f)(2) of title 10, United States Code.
(2) Director.--The Office established under paragraph (1)
shall be headed by a Director, who shall be appointed by the
Secretary.
(3) Cooperation.--The Secretary shall cooperate with the
Mayor of the District of Columbia, the Governors of Maryland
and Virginia, and other State, local, and regional officers
in the National Capital Region to integrate the District of
Columbia, Maryland, and Virginia into the planning,
coordination, and execution of the activities of the Federal
Government for the enhancement of domestic preparedness
against the consequences of terrorist attacks.
(b) Responsibilities.--The Office established under
subsection (a)(1) shall--
(1) coordinate the activities of the Department relating to
the National Capital Region, including cooperation with the
Office for State and Local Government Coordination;
(2) assess, and advocate for, the resources needed by
State, local, and regional authorities in the National
Capital Region to implement efforts to secure the homeland;
(3) provide State, local, and regional authorities in the
National Capital Region with regular information, research,
and technical support to assist the efforts of State, local,
and regional authorities in the National Capital Region in
securing the homeland;
(4) develop a process for receiving meaningful input from
State, local, and regional authorities and the private sector
in the National Capital Region to assist in the development
of the homeland security plans and activities of the Federal
Government;
(5) coordinate with Federal agencies in the National
Capital Region on terrorism preparedness, to ensure adequate
planning, information sharing, training, and execution of the
Federal role in domestic preparedness activities;
(6) coordinate with Federal, State, local, and regional
agencies, and the private sector in the National Capital
Region on terrorism preparedness to ensure adequate planning,
information sharing, training, and execution of domestic
preparedness activities among these agencies and entities;
and
(7) serve as a liaison between the Federal Government and
State, local, and regional authorities, and private sector
entities in the National Capital Region to facilitate access
to Federal grants and other programs.
(c) Annual Report.--The Office established under subsection
(a) shall submit an annual report to Congress that includes--
(1) the identification of the resources required to fully
implement homeland security efforts in the National Capital
Region;
(2) an assessment of the progress made by the National
Capital Region in implementing homeland security efforts; and
(3) recommendations to Congress regarding the additional
resources needed to fully implement homeland security efforts
in the National Capital Region.
(d) Limitation.--Nothing contained in this section shall be
construed as limiting the power of State and local
governments.

SEC. 883. REQUIREMENT TO COMPLY WITH LAWS PROTECTING EQUAL
EMPLOYMENT OPPORTUNITY AND PROVIDING
WHISTLEBLOWER PROTECTIONS.

Nothing in this Act shall be construed as exempting the
Department from requirements applicable with respect to
executive agencies--
(1) to provide equal employment protection for employees of
the Department (including pursuant to the provisions in
section 2302(b)(1) of title 5, United States Code, and the
Notification and Federal Employee Antidiscrimination and
Retaliation Act of 2002 (Pub. L. 107-174)); or
(2) to provide whistleblower protections for employees of
the Department (including pursuant to the provisions in
section 2302(b)(8) and (9) of such title and the Notification
and Federal Employee Antidiscrimination and Retaliation Act
of 2002).

SEC. 884. FEDERAL LAW ENFORCEMENT TRAINING CENTER.

(a) In General.--The transfer of an authority or an agency
under this Act to the Department of Homeland Security does
not affect training agreements already entered into with the
Federal Law Enforcement Training Center with respect to the
training of personnel to carry out that authority or the
duties of that transferred agency.
(b) Continuity of Operations.--All activities of the
Federal Law Enforcement Training Center transferred to the
Department of Homeland Security under this Act shall continue
to be carried out at the locations such activities were
carried out before such transfer.

SEC. 885. JOINT INTERAGENCY TASK FORCE.

(a) Establishment.--The Secretary may establish and operate
a permanent Joint Interagency Homeland Security Task Force
composed of representatives from military and civilian
agencies of the United States Government for the purposes of
anticipating terrorist threats against the United States and
taking appropriate actions to prevent harm to the United
States.
(b) Structure.--It is the sense of Congress that the
Secretary should model the Joint Interagency Homeland
Security Task Force on the approach taken by the Joint
Interagency Task Forces for drug interdiction at Key West,
Florida and Alameda, California, to the maximum extent
feasible and appropriate.

SEC. 886. SENSE OF CONGRESS REAFFIRMING THE CONTINUED
IMPORTANCE AND APPLICABILITY OF THE POSSE
COMITATUS ACT.

(a) Findings.--Congress finds the following:
(1) Section 1385 of title 18, United States Code (commonly
known as the ``Posse Comitatus Act''), prohibits the use of
the Armed Forces as a posse comitatus to execute the laws
except in cases and under circumstances expressly authorized
by the Constitution or Act of Congress.
(2) Enacted in 1878, the Posse Comitatus Act was expressly
intended to prevent United States Marshals, on their own
initiative, from calling on the Army for assistance in
enforcing Federal law.
(3) The Posse Comitatus Act has served the Nation well in
limiting the use of the Armed Forces to enforce the law.
(4) Nevertheless, by its express terms, the Posse Comitatus
Act is not a complete barrier to the use of the Armed Forces
for a range of domestic purposes, including law enforcement
functions, when the use of the Armed Forces is authorized by
Act of Congress or the President determines that the use of
the Armed Forces is required to fulfill the President's
obligations under the Constitution to respond promptly in
time of war, insurrection, or other serious emergency.
(5) Existing laws, including chapter 15 of title 10, United
States Code (commonly known as the ``Insurrection Act''), and
the Robert T. Stafford Disaster Relief and Emergency
Assistance Act (42 U.S.C. 5121 et seq.), grant the President
broad powers that may be invoked in the event

[[Page S11493]]

of domestic emergencies, including an attack against the
Nation using weapons of mass destruction, and these laws
specifically authorize the President to use the Armed Forces
to help restore public order.
(b) Sense of Congress.--Congress reaffirms the continued
importance of section 1385 of title 18, United States Code,
and it is the sense of Congress that nothing in this Act
should be construed to alter the applicability of such
section to any use of the Armed Forces as a posse comitatus
to execute the laws.

SEC. 887. COORDINATION WITH THE DEPARTMENT OF HEALTH AND
HUMAN SERVICES UNDER THE PUBLIC HEALTH SERVICE
ACT.

(a) In General.--The annual Federal response plan developed
by the Department shall be consistent with section 319 of the
Public Health Service Act (42 U.S.C. 247d).
(b) Disclosures Among Relevant Agencies.--
(1) In general.--Full disclosure among relevant agencies
shall be made in accordance with this subsection.
(2) Public health emergency.--During the period in which
the Secretary of Health and Human Services has declared the
existence of a public health emergency under section 319(a)
of the Public Health Service Act (42 U.S.C. 247d(a)), the
Secretary of Health and Human Services shall keep relevant
agencies, including the Department of Homeland Security, the
Department of Justice, and the Federal Bureau of
Investigation, fully and currently informed.
(3) Potential public health emergency.--In cases involving,
or potentially involving, a public health emergency, but in
which no determination of an emergency by the Secretary of
Health and Human Services under section 319(a) of the Public
Health Service Act (42 U.S.C. 247d(a)), has been made, all
relevant agencies, including the Department of Homeland
Security, the Department of Justice, and the Federal Bureau
of Investigation, shall keep the Secretary of Health and
Human Services and the Director of the Centers for Disease
Control and Prevention fully and currently informed.

SEC. 888. PRESERVING COAST GUARD MISSION PERFORMANCE.

(a) Definitions.--In this section:
(1) Non-homeland security missions.--The term ``non-
homeland security missions'' means the following missions of
the Coast Guard:
(A) Marine safety.
(B) Search and rescue.
(C) Aids to navigation.
(D) Living marine resources (fisheries law enforcement).
(E) Marine environmental protection.
(F) Ice operations.
(2) Homeland security missions.--The term ``homeland
security missions'' means the following missions of the Coast
Guard:
(A) Ports, waterways and coastal security.
(B) Drug interdiction.
(C) Migrant interdiction.
(D) Defense readiness.
(E) Other law enforcement.
(b) Transfer.--There are transferred to the Department the
authorities, functions, personnel, and assets of the Coast
Guard, which shall be maintained as a distinct entity within
the Department, including the authorities and functions of
the Secretary of Transportation relating thereto.
(c) Maintenance of Status of Functions and Assets.--
Notwithstanding any other provision of this Act, the
authorities, functions, and capabilities of the Coast Guard
to perform its missions shall be maintained intact and
without significant reduction after the transfer of the Coast
Guard to the Department, except as specified in subsequent
Acts.
(d) Certain Transfers Prohibited.--No mission, function, or
asset (including for purposes of this subsection any ship,
aircraft, or helicopter) of the Coast Guard may be diverted
to the principal and continuing use of any other
organization, unit, or entity of the Department, except for
details or assignments that do not reduce the Coast Guard's
capability to perform its missions.
(e) Changes to Missions.--
(1) Prohibition.--The Secretary may not substantially or
significantly reduce the missions of the Coast Guard or the
Coast Guard's capability to perform those missions, except as
specified in subsequent Acts.
(2) Waiver.--The Secretary may waive the restrictions under
paragraph (1) for a period of not to exceed 90 days upon a
declaration and certification by the Secretary to Congress
that a clear, compelling, and immediate need exists for such
a waiver. A certification under this paragraph shall include
a detailed justification for the declaration and
certification, including the reasons and specific information
that demonstrate that the Nation and the Coast Guard cannot
respond effectively if the restrictions under paragraph (1)
are not waived.
(f) Annual Review.--
(1) In general.--The Inspector General of the Department
shall conduct an annual review that shall assess thoroughly
the performance by the Coast Guard of all missions of the
Coast Guard (including non-homeland security missions and
homeland security missions) with a particular emphasis on
examining the non-homeland security missions.
(2) Report.--The report under this paragraph shall be
submitted to--
(A) the Committee on Governmental Affairs of the Senate;
(B) the Committee on Government Reform of the House of
Representatives;
(C) the Committees on Appropriations of the Senate and the
House of Representatives;
(D) the Committee on Commerce, Science, and Transportation
of the Senate; and
(E) the Committee on Transportation and Infrastructure of
the House of Representatives.
(g) Direct Reporting to Secretary.--Upon the transfer of
the Coast Guard to the Department, the Commandant shall
report directly to the Secretary without being required to
report through any other official of the Department.
(h) Operation as a Service in the Navy.--None of the
conditions and restrictions in this section shall apply when
the Coast Guard operates as a service in the Navy under
section 3 of title 14, United States Code.
(i) Report on Accelerating the Integrated Deepwater
System.--Not later than 90 days after the date of enactment
of this Act, the Secretary, in consultation with the
Commandant of the Coast Guard, shall submit a report to the
Committee on Commerce, Science, and Transportation of the
Senate, the Committee on Transportation and Infrastructure of
the House of Representatives, and the Committees on
Appropriations of the Senate and the House of Representatives
that--
(1) analyzes the feasibility of accelerating the rate of
procurement in the Coast Guard's Integrated Deepwater System
from 20 years to 10 years;
(2) includes an estimate of additional resources required;
(3) describes the resulting increased capabilities;
(4) outlines any increases in the Coast Guard's homeland
security readiness;
(5) describes any increases in operational efficiencies;
and
(6) provides a revised asset phase-in time line.

SEC. 889. HOMELAND SECURITY FUNDING ANALYSIS IN PRESIDENT'S
BUDGET.

(a) In General.--Section 1105(a) of title 31, United States
Code, is amended by adding at the end the following:
``(33)(A)(i) a detailed, separate analysis, by budget
function, by agency, and by initiative area (as determined by
the administration) for the prior fiscal year, the current
fiscal year, the fiscal years for which the budget is
submitted, and the ensuing fiscal year identifying the
amounts of gross and net appropriations or obligational
authority and outlays that contribute to homeland security,
with separate displays for mandatory and discretionary
amounts, including--
``(I) summaries of the total amount of such appropriations
or new obligational authority and outlays requested for
homeland security;
``(II) an estimate of the current service levels of
homeland security spending;
``(III) the most recent risk assessment and summary of
homeland security needs in each initiative area (as
determined by the administration); and
``(IV) an estimate of user fees collected by the Federal
Government on behalf of homeland security activities;
``(ii) with respect to subclauses (I) through (IV) of
clause (i), amounts shall be provided by account for each
program, project and activity; and
``(iii) an estimate of expenditures for homeland security
activities by State and local governments and the private
sector for the prior fiscal year and the current fiscal year.
``(B) In this paragraph, consistent with the Office of
Management and Budget's June 2002 `Annual Report to Congress
on Combatting Terrorism', the term `homeland security' refers
to those activities that detect, deter, protect against, and
respond to terrorist attacks occurring within the United
States and its territories.
``(C) In implementing this paragraph, including determining
what Federal activities or accounts constitute homeland
security for purposes of budgetary classification, the Office
of Management and Budget is directed to consult periodically,
but at least annually, with the House and Senate Budget
Committees, the House and Senate Appropriations Committees,
and the Congressional Budget Office.''.
(b) Repeal of Duplicative Reports.--The following sections
are repealed:
(1) Section 1051 of Public Law 105-85.
(2) Section 1403 of Public Law 105-261.
(c) Effective Date.--This section and the amendment made by
this section shall apply beginning with respect to the fiscal
year 2005 budget submission.

SEC. 890. AIR TRANSPORTATION SAFETY AND SYSTEM STABILIZATION
ACT.

The Air Transportation Safety and System Stabilization Act
(49 U.S.C. 40101 note) is amended--
(1) in section 408 by striking the last sentence of
subsection (c); and
(2) in section 402 by striking paragraph (1) and inserting
the following:
``(1) Air carrier.--The term `air carrier' means a citizen
of the United States undertaking by any means, directly or
indirectly, to provide air transportation and includes
employees and agents (including persons engaged in the
business of providing air transportation security and their
affiliates) of such citizen. For purposes of the preceding
sentence, the term `agent', as applied to persons engaged in
the business of providing air transportation security, shall
only include persons that have contracted directly with the
Federal Aviation Administration on or after and commenced
services no later than February 17, 2002, to provide such
security, and had not been or are not debarred for any period
within 6 months from that date.''.

Subtitle I--Information Sharing

SEC. 891. SHORT TITLE; FINDINGS; AND SENSE OF CONGRESS.

(a) Short Title.--This subtitle may be cited as the
``Homeland Security Information Sharing Act''.
(b) Findings.--Congress finds the following:
(1) The Federal Government is required by the Constitution
to provide for the common defense, which includes terrorist
attack.
(2) The Federal Government relies on State and local
personnel to protect against terrorist attack.

[[Page S11494]]

(3) The Federal Government collects, creates, manages, and
protects classified and sensitive but unclassified
information to enhance homeland security.
(4) Some homeland security information is needed by the
State and local personnel to prevent and prepare for
terrorist attack.
(5) The needs of State and local personnel to have access
to relevant homeland security information to combat terrorism
must be reconciled with the need to preserve the protected
status of such information and to protect the sources and
methods used to acquire such information.
(6) Granting security clearances to certain State and local
personnel is one way to facilitate the sharing of information
regarding specific terrorist threats among Federal, State,
and local levels of government.
(7) Methods exist to declassify, redact, or otherwise adapt
classified information so it may be shared with State and
local personnel without the need for granting additional
security clearances.
(8) State and local personnel have capabilities and
opportunities to gather information on suspicious activities
and terrorist threats not possessed by Federal agencies.
(9) The Federal Government and State and local governments
and agencies in other jurisdictions may benefit from such
information.
(10) Federal, State, and local governments and
intelligence, law enforcement, and other emergency
preparation and response agencies must act in partnership to
maximize the benefits of information gathering and analysis
to prevent and respond to terrorist attacks.
(11) Information systems, including the National Law
Enforcement Telecommunications System and the Terrorist
Threat Warning System, have been established for rapid
sharing of classified and sensitive but unclassified
information among Federal, State, and local entities.
(12) Increased efforts to share homeland security
information should avoid duplicating existing information
systems.
(c) Sense of Congress.--It is the sense of Congress that
Federal, State, and local entities should share homeland
security information to the maximum extent practicable, with
special emphasis on hard-to-reach urban and rural
communities.

SEC. 892. FACILITATING HOMELAND SECURITY INFORMATION SHARING
PROCEDURES.

(a) Procedures for Determining Extent of Sharing of
Homeland Security Information.--
(1) The President shall prescribe and implement procedures
under which relevant Federal agencies--
(A) share relevant and appropriate homeland security
information with other Federal agencies, including the
Department, and appropriate State and local personnel;
(B) identify and safeguard homeland security information
that is sensitive but unclassified; and
(C) to the extent such information is in classified form,
determine whether, how, and to what extent to remove
classified information, as appropriate, and with which such
personnel it may be shared after such information is removed.
(2) The President shall ensure that such procedures apply
to all agencies of the Federal Government.
(3) Such procedures shall not change the substantive
requirements for the classification and safeguarding of
classified information.
(4) Such procedures shall not change the requirements and
authorities to protect sources and methods.
(b) Procedures for Sharing of Homeland Security
Information.--
(1) Under procedures prescribed by the President, all
appropriate agencies, including the intelligence community,
shall, through information sharing systems, share homeland
security information with Federal agencies and appropriate
State and local personnel to the extent such information may
be shared, as determined in accordance with subsection (a),
together with assessments of the credibility of such
information.
(2) Each information sharing system through which
information is shared under paragraph (1) shall--
(A) have the capability to transmit unclassified or
classified information, though the procedures and recipients
for each capability may differ;
(B) have the capability to restrict delivery of information
to specified subgroups by geographic location, type of
organization, position of a recipient within an organization,
or a recipient's need to know such information;
(C) be configured to allow the efficient and effective
sharing of information; and
(D) be accessible to appropriate State and local personnel.
(3) The procedures prescribed under paragraph (1) shall
establish conditions on the use of information shared under
paragraph (1)--
(A) to limit the redissemination of such information to
ensure that such information is not used for an unauthorized
purpose;
(B) to ensure the security and confidentiality of such
information;
(C) to protect the constitutional and statutory rights of
any individuals who are subjects of such information; and
(D) to provide data integrity through the timely removal
and destruction of obsolete or erroneous names and
information.
(4) The procedures prescribed under paragraph (1) shall
ensure, to the greatest extent practicable, that the
information sharing system through which information is
shared under such paragraph include existing information
sharing systems, including, but not limited to, the National
Law Enforcement Telecommunications System, the Regional
Information Sharing System, and the Terrorist Threat Warning
System of the Federal Bureau of Investigation.
(5) Each appropriate Federal agency, as determined by the
President, shall have access to each information sharing
system through which information is shared under paragraph
(1), and shall therefore have access to all information, as
appropriate, shared under such paragraph.
(6) The procedures prescribed under paragraph (1) shall
ensure that appropriate State and local personnel are
authorized to use such information sharing systems--
(A) to access information shared with such personnel; and
(B) to share, with others who have access to such
information sharing systems, the homeland security
information of their own jurisdictions, which shall be marked
appropriately as pertaining to potential terrorist activity.
(7) Under procedures prescribed jointly by the Director of
Central Intelligence and the Attorney General, each
appropriate Federal agency, as determined by the President,
shall review and assess the information shared under
paragraph (6) and integrate such information with existing
intelligence.
(c) Sharing of Classified Information and Sensitive but
Unclassified Information With State and Local Personnel.--
(1) The President shall prescribe procedures under which
Federal agencies may, to the extent the President considers
necessary, share with appropriate State and local personnel
homeland security information that remains classified or
otherwise protected after the determinations prescribed under
the procedures set forth in subsection (a).
(2) It is the sense of Congress that such procedures may
include 1 or more of the following means:
(A) Carrying out security clearance investigations with
respect to appropriate State and local personnel.
(B) With respect to information that is sensitive but
unclassified, entering into nondisclosure agreements with
appropriate State and local personnel.
(C) Increased use of information-sharing partnerships that
include appropriate State and local personnel, such as the
Joint Terrorism Task Forces of the Federal Bureau of
Investigation, the Anti-Terrorism Task Forces of the
Department of Justice, and regional Terrorism Early Warning
Groups.
(d) Responsible Officials.--For each affected Federal
agency, the head of such agency shall designate an official
to administer this Act with respect to such agency.
(e) Federal Control of Information.--Under procedures
prescribed under this section, information obtained by a
State or local government from a Federal agency under this
section shall remain under the control of the Federal agency,
and a State or local law authorizing or requiring such a
government to disclose information shall not apply to such
information.
(f) Definitions.--As used in this section:
(1) The term ``homeland security information'' means any
information possessed by a Federal, State, or local agency
that--
(A) relates to the threat of terrorist activity;
(B) relates to the ability to prevent, interdict, or
disrupt terrorist activity;
(C) would improve the identification or investigation of a
suspected terrorist or terrorist organization; or
(D) would improve the response to a terrorist act.
(2) The term ``intelligence community'' has the meaning
given such term in section 3(4) of the National Security Act
of 1947 (50 U.S.C. 401a(4)).
(3) The term ``State and local personnel'' means any of the
following persons involved in prevention, preparation, or
response for terrorist attack:
(A) State Governors, mayors, and other locally elected
officials.
(B) State and local law enforcement personnel and
firefighters.
(C) Public health and medical professionals.
(D) Regional, State, and local emergency management agency
personnel, including State adjutant generals.
(E) Other appropriate emergency response agency personnel.
(F) Employees of private-sector entities that affect
critical infrastructure, cyber, economic, or public health
security, as designated by the Federal government in
procedures developed pursuant to this section.
(4) The term ``State'' includes the District of Columbia
and any commonwealth, territory, or possession of the United
States.
(g) Construction.--Nothing in this Act shall be construed
as authorizing any department, bureau, agency, officer, or
employee of the Federal Government to request, receive, or
transmit to any other Government entity or personnel, or
transmit to any State or local entity or personnel otherwise
authorized by this Act to receive homeland security
information, any information collected by the Federal
Government solely for statistical purposes in violation of
any other provision of law relating to the confidentiality of
such information.

