[Congressional Record Volume 164, Number 94 (Thursday, June 7, 2018)]
[Senate]
[Pages S3314-S3319]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
SA 2399. Mr. HELLER (for himself, Mrs. Shaheen, and Mr. Crapo)
submitted an amendment intended to be proposed to amendment SA 2282
submitted by Mr. Inhofe (for himself and Mr. McCain) and intended to be
proposed to the bill H.R. 5515, to authorize appropriations for fiscal
year 2019 for military activities of the Department of Defense, for
military construction, and for defense activities of the Department of
Energy, to prescribe military personnel strengths for such fiscal year,
and for other purposes; which was ordered to lie on the table; as
follows:
At the end of division A, add the following:
TITLE XVIII--MISSING ARMED FORCES PERSONNEL RECORDS
SEC. 1801. SHORT TITLE.
This title may be cited as the ``Bring Our Heroes Home
Act''.
SEC. 1802. FINDINGS, DECLARATIONS, AND PURPOSES.
(a) Findings and Declarations.--Congress finds and declares
the following:
(1) A vast number of records relating to Missing Armed
Forces Personnel have not been identified, located, or
transferred to the National Archives for review and
declassification. Only in the rarest cases is there any
legitimate need for continued protection of records
pertaining to Missing Armed Forces Personnel who have been
missing for decades.
(2) There has been insufficient priority placed on
identifying, locating, transferring, reviewing, or
declassifying records relating to Missing Armed Forces
Personnel.
(3) Mandates for declassification set forth in multiple
Executive orders have been broadly written, loosely
interpreted, and often ignored by Federal Government
officials in possession and control of records related to
Missing Armed Forces Personnel.
(4) No individual or entity has been tasked with oversight
of the identification, collection, review, and
declassification of records related to Missing Armed Forces
Personnel.
(5) The interest, desire, workforce, and funding of Federal
agencies to assemble, review, and declassify records relating
to Missing Armed Forces Personnel have been lacking.
(6) All records of the Federal Government relating to
Missing Armed Forces Personnel should be preserved for
historical and governmental purposes.
(7) All records of the Federal Government relating Missing
Armed Forces Personnel should carry a presumption of
immediate disclosure, and all such records should be
disclosed under this title to enable the fullest possible
accounting for Missing Armed Forces Personnel.
(8) Legislation is necessary to create an enforceable,
independent, and accountable process for the public
disclosure of records relating to Missing Armed Forces
Personnel.
(9) Legislation is necessary because section 552 of title
5, United States Code (commonly known as the Freedom of
Information Act), as implemented by the executive branch of
the Federal Government, has prevented the timely public
disclosure of records relating to Missing Armed Forces
Personnel.
(b) Purposes.--The purposes of this title are--
(1) to provide for the creation of the Missing Armed Forces
Personnel Records Collection at the National Archives; and
(2) to require the expeditious public transmission to the
Archivist and public disclosure of Missing Armed Forces
Personnel records.
SEC. 1803. DEFINITIONS.
In this title:
(1) Archivist.--The term ``Archivist'' means Archivist of
the United States.
(2) Collection.--The term ``Collection'' means the Missing
Armed Forces Personnel Records Collection established under
section 1804(a).
(3) Executive agency.--The term ``Executive agency''--
(A) means an agency, as defined in section 552(f) of title
5, United States Code; and
(B) includes any Executive department, military department,
Government corporation, Government controlled corporation, or
other establishment in the executive branch of the Federal
Government, including the Executive Office of the President,
any branch of the Armed Forces, and any independent
regulatory agency.
(4) Executive branch missing armed forces personnel
record.--The term ``executive branch Missing Armed Forces
Personnel record'' means a Missing Armed Forces Personnel
record of an Executive agency, or information contained in
such a Missing Armed Forces Personnel record obtained or
developed solely within the executive branch of the Federal
Government.
(5) Government office.--The term ``Government office''
means a department or agency within the executive branch of
the
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Federal Government, the Library of Congress, and the National
Archives.
(6) Identification aid.--The term ``identification aid''
means the standard form prepared under section 1805(d)(1)(A).
(7) Missing armed forces personnel.--The term ``Missing
Armed Forces Personnel'' means one or more ``missing
persons'' as defined in section 1513 of title 10, United
States Code.
(8) Missing armed forces personnel record.--The term
``Missing Armed Forces Personnel record'' means a record that
relates, directly or indirectly, to the loss, fate, or status
of Missing Armed Forces Personnel that was created or made
available for use by, obtained by, or otherwise came into the
custody, possession, or control of--
(A) any Government office;
(B) any Presidential library; or
(C) any of the Armed Forces.
(9) National archives.--The term ``National Archives''--
(A) means the National Archives and Records Administration;
and
(B) includes--
(i) any component of the National Archives and Records
Administration; and
(ii) a Presidential archival depository established under
section 2112 of title 44, United States Code.