SEC. 893. REPORT.

(a) Report Required.--Not later than 12 months after the
date of the enactment of this Act, the President shall submit
to the congressional committees specified in subsection (b) a
report on the implementation of section 892. The report shall
include any recommendations for additional measures or
appropriation requests, beyond the requirements of section
892, to increase the effectiveness of sharing of information
between and among Federal, State, and local entities.
(b) Specified Congressional Committees.--The congressional
committees referred to in subsection (a) are the following
committees:
(1) The Permanent Select Committee on Intelligence and the
Committee on the Judiciary of the House of Representatives.

[[Page S11495]]

(2) The Select Committee on Intelligence and the Committee
on the Judiciary of the Senate.

SEC. 894. AUTHORIZATION OF APPROPRIATIONS.

There are authorized to be appropriated such sums as may be
necessary to carry out section 892.

SEC. 895. AUTHORITY TO SHARE GRAND JURY INFORMATION.

Rule 6(e) of the Federal Rules of Criminal Procedure is
amended--
(1) in paragraph (2), by inserting ``, or of guidelines
jointly issued by the Attorney General and Director of
Central Intelligence pursuant to Rule 6,'' after ``Rule 6'';
and
(2) in paragraph (3)--
(A) in subparagraph (A)(ii), by inserting ``or of a foreign
government'' after ``(including personnel of a state or
subdivision of a state'';
(B) in subparagraph (C)(i)--
(i) in subclause (I), by inserting before the semicolon the
following: ``or, upon a request by an attorney for the
government, when sought by a foreign court or prosecutor for
use in an official criminal investigation'';
(ii) in subclause (IV)--

(I) by inserting ``or foreign'' after ``may disclose a
violation of State'';
(II) by inserting ``or of a foreign government'' after ``to
an appropriate official of a State or subdivision of a
State''; and
(III) by striking ``or'' at the end;

(iii) by striking the period at the end of subclause (V)
and inserting ``; or''; and
(iv) by adding at the end the following:
``(VI) when matters involve a threat of actual or potential
attack or other grave hostile acts of a foreign power or an
agent of a foreign power, domestic or international sabotage,
domestic or international terrorism, or clandestine
intelligence gathering activities by an intelligence service
or network of a foreign power or by an agent of a foreign
power, within the United States or elsewhere, to any
appropriate federal, state, local, or foreign government
official for the purpose of preventing or responding to such
a threat.''; and
(C) in subparagraph (C)(iii)--
(i) by striking ``Federal'';
(ii) by inserting ``or clause (i)(VI)'' after ``clause
(i)(V)''; and
(iii) by adding at the end the following: ``Any state,
local, or foreign official who receives information pursuant
to clause (i)(VI) shall use that information only consistent
with such guidelines as the Attorney General and Director of
Central Intelligence shall jointly issue.''.

SEC. 896. AUTHORITY TO SHARE ELECTRONIC, WIRE, AND ORAL
INTERCEPTION INFORMATION.

Section 2517 of title 18, United States Code, is amended by
adding at the end the following:
``(7) Any investigative or law enforcement officer, or
other Federal official in carrying out official duties as
such Federal official, who by any means authorized by this
chapter, has obtained knowledge of the contents of any wire,
oral, or electronic communication, or evidence derived
therefrom, may disclose such contents or derivative evidence
to a foreign investigative or law enforcement officer to the
extent that such disclosure is appropriate to the proper
performance of the official duties of the officer making or
receiving the disclosure, and foreign investigative or law
enforcement officers may use or disclose such contents or
derivative evidence to the extent such use or disclosure is
appropriate to the proper performance of their official
duties.
``(8) Any investigative or law enforcement officer, or
other Federal official in carrying out official duties as
such Federal official, who by any means authorized by this
chapter, has obtained knowledge of the contents of any wire,
oral, or electronic communication, or evidence derived
therefrom, may disclose such contents or derivative evidence
to any appropriate Federal, State, local, or foreign
government official to the extent that such contents or
derivative evidence reveals a threat of actual or potential
attack or other grave hostile acts of a foreign power or an
agent of a foreign power, domestic or international sabotage,
domestic or international terrorism, or clandestine
intelligence gathering activities by an intelligence service
or network of a foreign power or by an agent of a foreign
power, within the United States or elsewhere, for the purpose
of preventing or responding to such a threat. Any official
who receives information pursuant to this provision may use
that information only as necessary in the conduct of that
person's official duties subject to any limitations on the
unauthorized disclosure of such information, and any State,
local, or foreign official who receives information pursuant
to this provision may use that information only consistent
with such guidelines as the Attorney General and Director of
Central Intelligence shall jointly issue.''.

SEC. 897. FOREIGN INTELLIGENCE INFORMATION.

(a) Dissemination Authorized.--Section 203(d)(1) of the
Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism (USA
PATRIOT ACT) Act of 2001 (Public Law 107-56; 50 U.S.C. 403-
5d) is amended by adding at the end the following:
``Consistent with the responsibility of the Director of
Central Intelligence to protect intelligence sources and
methods, and the responsibility of the Attorney General to
protect sensitive law enforcement information, it shall be
lawful for information revealing a threat of actual or
potential attack or other grave hostile acts of a foreign
power or an agent of a foreign power, domestic or
international sabotage, domestic or international terrorism,
or clandestine intelligence gathering activities by an
intelligence service or network of a foreign power or by an
agent of a foreign power, within the United States or
elsewhere, obtained as part of a criminal investigation to be
disclosed to any appropriate Federal, State, local, or
foreign government official for the purpose of preventing or
responding to such a threat. Any official who receives
information pursuant to this provision may use that
information only as necessary in the conduct of that person's
official duties subject to any limitations on the
unauthorized disclosure of such information, and any State,
local, or foreign official who receives information pursuant
to this provision may use that information only consistent
with such guidelines as the Attorney General and Director of
Central Intelligence shall jointly issue.''.
(b) Conforming Amendments.--Section 203(c) of that Act is
amended--
(1) by striking ``section 2517(6)'' and inserting
``paragraphs (6) and (8) of section 2517 of title 18, United
States Code,''; and
(2) by inserting ``and (VI)'' after ``Rule
6(e)(3)(C)(i)(V)''.

SEC. 898. INFORMATION ACQUIRED FROM AN ELECTRONIC
SURVEILLANCE.

Section 106(k)(1) of the Foreign Intelligence Surveillance
Act of 1978 (50 U.S.C. 1806) is amended by inserting after
``law enforcement officers'' the following: ``or law
enforcement personnel of a State or political subdivision of
a State (including the chief executive officer of that State
or political subdivision who has the authority to appoint or
direct the chief law enforcement officer of that State or
political subdivision)''.

SEC. 899. INFORMATION ACQUIRED FROM A PHYSICAL SEARCH.

Section 305(k)(1) of the Foreign Intelligence Surveillance
Act of 1978 (50 U.S.C. 1825) is amended by inserting after
``law enforcement officers'' the following: ``or law
enforcement personnel of a State or political subdivision of
a State (including the chief executive officer of that State
or political subdivision who has the authority to appoint or
direct the chief law enforcement officer of that State or
political subdivision)''.

TITLE IX--NATIONAL HOMELAND SECURITY COUNCIL

SEC. 901. NATIONAL HOMELAND SECURITY COUNCIL.

There is established within the Executive Office of the
President a council to be known as the ``Homeland Security
Council'' (in this title referred to as the ``Council'').

SEC. 902. FUNCTION.

The function of the Council shall be to advise the
President on homeland security matters.

SEC. 903. MEMBERSHIP.

The members of the Council shall be the following:
(1) The President.
(2) The Vice President.
(3) The Secretary of Homeland Security.
(4) The Attorney General.
(5) The Secretary of Defense.
(6) Such other individuals as may be designated by the
President.

SEC. 904. OTHER FUNCTIONS AND ACTIVITIES.

For the purpose of more effectively coordinating the
policies and functions of the United States Government
relating to homeland security, the Council shall--
(1) assess the objectives, commitments, and risks of the
United States in the interest of homeland security and to
make resulting recommendations to the President;
(2) oversee and review homeland security policies of the
Federal Government and to make resulting recommendations to
the President; and
(3) perform such other functions as the President may
direct.

SEC. 905. STAFF COMPOSITION.

The Council shall have a staff, the head of which shall be
a civilian Executive Secretary, who shall be appointed by the
President. The President is authorized to fix the pay of the
Executive Secretary at a rate not to exceed the rate of pay
payable to the Executive Secretary of the National Security
Council.

SEC. 906. RELATION TO THE NATIONAL SECURITY COUNCIL.

The President may convene joint meetings of the Homeland
Security Council and the National Security Council with
participation by members of either Council or as the
President may otherwise direct.

TITLE X--INFORMATION SECURITY

SEC. 1001. INFORMATION SECURITY.

(a) Short Title.--This title may be cited as the ``Federal
Information Security Management Act of 2002''.
(b) Information Security.--
(1) In general.--Subchapter II of chapter 35 of title 44,
United States Code, is amended to read as follows:

``SUBCHAPTER II--INFORMATION SECURITY

``Sec. 3531. Purposes

``The purposes of this subchapter are to--
``(1) provide a comprehensive framework for ensuring the
effectiveness of information security controls over
information resources that support Federal operations and
assets;
``(2) recognize the highly networked nature of the current
Federal computing environment and provide effective
governmentwide management and oversight of the related
information security risks, including coordination of
information security efforts throughout the civilian,
national security, and law enforcement communities;
``(3) provide for development and maintenance of minimum
controls required to protect Federal information and
information systems;
``(4) provide a mechanism for improved oversight of Federal
agency information security programs;
``(5) acknowledge that commercially developed information
security products offer advanced, dynamic, robust, and
effective information security solutions, reflecting market
solutions for the protection of critical information
infrastructures

[[Page S11496]]

important to the national defense and economic security of
the nation that are designed, built, and operated by the
private sector; and
``(6) recognize that the selection of specific technical
hardware and software information security solutions should
be left to individual agencies from among commercially
developed products.''.

``Sec. 3532. Definitions

``(a) In General.--Except as provided under subsection (b),
the definitions under section 3502 shall apply to this
subchapter.
``(b) Additional Definitions.--As used in this subchapter--
``(1) the term `information security' means protecting
information and information systems from unauthorized access,
use, disclosure, disruption, modification, or destruction in
order to provide--
``(A) integrity, which means guarding against improper
information modification or destruction, and includes
ensuring information nonrepudiation and authenticity;
``(B) confidentiality, which means preserving authorized
restrictions on access and disclosure, including means for
protecting personal privacy and proprietary information;
``(C) availability, which means ensuring timely and
reliable access to and use of information; and
``(D) authentication, which means utilizing digital
credentials to assure the identity of users and validate
their access;
``(2) the term `national security system' means any
information system (including any telecommunications system)
used or operated by an agency or by a contractor of an
agency, or other organization on behalf of an agency, the
function, operation, or use of which--
``(A) involves intelligence activities;
``(B) involves cryptologic activities related to national
security;
``(C) involves command and control of military forces;
``(D) involves equipment that is an integral part of a
weapon or weapons system; or
``(E) is critical to the direct fulfillment of military or
intelligence missions provided that this definition does not
apply to a system that is used for routine administrative and
business applications (including payroll, finance, logistics,
and personnel management applications);
``(3) the term `information technology' has the meaning
given that term in section 11101 of title 40; and
``(4) the term `information system' means any equipment or
interconnected system or subsystems of equipment that is used
in the automatic acquisition, storage, manipulation,
management, movement, control, display, switching,
interchange, transmission, or reception of data or
information, and includes--
``(A) computers and computer networks;
``(B) ancillary equipment;
``(C) software, firmware, and related procedures;
``(D) services, including support services; and
``(E) related resources.''.

``Sec. 3533. Authority and functions of the Director

``(a) The Director shall oversee agency information
security policies and practices, by--
``(1) promulgating information security standards under
section 11331 of title 40;
``(2) overseeing the implementation of policies,
principles, standards, and guidelines on information
security;
``(3) requiring agencies, consistent with the standards
promulgated under such section 11331 and the requirements of
this subchapter, to identify and provide information security
protections commensurate with the risk and magnitude of the
harm resulting from the unauthorized access, use, disclosure,
disruption, modification, or destruction of--
``(A) information collected or maintained by or on behalf
of an agency; or
``(B) information systems used or operated by an agency or
by a contractor of an agency or other organization on behalf
of an agency;
``(4) coordinating the development of standards and
guidelines under section 20 of the National Institute of
Standards and Technology Act (15 U.S.C. 278g-3) with agencies
and offices operating or exercising control of national
security systems (including the National Security Agency) to
assure, to the maximum extent feasible, that such standards
and guidelines are complementary with standards and
guidelines developed for national security systems;
``(5) overseeing agency compliance with the requirements of
this subchapter, including through any authorized action
under section 11303(b)(5) of title 40, to enforce
accountability for compliance with such requirements;
``(6) reviewing at least annually, and approving or
disapproving, agency information security programs required
under section 3534(b);
``(7) coordinating information security policies and
procedures with related information resources management
policies and procedures; and
``(8) reporting to Congress no later than March 1 of each
year on agency compliance with the requirements of this
subchapter, including--
``(A) a summary of the findings of evaluations required by
section 3535;
``(B) significant deficiencies in agency information
security practices;
``(C) planned remedial action to address such deficiencies;
and
``(D) a summary of, and the views of the Director on, the
report prepared by the National Institute of Standards and
Technology under section 20(d)(9) of the National Institute
of Standards and Technology Act (15 U.S.C. 278g-3).''.
``(b) Except for the authorities described in paragraphs
(4) and (7) of subsection (a), the authorities of the
Director under this section shall not apply to national
security systems.

``Sec. 3534. Federal agency responsibilities

``(a) The head of each agency shall--
``(1) be responsible for--
``(A) providing information security protections
commensurate with the risk and magnitude of the harm
resulting from unauthorized access, use, disclosure,
disruption, modification, or destruction of--
``(i) information collected or maintained by or on behalf
of the agency; and
``(ii) information systems used or operated by an agency or
by a contractor of an agency or other organization on behalf
of an agency;
``(B) complying with the requirements of this subchapter
and related policies, procedures, standards, and guidelines,
including--
``(i) information security standards promulgated by the
Director under section 11331 of title 40; and
``(ii) information security standards and guidelines for
national security systems issued in accordance with law and
as directed by the President; and
``(C) ensuring that information security management
processes are integrated with agency strategic and
operational planning processes;
``(2) ensure that senior agency officials provide
information security for the information and information
systems that support the operations and assets under their
control, including through--
``(A) assessing the risk and magnitude of the harm that
could result from the unauthorized access, use, disclosure,
disruption, modification, or destruction of such information
or information systems;
``(B) determining the levels of information security
appropriate to protect such information and information
systems in accordance with standards promulgated under
section 11331 of title 40 for information security
classifications and related requirements;
``(C) implementing policies and procedures to cost-
effectively reduce risks to an acceptable level; and
``(D) periodically testing and evaluating information
security controls and techniques to ensure that they are
effectively implemented;
``(3) delegate to the agency Chief Information Officer
established under section 3506 (or comparable official in an
agency not covered by such section) the authority to ensure
compliance with the requirements imposed on the agency under
this subchapter, including--
``(A) designating a senior agency information security
officer who shall--
``(i) carry out the Chief Information Officer's
responsibilities under this section;
``(ii) possess professional qualifications, including
training and experience, required to administer the functions
described under this section;
``(iii) have information security duties as that official's
primary duty; and
``(iv) head an office with the mission and resources to
assist in ensuring agency compliance with this section;
``(B) developing and maintaining an agencywide information
security program as required by subsection (b);
``(C) developing and maintaining information security
policies, procedures, and control techniques to address all
applicable requirements, including those issued under section
3533 of this title, and section 11331 of title 40;
``(D) training and overseeing personnel with significant
responsibilities for information security with respect to
such responsibilities; and
``(E) assisting senior agency officials concerning their
responsibilities under paragraph (2);
``(4) ensure that the agency has trained personnel
sufficient to assist the agency in complying with the
requirements of this subchapter and related policies,
procedures, standards, and guidelines; and
``(5) ensure that the agency Chief Information Officer, in
coordination with other senior agency officials, reports
annually to the agency head on the effectiveness of the
agency information security program, including progress of
remedial actions.
``(b) Each agency shall develop, document, and implement an
agencywide information security program, approved by the
Director under section 3533(a)(5), to provide information
security for the information and information systems that
support the operations and assets of the agency, including
those provided or managed by another agency, contractor, or
other source, that includes--
``(1) periodic assessments of the risk and magnitude of the
harm that could result from the unauthorized access, use,
disclosure, disruption, modification, or destruction of
information and information systems that support the
operations and assets of the agency;
``(2) policies and procedures that--
``(A) are based on the risk assessments required by
paragraph (1);
``(B) cost-effectively reduce information security risks to
an acceptable level;
``(C) ensure that information security is addressed
throughout the life cycle of each agency information system;
and
``(D) ensure compliance with--
``(i) the requirements of this subchapter;
``(ii) policies and procedures as may be prescribed by the
Director, and information security standards promulgated
under section 11331 of title 40;
``(iii) minimally acceptable system configuration
requirements, as determined by the agency; and
``(iv) any other applicable requirements, including
standards and guidelines for national security systems issued
in accordance with law and as directed by the President;
``(3) subordinate plans for providing adequate information
security for networks, facilities, and

[[Page S11497]]

systems or groups of information systems, as appropriate;
``(4) security awareness training to inform personnel,
including contractors and other users of information systems
that support the operations and assets of the agency, of--
``(A) information security risks associated with their
activities; and
``(B) their responsibilities in complying with agency
policies and procedures designed to reduce these risks;
``(5) periodic testing and evaluation of the effectiveness
of information security policies, procedures, and practices,
to be performed with a frequency depending on risk, but no
less than annually, of which such testing--
``(A) shall include testing of management, operational, and
technical controls of every information system identified in
the inventory required under section 3505(c); and
``(B) may include testing relied on in a evaluation under
section 3535;
``(6) a process for planning, implementing, evaluating, and
documenting remedial action to address any deficiencies in
the information security policies, procedures, and practices
of the agency;
``(7) procedures for detecting, reporting, and responding
to security incidents, including--
``(A) mitigating risks associated with such incidents
before substantial damage is done; and
``(B) notifying and consulting with, as appropriate--
``(i) law enforcement agencies and relevant Offices of
Inspector General;
``(ii) an office designated by the President for any
incident involving a national security system; and
``(iii) any other agency or office, in accordance with law
or as directed by the President; and
``(8) plans and procedures to ensure continuity of
operations for information systems that support the
operations and assets of the agency.
``(c) Each agency shall--
``(1) report annually to the Director, the Committees on
Government Reform and Science of the House of
Representatives, the Committees on Governmental Affairs and
Commerce, Science, and Transportation of the Senate, the
appropriate authorization and appropriations committees of
Congress, and the Comptroller General on the adequacy and
effectiveness of information security policies, procedures,
and practices, and compliance with the requirements of this
subchapter, including compliance with each requirement of
subsection (b);
``(2) address the adequacy and effectiveness of information
security policies, procedures, and practices in plans and
reports relating to--
``(A) annual agency budgets;
``(B) information resources management under subchapter 1
of this chapter;
``(C) information technology management under subtitle III
of title 40;
``(D) program performance under sections 1105 and 1115
through 1119 of title 31, and sections 2801 and 2805 of title
39;
``(E) financial management under chapter 9 of title 31, and
the Chief Financial Officers Act of 1990 (31 U.S.C. 501 note;
Public Law 101-576) (and the amendments made by that Act);
``(F) financial management systems under the Federal
Financial Management Improvement Act (31 U.S.C. 3512 note);
and
``(G) internal accounting and administrative controls under
section 3512 of title 31, United States Code, (known as the
`Federal Managers Financial Integrity Act'); and
``(3) report any significant deficiency in a policy,
procedure, or practice identified under paragraph (1) or
(2)--
``(A) as a material weakness in reporting under section
3512 of title 31; and
``(B) if relating to financial management systems, as an
instance of a lack of substantial compliance under the
Federal Financial Management Improvement Act (31 U.S.C. 3512
note).
``(d)(1) In addition to the requirements of subsection (c),
each agency, in consultation with the Director, shall include
as part of the performance plan required under section 1115
of title 31 a description of--
``(A) the time periods, and
``(B) the resources, including budget, staffing, and
training,
that are necessary to implement the program required under
subsection (b).
``(2) The description under paragraph (1) shall be based on
the risk assessments required under subsection (b)(2)(1).
``(e) Each agency shall provide the public with timely
notice and opportunities for comment on proposed information
security policies and procedures to the extent that such
policies and procedures affect communication with the public.

``Sec. 3535. Annual independent evaluation

``(a)(1) Each year each agency shall have performed an
independent evaluation of the information security program
and practices of that agency to determine the effectiveness
of such program and practices.
``(2) Each evaluation by an agency under this section shall
include--
``(A) testing of the effectiveness of information security
policies, procedures, and practices of a representative
subset of the agency's information systems;
``(B) an assessment (made on the basis of the results of
the testing) of compliance with--
``(i) the requirements of this subchapter; and
``(ii) related information security policies, procedures,
standards, and guidelines; and
``(C) separate presentations, as appropriate, regarding
information security relating to national security systems.
``(b) Subject to subsection (c)--
``(1) for each agency with an Inspector General appointed
under the Inspector General Act of 1978, the annual
evaluation required by this section shall be performed by the
Inspector General or by an independent external auditor, as
determined by the Inspector General of the agency; and
``(2) for each agency to which paragraph (1) does not
apply, the head of the agency shall engage an independent
external auditor to perform the evaluation.
``(c) For each agency operating or exercising control of a
national security system, that portion of the evaluation
required by this section directly relating to a national
security system shall be performed--
``(1) only by an entity designated by the agency head; and
``(2) in such a manner as to ensure appropriate protection
for information associated with any information security
vulnerability in such system commensurate with the risk and
in accordance with all applicable laws.
``(d) The evaluation required by this section--
``(1) shall be performed in accordance with generally
accepted government auditing standards; and
``(2) may be based in whole or in part on an audit,
evaluation, or report relating to programs or practices of
the applicable agency.
``(e) Each year, not later than such date established by
the Director, the head of each agency shall submit to the
Director the results of the evaluation required under this
section.
``(f) Agencies and evaluators shall take appropriate steps
to ensure the protection of information which, if disclosed,
may adversely affect information security. Such protections
shall be commensurate with the risk and comply with all
applicable laws and regulations.
``(g)(1) The Director shall summarize the results of the
evaluations conducted under this section in the report to
Congress required under section 3533(a)(8).
``(2) The Director's report to Congress under this
subsection shall summarize information regarding information
security relating to national security systems in such a
manner as to ensure appropriate protection for information
associated with any information security vulnerability in
such system commensurate with the risk and in accordance with
all applicable laws.
``(3) Evaluations and any other descriptions of information
systems under the authority and control of the Director of
Central Intelligence or of National Foreign Intelligence
Programs systems under the authority and control of the
Secretary of Defense shall be made available to Congress only
through the appropriate oversight committees of Congress, in
accordance with applicable laws.
``(h) The Comptroller General shall periodically evaluate
and report to Congress on--
``(1) the adequacy and effectiveness of agency information
security policies and practices; and
``(2) implementation of the requirements of this
subchapter.

``Sec. 3536. National security systems

``The head of each agency operating or exercising control
of a national security system shall be responsible for
ensuring that the agency--
``(1) provides information security protections
commensurate with the risk and magnitude of the harm
resulting from the unauthorized access, use, disclosure,
disruption, modification, or destruction of the information
contained in such system;
``(2) implements information security policies and
practices as required by standards and guidelines for
national security systems, issued in accordance with law and
as directed by the President; and
``(3) complies with the requirements of this subchapter.

``Sec. 3537. Authorization of appropriations

``There are authorized to be appropriated to carry out the
provisions of this subchapter such sums as may be necessary
for each of fiscal years 2003 through 2007.

``Sec. 3538. Effect on existing law

``Nothing in this subchapter, section 11331 of title 40, or
section 20 of the National Standards and Technology Act (15
U.S.C. 278g-3) may be construed as affecting the authority of
the President, the Office of Management and Budget or the
Director thereof, the National Institute of Standards and
Technology, or the head of any agency, with respect to the
authorized use or disclosure of information, including with
regard to the protection of personal privacy under section
552a of title 5, the disclosure of information under section
552 of title 5, the management and disposition of records
under chapters 29, 31, or 33 of title 44, the management of
information resources under subchapter I of chapter 35 of
this title, or the disclosure of information to Congress or
the Comptroller General of the United States.''.
(2) Clerical amendment.--The items in the table of sections
at the beginning of such chapter 35 under the heading
``SUBCHAPTER II'' are amended to read as follows:

``3531. Purposes.
``3532. Definitions.
``3533. Authority and functions of the Director.
``3534. Federal agency responsibilities.
``3535. Annual independent evaluation.
``3536. National security systems.
``3537. Authorization of appropriations.
``3538. Effect on existing law.''.

(c) Information Security Responsibilities of Certain
Agencies.--
(1) National security responsibilities.--(A) Nothing in
this Act (including any amendment made by this Act) shall
supersede any authority of the Secretary of Defense, the
Director of Central Intelligence, or other agency head, as
authorized by law and as directed by the President, with
regard to the operation, control, or management of national
security systems, as defined by section 3532(3) of title 44,
United States Code.

[[Page S11498]]

(B) Section 2224 of title 10, United States Code, is
amended--
(i) in subsection 2224(b), by striking ``(b) Objectives and
Minimum Requirements.--(1)'' and inserting ``(b) Objectives
of the Program.--'';
(ii) in subsection 2224(b), by striking ``(2) the program
shall at a minimum meet the requirements of section 3534 and
3535 of title 44, United States Code.''; and
(iii) in subsection 2224(c), by inserting ``, including
through compliance with subtitle II of chapter 35 of title
44'' after ``infrastructure''.
(2) Atomic energy act of 1954.--Nothing in this Act shall
supersede any requirement made by or under the Atomic Energy
Act of 1954 (42 U.S.C. 2011 et seq.). Restricted Data or
Formerly Restricted Data shall be handled, protected,
classified, downgraded, and declassified in conformity with
the Atomic Energy Act of 1954 (42 U.S.C. 2011 et seq.).

SEC. 1002. MANAGEMENT OF INFORMATION TECHNOLOGY.

(a) In General.--Section 11331 of title 40, United States
Code, is amended to read as follows:

``Sec. 11331. Responsibilities for Federal information
systems standards

``(a) Definition.--In this section, the term `information
security' has the meaning given that term in section
3532(b)(1) of title 44.
``(b) Requirement to Prescribe Standards.--
``(1) In general.--
``(A) Requirement.--Except as provided under paragraph (2),
the Director of the Office of Management and Budget shall, on
the basis of proposed standards developed by the National
Institute of Standards and Technology pursuant to paragraphs
(2) and (3) of section 20(a) of the National Institute of
Standards and Technology Act (15 U.S.C. 278g-3(a)) and in
consultation with the Secretary of Homeland Security,
promulgate information security standards pertaining to
Federal information systems.
``(B) Required standards.--Standards promulgated under
subparagraph (A) shall include--
``(i) standards that provide minimum information security
requirements as determined under section 20(b) of the
National Institute of Standards and Technology Act (15 U.S.C.
278g-3(b)); and
``(ii) such standards that are otherwise necessary to
improve the efficiency of operation or security of Federal
information systems.
``(C) Required standards binding.--Information security
standards described under subparagraph (B) shall be
compulsory and binding.
``(2) Standards and guidelines for national security
systems.--Standards and guidelines for national security
systems, as defined under section 3532(3) of title 44, shall
be developed, promulgated, enforced, and overseen as
otherwise authorized by law and as directed by the President.
``(c) Application of More Stringent Standards.--The head of
an agency may employ standards for the cost-effective
information security for all operations and assets within or
under the supervision of that agency that are more stringent
than the standards promulgated by the Director under this
section, if such standards--
``(1) contain, at a minimum, the provisions of those
applicable standards made compulsory and binding by the
Director; and
``(2) are otherwise consistent with policies and guidelines
issued under section 3533 of title 44.
``(d) Requirements Regarding Decisions by Director.--
``(1) Deadline.--The decision regarding the promulgation of
any standard by the Director under subsection (b) shall occur
not later than 6 months after the submission of the proposed
standard to the Director by the National Institute of
Standards and Technology, as provided under section 20 of the
National Institute of Standards and Technology Act (15 U.S.C.
278g-3).
``(2) Notice and comment.--A decision by the Director to
significantly modify, or not promulgate, a proposed standard
submitted to the Director by the National Institute of
Standards and Technology, as provided under section 20 of the
National Institute of Standards and Technology Act (15 U.S.C.
278g-3), shall be made after the public is given an
opportunity to comment on the Director's proposed
decision.''.
(b) Clerical Amendment.--The table of sections at the
beginning of chapter 113 of title 40, United States Code, is
amended by striking the item relating to section 11331 and
inserting the following:

``11331. Responsibilities for Federal information systems standards.''.

SEC. 1003. NATIONAL INSTITUTE OF STANDARDS AND TECHNOLOGY.

Section 20 of the National Institute of Standards and
Technology Act (15 U.S.C. 278g-3), is amended by striking the
text and inserting the following:
``(a) The Institute shall--
``(1) have the mission of developing standards, guidelines,
and associated methods and techniques for information
systems;
``(2) develop standards and guidelines, including minimum
requirements, for information systems used or operated by an
agency or by a contractor of an agency or other organization
on behalf of an agency, other than national security systems
(as defined in section 3532(b)(2) of title 44, United States
Code);
``(3) develop standards and guidelines, including minimum
requirements, for providing adequate information security for
all agency operations and assets, but such standards and
guidelines shall not apply to national security systems; and
``(4) carry out the responsibilities described in paragraph
(3) through the Computer Security Division.
``(b) The standards and guidelines required by subsection
(a) shall include, at a minimum--
``(1)(A) standards to be used by all agencies to categorize
all information and information systems collected or
maintained by or on behalf of each agency based on the
objectives of providing appropriate levels of information
security according to a range of risk levels;
``(B) guidelines recommending the types of information and
information systems to be included in each such category; and
``(C) minimum information security requirements for
information and information systems in each such category;
``(2) a definition of and guidelines concerning detection
and handling of information security incidents; and
``(3) guidelines developed in coordination with the
National Security Agency for identifying an information
system as a national security system consistent with
applicable requirements for national security systems, issued
in accordance with law and as directed by the President.
``(c) In developing standards and guidelines required by
subsections (a) and (b), the Institute shall--
``(1) consult with other agencies and offices (including,
but not limited to, the Director of the Office of Management
and Budget, the Departments of Defense and Energy, the
National Security Agency, the General Accounting Office, and
the Secretary of Homeland Security) to assure--
``(A) use of appropriate information security policies,
procedures, and techniques, in order to improve information
security and avoid unnecessary and costly duplication of
effort; and
``(B) that such standards and guidelines are complementary
with standards and guidelines employed for the protection of
national security systems and information contained in such
systems;
``(2) provide the public with an opportunity to comment on
proposed standards and guidelines;
``(3) submit to the Director of the Office of Management
and Budget for promulgation under section 11331 of title 40,
United States Code--
``(A) standards, as required under subsection (b)(1)(A), no
later than 12 months after the date of the enactment of this
section; and
``(B) minimum information security requirements for each
category, as required under subsection (b)(1)(C), no later
than 36 months after the date of the enactment of this
section;
``(4) issue guidelines as required under subsection
(b)(1)(B), no later than 18 months after the date of the
enactment of this Act;
``(5) ensure that such standards and guidelines do not
require specific technological solutions or products,
including any specific hardware or software security
solutions;
``(6) ensure that such standards and guidelines provide for
sufficient flexibility to permit alternative solutions to
provide equivalent levels of protection for identified
information security risks; and
``(7) use flexible, performance-based standards and
guidelines that, to the greatest extent possible, permit the
use of off-the-shelf commercially developed information
security products.
``(d) The Institute shall--
``(1) submit standards developed pursuant to subsection
(a), along with recommendations as to the extent to which
these should be made compulsory and binding, to the Director
of the Office of Management and Budget for promulgation under
section 11331 of title 40, United States Code;
``(2) provide assistance to agencies regarding--
``(A) compliance with the standards and guidelines
developed under subsection (a);
``(B) detecting and handling information security
incidents; and
``(C) information security policies, procedures, and
practices;
``(3) conduct research, as needed, to determine the nature
and extent of information security vulnerabilities and
techniques for providing cost-effective information security;
``(4) develop and periodically revise performance
indicators and measures for agency information security
policies and practices;
``(5) evaluate private sector information security policies
and practices and commercially available information
technologies to assess potential application by agencies to
strengthen information security;
``(6) evaluate security policies and practices developed
for national security systems to assess potential application
by agencies to strengthen information security;
``(7) periodically assess the effectiveness of standards
and guidelines developed under this section and undertake
revisions as appropriate;
``(8) solicit and consider the recommendations of the
Information Security and Privacy Advisory Board, established
by section 21, regarding standards and guidelines developed
under subsection (a) and submit such recommendations to the
Director of the Office of Management and Budget with such
standards submitted to the Director; and
``(9) prepare an annual public report on activities
undertaken in the previous year, and planned for the coming
year, to carry out responsibilities under this section.
``(e) As used in this section--
``(1) the term `agency' has the same meaning as provided in
section 3502(1) of title 44, United States Code;
``(2) the term `information security' has the same meaning
as provided in section 3532(1) of such title;
``(3) the term `information system' has the same meaning as
provided in section 3502(8) of such title;
``(4) the term `information technology' has the same
meaning as provided in section 11101 of title 40, United
States Code; and

[[Page S11499]]

``(5) the term `national security system' has the same
meaning as provided in section 3532(b)(2) of such title.''.

SEC. 1004. INFORMATION SECURITY AND PRIVACY ADVISORY BOARD.

Section 21 of the National Institute of Standards and
Technology Act (15 U.S.C. 278g-4), is amended--
(1) in subsection (a), by striking ``Computer System
Security and Privacy Advisory Board'' and inserting
``Information Security and Privacy Advisory Board'';
(2) in subsection (a)(1), by striking ``computer or
telecommunications'' and inserting ``information
technology'';
(3) in subsection (a)(2)--
(A) by striking ``computer or telecommunications
technology'' and inserting ``information technology''; and
(B) by striking ``computer or telecommunications
equipment'' and inserting ``information technology'';
(4) in subsection (a)(3)--
(A) by striking ``computer systems'' and inserting
``information system''; and
(B) by striking ``computer systems security'' and inserting
``information security'';
(5) in subsection (b)(1) by striking ``computer systems
security'' and inserting ``information security'';
(6) in subsection (b) by striking paragraph (2) and
inserting the following:
``(2) to advise the Institute and the Director of the
Office of Management and Budget on information security and
privacy issues pertaining to Federal Government information
systems, including through review of proposed standards and
guidelines developed under section 20; and'';
(7) in subsection (b)(3) by inserting ``annually'' after
``report'';
(8) by inserting after subsection (e) the following new
subsection:
``(f) The Board shall hold meetings at such locations and
at such time and place as determined by a majority of the
Board.'';
(9) by redesignating subsections (f) and (g) as subsections
(g) and (h), respectively; and
(10) by striking subsection (h), as redesignated by
paragraph (9), and inserting the following:
``(h) As used in this section, the terms ``information
system'' and ``information technology'' have the meanings
given in section 20.''.

SEC. 1005. TECHNICAL AND CONFORMING AMENDMENTS.

(a) Federal Computer System Security Training and Plan.--
(1) Repeal.--Section 11332 of title 40, United States Code,
is repealed.
(2) Clerical amendment.--The table of sections at the
beginning of chapter 113 of title 40, United States Code, as
amended by striking the item relating to section 11332.
(b) Floyd D. Spence National Defense Authorization Act for
Fiscal Year 2001.--The Floyd D. Spence National Defense
Authorization Act for Fiscal Year 2001 (Public Law 106-398)
is amended by striking subtitle G of title X (44 U.S.C. 3531
note).
(c) Paperwork Reduction Act.--(1) Section 3504(g) of title
44, United States Code, is amended--
(A) by adding ``and'' at the end of paragraph (1);
(B) in paragraph (2)--
(i) by striking ``sections 11331 and 11332(b) and (c) of
title 40'' and inserting ``section 11331 of title 40 and
subchapter II of this title''; and
(ii) by striking the semicolon and inserting a period; and
(C) by striking paragraph (3).
(2) Section 3505 of such title is amended by adding at the
end the following:
``(c) Inventory of Information Systems.--(1) The head of
each agency shall develop and maintain an inventory of the
information systems (including national security systems)
operated by or under the control of such agency;
``(2) The identification of information systems in an
inventory under this subsection shall include an
identification of the interfaces between each such system and
all other systems or networks, including those not operated
by or under the control of the agency;
``(3) Such inventory shall be--
``(A) updated at least annually;
``(B) made available to the Comptroller General; and
``(C) used to support information resources management,
including--
``(i) preparation and maintenance of the inventory of
information resources under section 3506(b)(4);
``(ii) information technology planning, budgeting,
acquisition, and management under section 3506(h), subtitle
III of title 40, and related laws and guidance;
``(iii) monitoring, testing, and evaluation of information
security controls under subchapter II;
``(iv) preparation of the index of major information
systems required under section 552(g) of title 5, United
States Code; and
``(v) preparation of information system inventories
required for records management under chapters 21, 29, 31,
and 33.
``(4) The Director shall issue guidance for and oversee the
implementation of the requirements of this subsection.''.
(3) Section 3506(g) of such title is amended--
(A) by adding ``and'' at the end of paragraph (1);
(B) in paragraph (2)--
(i) by striking ``section 11332 of title 40'' and inserting
``subchapter II of this chapter''; and
(ii) by striking ``; and'' and inserting a period; and
(C) by striking paragraph (3).

SEC. 1006. CONSTRUCTION.

Nothing in this Act, or the amendments made by this Act,
affects the authority of the National Institute of Standards
and Technology or the Department of Commerce relating to the
development and promulgation of standards or guidelines under
paragraphs (1) and (2) of section 20(a) of the National
Institute of Standards and Technology Act (15 U.S.C. 278g-
3(a)).

TITLE XI--DEPARTMENT OF JUSTICE DIVISIONS

Subtitle A--Executive Office for Immigration Review

SEC. 1101. LEGAL STATUS OF EOIR.

(a) Existence of EOIR.--There is in the Department of
Justice the Executive Office for Immigration Review, which
shall be subject to the direction and regulation of the
Attorney General under section 103(g) of the Immigration and
Nationality Act, as added by section 1102.

SEC. 1102. AUTHORITIES OF THE ATTORNEY GENERAL.

Section 103 of the Immigration and Nationality Act (8
U.S.C. 1103) as amended by this Act, is further amended by--
(1) amending the heading to read as follows:

``powers and duties of the secretary, the under secretary, and the
attorney general'';

(2) in subsection (a)--
(A) by inserting ``Attorney General,'' after
``President,''; and
(B) by redesignating paragraphs (8), (9), (8) (as added by
section 372 of Public Law 104-208), and (9) (as added by
section 372 of Public Law 104-208) as paragraphs (8), (9),
(10), and (11), respectively; and
(3) by adding at the end the following new subsection:
``(g) Attorney General.--
``(1) In general.--The Attorney General shall have such
authorities and functions under this Act and all other laws
relating to the immigration and naturalization of aliens as
were exercised by the Executive Office for Immigration
Review, or by the Attorney General with respect to the
Executive Office for Immigration Review, on the day before
the effective date of the Immigration Reform, Accountability
and Security Enhancement Act of 2002.
``(2) Powers.--The Attorney General shall establish such
regulations, prescribe such forms of bond, reports, entries,
and other papers, issue such instructions, review such
administrative determinations in immigration proceedings,
delegate such authority, and perform such other acts as the
Attorney General determines to be necessary for carrying out
this section.''.

SEC. 1103. STATUTORY CONSTRUCTION.

Nothing in this Act, any amendment made by this Act, or in
section 103 of the Immigration and Nationality Act, as
amended by section 1102, shall be construed to limit judicial
deference to regulations, adjudications, interpretations,
orders, decisions, judgments, or any other actions of the
Secretary of Homeland Security or the Attorney General.

Subtitle B--Transfer of the Bureau of Alcohol, Tobacco and Firearms to
the Department of Justice

SEC. 1111. BUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND
EXPLOSIVES.

(a) Establishment.--
(1) In general.--There is established within the Department
of Justice under the general authority of the Attorney
General the Bureau of Alcohol, Tobacco, Firearms, and
Explosives (in this section referred to as the ``Bureau'').
(2) Director.--There shall be at the head of the Bureau a
Director, Bureau of Alcohol, Tobacco, Firearms, and
Explosives (in this subtitle referred to as the
``Director''). The Director shall be appointed by the
Attorney General and shall perform such functions as the
Attorney General shall direct. The Director shall receive
compensation at the rate prescribed by law under section 5314
of title V, United States Code, for positions at level III of
the Executive Schedule.
(3) Coordination.--The Attorney General, acting through the
Director and such other officials of the Department of
Justice as the Attorney General may designate, shall provide
for the coordination of all firearms, explosives, tobacco
enforcement, and arson enforcement functions vested in the
Attorney General so as to assure maximum cooperation between
and among any officer, employee, or agency of the Department
of Justice involved in the performance of these and related
functions.
(4) Performance of transferred functions.--The Attorney
General may make such provisions as the Attorney General
determines appropriate to authorize the performance by any
officer, employee, or agency of the Department of Justice of
any function transferred to the Attorney General under this
section.
(b) Responsibilities.--Subject to the direction of the
Attorney General, the Bureau shall be responsible for
investigating--
(1) criminal and regulatory violations of the Federal
firearms, explosives, arson, alcohol, and tobacco smuggling
laws;
(2) the functions transferred by subsection (c); and
(3) any other function related to the investigation of
violent crime or domestic terrorism that is delegated to the
Bureau by the Attorney General.
(c) Transfer of Authorities, Functions, Personnel, and
Assets to the Department of Justice.--
(1) In general.--Subject to paragraph (2), but
notwithstanding any other provision of law, there are
transferred to the Department of Justice the authorities,
functions, personnel, and assets of the Bureau of Alcohol,
Tobacco and Firearms, which shall be maintained as a distinct
entity within the Department of Justice, including the
related functions of the Secretary of the Treasury.

[[Page S11500]]

(2) Administration and revenue collection functions.--There
shall be retained within the Department of the Treasury the
authorities, functions, personnel, and assets of the Bureau
of Alcohol, Tobacco and Firearms relating to the
administration and enforcement of chapters 51 and 52 of the
Internal Revenue Code of 1986, sections 4181 and 4182 of the
Internal Revenue Code of 1986, and title 27, United States
Code.
(3) Building prospectus.--Prospectus PDC-98W10, giving the
General Services Administration the authority for site
acquisition, design, and construction of a new headquarters
building for the Bureau of Alcohol, Tobacco and Firearms, is
transferred, and deemed to apply, to the Bureau of Alcohol,
Tobacco, Firearms, and Explosives established in the
Department of Justice under subsection (a).
(d) Tax and Trade Bureau.--
(1) Establishment.--There is established within the
Department of the Treasury the Tax and Trade Bureau.
(2) Administrator.--The Tax and Trade Bureau shall be
headed by an Administrator, who shall perform such duties as
assigned by the Under Secretary for Enforcement of the
Department of the Treasury. The Administrator shall occupy a
career-reserved position within the Senior Executive Service.
(3) Responsibilities.--The authorities, functions,
personnel, and assets of the Bureau of Alcohol, Tobacco and
Firearms that are not transferred to the Department of
Justice under this section shall be retained and administered
by the Tax and Trade Bureau.