(10) Official investigation.--The term ``official
investigation'' means a review, briefing, or hearing relating
to Missing Armed Forces Personnel conducted by a Presidential
commission, committee of Congress, or agency, regardless of
whether it is conducted independently, at the request of any
Presidential commission or committee of Congress, or at the
request of any official of the Federal Government.
(11) Originating body.--The term ``originating body'' means
the Government office that created a record or particular
information within a record.
(12) Public interest.--The term ``public interest'' means
the compelling interest in the prompt public disclosure of
Missing Armed Forces Personnel records for historical and
governmental purposes and for the purpose of fully informing
the people of the United States, most importantly families of
Missing Armed Forces Personnel, about the fate of the Missing
Armed Forces Personnel and the process by which the Federal
Government has sought to account for them.
(13) Record.--The term ``record'' includes a book, paper,
map, photograph, sound or video recording, machine readable
material, computerized, digitized, or electronic information,
regardless of the medium on which it is stored, and other
documentary material, regardless of its physical form or
characteristics.
(14) Review board.--The term ``Review Board'' means the
Missing Armed Forces Personnel Records Review Board
established under section 1807.
(15) Third agency.--The term ``third agency'' means a
Government office that originated a Missing Armed Forces
Personnel record that is in the custody, possession, or
control of another Government office whose review and
authorization is required before a record can be designated
for disclosure.
SEC. 1804. MISSING ARMED FORCES PERSONNEL RECORDS COLLECTION
AT THE NATIONAL ARCHIVES.
(a) Establishment of Collection.--Not later than 60 days
after the date of enactment of this Act, the National
Archives shall commence establishment of a collection of
records to be known as the Missing Armed Forces Personnel
Records Collection.
(b) Regulations.--
(1) In general.--Not later than 180 days after the date of
enactment of this Act, the Review Board shall promulgate
rules to establish guidelines and processes for the
maintenance of the Collection.
(2) Requirements.--The rules required to be promulgated
under paragraph (1) shall include guidelines and processes
for--
(A) transmission of records for inclusion in the
Collection;
(B) disclosure of records contained in the Collection;
(C) fees for copying of records contained in the
Collection; and
(D) availability and security of records contained in the
Collection.
SEC. 1805. REVIEW, IDENTIFICATION, TRANSMISSION TO THE
NATIONAL ARCHIVES, AND PUBLIC DISCLOSURE OF
MISSING ARMED FORCES PERSONNEL RECORDS BY
GOVERNMENT OFFICES.
(a) In General.--
(1) Preparation.--As soon as practicable after the date of
enactment of this Act, and sufficiently in advance of the
deadlines established under this title, each Government
office shall--
(A) identify, locate, and organize any Missing Armed Forces
Personnel records in the custody, possession, or control of
the Government office; and
(B) prepare for transmission to the Archivist any Missing
Armed Forces Personnel records that have not previously been
transmitted to the Archivist by the Government office.
(2) Certification.--Each Government office shall submit to
the Archivist, under penalty of perjury, a certification
indicating--
(A) whether the Government office has conducted a thorough
search for all Missing Armed Forces Personnel records in the
custody, possession, or control of the Government office; and
(B) whether any Missing Armed Forces Personnel record has
been withheld by the office, other than in accordance with
this title.
(3) Preservation.--No Missing Armed Forces Personnel record
shall be destroyed, altered, or mutilated in any way.
(4) Effect of previous disclosure.--A Missing Armed Forces
Personnel record made available or disclosed to the public
before the date of enactment of this Act may not be withheld,
redacted, postponed for public disclosure, or reclassified.
(5) Non-federal records.--Except for the exclusion of names
or identities in accordance with section 1806, a Missing
Armed Forces Personnel record created by an individual or
entity that is not part of the Federal Government may not be
withheld, redacted, postponed for public disclosure, or
reclassified.
(6) Withheld records.--For any Missing Armed Forces
Personnel record that is withheld by a Government office from
the Archivist or the Review Board, the head of the Government
office shall submit an unclassified report to the Review
Board and each appropriate committee of the Senate and the
House of Representatives explaining the decision to withhold
the record.
(b) Custody of Missing Armed Forces Personnel Records
Pending Review.--During the period during which a Missing
Armed Forces Personnel record is being reviewed by a
Government office and any review activity by the Review Board
relating to the Missing Armed Forces Personnel record is
pending, the Government office shall retain custody of the
Missing Armed Forces Personnel record for purposes of
preservation, security, and efficiency, unless--
(1) the Review Board requires the physical transfer of the
Missing Armed Forces Personnel record for purposes of
conducting an independent and impartial review; or
(2) transfer is necessary for an administrative hearing or
other Review Board function.
(c) Review.--
(1) In general.--Not later than 180 days after the date of
enactment of this Act, each Government office shall, in
accordance with the rules promulgated under paragraph (2)--
(A) identify, locate, review, and organize each Missing
Armed Forces Personnel record in the custody, possession, or
control of the Government office for transmission to the
Archivist and disclosure to the public or, if needed, review
by the Review Board; and
(B) identify and review for public disclosure each Missing
Armed Services Personnel record previously transferred to the
National Archives that remains classified in whole or in
part.
(2) Requirement.--The Review Board shall promulgate rules
for the disclosure of relevant records by Government offices
under paragraph (1).
(3) Presidential archival depositories.--The Director of
each Presidential archival depository established under
section 2112 of title 44, United States Code, shall--
(A) have as a priority the expedited review for public
disclosure of Missing Armed Forces Personnel records in the
custody, possession, or control of the depository; and
(B) make Missing Armed Forces Personnel records available
to the Review Board as required under this title.
(4) National archives records.--Not later than 60 days
after the date of enactment of this Act, the Archivist
shall--
(A) locate and identify all Missing Armed Forces Personnel
records in the custody, possession, or control of the
National Archives that remain classified, in whole or in
part;
(B) notify a Government office if the Archivist locates and
identifies a record of the Government office under
subparagraph (A); and
(C) make each Missing Armed Forces Personnel record located
and identified under subparagraph (A) available for review by
the originating body.
(d) Identification Aids.--
(1) Preparation.--
(A) In general.--Not later than 45 days after the date of
enactment of this Act, the Archivist, in consultation with
the appropriate Government offices, shall prepare and make
available to all Government offices a standard form for
collecting information relating to each Missing Armed Forces
Personnel record subject to review under this title.
(B) Compatibility.--The Archivist shall prepare and make
available identification aids in a manner that results in a
uniform and compatible system of electronic records for use
by Government offices.
(2) Use.--Upon completion of an identification aid, a
Government office shall--
(A) attach a printed copy to the record to which the
identification aid relates;
(B) transmit to the Review Board a printed copy of the
identification aid; and
(C) attach a printed copy to each Missing Armed Forces
Personnel record described in the identification aid when the
Missing Armed Forces Personnel record is transmitted to the
Archivist.
(3) Records already public.--A Missing Armed Forces
Personnel record that is in the custody, possession, or
control of the National Archives on the date of enactment of
this Act, and that has been publicly available in its
entirety without redaction--
(A) shall be made available in the Collection without any
additional review by the Review Board or another Government
office under this title; and
(B) shall not be required to have an identification aid,
unless required by the Archivist.
(e) Transmission to the National Archives.--Each Government
office shall--
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(1) not later than 180 days after the date of enactment of
this Act, transmit to the Archivist, and make available to
the public, all Missing Armed Forces Personnel records in the
custody, possession or control of the Government office that
may be publicly disclosed under the standards under this
title, including those that are publicly available on the
date of enactment of this Act, without any redaction,
adjustment, or withholding; and
(2) transmit to the Archivist upon approval for
postponement by the Review Board or upon completion of other
action authorized by this title, all Missing Armed Forces
Personnel records the public disclosure of which has been
postponed, in whole or in part, under the standards under
this title, to become part of the protected Collection.
(f) Custody of Postponed Missing Armed Services Personnel
Records.--A Missing Armed Forces Personnel record the public
disclosure of which has been postponed under the standards
under this title shall, pending transmission to the
Archivist, be held for reasons of security and preservation
by the originating body until such time as an information
security program has been established at the National
Archives.
(g) Periodic Review of Postponed Missing Armed Services
Personnel Records.--
(1) In general.--All Missing Armed Forces Personnel
records, or information within a Missing Armed Forces
Personnel record, the public disclosure of which has been
postponed under the standards under this title shall be
reviewed periodically by the originating body and by the
Archivist consistent with the recommendations of the Review
Board under section 1809(c)(3)(B).
(2) Contents.--
(A) In general.--A periodic review of a Missing Armed
Forces Personnel record, or information within a Missing
Armed Forces Personnel record, by the originating body shall
address the public disclosure of the Missing Armed Forces
Personnel record under the standards under this title.
(B) Continued postponement.--If an originating body
conducting a periodic review of a Missing Armed Forces
Personnel record, or information within a Missing Armed
Forces Personnel record, the public disclosure of which has
been postponed under the standards under this title
determines that continued postponement is required, the
originating body shall provide to the Archivist and publish
in the Federal Register an unclassified written description
of the reason for the continued postponement.
(C) Scope.--The periodic review of postponed Missing Armed
Forces Personnel records, or information within a Missing
Armed Forces Personnel record, shall serve the purpose stated
in section 1802(b)(2), to provide expeditious public
disclosure of Missing Armed Forces Personnel records, to the
fullest extent possible, subject only to the grounds for
postponement of disclosure under section 1806.