SEC. 1112. TECHNICAL AND CONFORMING AMENDMENTS.

(a) The Inspector General Act of 1978 (5 U.S.C. App.) is
amended--
(1) in section 8D(b)(1) by striking ``Bureau of Alcohol,
Tobacco and Firearms'' and inserting ``Tax and Trade
Bureau''; and
(2) in section 9(a)(1)(L)(i), by striking ``Bureau of
Alcohol, Tobacco, and Firearms'' and inserting ``Tax and
Trade Bureau''.
(b) Section 1109(c)(2)(A)(i) of the Consolidated Omnibus
Budget Reconciliation Act of 1985 (7 U.S.C. 1445-
3(c)(2)(A)(i)) is amended by striking ``(on ATF Form 3068) by
manufacturers of tobacco products to the Bureau of Alcohol,
Tobacco and Firearms'' and inserting ``by manufacturers of
tobacco products to the Tax and Trade Bureau''.
(c) Section 2(4)(J) of the Enhanced Border Security and
Visa Entry Reform Act of 2002 (Public Law 107-173; 8 U.S.C.A.
1701(4)(J)) is amended by striking ``Bureau of Alcohol,
Tobacco, and Firearms'' and inserting ``Bureau of Alcohol,
Tobacco, Firearms, and Explosives, Department of Justice''.
(d) Section 3(1)(E) of the Firefighters' Safety Study Act
(15 U.S.C. 2223b(1)(E)) is amended by striking ``the Bureau
of Alcohol, Tobacco, and Firearms,'' and inserting ``the
Bureau of Alcohol, Tobacco, Firearms, and Explosives,
Department of Justice,''.
(e) Chapter 40 of title 18, United States Code, is
amended--
(1) by striking section 841(k) and inserting the following:
``(k) `Attorney General' means the Attorney General of the
United States.'';
(2) in section 846(a), by striking ``the Attorney General
and the Federal Bureau of Investigation, together with the
Secretary'' and inserting ``the Federal Bureau of
Investigation, together with the Bureau of Alcohol, Tobacco,
Firearms, and Explosives''; and
(3) by striking ``Secretary'' each place it appears and
inserting ``Attorney General''.
(f) Chapter 44 of title 18, United States Code, is
amended--
(1) in section 921(a)(4)(B), by striking ``Secretary'' and
inserting ``Attorney General'';
(2) in section 921(a)(4), by striking ``Secretary of the
Treasury'' and inserting ``Attorney General'';
(3) in section 921(a), by striking paragraph (18) and
inserting the following:
``(18) The term `Attorney General' means the Attorney
General of the United States'';
(4) in section 922(p)(5)(A), by striking ``after
consultation with the Secretary'' and inserting ``after
consultation with the Attorney General'';
(5) in section 923(l), by striking ``Secretary of the
Treasury'' and inserting ``Attorney General''; and
(6) by striking ``Secretary'' each place it appears, except
before ``of the Army'' in section 921(a)(4) and before ``of
Defense'' in section 922(p)(5)(A), and inserting the term
``Attorney General''.
(g) Section 1261(a) of title 18, United States Code, is
amended to read as follows:
``(a) The Attorney General--
``(1) shall enforce the provisions of this chapter; and
``(2) has the authority to issue regulations to carry out
the provisions of this chapter.''.
(h) Section 1952(c) of title 18, United States Code, is
amended by striking ``Secretary of the Treasury'' and
inserting ``Attorney General''.
(i) Chapter 114 of title 18, United States Code, is
amended--
(1) by striking section 2341(5), and inserting the
following:
``(5) the term `Attorney General' means the Attorney
General of the United States''; and
(2) by striking ``Secretary'' each place it appears and
inserting ``Attorney General''.
(j) Section 6103(i)(8)(A)(i) of the Internal Revenue Code
of 1986 (relating to confidentiality and disclosure of
returns and return information) is amended by striking ``or
the Bureau of Alcohol, Tobacco and Firearms'' and inserting
``, the Bureau of Alcohol, Tobacco, Firearms, and Explosives,
Department of Justice, or the Tax and Trade Bureau,
Department of the Treasury,''.
(k) Section 7801(a) of the Internal Revenue Code of 1986
(relating to the authority of the Department of the Treasury)
is amended--
(1) by striking ``Secretary.--Except'' and inserting
``Secretary.--
``(1) In general.--Except''; and
(2) by adding at the end the following:
``(2) Administration and enforcement of certain provisions
by attorney general.--
``(A) In general.--The administration and enforcement of
the following provisions of this title shall be performed by
or under the supervision of the Attorney General; and the
term `Secretary' or `Secretary of the Treasury' shall, when
applied to those provisions, mean the Attorney General; and
the term `internal revenue officer' shall, when applied to
those provisions, mean any officer of the Bureau of Alcohol,
Tobacco, Firearms, and Explosives so designated by the
Attorney General:
``(i) Chapter 53.
``(ii) Chapters 61 through 80, to the extent such chapters
relate to the enforcement and administration of the
provisions referred to in clause (i).
``(B) Use of existing rulings and interpretations.--Nothing
in this Act alters or repeals the rulings and interpretations
of the Bureau of Alcohol, Tobacco, and Firearms in effect on
the effective date of the Homeland Security Act of 2002,
which concern the provisions of this title referred to in
subparagraph (A). The Attorney General shall consult with the
Secretary to achieve uniformity and consistency in
administering provisions under chapter 53 of title 26, United
States Code.''.
(l) Section 2006(2) of title 28, United States Code, is
amended by inserting ``, the Director, Bureau of Alcohol,
Tobacco, Firearms, and Explosives, Department of Justice,''
after ``the Secretary of the Treasury''.
(m) Section 713 of title 31, United States Code, is
amended--
(1) by striking the section heading and inserting the
following:

``Sec. 713. Audit of Internal Revenue Service, Tax and Trade
Bureau, and Bureau of Alcohol, Tobacco, Firearms, and
Explosives'';

(2) in subsection (a), by striking ``Bureau of Alcohol,
Tobacco, and Firearms,'' and inserting ``Tax and Trade
Bureau, Department of the Treasury, and the Bureau of
Alcohol, Tobacco, Firearms, and Explosives, Department of
Justice''; and
(3) in subsection (b)
(A) in paragraph (1)(B), by striking ``or the Bureau'' and
inserting ``or either Bureau'';
(B) in paragraph (2)--
(i) by striking ``or the Bureau'' and inserting ``or either
Bureau''; and
(ii) by striking ``and the Director of the Bureau'' and
inserting ``the Tax and Trade Bureau, Department of the
Treasury, and the Director of the Bureau of Alcohol, Tobacco,
Firearms, and Explosives, Department of Justice''; and
(C) in paragraph (3), by striking ``or the Bureau'' and
inserting ``or either Bureau''.
(n) Section 9703 of title 31, United States Code, is
amended--
(1) in subsection (a)(2)(B)--
(A) in clause (iii)(III), by inserting ``and'' after the
semicolon;
(B) in clause (iv), by striking ``; and'' and inserting a
period; and
(C) by striking clause (v);
(2) by striking subsection (o);
(3) by redesignating existing subsection (p) as subsection
(o); and
(4) in subsection (o)(1), as redesignated by paragraph (3),
by striking ``Bureau of Alcohol, Tobacco and Firearms'' and
inserting ``Tax and Trade Bureau''.
(o) Section 609N(2)(L) of the Justice Assistance Act of
1984 (42 U.S.C. 10502(2)(L)) is amended by striking ``Bureau
of Alcohol, Tobacco, and Firearms'' and inserting ``Bureau of
Alcohol, Tobacco, Firearms, and Explosives, Department of
Justice''.
(p) Section 32401(a) of the Violent Crime Control and Law
Enforcement Act of 1994 (42 U.S.C. 13921(a)) is amended--
(1) by striking ``Secretary of the Treasury'' each place it
appears and inserting ``Attorney General''; and
(2) in subparagraph (3)(B), by striking ``Bureau of
Alcohol, Tobacco and Firearms'' and inserting ``Bureau of
Alcohol, Tobacco, Firearms, and Explosives, Department of
Justice''.
(q) Section 80303 of title 49, United States Code, is
amended--
(1) by inserting ``or, when the violation of this chapter
involves contraband described in paragraph (2) or (5) of
section 80302(a), the Attorney General'' after ``section
80304 of this title.''; and
(2) by inserting ``, the Attorney General,'' after ``by the
Secretary''.
(r) Section 80304 of title 49, United States Code, is
amended--
(1) in subsection (a), by striking ``(b) and (c)'' and
inserting ``(b), (c), and (d)'';
(2) by redesignating subsection (d) as subsection (e); and
(3) by inserting after subsection (c), the following:
``(d) Attorney General.--The Attorney General, or officers,
employees, or agents of the Bureau of Alcohol, Tobacco,
Firearms, and Explosives, Department of Justice designated by
the Attorney General, shall carry out the laws referred to in
section 80306(b) of this title to the extent that the
violation of this chapter involves contraband described in
section 80302 (a)(2) or (a)(5).''.
(s) Section 103 of the Gun Control Act of 1968 (Public Law
90-618; 82 Stat. 1226) is amended by striking ``Secretary of
the Treasury'' and inserting ``Attorney General''.

SEC. 1113. POWERS OF AGENTS OF THE BUREAU OF ALCOHOL,
TOBACCO, FIREARMS, AND EXPLOSIVES.

Chapter 203 of title 18, United States Code, is amended by
adding the following:

``Sec. 3051. Powers of Special Agents of Bureau of Alcohol,
Tobacco, Firearms, and Explosives.

``(a) Special agents of the Bureau of Alcohol, Tobacco,
Firearms, and Explosives, as well as

[[Page S11501]]

any other investigator or officer charged by the Attorney
General with the duty of enforcing any of the criminal,
seizure, or forfeiture provisions of the laws of the United
States, may carry firearms, serve warrants and subpoenas
issued under the authority of the United States and make
arrests without warrant for any offense against the United
States committed in their presence, or for any felony
cognizable under the laws of the United States if they have
reasonable grounds to believe that the person to be arrested
has committed or is committing such felony.
``(b) Any special agent of the Bureau of Alcohol, Tobacco,
Firearms, and Explosives may, in respect to the performance
of his or her duties, make seizures of property subject to
forfeiture to the United States.
``(c)(1) Except as provided in paragraphs (2) and (3), and
except to the extent that such provisions conflict with the
provisions of section 983 of title 18, United States Code,
insofar as section 983 applies, the provisions of the Customs
laws relating to--
``(A) the seizure, summary and judicial forfeiture, and
condemnation of property;
``(B) the disposition of such property;
``(C) the remission or mitigation of such forfeiture; and
``(D) the compromise of claims,

shall apply to seizures and forfeitures incurred, or alleged
to have been incurred, under any applicable provision of law
enforced or administered by the Bureau of Alcohol, Tobacco,
Firearms, and Explosives.
``(2) For purposes of paragraph (1), duties that are
imposed upon a customs officer or any other person with
respect to the seizure and forfeiture of property under the
customs laws of the United States shall be performed with
respect to seizures and forfeitures of property under this
section by such officers, agents, or any other person as may
be authorized or designated for that purpose by the Attorney
General.
``(3) Notwithstanding any other provision of law, the
disposition of firearms forfeited by reason of a violation of
any law of the United States shall be governed by the
provisions of section 5872(b) of the Internal Revenue Code of
1986.''.

SEC. 1114. EXPLOSIVES TRAINING AND RESEARCH FACILITY.

(a) Establishment.--There is established within the Bureau
an Explosives Training and Research Facility at Fort AP Hill,
Fredericksburg, Virginia.
(b) Purpose.--The facility established under subsection (a)
shall be utilized to train Federal, State, and local law
enforcement officers to--
(1) investigate bombings and explosions;
(2) properly handle, utilize, and dispose of explosive
materials and devices;
(3) train canines on explosive detection; and
(4) conduct research on explosives.
(c) Authorization of Appropriations.--
(1) In general.--There are authorized to be appropriated
such sums as may be necessary to establish and maintain the
facility established under subsection (a).
(2) Availability of funds.--Any amounts appropriated
pursuant to paragraph (1) shall remain available until
expended.

SEC. 1115. PERSONNEL MANAGEMENT DEMONSTRATION PROJECT.

Notwithstanding any other provision of law, the Personnel
Management Demonstration Project established under section
102 of title I of Division C of the Omnibus Consolidated and
Emergency Supplemental Appropriations Act for Fiscal Year
1999 (Pub. L. 105-277; 122 Stat. 2681-585) shall be
transferred to the Attorney General of the United States for
continued use by the Bureau of Alcohol, Tobacco, Firearms,
and Explosives, Department of Justice, and the Secretary of
the Treasury for continued use by the Tax and Trade Bureau.

Subtitle C--Explosives

SEC. 1121. SHORT TITLE.

This subtitle may be referred to as the ``Safe Explosives
Act''.

SEC. 1122. PERMITS FOR PURCHASERS OF EXPLOSIVES.

(a) Definitions.--Section 841 of title 18, United States
Code, is amended--
(1) by striking subsection (j) and inserting the following:
``(j) `Permittee' means any user of explosives for a lawful
purpose, who has obtained either a user permit or a limited
permit under the provisions of this chapter.''; and
(2) by adding at the end the following:
``(r) `Alien' means any person who is not a citizen or
national of the United States.
``(s) `Responsible person' means an individual who has the
power to direct the management and policies of the applicant
pertaining to explosive materials.''.
(b) Permits for Purchase of Explosives.--Section 842 of
title 18, United States Code, is amended--
(1) in subsection (a)(2), by striking ``and'' at the end;
(2) by striking subsection (a)(3) and inserting the
following:
``(3) other than a licensee or permittee knowingly--
``(A) to transport, ship, cause to be transported, or
receive any explosive materials; or
``(B) to distribute explosive materials to any person other
than a licensee or permittee; or
``(4) who is a holder of a limited permit--
``(A) to transport, ship, cause to be transported, or
receive in interstate or foreign commerce any explosive
materials; or
``(B) to receive explosive materials from a licensee or
permittee, whose premises are located outside the State of
residence of the limited permit holder, or on more than 6
separate occasions, during the period of the permit, to
receive explosive materials from 1 or more licensees or
permittees whose premises are located within the State of
residence of the limited permit holder.''; and
(3) by striking subsection (b) and inserting the following:
``(b) It shall be unlawful for any licensee or permittee to
knowingly distribute any explosive materials to any person
other than--
``(1) a licensee;
``(2) a holder of a user permit; or
``(3) a holder of a limited permit who is a resident of the
State where distribution is made and in which the premises of
the transferor are located.''.
(c) Licenses and User Permits.--Section 843(a) of title 18,
United States Code, is amended--
(1) in the first sentence--
(A) by inserting ``or limited permit'' after ``user
permit''; and
(B) by inserting before the period at the end the
following: ``, including the names of and appropriate
identifying information regarding all employees who will be
authorized by the applicant to possess explosive materials,
as well as fingerprints and a photograph of each responsible
person'';
(2) in the second sentence, by striking ``$200 for each''
and inserting ``$50 for a limited permit and $200 for any
other''; and
(3) by striking the third sentence and inserting ``Each
license or user permit shall be valid for not longer than 3
years from the date of issuance and each limited permit shall
be valid for not longer than 1 year from the date of
issuance. Each license or permit shall be renewable upon the
same conditions and subject to the same restrictions as the
original license or permit, and upon payment of a renewal fee
not to exceed one-half of the original fee.''.
(d) Criteria for Approving Licenses and Permits.--Section
843(b) of title 18, United States Code, is amended--
(1) by striking paragraph (1) and inserting the following:
``(1) the applicant (or, if the applicant is a corporation,
partnership, or association, each responsible person with
respect to the applicant) is not a person described in
section 842(i);'';
(2) in paragraph (4)--
(A) by inserting ``(A) the Secretary verifies by inspection
or, if the application is for an original limited permit or
the first or second renewal of such a permit, by such other
means as the Secretary determines appropriate, that'' before
``the applicant''; and
(B) by adding at the end the following:
``(B) subparagraph (A) shall not apply to an applicant for
the renewal of a limited permit if the Secretary has
verified, by inspection within the preceding 3 years, the
matters described in subparagraph (A) with respect to the
applicant; and'';
(3) in paragraph (5), by striking the period at the end and
inserting a semicolon; and
(4) by adding at the end the following:
``(6) none of the employees of the applicant who will be
authorized by the applicant to possess explosive materials is
any person described in section 842(i); and
``(7) in the case of a limited permit, the applicant has
certified in writing that the applicant will not receive
explosive materials on more than 6 separate occasions during
the 12-month period for which the limited permit is valid.''.
(e) Application Approval.--Section 843(c) of title 18,
United States Code, is amended by striking ``forty-five
days'' and inserting ``90 days for licenses and permits,''.
(f) Inspection Authority.--Section 843(f) of title 18,
United States Code, is amended--
(1) in the first sentence--
(A) by striking ``permittees'' and inserting ``holders of
user permits''; and
(B) by inserting ``licensees and permittees'' before
``shall submit'';
(2) in the second sentence, by striking ``permittee'' the
first time it appears and inserting ``holder of a user
permit''; and
(3) by adding at the end the following: ``The Secretary may
inspect the places of storage for explosive materials of an
applicant for a limited permit or, at the time of renewal of
such permit, a holder of a limited permit, only as provided
in subsection (b)(4).
(g) Posting of Permits.--Section 843(g) of title 18, United
States Code, is amended by inserting ``user'' before
``permits''.
(h) Background Checks; Clearances.--Section 843 of title
18, United States Code, is amended by adding at the end the
following:
``(h)(1) If the Secretary receives, from an employer, the
name and other identifying information of a responsible
person or an employee who will be authorized by the employer
to possess explosive materials in the course of employment
with the employer, the Secretary shall determine whether the
responsible person or employee is one of the persons
described in any paragraph of section 842(i). In making the
determination, the Secretary may take into account a letter
or document issued under paragraph (2).
``(2)(A) If the Secretary determines that the responsible
person or the employee is not one of the persons described in
any paragraph of section 842(i), the Secretary shall notify
the employer in writing or electronically of the
determination and issue, to the responsible person or
employee, a letter of clearance, which confirms the
determination.
``(B) If the Secretary determines that the responsible
person or employee is one of the persons described in any
paragraph of section 842(i), the Secretary shall notify the
employer in writing or electronically of the determination
and issue to the responsible person or the employee, as the
case may be, a document that--
``(i) confirms the determination;
``(ii) explains the grounds for the determination;
``(iii) provides information on how the disability may be
relieved; and

[[Page S11502]]

``(iv) explains how the determination may be appealed.''.
(i) Effective Date.--
(1) In general.--The amendments made by this section shall
take effect 180 days after the date of enactment of this Act.
(2) Exception.--Notwithstanding any provision of this Act,
a license or permit issued under section 843 of title 18,
United States Code, before the date of enactment of this Act,
shall remain valid until that license or permit is revoked
under section 843(d) or expires, or until a timely
application for renewal is acted upon.

SEC. 1123. PERSONS PROHIBITED FROM RECEIVING OR POSSESSING
EXPLOSIVE MATERIALS.

(a) Distribution of Explosives.--Section 842(d) of title
18, United States Code, is amended--
(1) in paragraph (5), by striking ``or'' at the end;
(2) in paragraph (6), by striking the period at the end and
inserting ``or who has been committed to a mental
institution;''; and
(3) by adding at the end the following:
``(7) is an alien, other than an alien who--
``(A) is lawfully admitted for permanent residence (as
defined in section 101 (a)(20) of the Immigration and
Nationality Act); or
``(B) is in lawful nonimmigrant status, is a refugee
admitted under section 207 of the Immigration and Nationality
Act (8 U.S.C. 1157), or is in asylum status under section 208
of the Immigration and Nationality Act (8 U.S.C. 1158), and--
``(i) is a foreign law enforcement officer of a friendly
foreign government, as determined by the Secretary in
consultation with the Secretary of State, entering the United
States on official law enforcement business, and the
shipping, transporting, possession, or receipt of explosive
materials is in furtherance of this official law enforcement
business;
``(ii) is a person having the power to direct or cause the
direction of the management and policies of a corporation,
partnership, or association licensed pursuant to section
843(a), and the shipping, transporting, possession, or
receipt of explosive materials is in furtherance of such
power;
``(iii) is a member of a North Atlantic Treaty Organization
(NATO) or other friendly foreign military force, as
determined by the Secretary in consultation with the
Secretary of Defense, (whether or not admitted in a
nonimmigrant status) who is present in the United States
under military orders for training or other military purpose
authorized by the United States, and the shipping,
transporting, possession, or receipt of explosive materials
is in furtherance of the military purpose; or
``(iv) is lawfully present in the United States in
cooperation with the Director of Central Intelligence, and
the shipment, transportation, receipt, or possession of the
explosive materials is in furtherance of such cooperation;
``(8) has been discharged from the armed forces under
dishonorable conditions;
``(9) having been a citizen of the United States, has
renounced the citizenship of that person.''.
(b) Possession of Explosive Materials.--Section 842(i) of
title 18, United States Code, is amended--
(1) in paragraph (3), by striking ``or'' at the end; and
(2) by inserting after paragraph (4) the following:
``(5) who is an alien, other than an alien who--
``(A) is lawfully admitted for permanent residence (as that
term is defined in section 101(a)(20) of the Immigration and
Nationality Act); or
``(B) is in lawful nonimmigrant status, is a refugee
admitted under section 207 of the Immigration and Nationality
Act (8 U.S.C. 1157), or is in asylum status under section 208
of the Immigration and Nationality Act (8 U.S.C. 1158), and--
``(i) is a foreign law enforcement officer of a friendly
foreign government, as determined by the Secretary in
consultation with the Secretary of State, entering the United
States on official law enforcement business, and the
shipping, transporting, possession, or receipt of explosive
materials is in furtherance of this official law enforcement
business;
``(ii) is a person having the power to direct or cause the
direction of the management and policies of a corporation,
partnership, or association licensed pursuant to section
843(a), and the shipping, transporting, possession, or
receipt of explosive materials is in furtherance of such
power;
``(iii) is a member of a North Atlantic Treaty Organization
(NATO) or other friendly foreign military force, as
determined by the Secretary in consultation with the
Secretary of Defense, (whether or not admitted in a
nonimmigrant status) who is present in the United States
under military orders for training or other military purpose
authorized by the United States, and the shipping,
transporting, possession, or receipt of explosive materials
is in furtherance of the military purpose; or
``(iv) is lawfully present in the United States in
cooperation with the Director of Central Intelligence, and
the shipment, transportation, receipt, or possession of the
explosive materials is in furtherance of such cooperation;
``(6) who has been discharged from the armed forces under
dishonorable conditions;
``(7) who, having been a citizen of the United States, has
renounced the citizenship of that person''; and
(3) by inserting ``or affecting'' before ``interstate''
each place that term appears.