(D) Disclosure absent certification by president.--Not
later than 5 years after the date of enactment of this Act,
all Missing Armed Forces Personnel records, and information
within a Missing Armed Forces Personnel record, shall be
publicly disclosed in full, and available in the Collection,
unless the President submits to the Archivist a certification
that--
(i) continued postponement is necessary because of an
identifiable harm to the military defense, intelligence
operations, or conduct of foreign relations; and
(ii) the identifiable harm is of such gravity that it
outweighs the public interest in disclosure.
(h) Fees for Copying.--An Executive agency--
(1) shall charge a fee for copying Missing Armed Forces
Personnel records; and
(2) may grant a waiver of such a fee in a manner in
accordance with the standards established by the head of the
Executive agency for purposes of section 552(a)(4) of title
5, United States Code.
SEC. 1806. GROUNDS FOR POSTPONEMENT OF PUBLIC DISCLOSURE OF
RECORDS.
Disclosure to the public of a Missing Armed Forces
Personnel record or particular information in a Missing Armed
Forces Personnel record may be postponed subject to the
limitations under this title if there is clear and convincing
evidence that--
(1) the threat to the military defense, intelligence
operations, or conduct of foreign relations of the United
States posed by the public disclosure of the Missing Armed
Forces Personnel record or information is of such gravity
that it outweighs the public interest, and such public
disclosure would reveal--
(A) an intelligence agent whose identity requires continued
protection;
(B) an intelligence source or method--
(i) which is in use, or reasonably expected to be used, by
the Federal Government;
(ii) which has not been officially disclosed; and
(iii) the disclosure of which would interfere with the
conduct of intelligence activities; or
(C) any other matter relating to the current military
defense, intelligence operations, or conduct of foreign
relations of the United States, the disclosure of which would
demonstrably impair the national security of the United
States;
(2) the public disclosure of the Missing Armed Forces
Personnel record would reveal the name or identity of a
living person who provided confidential information to the
United States and would pose a substantial risk of harm to
that person; or
(3) the public disclosure of the Missing Armed Forces
Personnel record could reasonably be expected to constitute
an unwarranted invasion of personal privacy, and that
invasion of privacy is so substantial that it outweighs the
public interest.
SEC. 1807. ESTABLISHMENT AND POWERS OF THE MISSING ARMED
FORCES PERSONNEL RECORDS REVIEW BOARD.
(a) Establishment.--There is established as an independent
establishment in the executive branch a board to be known as
the Missing Armed Forces Personnel Records Review Board.
(b) Membership.--
(1) Appointments.--The President shall appoint, by and with
the advice and consent of the Senate, 5 individuals to serve
as a member of the Review Board to ensure and facilitate the
review, transmission to the Archivist, and public disclosure
of Missing Armed Forces Personnel records.
(2) Qualifications.--The President shall appoint
individuals to serve as members of the Review Board--
(A) without regard to political affiliation;
(B) who are citizens of the United States of integrity and
impartiality;
(C) who have high national professional reputation in their
fields who are capable of exercising the independent and
objective judgment necessary to the fulfillment of their role
in ensuring and facilitating the identification, location,
review, transmission to the Archivist, and public disclosure
of Missing Armed Forces Personnel records;
(D) who possess an appreciation of the value of Missing
Armed Forces Personnel records to scholars, the Federal
Government, and the public, particularly families of Missing
Armed Forces Personnel;
(E) not less than one professional historian; and
(F) not less than one attorney.
(3) Deadlines.--
(A) In general.--Not later than 30 days after the date of
enactment of this Act, the President shall submit nominations
for all members of the Review Board.
(B) Confirmation rejected.--If the Senate votes not to
confirm a nomination to serve as a member of the Review
Board, not later than 90 days after the date of the vote the
President shall submit the nomination of an additional
individual to serve as a member of the Review Board.
(4) Consultation.--The President shall make nominations to
the Review Board after considering individuals recommended by
the American Historical Association, the Organization of
American Historians, the Society of American Archivists, the
American Bar Association, veterans' organizations, and
organizations representing families of Missing Armed Forces
Personnel.
(c) Security Clearances.--The appropriate departments,
agencies, and elements of the executive branch of the Federal
Government shall cooperate to ensure that an application by
an individual nominated to be a member of the Review Board,
seeking security clearances necessary to carry out the duties
of the Review Board, is expeditiously reviewed and granted or
denied.
(d) Confirmation.--
(1) Hearings.--Not later 30 days on which the Senate is in
session after the date on which not less than 3 individuals
have been nominated to serve as members of the Review Board,
the Committee on Homeland Security and Governmental Affairs
of the Senate shall hold confirmation hearings on the
nominations.