SEC. 1124. REQUIREMENT TO PROVIDE SAMPLES OF EXPLOSIVE
MATERIALS AND AMMONIUM NITRATE.

Section 843 of title 18, United States Code, as amended by
this Act, is amended by adding at the end the following:
``(i) Furnishing of Samples.--
``(1) In general.--Licensed manufacturers and licensed
importers and persons who manufacture or import explosive
materials or ammonium nitrate shall, when required by letter
issued by the Secretary, furnish--
``(A) samples of such explosive materials or ammonium
nitrate;
``(B) information on chemical composition of those
products; and
``(C) any other information that the Secretary determines
is relevant to the identification of the explosive materials
or to identification of the ammonium nitrate.
``(2) Reimbursement.--The Secretary shall, by regulation,
authorize reimbursement of the fair market value of samples
furnished pursuant to this subsection, as well as the
reasonable costs of shipment.''.

SEC. 1125. DESTRUCTION OF PROPERTY OF INSTITUTIONS RECEIVING
FEDERAL FINANCIAL ASSISTANCE.

Section 844(f)(1) of title 18, United States Code, is
amended by inserting before the word ``shall'' the following:
``or any institution or organization receiving Federal
financial assistance,''.

SEC. 1126. RELIEF FROM DISABILITIES.

Section 845(b) of title 18, United States Code, is amended
to read as follows:
``(b)(1) A person who is prohibited from shipping,
transporting, receiving, or possessing any explosive under
section 842(i) may apply to the Secretary for relief from
such prohibition.
``(2) The Secretary may grant the relief requested under
paragraph (1) if the Secretary determines that the
circumstances regarding the applicability of section 842(i),
and the applicant's record and reputation, are such that the
applicant will not be likely to act in a manner dangerous to
public safety and that the granting of such relief is not
contrary to the public interest.
``(3) A licensee or permittee who applies for relief, under
this subsection, from the disabilities incurred under this
chapter as a result of an indictment for or conviction of a
crime punishable by imprisonment for a term exceeding 1 year
shall not be barred by such disability from further
operations under the license or permit pending final action
on an application for relief filed pursuant to this
section.''.

SEC. 1127. THEFT REPORTING REQUIREMENT.

Section 844 of title 18, United States Code, is amended by
adding at the end the following:
``(p) Theft Reporting Requirement.--
``(1) In general.--A holder of a license or permit who
knows that explosive materials have been stolen from that
licensee or permittee, shall report the theft to the
Secretary not later than 24 hours after the discovery of the
theft.
``(2) Penalty.--A holder of a license or permit who does
not report a theft in accordance with paragraph (1), shall be
fined not more than $10,000, imprisoned not more than 5
years, or both.''.

SEC. 1128. AUTHORIZATION OF APPROPRIATIONS.

There is authorized to be appropriated such sums as
necessary to carry out this subtitle and the amendments made
by this subtitle.

TITLE XII--AIRLINE WAR RISK INSURANCE LEGISLATION

SEC. 1201. AIR CARRIER LIABILITY FOR THIRD PARTY CLAIMS
ARISING OUT OF ACTS OF TERRORISM.

Section 44303 of title 49, United States Code, is amended--
(1) by inserting ``(a) In general.--'' before ``The
Secretary of Transportation'';
(2) by moving the text of paragraph (2) of section 201(b)
of the Air Transportation Safety and System Stabilization Act
(115 Stat. 235) to the end and redesignating such paragraph
as subsection (b);
(3) in subsection (b) (as so redesignated)--
(A) by striking the subsection heading and inserting ``Air
Carrier Liability for Third Party Claims Arising Out of Acts
of Terrorism.--'';
(B) in the first sentence by striking ``the 180-day period
following the date of enactment of this Act, the Secretary of
Transportation'' and inserting ``the period beginning on
September 22, 2001, and ending on December 31, 2003, the
Secretary''; and
(C) in the last sentence by striking ``this paragraph'' and
inserting ``this subsection''.

SEC. 1202. EXTENSION OF INSURANCE POLICIES.

Section 44302 of title 49, United States Code, is amended
by adding at the end the following:
``(f) Extension of Policies.--
``(1) In general.--The Secretary shall extend through
August 31, 2003, and may extend through December 31, 2003,
the termination date of any insurance policy that the
Department of Transportation issued to an air carrier under
subsection (a) and that is in effect on the date of enactment
of this subsection on no less favorable terms to the air
carrier than existed on June 19, 2002; except that the
Secretary shall amend the insurance policy, subject to such
terms and conditions as the Secretary may prescribe, to add
coverage for losses or injuries to aircraft hulls,
passengers, and crew at the limits carried by air carriers
for such losses and injuries as of such date of enactment and
at an additional premium comparable to the premium charged
for third-party casualty coverage under such policy.
``(2) Special rules.--Notwithstanding paragraph (1)--
``(A) in no event shall the total premium paid by the air
carrier for the policy, as amended, be more than twice the
premium that the air carrier was paying to the Department of
Transportation for its third party policy as of June 19,
2002; and
``(B) the coverage in such policy shall begin with the
first dollar of any covered loss that is incurred.''.

[[Page S11503]]

SEC. 1203. CORRECTION OF REFERENCE.

Effective November 19, 2001, section 147 of the Aviation
and Transportation Security Act (Public Law 107-71) is
amended by striking ``(b)'' and inserting ``(c)''.

SEC. 1204. REPORT.

Not later than 90 days after the date of enactment of this
Act, the Secretary shall transmit to the Committee on
Commerce, Science, and Transportation of the Senate and the
Committee on Transportation and Infrastructure of the House
of Representatives a report that--
(A) evaluates the availability and cost of commercial war
risk insurance for air carriers and other aviation entities
for passengers and third parties;
(B) analyzes the economic effect upon air carriers and
other aviation entities of available commercial war risk
insurance; and
(C) describes the manner in which the Department could
provide an alternative means of providing aviation war risk
reinsurance covering passengers, crew, and third parties
through use of a risk-retention group or by other means.

TITLE XIII--FEDERAL WORKFORCE IMPROVEMENT

Subtitle A--Chief Human Capital Officers

SEC. 1301. SHORT TITLE.

This title may be cited as the ``Chief Human Capital
Officers Act of 2002''.

SEC. 1302. AGENCY CHIEF HUMAN CAPITAL OFFICERS.

(a) In General.--Part II of title 5, United States Code, is
amended by inserting after chapter 13 the following:

``CHAPTER 14--AGENCY CHIEF HUMAN CAPITAL OFFICERS

``Sec.
``1401. Establishment of agency Chief Human Capital Officers.
``1402. Authority and functions of agency Chief Human Capital Officers.

``Sec. 1401. Establishment of agency Chief Human Capital
Officers

``The head of each agency referred to under paragraphs (1)
and (2) of section 901(b) of title 31 shall appoint or
designate a Chief Human Capital Officer, who shall--
``(1) advise and assist the head of the agency and other
agency officials in carrying out the agency's
responsibilities for selecting, developing, training, and
managing a high-quality, productive workforce in accordance
with merit system principles;
``(2) implement the rules and regulations of the President
and the Office of Personnel Management and the laws governing
the civil service within the agency; and
``(3) carry out such functions as the primary duty of the
Chief Human Capital Officer.

``Sec. 1402. Authority and functions of agency Chief Human
Capital Officers

``(a) The functions of each Chief Human Capital Officer
shall include--
``(1) setting the workforce development strategy of the
agency;
``(2) assessing workforce characteristics and future needs
based on the agency's mission and strategic plan;
``(3) aligning the agency's human resources policies and
programs with organization mission, strategic goals, and
performance outcomes;
``(4) developing and advocating a culture of continuous
learning to attract and retain employees with superior
abilities;
``(5) identifying best practices and benchmarking studies,
and
``(6) applying methods for measuring intellectual capital
and identifying links of that capital to organizational
performance and growth.
``(b) In addition to the authority otherwise provided by
this section, each agency Chief Human Capital Officer--
``(1) shall have access to all records, reports, audits,
reviews, documents, papers, recommendations, or other
material that--
``(A) are the property of the agency or are available to
the agency; and
``(B) relate to programs and operations with respect to
which that agency Chief Human Capital Officer has
responsibilities under this chapter; and
``(2) may request such information or assistance as may be
necessary for carrying out the duties and responsibilities
provided by this chapter from any Federal, State, or local
governmental entity.''.
(b) Technical and Conforming Amendment.--The table of
chapters for chapters for part II of title 5, United States
Code, is amended by inserting after the item relating to
chapter 13 the following:

``14. Agency Chief Human Capital Officers...................1401''.....

SEC. 1303. CHIEF HUMAN CAPITAL OFFICERS COUNCIL.

(a) Establishment.--There is established a Chief Human
Capital Officers Council, consisting of--
(1) the Director of the Office of Personnel Management, who
shall act as chairperson of the Council;
(2) the Deputy Director for Management of the Office of
Management and Budget, who shall act as vice chairperson of
the Council; and
(3) the Chief Human Capital Officers of Executive
departments and any other members who are designated by the
Director of the Office of Personnel Management.
(b) Functions.--The Chief Human Capital Officers Council
shall meet periodically to advise and coordinate the
activities of the agencies of its members on such matters as
modernization of human resources systems, improved quality of
human resources information, and legislation affecting human
resources operations and organizations.
(c) Employee Labor Organizations at Meetings.--The Chief
Human Capital Officers Council shall ensure that
representatives of Federal employee labor organizations are
present at a minimum of 1 meeting of the Council each year.
Such representatives shall not be members of the Council.
(d) Annual Report.--Each year the Chief Human Capital
Officers Council shall submit a report to Congress on the
activities of the Council.

SEC. 1304. STRATEGIC HUMAN CAPITAL MANAGEMENT.

Section 1103 of title 5, United States Code, is amended by
adding at the end the following:
``(c)(1) The Office of Personnel Management shall design a
set of systems, including appropriate metrics, for assessing
the management of human capital by Federal agencies.
``(2) The systems referred to under paragraph (1) shall be
defined in regulations of the Office of Personnel Management
and include standards for--
``(A)(i) aligning human capital strategies of agencies with
the missions, goals, and organizational objectives of those
agencies; and
``(ii) integrating those strategies into the budget and
strategic plans of those agencies;
``(B) closing skill gaps in mission critical occupations;
``(C) ensuring continuity of effective leadership through
implementation of recruitment, development, and succession
plans;
``(D) sustaining a culture that cultivates and develops a
high performing workforce;
``(E) developing and implementing a knowledge management
strategy supported by appropriate investment in training and
technology; and
``(F) holding managers and human resources officers
accountable for efficient and effective human resources
management in support of agency missions in accordance with
merit system principles.''.

SEC. 1305. EFFECTIVE DATE.

This subtitle shall take effect 180 days after the date of
enactment of this Act.

Subtitle B--Reforms Relating to Federal Human Capital Management

SEC. 1311. INCLUSION OF AGENCY HUMAN CAPITAL STRATEGIC
PLANNING IN PERFORMANCE PLANS AND PROGRAMS
PERFORMANCE REPORTS.

(a) Performance Plans.--Section 1115 of title 31, United
States Code, is amended--
(1) in subsection (a), by striking paragraph (3) and
inserting the following:
``(3) provide a description of how the performance goals
and objectives are to be achieved, including the operation
processes, training, skills and technology, and the human,
capital, information, and other resources and strategies
required to meet those performance goals and objectives.'';
(2) by redesignating subsection (f) as subsection (g); and
(3) by inserting after subsection (e) the following:
``(f) With respect to each agency with a Chief Human
Capital Officer, the Chief Human Capital Officer shall
prepare that portion of the annual performance plan described
under subsection (a)(3).''.
(b) Program Performance Reports.--Section 1116(d) of title
31, United States Code, is amended--
(1) in paragraph (4), by striking ``and'' after the
semicolon;
(2) by redesignating paragraph (5) as paragraph (6); and
(3) by inserting after paragraph (4) the following:
``(5) include a review of the performance goals and
evaluation of the performance plan relative to the agency's
strategic human capital management; and''.

SEC. 1312. REFORM OF THE COMPETITIVE SERVICE HIRING PROCESS.

(a) In General.--Chapter 33 of title 5, United States Code,
is amended--
(1) in section 3304(a)--
(A) in paragraph (1), by striking ``and'' after the
semicolon;
(B) in paragraph (2), by striking the period and inserting
``; and''; and
(C) by adding at the end of the following:
``(3) authority for agencies to appoint, without regard to
the provision of sections 3309 through 3318, candidates
directly to positions for which--
``(A) public notice has been given; and
``(B) the Office of Personnel Management has determined
that there exists a severe shortage of candidates or there is
a critical hiring need.

The Office shall prescribe, by regulation, criteria for
identifying such positions and may delegate authority to make
determinations under such criteria.''; and
(2) by inserting after section 3318 the following:

``Sec. 3319. Alternative ranking and selection procedures

``(a) The Office, in exercising its authority under section
3304, or an agency to which the Office has delegated
examining authority under section 1104(a)(2), may establish
category rating systems for evaluating applicants for
positions in the competitive service, under 2 or more quality
categories based on merit consistent with regulations
prescribed by the Office of Personnel Management, rather than
assigned individual numerical ratings.
``(b) Within each quality category established under
subsection (a), preference-eligibles shall be listed ahead of
individuals who are not preference eligibles. For other than
scientific and professional positions at GS-9 of the General
Schedule (equivalent or higher), qualified preference-
eligibles who have a compensable service-connected disability
of 10 percent or more shall be listed in the highest quality
category.
``(c)(1) An appointing official may select any applicant in
the highest quality category or, if fewer than 3 candidates
have been assigned to

[[Page S11504]]

the highest quality category, in a merged category consisting
of the highest and the second highest quality categories.
``(2) Notwithstanding paragraph (1), the appointing
official may not pass over a preference-eligible in the same
category from which selection is made, unless the
requirements of section 3317(b) or 3318(b), as applicable,
are satisfied.
``(d) Each agency that establishes a category rating system
under this section shall submit in each of the 3 years
following that establishment, a report to Congress on that
system including information on--
``(1) the number of employees hired under that system;
``(2) the impact that system has had on the hiring of
veterans and minorities, including those who are American
Indian or Alaska Natives, Asian, Black or African American,
and native Hawaiian or other Pacific Islanders; and
``(3) the way in which managers were trained in the
administration of that system.
``(e) The Office of Personnel Management may prescribe such
regulations as it considers necessary to carry out the
provisions of this section.''.
(b) Technical and Conforming Amendment.--The table of
sections for chapter 33 of title 5, United States Code, is
amended by striking the item relating to section 3319 and
inserting the following:

``3319. Alternative ranking and selection procedures.''.

SEC. 1313. PERMANENT EXTENSION, REVISION, AND EXPANSION OF
AUTHORITIES FOR USE OF VOLUNTARY SEPARATION
INCENTIVE PAY AND VOLUNTARY EARLY RETIREMENT.

(a) Voluntary Separation Incentive Payments.--
(1) In general.--
(A) Amendment to title 5, united states code.--Chapter 35
of title 5, United States Code, is amended by inserting after
subchapter I the following:

``SUBCHAPTER II--VOLUNTARY SEPARATION INCENTIVE PAYMENTS

``Sec. 3521. Definitions

``In this subchapter, the term--
``(1) `agency' means an Executive agency as defined under
section 105; and
``(2) `employee'--
``(A) means an employee as defined under section 2105
employed by an agency and an individual employed by a county
committee established under section 8(b)(5) of the Soil
Conservation and Domestic Allotment Act (16 U.S.C.
590h(b)(5)) who--
``(i) is serving under an appointment without time
limitation; and
``(ii) has been currently employed for a continuous period
of at least 3 years; and
``(B) shall not include--
``(i) a reemployed annuitant under subchapter III of
chapter 83 or 84 or another retirement system for employees
of the Government;
``(ii) an employee having a disability on the basis of
which such employee is or would be eligible for disability
retirement under subchapter III of chapter 83 or 84 or
another retirement system for employees of the Government.
``(iii) an employee who is in receipt of a decision notice
of involuntary separation for misconduct or unacceptable
performance;
``(iv) an employee who has previously received any
voluntary separation incentive payment from the Federal
Government under this subchapter or any other authority;
``(v) an employee covered by statutory reemployment rights
who is on transfer employment with another organization; or
``(vi) any employee who--

``(I) during the 36-month period preceding the date of
separation of that employee, performed service for which a
student loan repayment benefit was or is to be paid under
section 5379;
``(II) during the 24-month period preceding the date of
separation of that employee, performed service for which a
recruitment or relocation bonus was or is to be paid under
section 5753; or
``(III) during the 12-month period preceding the date of
separation of that employee, performed service for which a
retention bonus was or is to be paid under section 5754.

``Sec. 3522. Agency plans; approval

``(a) Before obligating any resources for voluntary
separation incentive payments, the head of each agency shall
submit to the Office of Personnel Management a plan outlining
the intended use of such incentive payments and a proposed
organizational chart for the agency once such incentive
payments have been completed.
``(b) The plan of an agency under subsection (a) shall
include--
``(1) the specific positions and functions to be reduced or
eliminated;
``(2) a description of which categories of employees will
be offered incentives;
``(3) the time period during which incentives may be paid;
``(4) the number and amounts of voluntary separation
incentive payments to be offered; and
``(5) a description of how the agency will operate without
the eliminated positions and functions.
``(c) The Director of the Office of Personnel Management
shall review each agency's plan an may make any appropriate
modifications in the plan, in consultation with the Director
of the Office of Management and Budget. A plan under this
section may not be implemented without the approval of the
Directive of the Office of Personnel Management.

``Sec. 3523. Authority to provide voluntary separation
incentive payments

``(a) A voluntary separation incentive payment under this
subchapter may be paid to an employee only as provided in the
plan of an agency established under section 3522.
``(b) A voluntary incentive payment--
``(1) shall be offered to agency employees on the basis
of--
``(A) 1 or more organizational units;
``(B) 1 or more occupational series or levels;
``(C) 1 or more geographical locations;
``(D) skills, knowledge, or other factors related to a
position;
``(E) specific periods of time during which eligible
employees may elect a voluntary incentive payment; or
``(F) any appropriate combination of such factors;
``(2) shall be paid in a lump sum after the employee's
separation;
``(3) shall be equal to the lesser of--
``(A) an amount equal to the amount the employee would be
entitled to receive under section 5595(c) if the employee
were entitled to payment under such section (without
adjustment for any previous payment made); or
``(B) an amount determined by the agency head, not to
exceed $25,000;
``(4) may be made only in the case of an employee who
voluntarily separates (whether by retirement or resignation)
under this subchapter;
``(5) shall not be a basis for payment, and shall not be
included in the computation, of any other type of Government
benefit;
``(6) shall not be taken into account in determining the
amount of any severance pay to which the employee may be
entitled under section 5595, based on another other
separation; and
``(7) shall be paid from appropriations or funds available
for the payment of the basic pay of the employee.

``Sec. 3524. Effect of subsequent employment with the
Government

``(a) The term `employment'--
``(1) in subsection (b) includes employment under a
personal services contract (or other direct contract) with
the United States Government (other than an entity in the
legislative branch); and
``(2) in subsection (c) does not include employment under
such a contract.
``(b) An individual who has received a voluntary separation
incentive payment under this subchapter and accepts any
employment for compensation with the Government of the United
States with 5 years after the date of the separation on which
the payment is based shall be required to pay, before the
individual's first day of employment, the entire amount of
the incentive payment to the agency that paid the incentive
payment.
``(c)(1) If the employment under this section is with an
agency, other than the General Accounting Office, the United
States Postal Service, or the Postal Rate Commission, the
Director of the Office of Personnel Management may, at the
request of the head of the agency, may waive the repayment
if--
``(A) the individual involved possesses unique abilities
and is the only qualified applicant available for the
position; or
``(B) in case of an emergency involving a direct threat to
life or property, the individual--
``(i) has skills directly related to resolving the
emergency; and
``(ii) will serve on a temporary basis only so long as that
individual's services are made necessary by the emergency.
``(2) If the employment under this section is with an
entity in the legislative branch, the head of the entity or
the appointing official may waive the repayment if the
individual involved possesses unique abilities and is the
only qualified applicant available for the position.
``(3) If the employment under this section is with the
judicial branch, the Director of the Administrative Office of
the United States Courts may waive the repayment if the
individual involved possesses unique abilities and is the
only qualified applicant available for the position.

``Sec. 3525. Regulations

``The Office of Personnel Management may prescribe
regulations to carry out this subchapter.''.
(B) Technical and conforming amendments.--Chapter 35 of
title 5, United States Code, is amended--
(i) by striking the chapter heading and inserting the
following:

``CHAPTER 35--RETENTION PREFERENCE, VOLUNTARY SEPARATION INCENTIVE
PAYMENTS, RESTORATION, AND REEMPLOYMENT'';

and
(ii) in the table of sections by inserting after the item
relating to section 3504 the following:

``Subchapter II--Voluntary Separation Incentive Payments

``3521. Definitions.
``3522. Agency plans; approval.
``3523. Authority to provide voluntary separation incentive payments.
``3524. Effect of subsequent employment with the Government.
``3525. Regulations.''.
(2) Administrative office of the united states courts.--The
Director of the Administrative Office of the United States
Courts may, by regulation, establish a program substantially
similar to the program established under paragraph (1) for
individuals serving in the judicial branch.
(3) Continuation of other authority.--Any agency exercising
any voluntary separation incentive authority in effect on the
effective date of this subsection may continue to offer
voluntary separation incentives consistent with that
authority until that authority expires.
(4) Effective date.--This subsection shall take effect 60
days after the date of enactment of this Act.

[[Page S11505]]

(b) Federal Employee Voluntary Early Retirement.--
(1) Civil service retirement system.--Section 8336(d)(2) of
title 5, United States Code, is amended to read as follows:
``(2)(A) has been employed continuously, by the agency in
which the employee is serving, for at least the 31-day period
ending on the date on which such agency requests the
determination referred to in subparagraph (D);
``(B) is serving under an appointment that is not time
limited;
``(C) has not been duly notified that such employee is to
be involuntarily separated for misconduct or unacceptable
performance;
``(D) is separated from the service voluntarily during a
period in which, as determined by the office of Personnel
Management (upon request of the agency) under regulations
prescribed by the Office--
``(i) such agency (or, if applicable, the component in
which the employee is serving) is undergoing substantial
delayering, substantial reorganization, substantial
reductions in force, substantial transfer of function, or
other substantial workforce restructuring (or shaping);
``(ii) a significant percentage of employees servicing in
such agency (or component) are likely to be separated or
subject to an immediate reduction in the rate of basic pay
(without regard to subchapter VI of chapter 53, or comparable
provisions); or
``(iii) identified as being in positions which are becoming
surplus or excess to the agency's future ability to carry out
its mission effectively; and
``(E) as determined by the agency under regulations
prescribed by the Office, is within the scope of the offer of
voluntary early retirement, which may be made on the basis
of--
``(i) 1 or more organizational units;
``(ii) 1 or more occupational series or levels;
``(iii) 1 or more geographical locations;
``(iv) specific periods;
``(v) skills, knowledge, or other factors related to a
position; or
``(vi) any appropriate combination of such factors;''.
(2) Federal employees' retirement system.--Section
8414(b)(1) of title 5, United States Code, is amended by
striking subparagraph (B) and inserting the following:
``(B)(i) has been employed continuously, by the agency in
which the employee is serving, for at least the 31-day period
ending on the date on which such agency requests the
determination referred to in clause (iv);
``(ii) is serving under an appointment that is not time
limited;
``(iii) has not been duly notified that such employee is to
be involuntarily separated for misconduct or unacceptable
performance;
``(iv) is separate from the service voluntarily during a
period in which, as determined by the Office of Personnel
Management (upon request of the agency) under regulations
prescribed by the Office--
``(I) such agency (or, if applicable, the component in
which the employee is serving) is undergoing substantial
delayering, substantial reorganization, substantial
reductions in force, substantial transfer of function, or
other substantial workforce restructuring (or shaping);
``(II) a significant percentage of employees serving in
such agency (or component) are likely to be separated or
subject to an immediate reduction in the rate of basic pay
(without regard to subchapter VI of chapter 53, or comparable
provisions); or
``(III) identified as being in positions which are becoming
surplus or excess to the agency's future ability to carry out
its mission effectively; and
``(v) as determined by the agency under regulations
prescribed by the Office, is within the scope of the offer of
voluntary early retirement, which may be made on the basis
of--
``(I) 1 or more organizational units;
``(II) 1 or more occupational series or levels;
``(III) 1 or more geographical locations;
``(IV) specific periods;
``(V) skills, knowledge, or other factors related to a
position; or
``(VI) any appropriate combination of such factors.''.
(3) General accounting office authority.--The amendments
made by this subsection shall not be construed to affect the
authority under section 1 of Public Law 106-303 (5 U.S.C.
8336 note; 114 State. 1063).
(4) Technical and conforming amendments.--Section 7001 of
the 1998 Supplemental Appropriations and Rescissions Act
(Public Law 105-174; 112 Stat. 91) is repealed.
(5) Regulations.--The Office of Personnel Management may
prescribe regulations to carry out this subsection.
(c) Sense of Congress.--It is the sense of Congress that
the implementation of this section is intended to reshape the
Federal workforce and not downsize the Federal workforce.

SEC. 1314. STUDENT VOLUNTEER TRANSIT SUBSIDY.

(a) In General.--Section 7905(a)(1) of title 5, United
States Code, is amended by striking ``and a member of a
uniformed service'' and inserting ``, a member of a uniformed
service, and a student who provides voluntary services under
section 3111''.
(b) Technical and Conforming Amendment.--Section 3111(c)(1)
of title 5, United States Code, is amended by striking
``chapter 81 of this title'' and inserting ``section 7905
(relating to commuting by means other than single-occupancy
motor vehicles), chapter 81''.

Subtitle C--Reforms Relating to the Senior Executive Service

SEC. 1321. REPEAL OF RECERTIFICATION REQUIREMENTS OF SENIOR
EXECUTIVES.

(a) In General.--Title 5, United States Code, is amended--
(1) in chapter 33--
(A) in section 3393(g) by striking ``3393a'';
(B) by repealing section 3393a; and
(C) in the table of sections by striking the item relating
to section 3393a;
(2) in chapter 35--
(A) in section 3592(a)--
(i) in paragraph (1), by inserting ``or'' at the end;
(ii) in paragraph (2), by striking ``or'' at the end;
(iii) by striking paragraph (3); and
(iv) by striking the last sentence;
(B) in section 3593(a), by striking paragraph (2) and
inserting the following:
``(2) the appointee left the Senior Executive Service for
reasons other than misconduct, neglect of duty, malfeasance,
or less than fully successful executive performance as
determined under subchapter II of chapter 43.''; and
(C) in section 3594(b)--
(i) in paragraph (1), by inserting ``or'' at the end;
(ii) in paragraph (2), by striking ``or'' at the end; and
(iii) by striking paragraph (3);
(3) in section 7701(c)(1)(A), by striking ``or removal from
the Senior Executive Service for failure to be recertified
under section 3393a'';
(4) in chapter 83--
(A) in section 8336(h)(1), by striking ``for failure to be
recertified as a senior executive under section 3393a or'';
and
(B) in section 8339(h), in the first sentence, by striking
``, except that such reduction shall not apply in the case of
an employee retiring under section 8336(h) for failure to be
recertified as a senior executive''; and
(5) in chapter 84--
(A) in section 8414(a)(1), by striking ``for failure to be
recertified as a senior executive under section 3393a or'';
and
(B) in section 8421(a)(2), by striking ``, except that an
individual entitled to an annuity under section 8414(a) for
failure to be recertified as a senior executive shall be
entitled to an annuity supplement without regard to such
applicable retirement age''.
(b) Savings Provision.--Notwithstanding the amendments made
by subsection (a)(2)(A), an appeal under the final sentence
of section 3592(a) of title 5, United States Code, that is
pending on the day before the effective date of this
section--
(1) shall not abate by reason of the enactment of the
amendments made by subsection (a)(2)(A); and
(2) shall continue as if such amendments had not been
enacted.
(c) Application.--The amendment made by subsection
(a)(2)(B) shall not apply with respect to an individual who,
before the effective date of this section, leaves the Senior
Executive Service for failure to be recertified as a senior
executive under section 3393a of title 5, United States Code.

SEC. 1322. ADJUSTMENT OF LIMITATION ON TOTAL ANNUAL
COMPENSATION.

(a) In General.--Section 5307 of title 5, United States
Code, is amended by adding at the end the following:
``(d)(1) Notwithstanding any other provision of this
section, subsection (a)(1) shall be applied by substituting
`the total annual compensation payable to the Vice President
under section 104 of title 3' for `the annual rate of basic
pay payable for level I of the Executive Schedule' in the
case of any employee who--
``(A) is paid under section 5376 or 5383 of this title or
section 332(f), 603, or 604 of title 28; and
``(B) holds a position in or under an agency which is
described in paragraph (2).
``(2) An agency described in this paragraph is any agency
which, for purposes of the calendar year involved, has been
certified under this subsection as having a performance
appraisal system which (as designed and applied) makes
meaningful distinctions based on relative performance.
``(3)(A) The Office of Personnel Management and the Office
of Management and Budget jointly shall promulgate such
regulations as may be necessary to carry out this subsection,
including the criteria and procedures in accordance with
which any determinations under this subsection shall be made.
``(B) An agency's certification under this subsection shall
be for a period of 2 calendar years, except that such
certification may be terminated at any time, for purposes of
either or both of those years, upon a finding that the
actions of such agency have not remained in conformance with
applicable requirements.
``(C) Any certification or decertification under this
subsection shall be made by the Office of Personnel
Management, with the concurrence of the Office of Management
and Budget.
``(4) Notwithstanding any provision of paragraph (3), any
regulations, certifications, or other measures necessary to
carry out this subsection with respect to employees within
the judicial branch shall be the responsibility of the
Director of the Administrative Office of the United States
Courts. However, the regulations under this paragraph shall
be consistent with those promulgated under paragraph (3).''.
(b) Conforming Amendments.--(1) Section 5307(a) of title 5,
United States Code, is amended by inserting ``or as otherwise
provided under subsection (d),'' after ``under law,''.
(2) Section 5307(c) of such title is amended by striking
``this section,'' and inserting ``this section (subject to
subsection (d)),''.

Subtitle D--Academic Training

SEC. 1331. ACADEMIC TRAINING.

(a) Academic Degree Training.--Section 4107 of title 5,
United States Code, is amended to read as follows:

``Sec. 4107. Academic degree training

``(a) Subject to subsection (b), an agency may select and
assign an employee to academic degree training and may pay or
reimburse the

[[Page S11506]]

costs of academic degree training from appropriated or other
available funds if such training--
``(1) contributes significantly to--
``(A) meeting an identified agency training need;
``(B) resolving an identified agency staffing problem; or
``(C) accomplishing goals in the strategic plan of the
agency;
``(2) is part of a planned, systemic, and coordinated
agency employee development program linked to accomplishing
the strategic goals of the agency; and
``(3) is accredited and is provided by a college or
university that is accredited by a nationally recognized
body.
``(b) In exercising authority under subsection (a), an
agency shall--
``(1) consistent with the merit system principles set forth
in paragraphs (2) and (7) of section 2301(b), take into
consideration the need to--
``(A) maintain a balanced workforce in which women, members
of racial and ethnic minority groups, and persons with
disabilities are appropriately represented in Government
service; and
``(B) provide employees effective education and training to
improve organizational and individual performance;
``(2) assure that the training is not for the sole purpose
of providing an employee an opportunity to obtain an academic
degree or qualify for appointment to a particular position
for which the academic degree is a basic requirement;
``(3) assure that no authority under this subsection is
exercised on behalf of any employee occupying or seeking to
qualify for--
``(A) a noncareer appointment in the senior Executive
Service; or
``(B) appointment to any position that is excepted from the
competitive service because of its confidential policy-
determining, policy-making or policy-advocating character;
and
``(4) to the greatest extent practicable, facilitate the
use of online degree training.''.
(b) Technical and Conforming Amendment.--The table of
sections for chapter 41 of title 5, United States Code, is
amended by striking the item relating to section 4107 and
inserting the following:

``4107. Academic degree training.''.

SEC. 1332. MODIFICATIONS TO NATIONAL SECURITY EDUCATION
PROGRAM.

(a) Findings and Policies.--
(1) Findings.--Congress finds that--
(A) the United States Government actively encourages and
financially supports the training, education, and development
of many United States citizens;
(B) as a condition of some of those supports, many of those
citizens have an obligation to seek either compensated or
uncompensated employment in the Federal sector; and
(C) it is in the United States national interest to
maximize the return to the Nation of funds invested in the
development of such citizens by seeking to employ them in the
Federal sector.
(2) Policy.--It shall be the policy of the United States
Government to--
(A) establish procedures for ensuring that United States
citizens who have incurred service obligations as the result
of receiving financial support for education and training
from the United States Government and have applied for
Federal positions are considered in all recruitment and
hiring initiatives of Federal departments, bureaus, agencies,
and offices; and
(B) advertise and open all Federal positions to United
States citizens who have incurred service obligations with
the United States Government as the result of receiving
financial support for education and training from the United
States Government.
(b) Fulfillment of Service Requirement if National Security
Positions Are Unavailable.--Section 802(b)(2) of the David L.
Boren National Security Education Act of 1991 (50 U.S.C.
1902) is amended--
(1) in subparagraph (A), by striking clause (ii) and
inserting the following:
``(ii) if the recipient demonstrates to the Secretary (in
accordance with such regulations) that no national security
position in an agency or office of the Federal Government
having national security responsibilities is available, work
in other offices or agencies of the Federal Government or in
the field of higher education in a discipline relating to the
foreign country, foreign language, area study, or
international field of study for which the scholarship was
awarded, for a period specified by the Secretary, which
period shall be determined in accordance with clause (i);
or''; and
(2) in subparagraph (B), by striking clause (ii) and
inserting the following:
``(ii) if the recipient demonstrates to the Secretary (in
accordance with such regulations) that no national security
position is available upon the completion of the degree, work
in other offices or agencies of the Federal Government or in
the field of higher education in a discipline relating to
foreign country, foreign language, area study, or
international field of study for which the fellowship was
awarded, for a period specified by the Secretary, which
period shall be determined in accordance with clause (i);
and''.

TITLE XIV--ARMING PILOTS AGAINST TERRORISM

SEC. 1401. SHORT TITLE.

This title may be cited as the ``Arming Pilots Against
Terrorism Act''.

SEC. 1402. FEDERAL FLIGHT DECK OFFICER PROGRAM.

(a) In General.--Subchapter I of chapter 449 of title 49,
United States Code, is amended by adding at the end the
following:

``Sec. 44921. Federal flight deck officer program

``(a) Establishment.--The Under Secretary of Transportation
for Security shall establish a program to deputize volunteer
pilots of air carriers providing passenger air transportation
or intrastate passenger air transportation as Federal law
enforcement officers to defend the flight decks of aircraft
of such air carriers against acts of criminal violence or air
piracy. Such officers shall be known as `Federal flight deck
officers'.
``(b) Procedural Requirements.--
``(1) In general.--Not later than 3 months after the date
of enactment of this section, the Under Secretary shall
establish procedural requirements to carry out the program
under this section.
``(2) Commencement of program.--Beginning 3 months after
the date of enactment of this section, the Under Secretary
shall begin the process of training and deputizing pilots who
are qualified to be Federal flight deck officers as Federal
flight deck officers under the program.
``(3) Issues to be addressed.--The procedural requirements
established under paragraph (1) shall address the following
issues:
``(A) The type of firearm to be used by a Federal flight
deck officer.
``(B) The type of ammunition to be used by a Federal flight
deck officer.
``(C) The standards and training needed to qualify and
requalify as a Federal flight deck officer.
``(D) The placement of the firearm of a Federal flight deck
officer on board the aircraft to ensure both its security and
its ease of retrieval in an emergency.
``(E) An analysis of the risk of catastrophic failure of an
aircraft as a result of the discharge (including an
accidental discharge) of a firearm to be used in the program
into the avionics, electrical systems, or other sensitive
areas of the aircraft.
``(F) The division of responsibility between pilots in the
event of an act of criminal violence or air piracy if only 1
pilot is a Federal flight deck officer and if both pilots are
Federal flight deck officers.
``(G) Procedures for ensuring that the firearm of a Federal
flight deck officer does not leave the cockpit if there is a
disturbance in the passenger cabin of the aircraft or if the
pilot leaves the cockpit for personal reasons.
``(H) Interaction between a Federal flight deck officer and
a Federal air marshal on board the aircraft.
``(I) The process for selection of pilots to participate in
the program based on their fitness to participate in the
program, including whether an additional background check
should be required beyond that required by section
44936(a)(1).
``(J) Storage and transportation of firearms between
flights, including international flights, to ensure the
security of the firearms, focusing particularly on whether
such security would be enhanced by requiring storage of the
firearm at the airport when the pilot leaves the airport to
remain overnight away from the pilot's base airport.
``(K) Methods for ensuring that security personnel will be
able to identify whether a pilot is authorized to carry a
firearm under the program.
``(L) Methods for ensuring that pilots (including Federal
flight deck officers) will be able to identify whether a
passenger is a law enforcement officer who is authorized to
carry a firearm aboard the aircraft.
``(M) Any other issues that the Under Secretary considers
necessary.
``(N) The Under Secretary's decisions regarding the methods
for implementing each of the foregoing procedural
requirements shall be subject to review only for abuse of
discretion.
``(4) Preference.--In selecting pilots to participate in
the program, the Under Secretary shall give preference to
pilots who are former military or law enforcement personnel.
``(5) Classified information.--Notwithstanding section 552
of title 5 but subject to section 40119 of this title,
information developed under paragraph (3)(E) shall not be
disclosed.
``(6) Notice to congress.--The Under Secretary shall
provide notice to the Committee on Transportation and
Infrastructure of the House of Representatives and the
Committee on Commerce, Science, and Transportation of the
Senate after completing the analysis required by paragraph
(3)(E).
``(7) Minimization of risk.--If the Under Secretary
determines as a result of the analysis under paragraph (3)(E)
that there is a significant risk of the catastrophic failure
of an aircraft as a result of the discharge of a firearm, the
Under Secretary shall take such actions as may be necessary
to minimize that risk.
``(c) Training, Supervision, and Equipment.--
``(1) In general.--The Under Secretary shall only be
obligated to provide the training, supervision, and equipment
necessary for a pilot to be a Federal flight deck officer
under this section at no expense to the pilot or the air
carrier employing the pilot.
``(2) Training.--
``(A) In general.--The Under Secretary shall base the
requirements for the training of Federal flight deck officers
under subsection (b) on the training standards applicable to
Federal air marshals; except that the Under Secretary shall
take into account the differing roles and responsibilities of
Federal flight deck officers and Federal air marshals.
``(B) Elements.--The training of a Federal flight deck
officer shall include, at a minimum, the following elements:
``(i) Training to ensure that the officer achieves the
level of proficiency with a firearm required under
subparagraph (C)(i).
``(ii) Training to ensure that the officer maintains
exclusive control over the officer's firearm at all times,
including training in defensive maneuvers.

[[Page S11507]]

``(iii) Training to assist the officer in determining when
it is appropriate to use the officer's firearm and when it is
appropriate to use less than lethal force.
``(C) Training in use of firearms.--
``(i) Standard.--In order to be deputized as a Federal
flight deck officer, a pilot must achieve a level of
proficiency with a firearm that is required by the Under
Secretary. Such level shall be comparable to the level of
proficiency required of Federal air marshals.
``(ii) Conduct of training.--The training of a Federal
flight deck officer in the use of a firearm may be conducted
by the Under Secretary or by a firearms training facility
approved by the Under Secretary.
``(iii) Requalification.--The Under Secretary shall require
a Federal flight deck officer to requalify to carry a firearm
under the program. Such requalification shall occur at an
interval required by the Under Secretary.
``(d) Deputization.--
``(1) In general.--The Under Secretary may deputize, as a
Federal flight deck officer under this section, a pilot who
submits to the Under Secretary a request to be such an
officer and whom the Under Secretary determines is qualified
to be such an officer.
``(2) Qualification.--A pilot is qualified to be a Federal
flight deck officer under this section if--
``(A) the pilot is employed by an air carrier;
``(B) the Under Secretary determines (in the Under
Secretary's discretion) that the pilot meets the standards
established by the Under Secretary for being such an officer;
and
``(C) the Under Secretary determines that the pilot has
completed the training required by the Under Secretary.
``(3) Deputization by other federal agencies.--The Under
Secretary may request another Federal agency to deputize, as
Federal flight deck officers under this section, those pilots
that the Under Secretary determines are qualified to be such
officers.
``(4) Revocation.--The Under Secretary may, (in the Under
Secretary's discretion) revoke the deputization of a pilot as
a Federal flight deck officer if the Under Secretary finds
that the pilot is no longer qualified to be such an officer.
``(e) Compensation.--Pilots participating in the program
under this section shall not be eligible for compensation
from the Federal Government for services provided as a
Federal flight deck officer. The Federal Government and air
carriers shall not be obligated to compensate a pilot for
participating in the program or for the pilot's training or
qualification and requalification to carry firearms under the
program.
``(f) Authority To Carry Firearms.--
``(1) In general.--The Under Secretary shall authorize a
Federal flight deck officer to carry a firearm while engaged
in providing air transportation or intrastate air
transportation. Notwithstanding subsection (c)(1), the
officer may purchase a firearm and carry that firearm aboard
an aircraft of which the officer is the pilot in accordance
with this section if the firearm is of a type that may be
used under the program.
``(2) Preemption.--Notwithstanding any other provision of
Federal or State law, a Federal flight deck officer, whenever
necessary to participate in the program, may carry a firearm
in any State and from 1 State to another State.
``(3) Carrying firearms outside united states.--In
consultation with the Secretary of State, the Under Secretary
may take such action as may be necessary to ensure that a
Federal flight deck officer may carry a firearm in a foreign
country whenever necessary to participate in the program.
``(g) Authority To Use Force.--Notwithstanding section
44903(d), the Under Secretary shall prescribe the standards
and circumstances under which a Federal flight deck officer
may use, while the program under this section is in effect,
force (including lethal force) against an individual in the
defense of the flight deck of an aircraft in air
transportation or intrastate air transportation.
``(h) Limitation on Liability.--
``(1) Liability of air carriers.--An air carrier shall not
be liable for damages in any action brought in a Federal or
State court arising out of a Federal flight deck officer's
use of or failure to use a firearm.
``(2) Liability of federal flight deck officers.--A Federal
flight deck officer shall not be liable for damages in any
action brought in a Federal or State court arising out of the
acts or omissions of the officer in defending the flight deck
of an aircraft against acts of criminal violence or air
piracy unless the officer is guilty of gross negligence or
willful misconduct.
``(3) Liability of federal government.--For purposes of an
action against the United States with respect to an act or
omission of a Federal flight deck officer in defending the
flight deck of an aircraft, the officer shall be treated as
an employee of the Federal Government under chapter 171 of
title 28, relating to tort claims procedure.
``(i) Procedures Following Accidental Discharges.--If an
accidental discharge of a firearm under the pilot program
results in the injury or death of a passenger or crew member
on an aircraft, the Under Secretary--
``(1) shall revoke the deputization of the Federal flight
deck officer responsible for that firearm if the Under
Secretary determines that the discharge was attributable to
the negligence of the officer; and
``(2) if the Under Secretary determines that a shortcoming
in standards, training, or procedures was responsible for the
accidental discharge, the Under Secretary may temporarily
suspend the program until the shortcoming is corrected.
``(j) Limitation on Authority of Air Carriers.--No air
carrier shall prohibit or threaten any retaliatory action
against a pilot employed by the air carrier from becoming a
Federal flight deck officer under this section. No air
carrier shall--
``(1) prohibit a Federal flight deck officer from piloting
an aircraft operated by the air carrier, or
``(2) terminate the employment of a Federal flight deck
officer, solely on the basis of his or her volunteering for
or participating in the program under this section.
``(k) Applicability.--
``(1) Exemption.--This section shall not apply to air
carriers operating under part 135 of title 14, Code of
Federal Regulations, and to pilots employed by such carriers
to the extent that such carriers and pilots are covered by
section 135.119 of such title or any successor to such
section.
``(2) Pilot defined.--The term `pilot' means an individual
who has final authority and responsibility for the operation
and safety of the flight or, if more than 1 pilot is required
for the operation of the aircraft or by the regulations under
which the flight is being conducted, the individual
designated as second in command.''.
(b) Conforming Amendments.--
(1) Chapter analysis.--The analysis for such chapter is
amended by inserting after the item relating to section 44920
the following:

``44921. Federal flight deck officer program.''.
(2) Flight deck security.--Section 128 of the Aviation and
Transportation Security Act (Public Law 107-71) is repealed.
(c) Federal Air Marshal Program.--
(1) Sense of congress.--It is the sense of Congress that
the Federal air marshal program is critical to aviation
security.
(2) Limitation on statutory construction.--Nothing in this
Act, including any amendment made by this Act, shall be
construed as preventing the Under Secretary of Transportation
for Security from implementing and training Federal air
marshals.