(2) Committee vote.--Not later than 14 days on which the
Senate is in session after the date on which the Committee on
Homeland Security and Governmental Affairs holds a
confirmation hearing on the nomination of an individual to
serve as a member of the Review Board, the committee shall
vote on the nomination and report the results to the full
Senate immediately.
(3) Senate vote.--Not later than 14 days on which the
Senate is in session after the date on which the Committee on
Homeland Security and Governmental Affairs reports the
results of a vote on a nomination of an individual to serve
as a member of the Review Board, the Senate shall vote on the
confirmation of the nominee.
(e) Vacancy.--Not later than 60 days after the date on
which a vacancy on the Review Board occurs, the vacancy shall
be filled in the same manner as specified for original
appointment.
(f) Chairperson.--The members of the Review Board shall
elect a member as Chairperson at the initial meeting of the
Review Board.
(g) Removal of Review Board Member.--
(1) In general.--A member of the Review Board shall not be
removed from office, other than--
(A) by impeachment by Congress; or
(B) by the action of the President for inefficiency,
neglect of duty, malfeasance in office, physical disability,
mental incapacity, or any other condition that substantially
impairs the performance of the member's duties.
(2) Judicial review.--
(A) In general.--A member of the Review Board removed from
office may obtain judicial review of the removal in a civil
action commenced in the United States District Court for the
District of Columbia.
(B) Relief.--The member may be reinstated or granted other
appropriate relief by order of the court.
(h) Compensation of Members.--
(1) Basic pay.--A member of the Review Board shall be
compensated at a rate equal
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to the daily equivalent of the annual rate of basic pay
prescribed for level IV of the Executive Schedule under
section 5315 of title 5, United States Code, for each day
(including travel time) during which the member is engaged in
the performance of the duties of the Review Board.
(2) Travel expenses.--A member of the Review Board shall be
allowed reasonable travel expenses, including per diem in
lieu of subsistence, at rates for employees of agencies under
subchapter I of chapter 57 of title 5, United States Code,
while away from the member's home or regular place of
business in the performance of services for the Review Board.
(i) Duties of the Review Board.--
(1) In general.--The Review Board shall consider and render
a decision on a determination by a Government office to seek
to postpone the disclosure of a Missing Armed Forces
Personnel record, in whole or in part.
(2) Records.--In carrying out paragraph (1), the Review
Board shall consider and render a decision regarding--
(A) whether a record constitutes a Missing Armed Forces
Personnel record; and
(B) whether a Missing Armed Forces Personnel record, or
particular information in a Missing Armed Forces Personnel
record, qualifies for postponement of disclosure under this
title.
(j) Powers.--The Review Board shall have the authority to
act in a manner prescribed under this title, including
authority to--
(1) direct Government offices to create identification aids
and organize Missing Armed Forces Personnel records;
(2) direct Government offices to transmit to the Archivist
Missing Armed Forces Personnel records as required under this
title, including segregable portions of Missing Armed Forces
Personnel records and substitutes and summaries of Missing
Armed Forces Personnel records that can be publicly disclosed
to the fullest extent;
(3) obtain access to Missing Armed Forces Personnel records
that have been identified and organized by a Government
office;
(4) direct a Government office to make available to the
Review Board, and if necessary investigate the facts
surrounding, additional information, records, or testimony
from individuals, which the Review Board has reason to
believe is required to fulfill its functions and
responsibilities under this title;
(5) hold such hearings, sit and act at such times and
places, take such testimony, receive such evidence, and
administer such oaths as the Review Board considers advisable
to carry out its responsibilities under this title;
(6) hold individuals in contempt for failure to comply with
directives and mandates issued by the Review Board under this
title, which shall not include the authority to imprison or
fine any individual;
(7) require any Government office to account in writing for
the destruction of any records relating to the loss, fate, or
status of Missing Armed Forces Personnel; and
(8) receive information from the public regarding the
identification and public disclosure of Missing Armed Forces
Personnel records.
(k) Witness Immunity.--The Review Board shall be considered
to be an agency of the United States for purposes of section
6001 of title 18, United States Code.
(l) Oversight.--
(1) In general.--The Committee on Homeland Security and
Governmental Affairs of the Senate and the Committee on
Oversight and Government Reform of the House of
Representatives shall have--
(A) continuing oversight jurisdiction with respect to the
official conduct of the Review Board and the disposition of
postponed records after termination of the Review Board; and
(B) upon request, access to any records held or created by
the Review Board.
(2) Duty of review board.--The Review Board shall have the
duty to cooperate with the exercise of oversight jurisdiction
under paragraph (1).
(m) Support Services.--The Administrator of the General
Services Administration shall provide administrative services
for the Review Board on a reimbursable basis.
(n) Interpretive Regulations.--The Review Board may issue
interpretive regulations.