SEC. 1403. CREW TRAINING.

(a) In General.--Section 44918(e) of title 49, United
States Code, is amended--
(1) by striking ``The Administrator'' and inserting the
following:
``(1) In general.--The Under Secretary'';
(2) by adding at the end the following:
``(2) Additional requirements.--In updating the training
guidance, the Under Secretary, in consultation with the
Administrator, shall issue a rule to--
``(A) require both classroom and effective hands-on
situational training in the following elements of self
defense:
``(i) recognizing suspicious activities and determining the
seriousness of an occurrence;
``(ii) deterring a passenger who might present a problem;
``(iii) crew communication and coordination;
``(iv) the proper commands to give to passengers and
attackers;
``(v) methods to subdue and restrain an attacker;
``(vi) use of available items aboard the aircraft for self-
defense;
``(vii) appropriate and effective responses to defend
oneself, including the use of force against an attacker;
``(viii) use of protective devices assigned to crew members
(to the extent such devices are approved by the Administrator
or Under Secretary);
``(ix) the psychology of terrorists to cope with their
behavior and passenger responses to that behavior;
``(x) how to respond to aircraft maneuvers that may be
authorized to defend against an act of criminal violence or
air piracy;
``(B) require training in the proper conduct of a cabin
search, including the duty time required to conduct the
search;
``(C) establish the required number of hours of training
and the qualifications for the training instructors;
``(D) establish the intervals, number of hours, and
elements of recurrent training;
``(E) ensure that air carriers provide the initial training
required by this paragraph within 24 months of the date of
enactment of this subparagraph; and
``(F) ensure that no person is required to participate in
any hands-on training activity that that person believes will
have an adverse impact on his or her health or safety.
``(3) Responsibility of under secretary.--(A)
Consultation.--In developing the rule under paragraph (2),
the Under Secretary shall consult with law enforcement
personnel and security experts who have expertise in self-
defense training, terrorism experts, and representatives of
air carriers, the provider of self-defense training for
Federal air marshals, flight attendants, labor organizations
representing flight attendants, and educational institutions
offering law enforcement training programs.
``(B) Designation of official.--The Under Secretary shall
designate an official in the Transportation Security
Administration to be responsible for overseeing the
implementation of the training program under this subsection.
``(C) Necessary resources and knowledge.--The Under
Secretary shall ensure that employees of the Administration
responsible for monitoring the training program have the
necessary resources and knowledge.''; and
(3) by aligning the remainder of the text of paragraph (1)
(as designated by paragraph (1) of this section) with
paragraphs (2) and (3) (as added by paragraph (2) of this
section).
(b) Enhance Security Measures.--Section 109(a) of the
Aviation and Transportation Security Act (49 U.S.C. 114 note;
115 Stat. 613-614) is amended by adding at the end the
following:
``(9) Require that air carriers provide flight attendants
with a discreet, hands-free, wireless method of communicating
with the pilots.''.
(c) Benefits and Risks of Providing Flight Attendants With
Nonlethal Weapons.--

[[Page S11508]]

(1) Study.--The Under Secretary of Transportation for
Security shall conduct a study to evaluate the benefits and
risks of providing flight attendants with nonlethal weapons
to aide in combating air piracy and criminal violence on
commercial airlines.
(2) Report.--Not later than 6 months after the date of
enactment of this Act, the Under Secretary shall transmit to
Congress a report on the results of the study.

SEC. 1404. COMMERCIAL AIRLINE SECURITY STUDY.

(a) Study.--The Secretary of Transportation shall conduct a
study of the following:
(1) The number of armed Federal law enforcement officers
(other than Federal air marshals), who travel on commercial
airliners annually and the frequency of their travel.
(2) The cost and resources necessary to provide such
officers with supplemental training in aircraft anti-
terrorism training that is comparable to the training that
Federal air marshals are provided.
(3) The cost of establishing a program at a Federal law
enforcement training center for the purpose of providing new
Federal law enforcement recruits with standardized training
comparable to the training that Federal air marshals are
provided.
(4) The feasibility of implementing a certification program
designed for the purpose of ensuring Federal law enforcement
officers have completed the training described in paragraph
(2) and track their travel over a 6-month period.
(5) The feasibility of staggering the flights of such
officers to ensure the maximum amount of flights have a
certified trained Federal officer on board.
(b) Report.--Not later than 6 months after the date of
enactment of this Act, the Secretary shall transmit to
Congress a report on the results of the study. The report may
be submitted in classified and redacted form.

SEC. 1405. AUTHORITY TO ARM FLIGHT DECK CREW WITH LESS-THAN-
LETHAL WEAPONS.

(a) In General.--Section 44903(i) of title 49, United
States Code (as redesignated by section 6 of this Act) is
amended by adding at the end the following:
``(3) Request of air carriers to use less-than-lethal
weapons.--If, after the date of enactment of this paragraph,
the Under Secretary receives a request from an air carrier
for authorization to allow pilots of the air carrier to carry
less-than-lethal weapons, the Under Secretary shall respond
to that request within 90 days.''.
(b) Conforming Amendments.--Such section is further
amended--
(1) in paragraph (1) by striking ``Secretary'' the first
and third places it appears and inserting ``Under
Secretary''; and
(2) in paragraph (2) by striking ``Secretary'' each place
it appears and inserting ``Under Secretary''.

SEC. 1406. TECHNICAL AMENDMENTS.

Section 44903 of title 49, United States Code, is amended--
(1) by redesignating subsection (i) (relating to short-term
assessment and deployment of emerging security technologies
and procedures) as subsection (j);
(2) by redesignating the second subsection (h) (relating to
authority to arm flight deck crew with less-than-lethal
weapons) as subsection (i); and
(3) by redesignating the third subsection (h) (relating to
limitation on liability for acts to thwart criminal violence
for aircraft piracy) as subsection (k).

TITLE XV--TRANSITION

Subtitle A--Reorganization Plan

SEC. 1501. DEFINITIONS.

For purposes of this title:
(1) The term ``agency'' includes any entity, organizational
unit, program, or function.
(2) The term ``transition period'' means the 12-month
period beginning on the effective date of this Act.

SEC. 1502. REORGANIZATION PLAN.

(a) Submission of Plan.--Not later than 60 days after the
date of the enactment of this Act, the President shall
transmit to the appropriate congressional committees a
reorganization plan regarding the following:
(1) The transfer of agencies, personnel, assets, and
obligations to the Department pursuant to this Act.
(2) Any consolidation, reorganization, or streamlining of
agencies transferred to the Department pursuant to this Act.
(b) Plan Elements.--The plan transmitted under subsection
(a) shall contain, consistent with this Act, such elements as
the President deems appropriate, including the following:
(1) Identification of any functions of agencies transferred
to the Department pursuant to this Act that will not be
transferred to the Department under the plan.
(2) Specification of the steps to be taken by the Secretary
to organize the Department, including the delegation or
assignment of functions transferred to the Department among
officers of the Department in order to permit the Department
to carry out the functions transferred under the plan.
(3) Specification of the funds available to each agency
that will be transferred to the Department as a result of
transfers under the plan.
(4) Specification of the proposed allocations within the
Department of unexpended funds transferred in connection with
transfers under the plan.
(5) Specification of any proposed disposition of property,
facilities, contracts, records, and other assets and
obligations of agencies transferred under the plan.
(6) Specification of the proposed allocations within the
Department of the functions of the agencies and subdivisions
that are not related directly to securing the homeland.
(c) Modification of Plan.--The President may, on the basis
of consultations with the appropriate congressional
committees, modify or revise any part of the plan until that
part of the plan becomes effective in accordance with
subsection (d).
(d) Effective Date.--
(1) In general.--The reorganization plan described in this
section, including any modifications or revisions of the plan
under subsection (d), shall become effective for an agency on
the earlier of--
(A) the date specified in the plan (or the plan as modified
pursuant to subsection (d)), except that such date may not be
earlier than 90 days after the date the President has
transmitted the reorganization plan to the appropriate
congressional committees pursuant to subsection (a); or
(B) the end of the transition period.
(2) Statutory construction.--Nothing in this subsection may
be construed to require the transfer of functions, personnel,
records, balances of appropriations, or other assets of an
agency on a single date.
(3) Supersedes existing law.--Paragraph (1) shall apply
notwithstanding section 905(b) of title 5, United States
Code.

SEC. 1503. REVIEW OF CONGRESSIONAL COMMITTEE STRUCTURES.

It is the sense of Congress that each House of Congress
should review its committee structure in light of the
reorganization of responsibilities within the executive
branch by the establishment of the Department.

Subtitle B--Transitional Provisions

SEC. 1511. TRANSITIONAL AUTHORITIES.

(a) Provision of Assistance by Officials.--Until the
transfer of an agency to the Department, any official having
authority over or functions relating to the agency
immediately before the effective date of this Act shall
provide to the Secretary such assistance, including the use
of personnel and assets, as the Secretary may request in
preparing for the transfer and integration of the agency into
the Department.
(b) Services and Personnel.--During the transition period,
upon the request of the Secretary, the head of any executive
agency may, on a reimbursable basis, provide services or
detail personnel to assist with the transition.
(c) Acting Officials.--(1) During the transition period,
pending the advice and consent of the Senate to the
appointment of an officer required by this Act to be
appointed by and with such advice and consent, the President
may designate any officer whose appointment was required to
be made by and with such advice and consent and who was such
an officer immediately before the effective date of this Act
(and who continues in office) or immediately before such
designation, to act in such office until the same is filled
as provided in this Act. While so acting, such officers shall
receive compensation at the higher of--
(A) the rates provided by this Act for the respective
offices in which they act; or
(B) the rates provided for the offices held at the time of
designation.
(2) Nothing in this Act shall be understood to require the
advice and consent of the Senate to the appointment by the
President to a position in the Department of any officer
whose agency is transferred to the Department pursuant to
this Act and whose duties following such transfer are germane
to those performed before such transfer.
(d) Transfer of Personnel, Assets, Obligations, and
Functions.--Upon the transfer of an agency to the
Department--
(1) the personnel, assets, and obligations held by or
available in connection with the agency shall be transferred
to the Secretary for appropriate allocation, subject to the
approval of the Director of the Office of Management and
Budget and in accordance with the provisions of section
1531(a)(2) of title 31, United States Code; and
(2) the Secretary shall have all functions relating to the
agency that any other official could by law exercise in
relation to the agency immediately before such transfer, and
shall have in addition all functions vested in the Secretary
by this Act or other law.
(e) Prohibition on Use of Transportation Trust Funds.--
(1) In general.--Notwithstanding any other provision of
this Act, no funds derived from the Highway Trust Fund,
Airport and Airway Trust Fund, Inland Waterway Trust Fund, or
Harbor Maintenance Trust Fund, may be transferred to, made
available to, or obligated by the Secretary or any other
official in the Department.
(2) Limitation.--This subsection shall not apply to
security-related funds provided to the Federal Aviation
Administration for fiscal years preceding fiscal year 2003
for (A) operations, (B) facilities and equipment, or (C)
research, engineering, and development.

SEC. 1512. SAVINGS PROVISIONS.

(a) Completed Administrative Actions.--(1) Completed
administrative actions of an agency shall not be affected by
the enactment of this Act or the transfer of such agency to
the Department, but shall continue in effect according to
their terms until amended, modified, superseded, terminated,
set aside, or revoked in accordance with law by an officer of
the United States or a court of competent jurisdiction, or by
operation of law.
(2) For purposes of paragraph (1), the term ``completed
administrative action'' includes orders, determinations,
rules, regulations, personnel actions, permits, agreements,
grants, contracts, certificates, licenses, registrations, and
privileges.
(b) Pending Proceedings.--Subject to the authority of the
Secretary under this Act--
(1) pending proceedings in an agency, including notices of
proposed rulemaking, and applications for licenses, permits,
certificates, grants,

[[Page S11509]]

and financial assistance, shall continue notwithstanding the
enactment of this Act or the transfer of the agency to the
Department, unless discontinued or modified under the same
terms and conditions and to the same extent that such
discontinuance could have occurred if such enactment or
transfer had not occurred; and
(2) orders issued in such proceedings, and appeals
therefrom, and payments made pursuant to such orders, shall
issue in the same manner and on the same terms as if this Act
had not been enacted or the agency had not been transferred,
and any such orders shall continue in effect until amended,
modified, superseded, terminated, set aside, or revoked by an
officer of the United States or a court of competent
jurisdiction, or by operation of law.
(c) Pending Civil Actions.--Subject to the authority of the
Secretary under this Act, pending civil actions shall
continue notwithstanding the enactment of this Act or the
transfer of an agency to the Department, and in such civil
actions, proceedings shall be had, appeals taken, and
judgments rendered and enforced in the same manner and with
the same effect as if such enactment or transfer had not
occurred.
(d) References.--References relating to an agency that is
transferred to the Department in statutes, Executive orders,
rules, regulations, directives, or delegations of authority
that precede such transfer or the effective date of this Act
shall be deemed to refer, as appropriate, to the Department,
to its officers, employees, or agents, or to its
corresponding organizational units or functions. Statutory
reporting requirements that applied in relation to such an
agency immediately before the effective date of this Act
shall continue to apply following such transfer if they refer
to the agency by name.
(e) Employment Provisions.--(1) Notwithstanding the
generality of the foregoing (including subsections (a) and
(d)), in and for the Department the Secretary may, in
regulations prescribed jointly with the Director of the
Office of Personnel Management, adopt the rules, procedures,
terms, and conditions, established by statute, rule, or
regulation before the effective date of this Act, relating to
employment in any agency transferred to the Department
pursuant to this Act; and
(2) except as otherwise provided in this Act, or under
authority granted by this Act, the transfer pursuant to this
Act of personnel shall not alter the terms and conditions of
employment, including compensation, of any employee so
transferred.
(f) Statutory Reporting Requirements.--Any statutory
reporting requirement that applied to an agency, transferred
to the Department under this Act, immediately before the
effective date of this Act shall continue to apply following
that transfer if the statutory requirement refers to the
agency by name.

SEC. 1513. TERMINATIONS.

Except as otherwise provided in this Act, whenever all the
functions vested by law in any agency have been transferred
pursuant to this Act, each position and office the incumbent
of which was authorized to receive compensation at the rates
prescribed for an office or position at level II, III, IV, or
V, of the Executive Schedule, shall terminate.

SEC. 1514. NATIONAL IDENTIFICATION SYSTEM NOT AUTHORIZED.

Nothing in this Act shall be construed to authorize the
development of a national identification system or card.

SEC. 1515. CONTINUITY OF INSPECTOR GENERAL OVERSIGHT.

Notwithstanding the transfer of an agency to the Department
pursuant to this Act, the Inspector General that exercised
oversight of such agency prior to such transfer shall
continue to exercise oversight of such agency during the
period of time, if any, between the transfer of such agency
to the Department pursuant to this Act and the appointment of
the Inspector General of the Department of Homeland Security
in accordance with section 103(b).

SEC. 1516. INCIDENTAL TRANSFERS.

The Director of the Office of Management and Budget, in
consultation with the Secretary, is authorized and directed
to make such additional incidental dispositions of personnel,
assets, and liabilities held, used, arising from, available,
or to be made available, in connection with the functions
transferred by this Act, as the Director may determine
necessary to accomplish the purposes of this Act.

SEC. 1517. REFERENCE.

With respect to any function transferred by or under this
Act (including under a reorganization plan that becomes
effective under section 1502) and exercised on or after the
effective date of this Act, reference in any other Federal
law to any department, commission, or agency or any officer
or office the functions of which are so transferred shall be
deemed to refer to the Secretary, other official, or
component of the Department to which such function is so
transferred.

TITLE XVI--CORRECTIONS TO EXISTING LAW RELATING TO AIRLINE
TRANSPORTATION SECURITY

SEC. 1601. RETENTION OF SECURITY SENSITIVE INFORMATION
AUTHORITY AT DEPARTMENT OF TRANSPORTATION.

(a) Section 40119 of title 49, United States Code, is
amended--
(1) in subsection (a)--
(A) by inserting ``and the Administrator of the Federal
Aviation Administration each'' after ``for Security''; and
(B) by striking ``criminal violence and aircraft piracy''
and inserting ``criminal violence, aircraft piracy, and
terrorism and to ensure security''; and
(2) in subsection (b)(1)--
(A) by striking ``, the Under Secretary'' and inserting
``and the establishment of a Department of Homeland Security,
the Secretary of Transportation'';
(B) by striking ``carrying out'' and all that follows
through ``if the Under Secretary'' and inserting ``ensuring
security under this title if the Secretary of
Transportation''; and
(C) in subparagraph (C) by striking ``the safety of
passengers in transportation'' and inserting ``transportation
safety''.
(b) Section 114 of title 49, United States Code, is amended
by adding at the end the following:
``(s) Nondisclosure of Security Activities.--
``(1) In general.--Notwithstanding section 552 of title 5,
the Under Secretary shall prescribe regulations prohibiting
the disclosure of information obtained or developed in
carrying out security under authority of the Aviation and
Transportation Security Act (Public Law 107-71) or under
chapter 449 of this title if the Under Secretary decides that
disclosing the information would--
``(A) be an unwarranted invasion of personal privacy;
``(B) reveal a trade secret or privileged or confidential
commercial or financial information; or
``(C) be detrimental to the security of transportation.
``(2) Availability of information to congress.--Paragraph
(1) does not authorize information to be withheld from a
committee of Congress authorized to have the information.
``(3) Limitation on transferability of duties.--Except as
otherwise provided by law, the Under Secretary may not
transfer a duty or power under this subsection to another
department, agency, or instrumentality of the United
States.''.

SEC. 1602. INCREASE IN CIVIL PENALTIES.

Section 46301(a) of title 49, United States Code, is
amended by adding at the end the following:
``(8) Aviation security violations.--Notwithstanding
paragraphs (1) and (2) of this subsection, the maximum civil
penalty for violating chapter 449 or another requirement
under this title administered by the Under Secretary of
Transportation for Security shall be $10,000; except that the
maximum civil penalty shall be $25,000 in the case of a
person operating an aircraft for the transportation of
passengers or property for compensation (except an individual
serving as an airman).''.

SEC. 1603. ALLOWING UNITED STATES CITIZENS AND UNITED STATES
NATIONALS AS SCREENERS.

Section 44935(e)(2)(A)(ii) of title 49, United States Code,
is amended by striking ``citizen of the United States'' and
inserting ``citizen of the United States or a national of the
United States, as defined in section 1101(a)(22) of the
Immigration and Nationality Act (8 U.S.C. 1101(a)(22))''.

TITLE XVII--CONFORMING AND TECHNICAL AMENDMENTS

SEC. 1701. INSPECTOR GENERAL ACT OF 1978.

Section 11 of the Inspector General Act of 1978 (Public Law
95-452) is amended--
(1) by inserting ``Homeland Security,'' after
``Transportation,'' each place it appears; and
(2) by striking ``; and'' each place it appears in
paragraph (1) and inserting ``;'';

SEC. 1702. EXECUTIVE SCHEDULE.

(a) In General.--Title 5, United States Code, is amended--
(1) in section 5312, by inserting ``Secretary of Homeland
Security.'' as a new item after ``Affairs.'';
(2) in section 5313, by inserting ``Deputy Secretary of
Homeland Security.'' as a new item after ``Affairs.'';
(3) in section 5314, by inserting ``Under Secretaries,
Department of Homeland Security.'', ``Director of the Bureau
of Citizenship and Immigration Services.'' as new items after
``Affairs.'' the third place it appears;
(4) in section 5315, by inserting ``Assistant Secretaries,
Department of Homeland Security.'', ``General Counsel,
Department of Homeland Security.'', ``Officer for Civil
Rights and Civil Liberties, Department of Homeland
Security.'', ``Chief Financial Officer, Department of
Homeland Security.'', ``Chief Information Officer, Department
of Homeland Security.'', and ``Inspector General, Department
of Homeland Security.'' as new items after ``Affairs.'' the
first place it appears; and
(5) in section 5315, by striking ``Commissioner of
Immigration and Naturalization, Department of Justice.''.
(b) Special Effective Date.--Notwithstanding section 4, the
amendment made by subsection (a)(5) shall take effect on the
date on which the transfer of functions specified under
section 441 takes effect.