(o) Termination and Winding Up.--
(1) In general.--Two years after the date of enactment of
this Act, the Review Board shall, by majority vote, determine
whether all Government offices have complied with the
obligations, mandates, and directives under this title.
(2) Termination date.--The Review Board shall terminate on
the date that is 4 years after the date of enactment of this
Act.
(3) Report.--Before the termination of the Review Board
under paragraph (2), the Review Board shall submit to
Congress reports, including a complete and accurate
accounting of expenditures during its existence, and shall
complete all other reporting requirements under this title.
(4) Records.--Upon termination of the Review Board, the
Review Board shall transfer all records of the Review Board
to the Archivist for inclusion in the Collection, and no
record of the Review Board shall be destroyed.
SEC. 1808. MISSING ARMED FORCES PERSONNEL RECORDS REVIEW
BOARD PERSONNEL.
(a) Executive Director.--
(1) In general.--Not later than 45 days after the initial
meeting of the Review Board, the Review Board shall appoint
an individual to the position of Executive Director.
(2) Qualifications.--The individual appointed as Executive
Director of the Review Board--
(A) shall be a citizen of the United States of integrity
and impartiality;
(B) shall be appointed without regard to political
affiliation; and
(C) shall not have any conflict of interest with the
mission of the Review Board.
(3) Security clearance.--
(A) Limit on appointment.--The Review Board shall not
appoint an individual as Executive Director until after the
date on which the individual qualifies for the necessary
security clearance.
(B) Expedited provision.--The appropriate departments,
agencies, and elements of the executive branch of the Federal
Government shall cooperate to ensure that an application by
an individual nominated to be Executive Director, seeking
security clearances necessary to carry out the duties of the
Executive Director, is expeditiously reviewed and granted or
denied.
(4) Duties.--The Executive Director shall--
(A) serve as principal liaison to Government offices;
(B) be responsible for the administration and coordination
of the review of records by the Review Board;
(C) be responsible for the administration of all official
activities conducted by the Review Board; and
(D) not have the authority to decide or determine whether
any record should be disclosed to the public or postponed for
disclosure.
(5) Removal.--The Executive Director may be removed by a
majority vote of the Review Board.
(b) Staff.--
(1) In general.--The Review Board may, in accordance with
the civil service laws, but without regard to civil service
law and regulation for competitive service as defined in
subchapter 1, chapter 33 of title 5, United States Code,
appoint and terminate additional employees as are necessary
to enable the Review Board and the Executive Director to
perform their duties under this title.
(2) Qualifications.--An individual appointed to a position
as an employee of the Review Board--
(A) shall be a citizen of the United States of integrity
and impartiality; and
(B) shall not have had any previous involvement with any
official investigation or inquiry relating to the loss, fate,
or status of Missing Armed Forces Personnel.
(3) Security clearance.--
(A) Limit on appointment.--The Review Board shall not
appoint an individual as an employee of the Review Board
until after the date on which the individual qualifies for
the necessary security clearance.
(B) Expedited provision.--The appropriate departments,
agencies, and elements of the executive branch of the Federal
Government shall cooperate to ensure that an application by
an individual who is a candidate for a position with the
Review Board, seeking security clearances necessary to carry
out the duties of the position, is expeditiously reviewed and
granted or denied.
(c) Compensation.--The Review Board shall fix the
compensation of the Executive Director and other employees of
the Review Board without regard to chapter 51 and subchapter
III of chapter 53 of title 5, United States Code, relating to
classification of positions and General Schedule pay rates,
except that the rate of pay for the Executive Director and
other employees may not exceed the rate payable for level V
of the Executive Schedule under section 5316 of title 5,
United States Code.
(d) Advisory Committees.--
(1) In general.--The Review Board may create one or more
advisory committees to assist in fulfilling the
responsibilities of the Review Board under this title.
(2) Applicability of faca.--Any advisory committee created
by the Review Board shall be subject to the Federal Advisory
Committee Act (5 U.S.C. App.).
SEC. 1809. REVIEW OF RECORDS BY THE MISSING ARMED FORCES
PERSONNEL RECORDS REVIEW BOARD.
(a) Custody of Records Reviewed by Review Board.--Pending
the outcome of the review activity of the Review Board, a
Government office shall retain a Missing Armed Forces
Personnel record in the custody, possession or control of the
Government office for purposes of preservation, security, and
efficiency, unless--
(1) the Review Board requires the physical transfer of
records for reasons of conducting an independent and
impartial review; or
(2) such transfer is necessary for an administrative
hearing or other official function of the Review Board.
(b) Startup Requirements.--The Review Board shall--
(1) not later than 90 days after the date on which all
members are appointed, publish a schedule for review of all
Missing Armed Forces Personnel records in the Federal
Register; and
(2) not later than 180 days after the date of enactment of
this Act, begin reviewing of Missing Armed Forces Personnel
records under this title.
(c) Determination of the Review Board.--
(1) In general.--The Review Board shall direct that all
records that relate, directly or indirectly, to the loss,
fate, or status of Missing Armed Forces Personnel be
transmitted to the Archivist and disclosed to the
[[Page S3318]]
public in the Collection in the absence of clear and
convincing evidence that--
(A) the record is not a Missing Armed Forces Personnel
record; or
(B) the Missing Armed Forces Personnel record, or
particular information within the Missing Armed Forces
Personnel record, qualifies for postponement of public
disclosure under this title.
(2) Postponement.--In approving postponement of public
disclosure of a Missing Armed Forces Personnel record, or
information within a Missing Armed Forces Personnel record,
the Review Board shall seek to--
(A) provide for the disclosure of segregable parts,
substitutes, or summaries of the Missing Armed Forces
Personnel record; and
(B) determine, in consultation with the originating body
and consistent with the standards for postponement under this
title, which of the following alternative forms of disclosure
shall be made by the originating body:
(i) Any reasonably segregable particular information in a
Missing Armed Forces Personnel record.
(ii) A substitute record for that information which is
postponed.
(iii) A summary of a Missing Armed Forces Personnel record.
(3) Reporting.--With respect to a Missing Armed Forces
Personnel record, or information within a Missing Armed
Forces Personnel record, the public disclosure of which is
postponed under this title, or for which only substitutions
or summaries have been disclosed to the public, the Review
Board shall create and transmit to the Archivist a report
containing--
(A) a description of actions by the Review Board, the
originating body, or any Government office (including a
justification of any such action to postpone disclosure of
any record or part of any record) and of any official
proceedings conducted by the Review Board; and
(B) a statement, based on a review of the proceedings and
in conformity with the decisions reflected therein,
designating a recommended specified time at which, or a
specified occurrence following which, the material may be
appropriately disclosed to the public under this title, which
the Review Board shall disclose to the public with notice
thereof, reasonably calculated to make interested members of
the public aware of the existence of the statement.
(4) Actions after determination.--
(A) In general.--Not later than 14 days after the date of a
determination by the Review Board that a Missing Armed Forces
Personnel record shall be publicly disclosed in the
Collection or postponed for disclosure and held in the
protected Collection, the Review Board shall notify the head
of the originating body of the determination and publish a
copy of the determination in the Federal Register.
(B) Oversight notice.--Simultaneous with notice under
subparagraph (A), the Review Board shall provide notice of a
determination concerning the public disclosure or
postponement of disclosure of a Missing Armed Forces
Personnel record, or information contained within a Missing
Armed Forces Personnel record, which shall include a written
unclassified justification for public disclosure or
postponement of disclosure, including an explanation of the
application of any standards in section 1806 to the
President, to the Committee on Homeland Security and
Governmental Affairs of the Senate, and the Committee on
Oversight and Government Reform of the House of
Representatives
(5) Referral after termination.--A Missing Armed Forces
Personnel record that is identified, located, or otherwise
discovered after the date on which the Review Board
terminates shall be referred to the Committee on Armed
Services of the Senate and the Committee on Armed Services of
the House of Representatives for review, ongoing oversight
and, as warranted, referral for possible enforcement action
relating to a violation of this title.
(d) Notice to Public.--Every 30 days, beginning on the date
that is 60 days after the date on which the Review Board
first approves the postponement of disclosure of a Missing
Armed Forces Personnel record, the Review Board shall publish
in the Federal Register a notice that summarizes the
postponements approved by the Review Board, including a
description of the subject, originating body, length or other
physical description, and each ground for postponement that
is relied upon.
(e) Reports by the Review Board.--
(1) In general.--Not later than 1 year after the date of
enactment of this Act, and every year thereafter until the
Review Board terminates, the Review Board shall submit a
report regarding the activities of the Review Board to--
(A) the Committee on Oversight and Government Reform of the
House of Representatives;
(B) the Committee on Homeland Security and Governmental
Affairs of the Senate;
(C) the President;
(D) the Archivist; and
(E) the head of any Government office the records of which
have been the subject of Review Board activity.
(2) Contents.--Each report under paragraph (1) shall
include the following information:
(A) A financial report of the expenses for all official
activities and requirements of the Review Board and its
employees.
(B) The progress made on review, transmission to the
Archivist, and public disclosure of Missing Armed Forces
Personnel records.
(C) The estimated time and volume of Missing Armed Forces
Personnel records involved in the completion of the duties of
the Review Board under this title.
(D) Any special problems, including requests and the level
of cooperation of Government offices, with regard to the
ability of the Review Board to carry out its duties under
this title.
(E) A record of review activities, including a record of
postponement decisions by the Review Board or other related
actions authorized under this title, and a record of the
volume of records reviewed and postponed.
(F) Suggestions and requests to Congress for additional
legislative authority needs.