SEC. 1703. UNITED STATES SECRET SERVICE.

(a) In General.--(1) The United States Code is amended in
section 202 of title 3, and in section 3056 of title 18, by
striking ``of the Treasury'', each place it appears and
inserting ``of Homeland Security''.
(2) Section 208 of title 3, United States Code, is amended
by striking ``of Treasury'' each place it appears and
inserting ``of Homeland Security''.
(b) Effective Date.--The amendments made by this section
shall take effect on the date of transfer of the United
States Secret Service to the Department.

SEC. 1704. COAST GUARD.

(a) Title 14, U.S.C.--Title 14, United States Code, is
amended in sections 1, 3, 53, 95, 145, 516, 666, 669, 673,
673a (as redesignated by subsection (e)(1)), 674, 687, and
688 by striking ``of Transportation'' each place it appears
and inserting ``of Homeland Security''.
(b) Title 10, U.S.C.--(1) Title 10, United States Code, is
amended in sections 101(9), 130b(a), 130b(c)(4), 130c(h)(1),
379, 513(d), 575(b)(2), 580(e)(6), 580a(e), 651(a),
671(c)(2), 708(a), 716(a), 717, 806(d)(2), 815(e), 888,

[[Page S11510]]

946(c)(1), 973(d), 978(d), 983(b)(1), 985(a), 1033(b)(1),
1033(d), 1034, 1037(c), 1044d(f), 1058(c), 1059(a),
1059(k)(1), 1073(a), 1074(c)(1), 1089(g)(2), 1090, 1091(a),
1124, 1143, 1143a(h), 1144, 1145(e), 1148, 1149, 1150(c),
1152(a), 1152(d)(1), 1153, 1175, 1212(a), 1408(h)(2),
1408(h)(8), 1463(a)(2), 1482a(b), 1510, 1552(a)(1), 1565(f),
1588(f)(4), 1589, 2002(a), 2302(1), 2306b(b), 2323(j)(2),
2376(2), 2396(b)(1), 2410a(a), 2572(a), 2575(a), 2578,
2601(b)(4), 2634(e), 2635(a), 2734(g), 2734a, 2775,
2830(b)(2), 2835, 2836, 4745(a), 5013a(a), 7361(b),
10143(b)(2), 10146(a), 10147(a), 10149(b), 10150, 10202(b),
10203(d), 10205(b), 10301(b), 12103(b), 12103(d), 12304,
12311(c), 12522(c), 12527(a)(2), 12731(b), 12731a(e),
16131(a), 16136(a), 16301(g), and 18501 by striking ``of
Transportation'' each place it appears and inserting ``of
Homeland Security''.
(2) Section 801(1) of such title is amended by striking
``the General Counsel of the Department of Transportation''
and inserting ``an official designated to serve as Judge
Advocate General of the Coast Guard by the Secretary of
Homeland Security''.
(3) Section 983(d)(2)(B) of such title is amended by
striking ``Department of Transportation'' and inserting
``Department of Homeland Security''.
(4) Section 2665(b) of such title is amended by striking
``Department of Transportation'' and inserting ``Department
in which the Coast Guard is operating''.
(5) Section 7045 of such title is amended--
(A) in subsections (a)(1) and (b), by striking
``Secretaries of the Army, Air Force, and Transportation''
both places it appears and inserting ``Secretary of the Army,
the Secretary of the Air Force, and the Secretary of Homeland
Security''; and
(B) in subsection (b), by striking ``Department of
Transportation'' and inserting ``Department of Homeland
Security''.
(6) Section 7361(b) of such title is amended in the
subsection heading by striking ``Transportation'' and
inserting ``Homeland Security''.
(7) Section 12522(c) of such title is amended in the
subsection heading by striking ``Transportation'' and
inserting ``Homeland Security''.
(c) Title 37, U.S.C.--Title 37, United States Code, is
amended in sections 101(5), 204(i)(4), 301a(a)(3), 306(d),
307(c), 308(a)(1), 308(d)(2), 308(f), 308b(e), 308c(c),
308d(a), 308e(f), 308g(g), 308h(f), 308i(e), 309(d), 316(d),
323(b), 323(g)(1), 325(i), 402(d), 402a(g)(1), 403(f)(3),
403(l)(1), 403b(i)(5), 406(b)(1), 417(a), 417(b), 418(a),
703, 1001(c), 1006(f), 1007(a), and 1011(d) by striking ``of
Transportation'' each place it appears and inserting ``of
Homeland Security''.
(d) Title 38, U.S.C.--Title 38, United States Code, is
amended in sections 101(25)(d), 1560(a), 3002(5),
3011(a)(1)(A)(ii)(I), 3011(a)(1)(A)(ii)(II),
3011(a)(1)(B)(ii)(III), 3011(a)(1)(C)(iii)(II)(cc),
3012(b)(1)(A)(v), 3012(b)(1)(B)(ii)(V), 3018(b)(3)(B)(iv),
3018A(a)(3), 3018B(a)(1)(C), 3018B(a)(2)(C), 3018C(a)(5),
3020(m), 3035(b)(2), 3035(c), 3035(d), 3035(e), 3680A(g), and
6105(c) by striking ``of Transportation'' each place it
appears and inserting ``of Homeland Security''.
(e) Other Defense-Related Laws.--(1) Section 363 of Public
Law 104-193 (110 Stat. 2247) is amended--
(A) in subsection (a)(1) (10 U.S.C. 113 note), by striking
``of Transportation'' and inserting ``of Homeland Security'';
and
(B) in subsection (b)(1) (10 U.S.C. 704 note), by striking
``of Transportation'' and inserting ``of Homeland Security''.
(2) Section 721(1) of Public Law 104-201 (10 U.S.C. 1073
note) is amended by striking ``of Transportation'' and
inserting ``of Homeland Security''.
(3) Section 4463(a) of Public Law 102-484 (10 U.S.C. 1143a
note) is amended by striking ``after consultation with the
Secretary of Transportation''.
(4) Section 4466(h) of Public Law 102-484 (10 U.S.C. 1143
note) is amended by striking ``of Transportation'' and
inserting ``of Homeland Security''.
(5) Section 542(d) of Public Law 103-337 (10 U.S.C. 1293
note) is amended by striking ``of Transportation'' and
inserting ``of Homeland Security''.
(6) Section 740 of Public Law 106-181 (10 U.S.C. 2576 note)
is amended in subsections (b)(2), (c), and (d)(1) by striking
``of Transportation'' each place it appears and inserting
``of Homeland Security''.
(7) Section 1407(b)(2) of the Defense Dependents' Education
Act of 1978 (20 U.S.C. 926(b)) is amended by striking ``of
Transportation'' both places it appears and inserting ``of
Homeland Security''.
(8) Section 2301(5)(D) of the Elementary and Secondary
Education Act of 1965 (20 U.S.C. 6671(5)(D)) is amended by
striking ``of Transportation'' and inserting ``of Homeland
Security''.
(9) Section 2307(a) of the Elementary and Secondary
Education Act of 1965 (20 U.S.C. 6677(a)) is amended by
striking ``of Transportation'' and inserting ``of Homeland
Security''.
(10) Section 1034(a) of Public Law 105-85 (21 U.S.C.
1505a(a)) is amended by striking ``of Transportation'' and
inserting ``of Homeland Security''.
(11) The Military Selective Service Act is amended--
(A) in section 4(a) (50 U.S.C. App. 454(a)), by striking
``of Transportation'' in the fourth paragraph and inserting
``of Homeland Security'';
(B) in section 4(b) (50 U.S.C. App. 454(b)), by striking
``of Transportation'' both places it appears and inserting
``of Homeland Security'';
(C) in section 6(d)(1) (50 U.S.C. App. 456(d)(1)), by
striking ``of Transportation'' both places it appears and
inserting ``of Homeland Security'';
(D) in section 9(c) (50 U.S.C. App. 459(c)), by striking
``Secretaries of Army, Navy, Air Force, or Transportation''
and inserting ``Secretary of a military department, and the
Secretary of Homeland Security with respect to the Coast
Guard,''; and
(E) in section 15(e) (50 U.S.C. App. 465(e)), by striking
``of Transportation'' both places it appears and inserting
``of Homeland Security''.
(f) Technical Correction.--(1) Title 14, United States
Code, is amended by redesignating section 673 (as added by
section 309 of Public Law 104-324) as section 673a.
(2) The table of sections at the beginning of chapter 17 of
such title is amended by redesignating the item relating to
such section as section 673a.
(g) Effective Date.--The amendments made by this section
(other than subsection (f)) shall take effect on the date of
transfer of the Coast Guard to the Department.

SEC. 1705. STRATEGIC NATIONAL STOCKPILE AND SMALLPOX VACCINE
DEVELOPMENT.

(a) In General.--Section 121 of the Public Health Security
and Bioterrorism Preparedness and Response Act of 2002
(Public Law 107-188; 42 U.S.C. 300hh-12) is amended--
(1) in subsection (a)(1)--
(A) by striking ``Secretary of Health and Human Services''
and inserting ``Secretary of Homeland Security'';
(B) by inserting ``the Secretary of Health and Human
Services and'' between ``in coordination with'' and ``the
Secretary of Veterans Affairs''; and
(C) by inserting ``of Health and Human Services'' after
``as are determined by the Secretary''; and
(2) in subsections (a)(2) and (b), by inserting ``of Health
and Human Services'' after ``Secretary'' each place it
appears.
(b) Effective Date.--The amendments made by this section
shall take effect on the date of transfer of the Strategic
National Stockpile of the Department of Health and Human
Services to the Department.

SEC. 1706. TRANSFER OF CERTAIN SECURITY AND LAW ENFORCEMENT
FUNCTIONS AND AUTHORITIES.

(a) Amendment to Title 40.--Section 581 of title 40, United
States Code, is amended--
(1) by striking subsection (a); and
(2) in subsection (b)--
(A) by inserting ``and'' after the semicolon at the end of
paragraph (1);
(B) by striking ``; and'' at the end of paragraph (2) and
inserting a period; and
(C) by striking paragraph (3).
(b) Law Enforcement Authority.--
(1) In general.--Section 1315 of title 40, United States
Code, is amended to read as follows:

``Sec. 1315. Law enforcement authority of Secretary of
Homeland Security for protection of public property

``(a) In General.--To the extent provided for by transfers
made pursuant to the Homeland Security Act of 2002, the
Secretary of Homeland Security (in this section referred to
as the `Secretary') shall protect the buildings, grounds, and
property that are owned, occupied, or secured by the Federal
Government (including any agency, instrumentality, or wholly
owned or mixed-ownership corporation thereof) and the persons
on the property.
``(b) Officers and Agents.--
``(1) Designation.--The Secretary may designate employees
of the Department of Homeland Security, including employees
transferred to the Department from the Office of the Federal
Protective Service of the General Services Administration
pursuant to the Homeland Security Act of 2002, as officers
and agents for duty in connection with the protection of
property owned or occupied by the Federal Government and
persons on the property, including duty in areas outside the
property to the extent necessary to protect the property and
persons on the property.
``(2) Powers.--While engaged in the performance of official
duties, an officer or agent designated under this subsection
may--
``(A) enforce Federal laws and regulations for the
protection of persons and property;
``(B) carry firearms;
``(C) make arrests without a warrant for any offense
against the United States committed in the presence of the
officer or agent or for any felony cognizable under the laws
of the United States if the officer or agent has reasonable
grounds to believe that the person to be arrested has
committed or is committing a felony;
``(D) serve warrants and subpoenas issued under the
authority of the United States; and
``(E) conduct investigations, on and off the property in
question, of offenses that may have been committed against
property owned or occupied by the Federal Government or
persons on the property.
``(F) carry out such other activities for the promotion of
homeland security as the Secretary may prescribe.
``(c) Regulations.--
``(1) In general.--The Secretary, in consultation with the
Administrator of General Services, may prescribe regulations
necessary for the protection and administration of property
owned or occupied by the Federal Government and persons on
the property. The regulations may include reasonable
penalties, within the limits prescribed in paragraph (2), for
violations of the regulations. The regulations shall be
posted and remain posted in a conspicuous place on the
property.
``(2) Penalties.--A person violating a regulation
prescribed under this subsection shall be fined under title
18, United States Code, imprisoned for not more than 30 days,
or both.
``(d) Details.--
``(1) Requests of agencies.--On the request of the head of
a Federal agency having charge or control of property owned
or occupied by the Federal Government, the Secretary may
detail

[[Page S11511]]

officers and agents designated under this section for the
protection of the property and persons on the property.
``(2) Applicability of regulations.--The Secretary may--
``(A) extend to property referred to in paragraph (1) the
applicability of regulations prescribed under this section
and enforce the regulations as provided in this section; or
``(B) utilize the authority and regulations of the
requesting agency if agreed to in writing by the agencies.
``(3) Facilities and services of other agencies.--When the
Secretary determines it to be economical and in the public
interest, the Secretary may utilize the facilities and
services of Federal, State, and local law enforcement
agencies, with the consent of the agencies.
``(e) Authority Outside Federal Property.--For the
protection of property owned or occupied by the Federal
Government and persons on the property, the Secretary may
enter into agreements with Federal agencies and with State
and local governments to obtain authority for officers and
agents designated under this section to enforce Federal laws
and State and local laws concurrently with other Federal law
enforcement officers and with State and local law enforcement
officers.
``(f) Secretary and Attorney General Approval.--The powers
granted to officers and agents designated under this section
shall be exercised in accordance with guidelines approved by
the Secretary and the Attorney General.
``(g) Limitation on Statutory Construction.--Nothing in
this section shall be construed to--
``(1) preclude or limit the authority of any Federal law
enforcement agency; or
``(2) restrict the authority of the Administrator of
General Services to promulgate regulations affecting property
under the Administrator's custody and control.''.
(2) Delegation of authority.--The Secretary may delegate
authority for the protection of specific buildings to another
Federal agency where, in the Secretary's discretion, the
Secretary determines it necessary for the protection of that
building.
(3) Clerical amendment.--The table of sections at the
beginning of chapter 13 of title 40, United States Code, is
amended by striking the item relating to section 1315 and
inserting the following:

``1315. Law enforcement authority of Secretary of Homeland Security for
protection of public property.''.

SEC. 1707. TRANSPORTATION SECURITY REGULATIONS.

Title 49, United States Code, is amended--
(1) in section 114(l)(2)(B), by inserting ``for a period
not to exceed 90 days'' after ``effective''; and
(2) in section 114(l)(2)(B), by inserting ``ratified or''
after ``unless''.

SEC. 1708. NATIONAL BIO-WEAPONS DEFENSE ANALYSIS CENTER.

There is established in the Department of Defense a
National Bio-Weapons Defense Analysis Center, whose mission
is to develop countermeasures to potential attacks by
terrorists using weapons of mass destruction.

SEC. 1709. COLLABORATION WITH THE SECRETARY OF HOMELAND
SECURITY.

(a) Department of Health and Human Services.--The second
sentence of section 351A(e)(1) of the Public Health Service
Act (42 U.S.C. 262A(e)(1)) is amended by striking
``consultation with'' and inserting ``collaboration with the
Secretary of Homeland Security and''.
(b) Department of Agriculture.--The second sentence of
section 212(e)(1) of the Agricultural Bioterrorism Protection
Act of 2002 (7 U.S.C. 8401) is amended by striking
``consultation with'' and inserting ``collaboration with the
Secretary of Homeland Security and''.

SEC. 1710. RAILROAD SAFETY TO INCLUDE RAILROAD SECURITY.

(a) Investigation and Surveillance Activities.--Section
20105 of title 49, United States Code, is amended--
(1) by striking ``Secretary of Transportation'' in the
first sentence of subsection (a) and inserting ``Secretary
concerned'';
(2) by striking ``Secretary'' each place it appears (except
the first sentence of subsection (a)) and inserting
``Secretary concerned'';
(3) by striking ``Secretary's duties under chapters 203-213
of this title'' in subsection (d) and inserting ``duties
under chapters 203-213 of this title (in the case of the
Secretary of Transportation) and duties under section 114 of
this title (in the case of the Secretary of Homeland
Security)'';
(4) by striking ``chapter.'' in subsection (f) and
inserting ``chapter (in the case of the Secretary of
Transportation) and duties under section 114 of this title
(in the case of the Secretary of Homeland Security).''; and
(5) by adding at the end the following new subsection:
``(g) Definitions.--In this section--
``(1) the term `safety' includes security; and
``(2) the term `Secretary concerned' means--
``(A) the Secretary of Transportation, with respect to
railroad safety matters concerning such Secretary under laws
administered by that Secretary; and
``(B) the Secretary of Homeland Security, with respect to
railroad safety matters concerning such Secretary under laws
administered by that Secretary.''.
(b) Regulations and Orders.--Section 20103(a) of such title
is amended by inserting after ``1970.'' the following: ``When
prescribing a security regulation or issuing a security order
that affects the safety of railroad operations, the Secretary
of Homeland Security shall consult with the Secretary.''.
(c) National Uniformity of Regulation.--Section 20106 of
such title is amended--
(1) by inserting ``and laws, regulations, and orders
related to railroad security'' after ``safety'' in the first
sentence;
(2) by inserting ``or security'' after ``safety'' each
place it appears after the first sentence; and
(3) by striking ``Transportation'' in the second sentence
and inserting ``Transportation (with respect to railroad
safety matters), or the Secretary of Homeland Security (with
respect to railroad security matters),''.

SEC. 1711. HAZMAT SAFETY TO INCLUDE HAZMAT SECURITY.

(a) General Regulatory Authority.--Section 5103 of title
49, United States Code, is amended--
(1) by striking ``transportation'' the first place it
appears in subsection (b)(1) and inserting ``transportation,
including security,'';
(2) by striking ``aspects'' in subsection (b)(1)(B) and
inserting ``aspects, including security,''; and
(3) by adding at the end the following:
``(C) Consultation.--When prescribing a security regulation
or issuing a security order that affects the safety of the
transportation of hazardous material, the Secretary of
Homeland Security shall consult with the Secretary.''.
(b) Preemption.--Section 5125 of that title is amended--
(1) by striking ``chapter or a regulation prescribed under
this chapter'' in subsection (a)(1) and inserting ``chapter,
a regulation prescribed under this chapter, or a hazardous
materials transportation security regulation or directive
issued by the Secretary of Homeland Security'';
(2) by striking ``chapter or a regulation prescribed under
this chapter.'' in subsection (a)(2) and inserting ``chapter,
a regulation prescribed under this chapter, or a hazardous
materials transportation security regulation or directive
issued by the Secretary of Homeland Security.''; and
(3) by striking ``chapter or a regulation prescribed under
this chapter,'' in subsection (b)(1) and inserting ``chapter,
a regulation prescribed under this chapter, or a hazardous
materials transportation security regulation or directive
issued by the Secretary of Homeland Security,''.

SEC. 1712. OFFICE OF SCIENCE AND TECHNOLOGY POLICY.

The National Science and Technology Policy, Organization,
and Priorities Act of 1976 is amended--
(1) in section 204(b)(1) (42 U.S.C. 6613(b)(1)), by
inserting ``homeland security,'' after ``national
security,''; and
(2) in section 208(a)(1) (42 U.S.C. 6617(a)(1)), by
inserting ``the Office of Homeland Security,'' after
``National Security Council,''.

SEC. 1713. NATIONAL OCEANOGRAPHIC PARTNERSHIP PROGRAM.

Section 7902(b) of title 10, United States Code, is amended
by adding at the end the following new paragraphs:
``(13) The Under Secretary for Science and Technology of
the Department of Homeland Security.
``(14) Other Federal officials the Council considers
appropriate.''.

SEC. 1714. CLARIFICATION OF DEFINITION OF MANUFACTURER.

Section 2133(3) of the Public Health Service Act (42 U.S.C.
300aa-33(3)) is amended--
(1) in the first sentence, by striking ``under its label
any vaccine set forth in the Vaccine Injury Table'' and
inserting ``any vaccine set forth in the Vaccine Injury
table, including any component or ingredient of any such
vaccine''; and
(2) in the second sentence, by inserting ``including any
component or ingredient of any such vaccine'' before the
period.

SEC. 1715. CLARIFICATION OF DEFINITION OF VACCINE-RELATED
INJURY OR DEATH.

Section 2133(5) of the Public Health Service Act (42 U.S.C.
300aa-33(5)) is amended by adding at the end the following:
``For purposes of the preceding sentence, an adulterant or
contaminant shall not include any component or ingredient
listed in a vaccine's product license application or product
label.''.

SEC. 1716. CLARIFICATION OF DEFINITION OF VACCINE.

Section 2133 of the Public Health Service Act (42 U.S.C.
300aa-33) is amended by adding at the end the following:
``(7) The term `vaccine' means any preparation or
suspension, including but not limited to a preparation or
suspension containing an attenuated or inactive microorganism
or subunit thereof or toxin, developed or administered to
produce or enhance the body's immune response to a disease or
diseases and includes all components and ingredients listed
in the vaccines's product license application and product
label.''.

SEC. 1717. EFFECTIVE DATE.

The amendments made by sections 1714, 1715, and 1716 shall
apply to all actions or proceedings pending on or after the
date of enactment of this Act, unless a court of competent
jurisdiction has entered judgment (regardless of whether the
time for appeal has expired) in such action or proceeding
disposing of the entire action or proceeding.
Mr. SANTORUM. Mr. President, I move to reconsider the vote.
Mr. HATCH. I move to lay that motion on the table.
The motion to lay on the table was agreed to.

[[Page S11512]]

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