(G) An appendix containing copies of reports relating to
postponed records submitted to the Archivist under subsection
(c)(3) since the end of the period covered by the most recent
report under paragraph (1).
(3) Termination notice.--Not later than 90 days before the
Review Board expects to complete the work of the Review Board
under this title, the Review Board shall provide written
notice to Congress of the intent of the Review Board to
terminate operations at a specified date.
SEC. 1810. DISCLOSURE OF OTHER MATERIALS AND ADDITIONAL
STUDY.
(a) Materials Under Seal of Court.--
(1) In general.--The Review Board may request the Attorney
General to petition any court of the United States or of a
foreign country to release any information relevant to the
loss, fate, or status of Missing Armed Forces Personnel that
is held under seal of the court.
(2) Grand jury information.--
(A) In general.--The Review Board may request the Attorney
General to petition any court of the United States to release
any information relevant to loss, fate, or status of Missing
Armed Forces Personnel that is held under the injunction of
secrecy of a grand jury.
(B) Treatment.--A request for disclosure of Missing Armed
Forces Personnel materials under this title shall be deemed
to constitute a showing of particularized need under rule 6
of the Federal Rules of Criminal Procedure.
(b) Sense of Congress.--It is the sense of Congress that--
(1) the Attorney General should assist the Review Board in
good faith to unseal any records that the Review Board
determines to be relevant and held under seal by a court or
under the injunction of secrecy of a grand jury;
(2) the Secretary of State should--
(A) contact the governments of the Russian Federation, the
People's Republic of China, and the Democratic People's
Republic of Korea to seek the disclosure of all records in
their respective custody, possession, or control relevant to
the loss, fate, or status of Missing Armed Forces Personnel;
and
(B) contact any other foreign government that may hold
information relevant to the loss, fate, or status of Missing
Armed Forces Personnel, and seek disclosure of such
information; and
(3) all agencies should cooperate in full with the Review
Board to seek the disclosure of all information relevant to
the loss, fate, or status of Missing Armed Forces Personnel
consistent with the public interest.
SEC. 1811. RULES OF CONSTRUCTION.
(a) Precedence Over Other Law.--When this title requires
transmission of a record to the Archivist or public
disclosure, it shall take precedence over any other law
(except section 6103 of the Internal Revenue Code of 1986),
judicial decision construing such law, or common law doctrine
that would otherwise prohibit such transmission or
disclosure, with the exception of deeds governing access to
or transfer or release of gifts and donations of records to
the United States Government.
(b) Freedom of Information Act.--Nothing in this title
shall be construed to eliminate or limit any right to file
requests with any Executive agency or seek judicial review of
the decisions under section 552 of title 5, United States
Code.
(c) Judicial Review.--Nothing in this title shall be
construed to preclude judicial review under chapter 7 of
title 5, United States Code, of final actions taken or
required to be taken under this title.
(d) Existing Authority.--Nothing in this title revokes or
limits the existing authority of the President, any Executive
agency, the Senate, or the House of Representatives, or any
other entity of the Government to publicly disclose records
in its custody, possession, or control.
(e) Rules of the Senate and House of Representatives.--To
the extent that any provision of this title establishes a
procedure to be followed in the Senate or the House of
Representatives, such provision is adopted--
(1) as an exercise of the rulemaking power of the Senate
and House of Representatives, respectively, and is deemed to
be part of the rules of each House, respectively, but
applicable only with respect to the procedure to be followed
in that House, and it supersedes other rules only to the
extent that it is inconsistent with such rules; and
(2) with full recognition of the constitutional right of
either House to change the rules (so far as they relate to
the procedure of that House) at any time, in the same manner,
and to the same extent as in the case of any other rule of
that House.
[[Page S3319]]
SEC. 1812. TERMINATION OF EFFECT.
(a) Provisions Pertaining to the Review Board.--The
provisions of this title that pertain to the appointment and
operation of the Review Board shall cease to be effective
when the Review Board and the terms of its members have
terminated under section 1807(o).
(b) Other Provisions.--The remaining provisions of this
title shall continue in effect until such time as the
Archivist certifies to the President and Congress that all
Missing Armed Forces Personnel records have been made
available to the public in accordance with this title.
SEC. 1813. AUTHORIZATION OF APPROPRIATIONS.
(a) In General.--There are authorized to be appropriated
such sums as are necessary to carry out this title, to remain
available until expended.
(b) Interim Funding.--Until such time as funds are
appropriated pursuant to subsection (a), the President may
use such sums as are available for discretionary use to carry
out this title.
SEC. 1814. SEVERABILITY.
If any provision of this title, or the application thereof
to any person or circumstance, is held invalid, the remainder
of this title and the application of that provision to other
persons not similarly situated or to other circumstances
shall not be affected by the invalidation.
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